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State v Vaburi [1997] PGDC 8; DC17 (23 September 1997)

Unreported District Court Decisions

[1997] PNGDC 22 - STATE V IAU VABURI

[1997] PNGDC 22

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CIR. 03 OF 1997

THE STATE

V

IAU VABURI

Waigani

Abisai SPM

23 September 1997

CRIMINAL LAW - Sentencing - Breaking, entering and stealing - No priors - Showed remorse.

Cases Cited

Frank Kagai v The State [1987] PNGLR p29.

Kuri Willie v The State [1987] PNGLR 267 AT P269

Wellington Belawa v The State [1988] PNGLR P 496

Counsel

Senior Sergeant Leo Sale for the State

Mr Casper for the Prisoner

JUDGMENT ON SENTENCE

23 September 1997

ABISAI SPM:� On the 22nd day of September 1997 the prisoner pleaded guilty that on the 27th day of January 1997 at Ginigolo Village Kwikila Central Province did break and enter a dwelling house there in stole properties valued at K3,000 belonging to another person namely Mr Kini Lohia.

The State laid an information charging the prisoner for breaking entering a dwelling house and there in stole properties belonging to another person under Section 395(1)(c) of CCA Chapter 262:

N2>(1)����� a person who:

(a)����� ...

(b)����� ...

(c)����� breaks and enters the dwelling house of another and commits a crime in it, is guilty of a crime.

The offence itself is a serious offence because it carries a penalty of not less then five years and not exceeding 14 years.

BRIEF FACTS

That on the 27th day of January 1997 at Ginigolo village between the hours of 11am and 12 noon the prisoner and two of his friends namely Raymond Kila and Erick Sisi did each and severally break into Mr Kini Lohias house by way of removing the louvre blades and gained excess into the house and there in stole the properties valued at K3,000.00. The prisoner and his two other counterparts were taken to Kwikila police Station questioned given their constitutional Rights under S42(2) later charged placed in the cells.

In his allocutus the prisoner said that he is very sorry for what he has done in committing this offence.

The Defence Council Mr Caspar submitted that the Prisoner is:

N2>(1)����� Iau Vabule is 18 years old.

N2>(2)����� Single.

N2>(3)����� Comes from Ginigolo village Kwikila District Central Province.

N2>(4)����� Both parents still alive.

N2>(5)����� Has 3 brothers and 2 sisters.

N2>(6)����� He is the second last born in the family.

N2>(7)����� Iau Vabule was only educated up to grade 6 at Ginigolo Community School, and has not obtained any employment, lives and cultivate the land in the village as a subsistence farmer, surplus brought to the market and sold.

On the day of the alleged incident that is on 27/1/97 between 11 am and 12 noon at Ginigolo village Rigo Distict Central Province,� Iau and two others broke and entered Mr Kini Lohias residence stealing property belonging to Mr Kini Lohia valued at K3,00.00, while Mr Kini Lohia and his family were away in Port Moresby.

On the next day Iau and his two friends travelled to Port Moresby where they then sold a CD cassette player to a lady for K100.00 and also sold to others as well, it was then break and enter reported to the Police they then caught up with the accused and his (2) two friends at June Valley, where they were arrested, Iau together with his two friends.

They were then charged for Breaking and Entering and Stealing pursuance to s.395 (1)(c) of CCA. This offence carries the penalty of imprisonment for a term not less then 5 years and not exceeding 14 years.

MITIGATING

N1>(1)����� The Prisoner pleaded guilty and did not waste Courts time.

N1>(2)����� During the Record of� Interview with the Police he admitted and co-operated with the Police.

N1>(3)����� The Prisoner expresses remorse and sorry for what he had done.

N1>(4)����� He is the first offender he has nor prior conviction against him.

N1>(5)����� No one was hurt during the incident.

N1>(6)����� Stolen goods have been recovered.

N1>(7)����� Has been punctual in attending Court since he was released on O/R Bail.

Although the criminal Code holds long imprisonment term, we submitted to this Court to consider non custodial sentence, taking in account the mitigating factors. We also understand the seriousness of the charge but raised the provision of section 605 CCA:

�When a person is summarily convicted of an indictiable offence the conviction shall be deemed to be a conviction of a simple offence only and not off indictable offence.�

It is our submission although Iau has contravene S395 (1)(c) he is to be tried summarily pursuant to section 420 of CCA that is indictable offences may be dealt summarily, as such we highlight section 605 of CCA to be taken into account when sentencing, as such we submit that this Court impose a non custodial sentence probation on Good Behaviour bond. I further sight the following cases to be taken into account when considering sentence. In the case of Frank Kagai v The State [1987] PNGLR p298.

His Honour Judge Hincliffe held that �suspension of a sentence of an imprisonment is not an exercising leniency but an order made in communities interest, and designed to prevent offending which a person sentence standing alone seldom does; a person so released has an obvious incentive not to offend and should have no mix conception as to what will occur if he does.

In Kuri Willie v That State [1987] PNGLR p291.

We submit to this Court to use its discretion for the sentence that have asked further we ask for courts mercies.

Prosecutor:� Senior Sergeant Leo Sale, We have heard the defence Councils submission on mitigation and 2 cases cited by the council those 2 cases were regularly used and have fair idea on citation.

The defendant is charged under section 395 (1)(c) of CCA chapter 262, the penalty is subject to SS 2 imprisonment not less then 5 years and� not exceeding 14 years. The alleged offence committed at Ginigolo village in Rigo, Kwikila District Central Province in Papua New Guinea.

The house is a house of another person namely Kini Lohia, and probably stole goods worth� K3,00.00� from the same person. I did not want to go on which defence Council have already submitted and I do not dispute over the facts, as we all know breaking and entering stealing is a very serious offence and that is very common in urban centres in Port Moresby and other big centres,� mainly committed by youths of the same age as the offender.

We do appreciate five months which the defendant spent in custody, the defendant also assisted Police very well during their investigation, that includes saving Courts time make easy task for the Court, Prosecution, and Defence. However we have this to submit.

Firstly

We submit that this Court to ask itself what is the motive behind this breaking and entering the motives has been highlighted therefore it is up to the Court to decide for the appropriate punishment to suit the crime itself.

The house in which he himself and other culprits who are still at large broke into a building while the family in Moresby and that offence itself does not commit against Kini Lohia but against the community of Ginigolo village, people of Central Province and the State of Papua New Guinea and the laws of this Land.

It is our submission to this Court that taking someone else property and selling them to others and receiving the money to live on is wrong it is against the Law. This is their whole motive behind this. In the village out there in Rigo area has very god land for subsistence farming and gardening vegetables, of course such gardening farming people sell their produce and get money, however it is not the case, defendant decided to commit crime although he knew that it was wrong to do so.

Secondly

We submit that some goods were not recovered and those goods which were not recovered yet to be returned to the owner, if they are still in custody or possession of the prisoner and his co-partners.� The stereo which was sold and receive the proceeds should� be return all to the owner if� it is still in prisoners custody.

Thirdly

That the defendant has expressed his motives to what he had done, we submit that in courts in Moresby dealing with breaking entering and stealing appear before Courts so often, that since he is sorry and shown remorse and seek Courts mercy in order for him to escape punishment, speaking from the bar table I see same people coming back again after 6 months lapse with the same offence without any changes.

Fourthly

We submit to this Court that the State is calling for custodial sentence, though section 605 of CCA expresses the sentence of summary conviction, we submit that this does not automatically take away courts power under Section 395 (1)(c) and its penalty.

Lastly

Those citations cited by council, merely to give this Court to assist when making its decision and that whether the Court to impose heavier penalty or lesser penalty or non custodial sentence by imposing good behaviour bond with or without surety. However in the light of those citations it assist the Court to consider leniency towards the prisoner when it comes to sentencing. Furthermore the Court has to consider, Kini�s Family loosing their properties, which were still missing, this Court also has a duty to protect the communities interests.

Since the prisoner and his co-partners came from the same community it is the responsibility� of the law enforcing body to make sue that such offences does not occur in the villages, the Court should also take into account the interest of the prisoner to see that the justice is done, we therefore plea to the Count to use its discretion in this mater and impose a reasonable punishment not only to punish the prisoner but to deter any person that may want to commit the same kind of offence in future.

SENTENCE

In considering what is the appropriate punishment to be imposed on the prisoners. I have taken into consideration, the seriousness of the offence prevalence of the offence and determine what the prisoner said in his allocutus, what the lawyer and the prosecutor told the Court plus other factors.

This particular case, the prisoner pleaded guilty, has no prior convictions recorded. His Council has informed this Court that the properties which has been stolen been recovered by the owner. Mr Kila Lohia, although some properties still missing as the prosecutor mention during his submission, prisoner also apologised to this Court and co-operated with the Police shows or demonstrated how remorseful he is. The prisoner is therefore entitle to a reduction on any sentence that the Court might impose upon him.

In John Aubuku -v- The State [1987] PNGLR� 267 AT page 269 the Supreme Court said �that a plea of guilty, perhaps more or so then in other cases, would normally result in some reduction from what would otherwise be the appropriate sentence.

In the past Papua New Guinea does not experience such offences as breaking and entering we all have our own customs and Norms that govern our societies, such crime is very serious offence and the offender subject to laws of that particular ethnic group.

Sometimes the penalty is death if the case warrants to do so, sometimes the offender is regarded as an outcast within his society.� People within the community live harmoniously caring one another�s properties that is why we did not have such offences and behaviour within our communities. However� because of the development our style and standard of living has been changed, we have accepted and adopted different ways and means of living style.

Some have done well while others become the victims of this regime so called western civilization. The question now to be asked is whether people of Ginigolo accepted your behaviour or not it is yet to be answered. What really matters now is to consider whether the victim and his family have suffered seriously because of your behaviour. The loss of properties were the results of your actions with your counter parts.� You have no respect of privacy of individual persons provided under the constitution, you have not only violated the laws of this land but also violated the customary norms and traditions without any respect towards village elders.

By committing a serious offence you have brought shame upon yourself, and your family and village as a whole. As a young and energetic person you should be able to use your time wisely by doing or carrying out some kind of worthwhile project. It is not impossible task for your to farm the land and sell your produce to the market in order to earn decent money to buy things that you longed for, instead of committing crime.

You as a young person should learn from the past experiences by reading newspapers, listening to the radios on the same subject matter. Breaking and entering is a common crime committed not only in Port Moresby but through out Papua New Guinea mainly people of your same age commit this kind of offences. By doing so you have satisfied your ambitious but the question yet remained to be answered whether or not your actions is appreciated by both Kini Lohia�s family and community as a whole.

Although there was nor record of Prior convictions recorded against you, however I do agree with the State that such practice should be ceased. Even though you stole the goods, sold them and used the money to satisfy your desires but that does not give you the right to break into some body�s house to steal and sell the properties in order to support yourself.

This kind of attitude must cease, you should try and live a decent life without interfering or violating other peoples life.

You are very fortunate to plea guilty and save lot of Courts time, money and other factors surrounding your case. This however does not mean that the Court will be lenient an on its sentence towards you, but Court will take into consideration your case on its own merits. You yourself knew that what you intended to do was wrong yet you went ahead and committed the offence.

Breaking, entering and stealing somebody�s property is very prevalent, you have abuse trust placed on you by your community leaders and elders to live peacefully within the community yet you have seen fit to commit such an offence, not only that but you branded yourself as an untrusted person, and community will always look down on you, and your family will suffer humiliations from community because of your behaviour.

In Wellington Bilawa -v- The State [1988] PNGLR� 496 applied as a guideline.

In deciding what is a appropriate sentence in the prisoners case I take count of the matter that are in prisoners favour and against prisoner. Taking into consideration the fact that if the prisoner is given custodial sentence who will then benefit as prosecutor in his submission submitted that some goods or properties were yet to be recovered. The money that had been recovered should be returned or given to Lohia�s family, this will not be possible, if the Court imposes custodial sentence.

The Court also has taken into consideration the fact that this is the first time for� the prisoner to commit such an offence. Although value of property exceed the limitation guide lines set by Wellington Belawa -v- The State case supra. It is not the intention of this count to deny justice to the Public, but who will be the beneficiary if the prisoner is gaoled?

The most and foremost duty of the Court is to assist the offender to try and rehabilitate himself as a first offender it is very risky and dangerous to mix with so called hardened criminals he should be given fair punishment to prove himself to the eyes of the community not to commit such an offence again.

In my view the appropriate sentence should be suspended sentence with conditions.

I therefore sentence the prisoner to 20 months in Hard Labour CIS Bomana. I order that two months be deducted for pleading guilty, 5 months be deducted for being in custody and the balance of 13 months be wholly suspended on prisoner entering into his own recognizance on the following conditions:

N2>(1)����� The prisoner enter into his own recognizance with K200.00 cash surety to pay forthwith.

N2>(2)����� Promise to keep the peace and good behaviour for 12 months commencing today this 23-9-97 to 23-9-98.

N2>(3)����� His to pay Mr Kini Lohia to the sum of K500.00 within 6 months period as of 23-9-97 to 23-4-98.

N2>(4)����� To show receipt to the Clerk of Grade 5 Court at Waigani after payment of Mr Lohia�s money.

N2>(5)����� To attend United Church service at Ginigolo on every Sundays and help out with church activities as from 8 am to 5 pm.

N2>(6)����� To Report to the pastor of United Church on every Sunday from 8am to 5pm.

N2>(7)����� To remain in the village from 6pm to 6 am in the morning.

N2>(8)����� Not to associate himself with criminal elements.

N2>(9)����� If any of the above recognizance are not complied with the prisoner to be brought back to this Court to be dealt with accordingly.

Lawyer for the State: Police Prosecutions

Lawyer for the Prisoner: Public Solicitor