The State v Asi Taba (2010) N3939

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 12 August 2010
• Citation: (2010) N3939
• Docket Number: CR NO 1443 OF 2009
• Court: National Court
• Year: 2010
• Judgement Number: N3939

Full Title: CR NO 1443 OF 2009; The State v Asi Taba (2010) N3939

National Court: Cannings J

Judgment Delivered: 12 August 2010

N3939

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1443 OF 2009

THE STATE

V

ASI TABA

Madang: Cannings J

2010: 27 May, 3, 12 August

SENTENCE

CRIMINAL LAW – sentence – stealing – Criminal Code, Sections 372(1) & 10 – property of a value of K58,399.00 stolen – offender a company employee who joined with other employees in making and implementing a plan to steal company property.

A 34-year-old man was convicted of one count of stealing a container load of tinned fish from his employer, valued at K58,399.00. He joined with other employees in making and implementing the plan to steal the tinned fish and sell it to a third party. This is the judgment on sentence.

Held:

(1) The maximum penalty is seven years imprisonment.

(2) A useful starting point is the middle of the available range: three and a half years imprisonment.

(3) Mitigating factors are: no violence involved; the offender was not the mastermind of the plan and had a relatively small role to play in it; he obtained a relatively small amount of the proceeds of the crime; others involved have not been prosecuted; first-time offender; an element of remorse has been expressed.

(4) The aggravating factors are: he acted with others in an organised crime; the stolen property was of a substantial value.

(5) The appropriate sentence is two and a half years imprisonment. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Alice Kware & Addie Uvi CA 34-35/2006, 23.03.07

Daniel Ronald Walus v The State (2007) SC882

Edmund Gima and Siune Arnold v The State (2003) SC730

Public Prosecutor v Don Hale (1998)

The State v A Juvenile, “KK”, CR 188/2009, 04.03.10

The State v Asi Taba (2010) N4083

The State v Danis Langu Jack, CR 183/2009, 21.12.09

The State v Douglas Boku CR 844/2009, 18.08.09

The State v George Pelly, CR 672/2003, 04.03.10

The State v Martin Kairing Awi, CR 352/2008

The State v Philip Bola Malagau & Michael Bio Tavulo, CR 678/1998, 17.02.09

The State v Tobby Alekun (2004) N2636

SENTENCE

This was a judgment on sentence for stealing.

Counsel

A Kupmain, for the State

D Joseph, for the offender

12 August, 2010

1. CANNINGS J: The offender, Asi Taba, is before the court to be sentenced after being convicted of one count of stealing contrary to Sections 372(1) and (10) of the Criminal Code. The offence was committed in November 2007. He stole 1,000 cartons of tinned fish valued at K58,399.00 from his employer, RD Tuna Canners Ltd of Madang. He and a number of other employees made a plan to steal the fish from the company and share the proceeds. Documents were falsified and this enabled the fish to be packed into a container, which the offender loaded onto a truck and transported to Lae, where the fish was sold to a third party. The offender had knowledge of the plan and took part in its implementation by loading the fish onto the truck, accompanying the fish to Lae and unloading the fish. He received K2,000.00 cash from the proceeds of the sale.

Further details of the circumstances in which the offences were committed are in the judgment on verdict (The State v Asi Taba (2010) N4083).

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I apologise for what I did. I was a casual employee at RD Tuna for eight years and had a good record with the company until this thing happened. My bosses gave me instructions to load the cargo and I just followed their instructions. It was my bosses who diverted the cargo to the unlawful purpose of stealing. What has been done has been done and I am sorry about what happened. I will never do such a thing again. I ask the court to consider that although there were a number of people involved I am the only one in custody. My bosses are not in custody. I have learned what is right and what is wrong. I ask for the court’s mercy. Please do not give me a long sentence. I want to go back to the village, where I am well regarded and I do not get into any trouble. My father is deceased but my mother is alive and I need to look after her.

PERSONAL PARTICULARS

4. Asi Taba is 34 years old. He is married with four children and comes from Bauhbo village in the Transgogol area of Madang Province. He is a member of the Seventh-Day Adventist Church and has a grade 6 education.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mr Joseph urged the court to take into account that the offender played only a small role in the criminal scheme that resulted in the company’s property being stolen and that he is the only member of the group of people involved to be prosecuted. He only received a small amount of money from the proceeds of the theft and has already paid a heavy price for what he did. There was an element of de facto provocation in that the offender had been employed as a casual labourer for eight years and there was evidence at the trial that he was on low wages, which gave rise to a cause for a grievance against the company. A sentence of three years should be imposed and, after deducting the period already spent in custody (one year, five months), as he is a first-time offender, the balance should be suspended and the offender released immediately, he submitted.

SUBMISSIONS BY THE STATE

6. Mr Kupmain agreed that a sentence of three years would be appropriate but disagreed with the proposal to suspend the sentence. It is a crime of dishonesty and the offender’s statements in allocutus show that he is still not prepared to acknowledge his guilt.

DECISION MAKING PROCESS

7. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the head sentence?

· step 5: should the pre-sentence period in custody be deducted?

· step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. The offence of stealing is created by Section 372(1) and the maximum penalty, if there are no circumstances of aggravation, is three years imprisonment. In this case the value of the thing stolen exceeded K1,000.00, which is a circumstance of aggravation under Section 372(10). This circumstance of aggravation has been charged in the indictment and the effect of this is that the maximum penalty is seven years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

9. I will use the middle of the available range: three and a half years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

10. Stealing is an offence that covers a wide array of situations and it is difficult to compare sentences but those that I have dealt with are shown in the following table.

SENTENCES FOR STEALING, SEC 372, CANNINGS J

No Case Details Sentence

1 The State v Tobby Alekun Guilty plea – offence committed in 2 years
(2004) N2636, Wewak Maprik market – offender came from
behind a woman, grabbed and ran off
with her bilum containing K2,900.00

2 Alice Kware & Addie Uvi District Court appeal against sentence – 1 year;
CA 34-35/2006, guilty plea – two poker machine cashiers 1 year
23.03.07, Kimbe stole K2,000.00 from their employer –
original sentence of 2 years, 8 months
quashed

3 The State v Martin Guilty plea – punched and stole from a 3 years
Kairing Awi, CR man in the street (with whom he had a
352/2008, 12.12.08, grievance) mobile phone, camera, cash –
Kimbe total value = K480.00

4 The State v Philip Bola Guilty pleas – stole bilum and K410.00 2 years
Malagau & Michael Bio cash from man on bush track – no
Tavulo, CR 678/1998, weapons used
17.02.09, Kimbe

5 The State v Douglas Boku Guilty plea – stole 27 mobile phones from 3 years
CR 844/2009, 18.08.09, his employer, Digicel (with whom he had
Buka a grievance) – total value = K8,100.00

6 The State v Danis Langu Guilty plea – punched and stole property 3 years
Jack, CR 183/2009, from a man in the street, late at night –
21.12.09, Kimbe total value = K180.00

7 The State v George Pelly, Trial – offender stole a 25 hp outboard 2 years
CR 672/2003, 04.03.10, motor from a dinghy moored at a wharf –
Madang conviction under s 372(1) only –
maximum penalty of 3 years

8 The State v A Juvenile, Guilty plea – juvenile offender – went 18 months
“KK”, CR 188/2009, into unlocked house at night – stole
04.03.10, Madang household property worth K2,106.50

STEP 4: WHAT IS THE HEAD SENTENCE?

11. Mitigating factors are:

· no violence involved;

· the offender was not the...