State v Roslyn Paul

• Jurisdiction: Papua New Guinea
• Judge: Polume-Kiele J
• Judgment Date: 30 November 2015
• Citation: (2015) N6132
• Court: National Court
• Year: 2015
• Judgement Number: N6132

Full : CR (FC). No. 52 of 2015; State v Roslyn Paul (2015) N6132

National Court: Polume-Kiele J

Judgment Delivered: 30 November 2015

N6132

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC). NO. 52 OF 2015

STATE

V

ROSLYN PAUL

Accused

Kainantu/Goroka: Polume-Kiele J

2015: 4, 17 & 30 November

CRIMINAL LAW – Guilty Plea –Criminal Code Act - s 372 (1), Stealing- Penalty of which is imprisonment for a term not exceeding three years.

CRIMINAL LAW- Sentence – Early guilty plea – No prior convictions – Criminal Code, s 19 - Suspension of sentence considered.

CRIMINAL LAW – Sentenced to 3 years imprisonment- less period of 28 days held in custody- s 3(2) Criminal Justice (Sentences) Act – 1 year of Head Sentence suspended, Criminal Code, s 19 – To serve balance of term of 1 year 11 months 2 days with Hard Labour at Bundaira.

Facts

The brief facts are that between the 8th of September 2014 and 9th of October 2014, whilst the prisoner was employed as a shop assistant at a beer outlet operated by New Vision Ltd, at Kainantu, in the Eastern Highlands Province, she stole several cartons of beer and other items valued in the sum of K9, 969.70, the property of New Vision Ltd. The prisoner during her interview with the Police in relation to the offence in the Record of Interview admitted to stealing the cartons of beer and other items alleged to have been stolen and thus was consequently charged for the offence of stealing pursuant to s 372 (1) of the Criminal Code.

The prisoner is 28 years old and comes from Raipinka Village, in Kainantu and married with 2 children. The prisoner is educated up to Grade 6 or 8 (this information is unclear) at Raipinka Primary School. Prior to and at the time of the commission of the offence, the offender was living with her family at Kainantu.

Held:

1. The offence of stealing contrary to s 372 (1) of the Criminal Code Act carries a prescribed penalty of imprisonment for a term not exceeding 3 years

2. Taking into account the previous incidents of having stolen items from her employer, there is a real risk of the offender re-offending. In addition the Community is also of the view that a custodial sentence would serve as a deterrent factor.

3. Sentence of 3 years imprisonment imposed less the period of 28 days held in custody. In the exercise of discretion under s 19 of the Criminal Code, 1 year of the head sentence is suspended on terms.

4. The accused is to serve the balance of 1 year 11 months 2 days imprisonment with hard labour at the CIS, Bundaira.

Cases cited

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

State v Asi Taba (2010) N3939 (CR No.1443 of 2009

State v Elizabeth Tek (2008) N3509

State v Solien [2012] N4665

State v James Mariko CR (FC) No. 84 of 2015, N6086

Paulus Pawa v The State [1981] PNGLR. 498

The State v Tom Morris [1981] PNGLR.493

State v Henry Eliakim [2007] N3190

Public Prosecutor -v- Don Hale (1998) SC564

Counsel

Barbara Gore, for the State.

Samuel Ifina, for the prisoner

JUDGMENT ON SENTENCE

30th November, 2015

1. POLUME-KIELE J. The prisoner appeared before me on the 4h of November 2015. She pleaded guilty to one count of stealing contrary to s 372 (1) of the Criminal Code Act (Ch No 262). Subsection (1) states:

“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."

Committal Court Disposition

2. Ms. Gore for the State tendered the Kainantu District Court Deposition into evidence by consent which comprised of the following:

(1) The Record of interview both the original pidgin and English Version dated 21st of October 2014, Case No. 52 of 2014; marked as Exhibit "A" relating to the crime with Roslyn Paul during which the offender admitted to stealing 14 cartons and other items worth about K9, 969.70, the property of New Vision Ltd, between the 8th of September 2014 and 9th October 2014.

(2) The Statements of State witnesses namely Jack Zuang, Manager, New Vision Ltd, Senior Constable Kuky Bareko and Detective Constable Dugu Sigaiya both of Kainantu Police Station; Eas Hosia and Mick Less Babanke respectively who all confirmed the identity of the accused and the manner which led to the charge against the prisoner and her demeanour at the time of the commission of the offence.

3. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the accused’s guilty plea was accepted. The accused was convicted on the charge of stealing under s 372 (1) of the Criminal Code, Ch 262 This offence carries a penalty subject to this section, imprisonment for a term not exceeding 3 years

Antecedent Report

4. The prisoner is 28 years old and married with 2 children. She is from Raipinka Village, Kainantu in the Eastern Highlands Province. She had been employed as a shop assistant at New Vision Ltd. At the time of the commission of the offence, she was working at the liquor retail shop as a cashier. The prisoner has no prior convictions.

Pre-Trial Detention

5. The prisoner was committed to stand trial for the offence on the 26th of January 2015 and had been out on bail. However on the 2nd of November 2015, bail was revoked and the prisoner was remanded. She has been held in custody for a period of 28 days to the date of this ruling on sentence.

Allocutus

6. When administering the allocutus, the prisoner was asked if she had anything to say on penalty to which she responded that she wish to speak on the issue of penalty. The prisoner was then given the opportunity to speak on the issue of penalty. In her statement on penalty, the prisoner said that it was true that she took the items worth about K9, 969.70 from the shop and stated that she was sorry for what she did. The prisoner said sorry to the court, the Company and the court staff for what she had done. In addition, the prisoner asked for leniency and said she has a family of two children (one in grade 2 and one in elementary school). The prisoner asked that she be placed on probation so that she can go home and take care of her children. She asked again for leniency from the court. Due to the request from that the prisoner to be placed on probation, her lawyer, Mr Ifina requested that this Court direct the Community Based Corrections (CBC) Office to prepare and furnish a Pre-Sentence Report and a Means Assessment Report on the suitability of the prisoner as a candidate for probationary orders and also to determine whether she has the means to pay compensation to the Company and generally to assist this Court determine penalty.

7. In order to allow for this process to be complied with, I then directed that the Probations Officer, (Kainantu) prepare the Pre-Sentence Report and Means Assessment Report on the prisoner and have it filed at the Registry prior to the 16th of November 2015.

Pre-Sentence Report

8. These Reports were promptly provided and taken into consideration in the determination of the severity of sentence. Briefly, according to the Pre- Sentence Report, the prisoner lives in the Village, in a bush material house with her family. Her two children (a boy and girl) are aged 9 years and 7 years respectively and they both attend the Salvation Army Elementary School at Kainantu and live with their father. The prisoner has an elder sister who is married and also lives in the Village. The sister is educated up to Grade 9. Both her parents have died. With regard to her capacity to make recompense for the item of goods valued in the sum of K9.969.70 stolen from the Company; the prisoner has indicated that she intends to find new employment and also make gardens for the sustenance of her family’s and that any surplus will be sold and the cash used to repay the amount of K9, 969.70 stolen from the New Vision Trading Ltd, if allowed to by the Court. The prisoner requested that she be given a period of six months to repay the amount of goods and cash valued in the sum of K9.969.70 stolen.

9. On the other hand, the Community when interviewed were of the view that the prisoner does not have the capacity to repay back the money to the Company. Furthermore the Community is also of the view that the prisoner has been given previous chances by the Company to repay back for the items stolen but she continued to steal from the Company. The Community is of further view that the prisoner has not learnt from her previous lessons and that she has an attitude problem and not a good person. Furthermore, the relatives of the prisoner also interviewed have stated that they do not have capacity to assist in repaying the sum of K9, 969.70 stolen and have stated that this Court exercise its discretion to determine penalty. The relatives also acknowledged that the prisoner has been given second chance and was re-employed by the Company but she did not change her behaviour and attitude, she continued to steal from her employer.

10. Overall, the Pre-Sentence Report compiled by the Probation Officer, Mr. Bennet Amuino recommended that the prisoner is a not a suitable candidate to be...