The State v Romney Naptelai Simonopa (2004) N2551

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 29 April 2004
• Citation: (2004) N2551
• Court: National Court
• Year: 2004
• Judgement Number: N2551

Full Title: The State v Romney Naptelai Simonopa (2004) N2551

National Court: Kandakasi J

Judgment Delivered: 29 April 2004

1 CRIMINAL LAW—Sentence—Stealing with violence within school premises—Prisoner in company of another—Accomplish using a spade to attack the victim but victim not hurt—Stolen property partly damaged and recovered—Possible armed robbery charge reduce to stealing—Guilty plea—First time offender—Pre–sentencing report supportive of non–custodial sentence—Sentence of 3 years suspended on strict terms imposed—Criminal Code s19 and s372(1).

2 The State v Richard Dusal Bix (2003) N2415, The State v Timothy Tio (2002) N2265, The State v Robert Kawin (2001) N2167, Gimble v The State [1988–89] PNGLR 271, Seo Ross v The State (1999) SC605, The State v Michael Kamipe (1996) N1471, Allan Peter Utieng v The State (2000) SCR15 of 2000 (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on 23 November 2000), The State v Lucas Yovura (2003) N2366, The State v Thomas Waim [1995] PNGLR 18, Bokun Umba v The State (1976) SC92, The State v Michael Amuna Koupa [1987] PNGLR 208, The State v Kevin Anis (2003) N2360, The State v Wesley Nobudi (2002) N2510, Joseph Nimagi v The State (2004) SC741, The State v Abel Airi (2000) N2007, The State v Micky John Lausi (2001) N2073, Public Prosecutor v Don Hale (1998) SC564, The State v Jimmy Solomon (2001) N2100, The State v Ngetto Rex Rongo (2000) N2035, The State v Fredinand Naka Penge (2002) N2244, The State v Louise Paraka (2002) N2317 referred to

Decision on Sentence

___________________________

N2551

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 265 of 2004

THE STATE

-V-

ROMNEY NAPTELAI SIMONOPA

POPONDETTA: KANDAKASI, J.

2004: 15th and 29th April

DECISION ON SENTENCE

CRIMINAL LAW - Sentence –Stealing with violence within school premises – Prisoner in company of another – Accomplish using a spade to attack the victim but victim not hurt – Stolen property partly damaged and recovered – Possible armed robbery charge reduce to stealing – Guilty plea – First time offender –Pre-sentencing report supportive of non-custodial sentence – Sentence of 3 years suspended on strict terms imposed – Criminal Code ss. 19 and 372(1).

Cases cited:

The State v Richard Dusal Bix and Siprian Sipi Karo (Unreported judgment delivered on 06/06/03) N2415.

The State v. Timothy Tio (Unreported judgment delivered on 21/05/02) N2265.

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

Gimble v The State [1988 – 89] PNGLR 271.

Seo Ross v. The State (Unreported judgment delivered on 30/04/99) SC605.

The State v. Michael Kamipe (Unreported judgment delivered on 11/9/96) N1471.

Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.

The State v. Lucas Yovura (Unreported judgment delivered 29/04/03) N2366.

The State v. Thomas Waim [1995] PNGLR 18.

Bokum Umba v. The State, SC 92, unreported, 2nd April 1976.

The State v. Michael Amuna Koupa, [1987] PNGLR 208.

The State v. Kevin Anis & Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360.

The State v. Wesley Nobudi & Ors, (Unreported judgment delivered on 19/12/02)N2310.

Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (Unreported judgment delivered on 01/04/04) SC741.

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

The State v. John Micky Lausi (Unreported judgment delivered on 27/03/01) N2073.

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

The State v. Jimmy Solomon (unreported judgment delivered on 20/07/01) N2100.

The State v. Rex Rongo (Unreported judgment delivered on 20/12/00) N 2035.

The State v. Fredinand Naka Penge (Unreported judgment 24/05/02) N2244.

The State v. Louise Paraka (Unreported judgment delivered on 24/01/02) N2317.

Counsel

P. Kaluwin for the State

P. Kumo for the Accused

29th April, 2004.

KANDAKASI, J: On your guilty plea to a charge of stealing, supported by the evidence before the Court, the Court convicted you. The charge was under s. 372(1) of the Criminal Code.

Facts

The facts supporting your charge are simply these. On 1st December 2002, a Peter Ami went to the Resurrection primary school to visit his daughter. On the way, as he was walking toward his daughter’s house, you and your accomplish armed with a spade approached him from behind and grabbed a bag the victim had on him. The victim held firmly onto his bag and you struggled to pull it out of him. Your accomplished tried to hit him with the spade and the victim grabbed hold of the spade whilst continuing to pull onto his bag. However, in the process of pulling the bag, it broke into two parts. The part containing the victim’s valuable items, namely a pair of trousers, a cold shirt, and cash of K600.00 ended up with you. You and your accomplished tried to run away with the victim’s bag. Fortunately, however, people at the school helped the victim who was chasing you. They helped him to catch you whilst your friend appears to have escaped.

Upon catching you, the victim recovered his bag containing his valuables. They then handed you over to the police, who arrested and charged you.

Submissions and Considerations

When the Court asked you to address the Court in relation to your sentences, you said, you would leave that to your lawyer. Your lawyer informed the Court that you are 18 years old. You have not been to school and a villager from Waseta here in the Oro Province. He further informed the Court that you are the first born in a family of three (3) children. Both of your parents are alive with your father being old and blind. Therefore, your mother is the breadwinner of the family and you assist her with that responsibility. You have 1 oil palm block and 50 vanilla plants.

Your lawyer then pointed out that the offence you committed carries a maximum penalty of three (3) years imprisonment. Nevertheless, he urged the Court to note the recovery of all of the stolen properties and so therefore, you did not benefit from the offence. Then he submitted that, when the Court considers a sentence for you the Court should note your guilty plea and that you are a first time offender. He also asked the Court to take into account your personal and family backgrounds as noted above. Then before ending his submissions, your lawyer asked for a pre-sentencing report from the Probation Services.

The Probation Service provided the report requested of it and is before the Court. I express the Court’s sincere appreciation to the Probation Service here for being able to produce it within a very limited time and on short notice. I will take this up further a little later, for now I note that the report recommends a non-custodial sentence. Based on this report, your lawyer submits on your behalf for a non-custodial sentence. The State submits that, it is the less serious offences that lead to offences that are more serious. As such, he submits that your sentence should reflect that. I will now consider the offence you committed and the relevant sentencing tariffs and or practice.

The Offence and Sentencing

The offence of stealing has various categories, depending on the amount of money or the value of property stolen and the surrounding circumstances of the offence. The charge against you is under s. 372 (1) of the Criminal Code. This provision reads:

“372. Stealing.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.”

(Emphasis supplied)

The penalty provision is not final but is subject to the rest of the subsections in section 372. The phrase “Subject to this section” in the penalty provision indicates that. The rest of the subsections in the section then go onto provide for different and or varying penalties depending on the amount, the place and the relationship between the offender and the victim. In your case, the relevant additional subsection is subsection (5) which reads:

“(5) If—

(a) the thing stolen is from the person of another person; or

…

the offender is liable to imprisonment for a term not exceeding seven years.”

What this means, in my view, is that, if there is a case of stealing that does not fall into any of the other subsections than the penalty provision provided for under subsection (1) is applicable. If however, the circumstances in which the offence...