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State v Korineen [1997] PGDC 7; DC16 (12 September 1997)

Unreported District Court Decisions

[1997] PNGDC 24 - STATE V ROBIN KORINEEN

[1997] PNGDC 24

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CR NO 70 OF 1997

THE STATE

V

ROBIN KORINEEN

Waigani

Kidu DCM

9 September 1997

12 September 1997

CRIMINAL LAW - Break, enter and stealing - Property valued at K28,720.20 - Guilty plea - One prior conviction - Circumstances - Case on its own merits.

Cases Cited

Tom Amaiu v State [1979] PNGLR 581

John Aubuku v The State [1987] PNGLR 269

Gimble v The State [1988-89] PNGLR 271

Counsel

Sergeant Pirika for the State

Mr A Casper for the Prisoner

JUDGMENT ON SENTENCE

12 September 1997

KIDU DCM:� On the 12th of September 1997, 1.30pm the prisoner pleaded guilty that on the 29th day of January 1997 at Kunou Street Hohola, NCD did Break and entered a building namely, office of the Environment and Conservation situated at Section 225, Lot 12 & 13 along Kunoi Street Hohola and their stole all assorted office electrical equipment valued at K26,920.29 toea and one Evinrude Outboard Motor valued at K1,800.00. The properties valued at K28.720.29� the property of the said Department of Environment and Conservation.

Contrary to Section 398 (a)(1) of the Criminal Code Act Chapter 262, which carry a penalty of five (5) years imprisonment and not exceeding fourteen (14) years.

The brief facts are that at about 10pm on the 29th day of January, 1997 nine people saw the prisoner at his office, which is next to the Environment and Conservation Office. They asked for the prisoners assistance to get into the Environment and Conservation Office.

The climbed over the fence into the Environment and Conversation Office and broke open the main door into the office and opened the other doors in the office and removed the properties valued at K28,720.29� into the house of a Police informant and removed the properties before the Police arrived, only two monitor screens were recovered.

The prisoner is the only one arrested out of the nine (9) people who committed this offence. The identity of these people are known to the Police, the prisoner got two type writers and gave them to a friend who sold them for K150.00 each and got a total of K300.00. They divided the money equally between them.

CIRCUMSTANCE

The gang members numbering about nine approached the prisoner on four different occasions asking for his assistance to use his office to committed this offence.� The prisoner refused, on this fifth occasion. The nine gangsters entered his office all armed with weapons.

The prisoner in fear of his life and the lives of his wife and children agreeded. The gangsters climbed over the fence back into the prisoner�s office with the stolen properties and left. The prisoner was threaten not to reported the matter to the police. He was given only two type writers.

PRISONER PARTICULARS

The prisoner is 23 years of old. He is married with a child. He did his grade six at Kandi Demonstration school in 1985 and did not go any further. He had few casual jobs. 1995 he was employed by STC AND as a packer. 1996 he joined Guard Dog Security but left due to poor working conditions. He joined NOVA SECOND HAND CLOTH DEALER PTY LTD as a packer until when this offence was committed. His father died during 1985. His mother is alive living at their village at Wewak,� East Sepik Province.

He has three brothers and a sister. He is the second born in the family. He stays with his brother at Hohola since 1996. He goes to A.O.G for church services. He was previous charge for being in possession of drug and he pleaded guilty. He was sentenced to six months imprisonment.� He served three months only and was discharge.

He was employed by NOVA SECOND HAND up to now he was arrested and charge for this offence. He was in custody from the 17th of March 1997 to the 1st of August 1997, when he was granted� Bail with reporting conditions by this Court. He is back to his job with NOVA SECOND HAND.� He earns about K180.00 as salary per fortnight. He has no other criminal records apart for the above. He is a converted Christian.� He comply with his bail conditions up to this day. He is not a member of the gang that threaten him to co-operate by telling the gangsters to use his office to gain entry into the place the offence was actually committed.

MITIGATION

The law is explain as it clearly shows the legislation intentions on the imposition of the section 398(a)(1) stands very obvious in the giver circumstances. This is of cause one of many instances where all the institutions are encouraged to implement or refer certain criminal nature of such situations to the full force of the law as a deterance to gangsters and the community in general including young youths.

The prisoner has pleaded guilty and has cooperated with the police during their investigations, and during the record of interview. By his plea, he has waisted no time of this Court and saved the State from extra expenses by bringing in witnesses to this Court. He is sorry for what he has done. He revealed the identity of the gang members and where they live to the police but the police are yet to arrest them.� He got only two type writers which were sold by his friend. He was with a large group of gangsters and the fear of not co-operating with the gangsters out weight, his protection in the family. His wife and brother did not bailed him out because of fear of the gang members. He had spent almost seven (7) months in custody awaiting this case. He has one prior conviction but it does not relate to this offence. His employer, despite the serious offence have decided to employed him again. He is not a danger to anyone. He has no record of causing violence.

APPROPRIATE PENALTY

The case law on sentencing by various National Court Judges take into considerations significant factors that may warrant or call for lesser penalty or to a larger extent non custodial sentences especially to the prisoners of exceptional standard and the circumstances they are placed in.

In the case of Tom Amaiu v State [1979] PNGLR 576� page 581, Judge Andrew as he then was concerned but added �on sentence a trial judge is entitled to consider surrounding circumstances in dealing upon appropriate punishment�.

The prisoner is or was not a member of the gang. He did not take part in the planning of this offence. The prisoner with a large group in his office that put him in fear. His plea of guilty entitlled him to a reduction in whatever sentence this Court may imposed. His co-operations with police and his plea of guilty to some extend demonstrated how remorseful he is.

In John Aubuku v The State [1987] PNGLR 269� the Supreme Court said, �that a plea of guilty, perhaps make or so� them in other cases, could normally result in some reduction from what would otherwise be the appropriate sentence� and in Gimble v The State [1988-89] PNGLR, 271, at page 27 the Supreme Court made the following remarks:

�...we thing the trial judge is here saying that the appellant is not entitled to any reduction in sentence which would otherwise have been given if he had pleaded guilty.� Nevertheless the fact is that, if and accused houses to plead not guilty, he loses the benefit of the reduction which is normally granted to an accused who pleads guilty.�

His brother and wife and his employer become very upset when they learnt about his arrest. The offence that he has committed is a serious one and very prevalent in our cities and towns. The prisoner is prepared to paid back to value of the two type writers given to him to the Department of Environment and Conservation, Hohola.

The prisoner has one prior convictions which, although is not related to this offence, it shows his manner of behaviour twelve (12) years ago. He is a reform Christian, remorseful. In my opinion this case should be decided on its own merits and the circumstances stated above.

The value of the property stolen is substanted K28,720.29 and only two monitoring screens were recovered. The members of the gang are all still at large, although the police knew their identity and place of residence. By revealing the gangsters, the prisoner has put himself his wife and his brothers in danger.

In my opinion custoded sentence is appropriate in his case.

The prisoner is sentenced to ten (10) months in hard labour at C.I.S, Bomana.� The Court Ordered that the seven (7) months spent in custody be deducted from the ten months imposed and out of the three (3) months remaining. The Court further ordered that one (1) month be deducted for his plea of guilty and the balance of two (2) months be served at C.I.S, Bomana. If the prisoner pays the value of the two type writers that he sold (K300.00 cash) within one (1) month from this 12th September, 1997, He will serve only one (1) month at C.I.S, Bomana.

Lawyer for the State:� Police Prosecutions

Lawyer for the Prisoner:� Public Solicitor