The State v Timothy Tio (2002) N2265

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 21 May 2002
• Citation: (2002) N2265
• Court: National Court
• Year: 2002
• Judgement Number: N2265

Full Title: The State v Timothy Tio (2002) N2265

National Court: Kandakasi J

Judgment Delivered: 21 May 2002

N2265

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1087 of 2000

THE STATE

-V-

TIMOTHY TIO

WEWAK: KANDAKASI, J.

2002: 14th and 21st May

CRIMINAL LAW - Sentence – Stealing by security guard - Item stolen a portable chain saw valued at K8,000 recovered from third party – Third party paid accused K1, 000.00 which was used up by accused - First time offender – Guilty plea and co-operation with authorities from the beginning - Prevalence of offence considered – Sentencing tariffs suggested by counsel not supported by any authority rejected – Past sentences suggesting tariff considered - Past sentences not deterring would be offenders – Sentence of 5 years imposed to reflect need to deter as an important consideration in criminal law sentencing – Criminal Code ss.398(a)(i) and 19

Cases cited:

The State v. Sabrina Yakal [1988-89] PNGLR 129.

The State v. James Gurave Guba (19/12/00) N2020.

The State v. Jack Oroko Tepol (08/10/99) N194.

The State v. Sam Nimino [1977] PNGLR 226.

The State v. Robert Kawin (24/12/01) N2167.

Seo Ross v. The State (30/04/99) SC605.

Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000

Counsel

Mr. M. Ruarri for the State

Mr. D. Kari for the Accused

DECISION ON SENTENCE

21st May, 2002

KANDAKASI J: You pleaded guilty to one charge of stealing a chain saw from Steamships Hardware here in Wewak on 24th April 2000, which conduct is prohibited by section 372 (1) and (10) of the Criminal Code. The evidence against you in the depositions supported your guilty plea. I therefore accepted your guilty plead and convicted you of that offence.

In your allocutus, you said sorry for committing the offence and said you made it easy for the Courts and the police by freely admitting to the commission of the offence. You also said this is the first offence you have committed. In the circumstances, you asked for a good behaviour bond or probation. I then heard submissions from your lawyer and that of the State and reserved a decision to a date before the end of this circuit. Subsequently, it was brought to my attention that you are serving a District Court sentence for break, enter and stealing. That sentence will be up by 18th July 2002.

The Facts

Based on authorities like that of, The State v. Sabrina Yakal [1988-89] PNGLR 129, which I followed in The State v. James Gurave Guba (19/12/00) N2020, and others as well as the judgement of my brother Justice Kirriwom in The State v. Jack Oroko Tepol (08/10/99) N1941 and the decision of the Supreme Court in The State v. Sam Nimino [1977] PNGLR 226, I note there is no dispute in this case in relation to the practice of using the depositions to extract the relevant facts for the purposes of sentencing.

The facts as they appear from the material in the depositions and the facts put to you during your arraignment are these. On the 24th of April 2000, you were placed on duty between the hours of 10:00 a.m. and 4:00 p.m. at the Steamships Hardware in here in Wewak. You were at that time, in the employ of MSS Security Services, which appear to have been contracted by Steamships Hardware to provided security services. Whilst on duty around 10:45 a.m. you found yourself being the only one around so you decided to steal a brand new chain saw. That chain saw was recently brought into the hardware on the order of a customer.

You stole the chain saw by taking it out of the hardware into a PMV bus and you instructed the bus driver to take it to your house at Yawasoro here in Wewak as well. Later on the 1st of May 2000 you sold the chain saw to a Benedict for K3, 000.00. Of that K1, 000.00 was paid up front and the balance was to be paid later. In the meantime, Steamships found out that the chain saw was missing so, it carried out its own investigations and found out that you had stolen it and sold it to Benedict. The chain saw was eventually recovered from Benedict. You were later arrested and charged for the offence. Following your arrest you admitted to stealing the chain saw a position you have maintain all the way you to this Court.

Submissions and Considerations

In your address before sentence, you said sorry for having committed the offence. You also said you made it easy for everybody by admitting to committing the offence. You therefore asked for a good behaviour bond or probation.

Your lawyer asked this Court to note your expression of remorse and your guilty plea and the effect of your guilty plea. As you say, your guilty plea made it easy for everybody. It has saved substantial costs and time it would have taken the State to mount a trial against you. It has also meant that your employer and the victim of your offence and the other witnesses did not have to waist their time and money in coming to give evidence against you.

Your lawyer also submitted that you are 24 years old and have no prior conviction, before the commission of this offence. But after the commission of this offence you have been convicted by the Wewak District Court for break, enter and stealing and you are currently serving your sentence for that. That sentence will end on the 18th of July 2002. He also asked me to note that the chain saw you stole was recovered. Taking these factors into account, your lawyer asked this Court to give you a sentence between 12 and 18 months.

The State on the other hand submitted that you committed the offence in breach of the trust and duty placed on you as a security guard to protect the victim’s property. The value of the item you stole was K8, 000.00. After having stolen the chain saw, you sold it to a Benedict and received K1, 000.00 in part payment, which you used up. Benedict, the third party as therefore, lost his K1, 000.00 but you gained by that amount. He submitted also that the offence of stealing by people like you is prevalent and as such I should give you a sentence between 2 years and 5 years imprisonment.

I take into account all of the submissions by your lawyer and what you said in your own address to the Court in you favour. At the same time, I am required to take into account the State’s submissions as well has the community or country’s call for appropriate punishments to be given to people like you who break the law and commit offences. This proceeds on the basis that, although an offence may be against a particular person, it is collectively against the society because the society does not allow this kind of behaviour. Accordingly, I take into account also the submissions of the State.

The Law

Section 372 (1) and (10) of the Criminal Code create the offence and its penalty. The maximum penalty under these provisions is 7 years subject to s.19 of the Code.

Both counsels were not able to assist me with any case on point, except for my own judgement in The State v. Robert Kawin (24/12/01) N2167. That was a case of stealing brought under subsection 1 instead of subsection 10 of s. 372 for two counts of stealing by forgery in a breach of a trust situation. In sentencing the prisoner on a plea of guilty to a cumulative sentence of 24 months or 2 years, I noted that there were no sentencing guidelines and I tried to formulate one in these terms at pp. 5- 6:

“In line with the accepted principle that, the maximum prescribe sentence in any offence should be reserved for the worse category of the offence under consideration, I am of the view the that the maximum of 3 years should be reserved for the worse category of stealing under s. 372 (1). A worse case of stealing would be one that might have factors like, the total value or the actual amounts of money stolen falls just short of K1, 000.00, thereby escaping an application of the provisions of subsection 10. It would also be a worse case if say an element of a breach of trust whether legal or a defector...