The State v Tobby Alekun (2004) N2636

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 August 2004
• Citation: (2004) N2636
• Court: National Court
• Year: 2004
• Judgement Number: N2636

Full Title: The State v Tobby Alekun (2004) N2636

National Court: Cannings J

Judgment Delivered: 25 August 2004

1 Criminal Law—indictable offence—Criminal Code, Division VI.1—s372(1), stealing—guilty plea—offence occurring in public place—town market—appropriate head sentence—trend towards non–custodial sentencing for non–violent crimes—whether stealing from a person in a market is a non–violent crime—whether appropriate to suspend all or part of sentence—conditions—sentence.

2 Wellington Belawa v The State [1988–89] PNGLR 496, Doreen Liprin v The State (2001) SC673, The State v Micky John Lausi (2001) N2073, The State v Jimmy Solomon (2001) N2100, The State v Dobi Ao (No 2) (2002) N2247 referred to

___________________________

N2636

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 894 0F 2004

THE STATE

V

TOBBY ALEKUN

WEWAK : CANNINGS J

12, 13, 20, 25 AUGUST 2004

Criminal Law – indictable offence – Criminal Code, Division VI.1 – Section 372(1), stealing – guilty plea – offence occurring in public place – town market – appropriate head sentence – trend towards non-custodial sentencing for non-violent crimes – whether stealing from a person in a market is a non-violent crime – whether appropriate to suspend all or part of sentence – conditions – sentence.

Cases cited

Wellington Belawa v The State [1988-89] PNGLR 496

Doreen Liprin v The State (2001) SC673

The State v Micky John Lausi (2001) N2073

The State v Jimmy Solomon (2001) N2100

The State v Dobi Ao (No 2) (2002) N2247

Mr J Wala for the State

Mr L Siminji for the accused

CANNINGS J:

INTRODUCTION

This is a criminal case. The accused, Tobby Alekun, is a young man, aged 24, who lives in Maprik.

The events giving rise to this case happened on 31 October 2003 at Maprik town market in the East Sepik Province. A lady was in the market carrying a bag in which there was an amount of cash, K2,900.00. It is alleged that Tobby Alekun came from behind that lady, grabbed the bag and stole all the cash. The money in that bag belonged to Norm Unabun.

LAW

The accused faced an indictment based on Section 372(1) of the Criminal Code.

Section 372 states:

(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.

(2) If the thing stolen is a testamentary instrument, (whether the testator is living or dead), the offender is liable, subject to Section 19, to imprisonment for life.

(3) If the thing stolen is anything in course of transmission by post, the offender is liable, subject to Section 19 to imprisonment for life.

(4) If the thing stolen is an aircraft, the offender is liable to imprisonment for a term not exceeding 14 years.

(5) If—

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

(b) the thing is stolen in a dwelling-house, and—

(i) its value exceeds K10.00; or

(ii) the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; or

(c) the thing is stolen from a vessel, vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another; or

(d) the thing is stolen from a vessel that is in distress or wrecked or stranded; or

(e) the thing is stolen from a public office in which it is deposited or kept; or

(f) the offender, in order to commit the offence, opens a locked room, box or other receptacle by means of a key or other instrument,

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

(6) If the offender is a person employed in the Public Service, and the thing stolen—

(a) is the property of the State; or

(b) came into the possession of the offender by virtue of his employment,

he is liable to imprisonment for a term not exceeding seven years.

(7) If the offender is a clerk or servant, and the thing stolen—

(a) is the property of his employer; or

(b) came into the possession of the offender on account of his employer,

he is liable to imprisonment for a term not exceeding seven years.

(8) If the offender is a director or officer of a corporation, and the thing stolen is the property of the corporation, he is liable to imprisonment for a term not exceeding seven years.

(9) If the thing stolen is—

(a) property that has been received by the offender with a power of attorney for its disposition; or

(b) money received by the offender with a direction that it should be applied to any purpose or paid to any person specified in the direction; or

(c) the whole or part of the proceeds of a valuable security that was received by the offender with a direction that the proceeds of it should be applied to a purpose or paid to a person specified in the direction; or

(d) the whole or part of the proceeds arising from a disposition of any property that have been received by the offender by virtue of a power of attorney for such disposition, the power of attorney having been received by the offender with a direction that the proceeds be applied to a purpose or paid to a person specified in the direction,

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

(10) If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.

(11) If the thing stolen is a fixture or chattel let to the offender to be used by him with a house or lodging, and its value exceeds K100.00, he is liable to imprisonment for a term not exceeding seven years.

(12) If the offender, before committing the offence—

(a) had been convicted on indictment of an indictable offence against any provision of this Division; or

(b) had been twice previously summarily convicted of an offence against any such provision punishable on summary conviction whether or not each of the convictions was in respect of an offence of the same character,

he is liable to imprisonment for a term not exceeding seven years.

GUILTY PLEA

On 12 August 2004 the indictment was presented and the accused was arraigned. He pleaded guilty. I entered a provisional plea of guilty subject to my reading of the District Court depositions.

I examined the depositions. There was adequate evidence on the face of the file of the commission of the offence. There were no reasonable defences available that had been over-looked. I was satisfied that the accused properly pleaded guilty. I accepted the guilty plea. I entered a guilty verdict and convicted the accused of the offence as charged. He was then referred to as the prisoner.

ANTECEDENTS

I asked for the prisoner’s antecedents. Mr Wala, for the State, notified the Court that the prisoner has no prior criminal record. But there is a similar offence of which he was convicted by the District Court. That happened earlier this year. He is serving a 12-month sentence for that.

There was some discussion between bench and bar as to whether that is properly to be regarded as an antecedent. Both counsel suggested that this conviction should not be regarded as a prior offence. I did not make a ruling on that. I was not given the benefit of any authority on that point. I have not been able to locate any. I have reservations about counsels’ submissions. But ultimately I decided to give the prisoner the benefit of the doubt. I therefore regarded him as a first offender.

ALLOCUTUS

I then administered the allocutus. The prisoner was given the opportunity to say what matters he considered ought to be taken into account when deciding on punishment. He said that this was the first time that he had done such a thing. He was very sorry for what he had done. He has a wife and children to look after. He will find it hard to pay back the money he stole.

SUBMISSIONS ON PENALTY

Mr Siminji, for the prisoner, made detailed submissions on penalty pointing out that the prisoner was married with two children. His youngest child is aged 6 months. He looks after his mother and his sister back in the village. He attends the Assemblies of God Church. He was taken into custody on 9 April this year. He is currently serving a 12-month prison term imposed by the District Court at Maprik for a similar offence.

Mr Siminji asserted that the maximum penalty for this crime is three years. He emphasised that the prisoner pleaded guilty. This saves time and expense. It indicates his genuine remorse. His guilty plea is consistent with prior admissions. He has maintained his regret all along. A suspended sentence would be the appropriate penalty.

It was at that point that Mr Siminji suggested that a pre-sentence report be prepared. The case was adjourned to allow that to happen. That...