The State v Ian Bob Wali (2004) N2580

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 11 June 2004
• Citation: (2004) N2580
• Court: National Court
• Year: 2004
• Judgement Number: N2580

Full Title: The State v Ian Bob Wali (2004) N2580

National Court: Kandakasi J

Judgment Delivered: 11 June 2004

1 CRIMINAL LAW—Sentence—Break, enter and stealing from police station by second in command's son—Serious offence—Two firearms and cash stolen—Offender caught in the act—All items stolen recovered—Prevalence of offence—No pre–sentence report supporting call for non custodial sentence—6 years sentence with option to suspend part or whole of the sentence if a good community based sentence proposal is submitted with one month—Criminal Code s398(a)(i) and s19

2 Public Prosecutor v Don Hale (1998) SC564, The State v Michael Kamban Mani (2002) N2246, Acting Public Prosecutor v Clement Maki and Tom Kasen (1981) SC205, The State v Abel Airi (2000) N2007, The State v Gilbert Peter Diga (2000) N1991, The State v Jerry Mana (2003) N2367, The State v Lucas Yovura (2003) N2366, Peter Naibiri and Kutoi Soti Apia v The State (1978) SC137, Ure Hane v The State [1984] PNGLR 105, Joe Foe Leslie Leslie v The State (1998) SC560, The State v Robert Kawin (2001) N2167 referred to

3 Decision on Sentence

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 445 of 2004

THE STATE

-V-

IAN BOB WALI

WEWAK: KANDAKASI, J.

2004: 9th and 11th June

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Break, enter and stealing from police station by second in command’s son – Serious offence – Two firearms and cash stolen – Offender caught in the act – All items stolen recovered – Prevalence of offence - No pre-sentence report supporting call for non custodial sentence – 6 years sentence with option to suspend part or whole of the sentence if a good community based sentence proposal is submitted with one month – Criminal Code ss.398(a)(i) and 19

Cases cited:

Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC564.

The State v. Michael Kamban Mani (Unreported judgment delivered on 21/05/02) N2246.

Acting Public Prosecutor -v- Clement Makei and Tom Kasen SC205.

The State v. Abel Airi (Unreported judgment delivered on 28/11/00) N2007.

The State v. Gilbert Peter Diga (Unreported judgment delivered on 17/04/00) N1991.

The State v. Jerry Mana (Unreported judgment delivered on 02/05/03) N2367.

The State v. Lucas Yovura (unreported and unnumbered judgment delivered 29/04/03) N2366.

Peter Naibiri and Kutoi Soti Apia v. The State (Unreported judgment delivered on 25/10/78) SC137.

Ure Hane v. The State [1984] PNGLR 105.

Joe Foe Leslie Leslie v. The State (Unreported judgment delivered on 07/08/98) SC560.

The State v. Robert Kawin (Unreported judgment delivered on 24/12/01) N2167.

Counsel

J. Wala for the State

L. Siminji for the Accused

11th June 2004

KANDAKASI, J: You pleaded guilty to one charge of break, enter and stealing from the Maprik Police Station, two firearms and K305.00 cash being the property of the State, on 20th December 2003, contrary to s. 398 (a)(i) of the Criminal Code.

The State admitted into evidence, your District Court Depositions. On reading it, the Court was independently satisfied that, the evidence against you, including your record of interview, supported your guilty plea. I therefore accepted your guilty plea and convicted you on the charge presented against you. I then heard from both yourself and your lawyer on sentence. I also heard from the State on that issue as well and I reserved a decision on sentence to today.

The Relevant Facts

The relevant facts are these. Between 11:00pm and 12:00 midnight, you broke into the Maprik Police Station. You gained entry into the police station by breaking through the wall and thereafter, you proceeded to also break into the CID office. There, you made a mess of the office, opening up all the draws, picking up files, which included court and other papers and throwing them all over the place. You did this in search for valuables and firearms. Your opening a safe and taking out of it a sum of K305.00 and opening and stealing from the exhibits room two firearms confirm this.

You could have easily escaped with them had it not been for a policeman, Paul Lawrence who was alerted by a sound of metal dropping on the concrete floor. He was on his way to the police station to hand over a pump action short gun to the next shift, 12:00 midnight to 8:00am members. This policeman called out as to who it was, corking the gun, as he did and headed to where the noise had come from. At this time, you saw the policeman and called out his name.

The policeman looked around and discovered the break in and he proceeded to question you. In response, you admitted to break and entering the police station and the CID office. Thereafter, you put your hand into your pocket and produced some cash saying, you took it from the CID office and handed the money over to him. As you did that, the policeman called out for one of his colleagues, Don Anikata, a CID member and the two of them counted the money, which added to K305.00. He searched around and found, a coffee scale, a brief case and papers lying outside the building. These items were recovered along with the two firearms. The firearms were recovered from near your father’s house.

Thereafter, the policeman and his colleague went to your father who is the second in command of the Maprik Police, Chief Sergeant, Bob Wali and reported your break, enter and stealing to him. From there, the two of them went and reported the matter to another CID member to proceeded with formal charges. Subsequent to that, you were arrested and placed in the cells.

On 7th January 2004, you swore to an affidavit admitting to committing the offence. In that affidavit, you acknowledged that your father is a respected member of the community and that he is the second in charge of the Maprik Police Station. You claim that, at the time of committing the offence, you were dead drunk and did not know what you were doing. You go on to say that, before the break, entering and stealing from the CID office, you did not know that you also stole some vanilla and a shirt from a woman called Esther Kiano. Further, you say that, if you were sober, you could not have done what you did. You also claim that, when you came to your sense, you surrendered yourself to the police. Furthermore, you claim that, you fully repaired the damage you had done.

Submissions and Considerations

When the Court asked you to address it on your sentence, you effectively, repeated the contents of your affidavit. This includes an emphasis that, you are a first time offender, and that you pleaded guilty to the charge. You also said sorry for what you have done and asked for mercy from the Court.

You further told the Court that, you are married with 2 children, a 1 year old and another 2 and half month old baby. You and your family live with your parents at Maprik. Papindo employs you with its construction business. You go on to say that, if you are sent to prison, you will be a burden to your parents. To avoid that, you ask for a lenient sentence in terms of a good behaviour bond.

Your lawyer then added that, there are 5 children in your family. You are the eldest and the only male child. You attend the AOG church and completed grade 10 High School education. He emphasized that, this was your first ever offence, and that you pleaded guilty and reiterated your call for a lenient sentence.

At the same time however, this submission agrees with suggestions from the Court that your case require examination from a different light considering that this offence was committed against a police station by a policeman’s son. In other words, there is no contest that, this is a serious case of break, entering and stealing because it was an offence against a law enforcement agency. The State joins in that submission by saying, the sentence must reflect that seriousness.

Your lawyer also asks for a non-custodial sentence with the endorsement of the Counsel for the State. However, both Counsels’ submissions ignored what the Supreme Court said in Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on 27/08/98) SC564. There, the Supreme Court said, there can be no suspension of sentence either in part or in whole unless, there is a pre-sentence report supporting it and in cases where the offender is below the age of 19 years. Counsel therefore correctly abandoned that submission, as I have no pre-sentence report before me, supporting a non-custodial sentence.

The Offence and Sentencing...