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Tutmulai v Lalarina [1998] PGDC 17; DC40 (16 October 1998)

Unreported District Court Decisions

[1998] PNGDC 18 - BERNARD TUTMULAI V FRANCIS LALARINA & OTHERS

[1998] PNGDC 18

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO GFC 219-221

BERNARD TUTMULAI (Informant)

v

FRANCIS LALARINA, JOHN BULTUNAKA and VINCENT NUKVUE (Prisoners)

Kokopo

G Manuhu PM

12 June 1998

15 June 1998

16 October 1998

CRIMINAL LAW - break enter and stealing - alternative verdict - stealing simpliciter.

CRIMINAL LAW - sentencing - matters for consideration in sentencing.

Cases referred to:

Tai Kenang v Simon Kasper [1984] PNGLR 102

Representation

Counsel/Representative:

Informant: Sergeant Boas

Prisoners: In person

16 October 1998

G MANUHU PM:

N1>[1]����� The prisoners pleaded guilty to a charge of break, enter and stealing under Section 398(a) of the Criminal Code (Ch262).

N1>[2]����� The police statement of facts show that the prisoners had been drinking at Toma Social Club on the night of 23 February 1998. When the Club closed at 10.00pm they waited at a nearby store and later returned (with two other accomplices) to the Club. The prisoners broke into the premises by breaking down a wall with the aid of an iron bar. The prisoners thereby took for themselves assorted liquor and tradestore goods.

N1>[3]����� Prisoner Lalarina stated in his record of interview that a Towillie had joined them after the Club closed. Towillie then left and when he returned he had with him the stolen items. The prisoner that Towillie admitted to breaking into the Club. The prisoner received 16 bottles of Whiskey from Towillie. Prisoner Bultunaka also stated in his record of interview that he was only given 13 bottles of whiskey by prisoner Lalarina. He did not state in the interview whether or not he participated in the actual break and enter. Likewise, prisoner Nukvue did not get involve in the actual break and enter. He, however, got 12 bottles of whiskey in addition to the 6 bottles of SP beer from prisoner Lalarina.

N1>[4]����� There is sufficient evidence of breaking and entering but there is no direct evidence on the prisoners participation in the actual breaking and entering. The only evidence against the prisoners came from the prisoners' respective records of interview. I remind myself that the law does not allow me to consider evidence by a prisoner against a co-prisoner in a joint hearing. Consequently, evidence by prisoners Bultunaka and Nukvue that Lalarina gave them the stolen items cannot be considered against Lalarina.

N1>[5]����� I must also take into account that there is no evidentiary basis for me to reject Lalarina's evidence that a Towillie was the one who broke and entered the Club. Secondly, there is no evidence that there was a concerted and premeditated plan to break into the Club. Thirdly, there is no evidence that police showed interest in the apprehension Towillie. In the circumstances, all I can do is accept Lalarina's evidence that somebody else broke into the Club. Consequently, I am unable to convict the prisoners on the charge of breakin, enter and stealing.

N1>[6]����� However, I am satisfied that there is enough evidence to support the charge of stealing. The presumption raised by the doctrine of recent possession to support the alternative verdict of stealing in this matter is stronger than convicting the prisoners for break, enter and stealing. The question, therefore, is whether I can return an alternative verdict of stealing simpliciter on a charge of break, enter and stealing. The case of Tai Kenang v Simon Kasper [1984] PNGLR 102, per Bredmeyer J, is directly on the subject. It would suffice to just cite the headnote:

"On a charge of breaking entering and stealing ... an accused may be convicted ... of the lesser alternative charge of stealing simpliciter, because break, enter and stealing is an aggravated form of stealing"

N1>[7]����� I just like to add in passing that Justice Bredmeyer also remarked at page 104 that break, enter and stealing is an aggravated form of stealing in the same way that break, enter and stealing is an aggravated form of break and enter.

N1>[8]����� Accordingly, I find each of the prisoner guilty of stealing simpliciter.

N1>[9]����� In sentencing, I take into account that the prisoners have pleaded and co-operated with police. They are all first offenders. I also note that some of the stolen items have been recovered. This is all that can be said in favour of the prisoners.

N1>[10]��� The offence is quite prevalent in East New Britain as well as the country as a whole. It is often understandable (but not excusable) when people steal food or clothing. The subject matter of stealing in this matter are intoxicating liquor. Surely the prisoners do not need these liquor to survive. Maybe it was motivated by a combination of greed and disrespect, firstly, for other people and, secondly, for the law.

N1>[11]��� The prisoners know that stealing is an offence and that we have a system that a person found guilty for stealing risks going to jail. They are all mature enough.

N1>[12]��� Taking all the above matters into account how do I sentence them. I have gone through the summary of sentences for stealing imposed by the resident Grade 5 magistrate. In one case, a public servant was sentenced to 30 months for stealing more than K4,000.00. In another case, a person who stole cash of K1,850.00 from a store was sentenced to 12 months. In another case, a sentence of 12 months was given for stealing of a chainsaw. All these are custodial sentence. I have no reason to impose any other sentences. I will also impose a custodial sentence but taking into account the prisoners' guilty plea I sentence each of them to 9 months with hard labour.

N1>[13]��� Sentenced accordingly.