The State v Agnes Jimu & Charles Andrew Epei (2019) N8046

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 10 October 2019
• Court: National Court
• Citation: (2019) N8046
• Docket Number: CR (FC) 181 and 182 of 2018
• Year: 2019
• Judgement Number: N8046

Full Title: CR (FC) 181 and 182 of 2018; The State v Agnes Jimu & Charles Andrew Epei (2019) N8046

National Court: Berrigan J

Judgment Delivered: 10 October 2019

N8046

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 181 and 182 of 2018

THE STATE

V

AGNES JIMU & CHARLES ANDREW EPEI

Waigani: Berrigan J

2019: 6 May, 3 June, 17 September and 10 October

CRIMINAL LAW – Practice and procedure – Sentence – S.372(1)(5)(e)(10) of the Criminal Code – Stealing - S. 436(a) of the Criminal Code –Arson.

Cases Cited:

Papua New Guinea Cases

Goli Golu v The State [1979] PNGLR 653

Emil Kongian& 8 Others v The State (2007) SC928

Joe Foe Leslie v The State(1998) SC560

Lawrence Simbe v The State [1994] PNGLR 38

Mase v The State [1991] PNGLR 88

Peter Naibiri and Kutoi Soti Apia v. The State (1978) SC137

Public Prosecutor v Kerua[1985] PNGLR 85

Sanawi v The State (2010) SC1076

SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122

The State v Tardrew [1986] PNGLR 91

The State v Frank Kagai[1987] PNGLR 320.

The State v Ipu Samuel Yomb [1992] PNGLR 261

The State v Ian Bob Wali (2004) N2580

The State v Bart Kiohin Mais (2005) N2811

The State v Ian Sevevepa, CR No. 2007 of 2005, unreported, 10 May 2006

The State v James Wakis (2008) N3426

The State v Roselyn Waiembi (2008)N3708

The State v Towakra (2009) N3845

The State v Priscilla Piru (2010) N4221

The State v Taba (2010) N3939

The State v Mapi Mack (2010) N4100

The State v Samson Leila (2012) N4770

The State v Luap Suimeleng & 2 Ors (No 2) (2015) N6055

The State v Kikimbe (2016) N6180

The State v Vagi (2017) N6994

The State v Yakop Ambasi (2018) N7597

The State v Solomon Junt Warur (2018) N7545

The State v Charles Andrew Epei (2019) N7845

Ure Hane v. The State [1984] PNGLR 105

Wellington Belawa v The State [1988-1989] PNGLR 496

Overseas case cited:

Postiglione v. The Queen [1997] 189, CLR 295.

Lowe v. The Queen [1984] HCA 46, (1984)154 CLR at 606

References cited

Sections7(1)(c), 19, 372(1)(5)(e)(10) and 436(a) of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms. T. Aihi, for the State

Mr. E. Sasingian, for the Offenders

DECISION ON SENTENCE

10th October, 2019

1. BERRIGAN J: The offenders, Agnes Jimu and Charles Andrew Epei, were jointly charged with one count of stealing K47,700 from the safe in the Office of the Assistant Commissioner of Police, Royal Papua New Guinea Constabulary (RPNGC), at Boroko Police Station, National Capital District, and one count of wilfully and unlawfully setting fire to the building housing the Office, contrary to ss. 372(1)(5)(e)(10) and 436(a) of the Criminal Code, respectively.

2. Agnes Jimu pleaded guilty to the charges. Her plea was accepted on a provisional basis subject to reading the depositions, which was deferred pending the trial of her co-accused, for whom she gave evidence.

3. Charles Epei was found guilty of aiding Agnes to commit both offences, pursuant to s. 7(1)(c) of the Criminal Code, following the trial. In particular I found that his presence at the scene of the crimes that evening was deliberate and made in full knowledge of the crimes she intended to commit, and with the intention to encourage her in the commission of the offences by providing moral support and a readiness to assist, which presence did so encourage her: see The State v Charles Andrew Epei (2019) N7845.

4. Agnes Jimu’s guilty plea was subsequently confirmed upon reading the depositions in her case.

Facts

5. The offender, Agnes Jimu, was employed by the RPNGC as the Divisional Administrative Officer attached to Central Command at the Boroko Police Station, reporting to the Divisional Commander for the National Capital District (NCD), Central Province, who at the material time was Assistant Commissioner of Police (ACP), Sylvester Kalaut. The offender, Charles Epei, her husband, was an IT officer with Pacific Post.

6. On Thursday, 5 October 2017, between 6 and 7 pm Agnes Jimu in the company of Charles Epei went to the Boroko Police Station. Once there, Agnes Jimu went to the Divisional Commander’s Office where K184,000 seized as an exhibit in a separate matter under investigation was stored in the safe. She opened the safe and stole K47,700 from within. At the time she was the only person with the key to the safe. Agnes then set fire to the safe and its contents, which were burnt. She also set fire to other parts of the building.

7. Both offenders were found at the scene that night. Agnes was suffering burns from the fire and went with Charles to the hospital. Both were apprehended later the same evening. At the time Charles was in possession of K1200 stolen cash. A further K46,500 stolen from the safe was recovered from the offenders’ home later that night.

8. It now remains to sentence each of them.

Submissions

9. In submission defence counsel acknowledged the serious nature of both offences, and that they involved a pre-meditated and malicious scheme, against the RPNGC, which resulted in substantial damage. In the case of Agnes, he also acknowledged that the offences involved a breach of trust. He noted that whilst very serious, the benefits were short lived given the apprehension of both offenders the same evening, and the recovery of the monies taken from the safe.

10. Counsel conceded that a custodial term was warranted in each case and submitted that a sentence in the range of five (5) to seven (7) years’ would be appropriate with respect to each of the stealing and arson charges.

11. The State submitted that having regard to the serious nature of the offences a sentence in the range of three (3) to six (6) years of imprisonment would be appropriate for the stealing charge, whilst an appropriate starting point for the arson offence would be 10 years of imprisonment, which the Court may wish to impose concurrently with that for stealing.

Considerations and Comparative Cases – Stealing

12. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:

(a) the amount taken;

(b) the quality and degree of trust reposed in the offender;

(c) the period over which the offence was perpetrated;

(d) the impact of the offence on the public and public confidence;

(e) the use to which the money was put;

(f) the effect upon the victim;

(g) whether any restitution has been made;

(h) remorse;

(i) the nature of the plea;

(j) any prior record;

(k) the effect on the offender; and

(l) any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.

13. In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:

(a) K1 and K1000, a gaol term should rarely be imposed;

(b) K1000 and K10,000 a gaol term of up to two years is appropriate;

(c) K10,000 and K40,000, two to three years’ imprisonment is appropriate; and

(d) K40,000 and K150,000, three to five years’ imprisonment is appropriate.

14. The State referred to The State v Ian Bob Wali (2004) N2580, Kandakasi J (as he then was), in which the offender pleaded guilty to break, enter and stealing two firearms and cash in the sum of K305, the property of the State from the Maprik Police Station, contrary to s. 398(a)(i) of the Criminal Code for which the maximum was 14 years’ imprisonment. Between 11 pm and 12 am the offender broke through the wall of the station, and then proceeded to break into the CID office, where he made a mess of the office, opening all the files, which included court and other papers and threw them all over the place. This he did in search of valuables and firearms. He opened a safe and stole K305, and opened and stole two firearms from the exhibits room. He was caught in the act and all items stolen were recovered. He was sentenced to 6 years of imprisonment, subject to consideration of suspension pending the completion of a pre-sentence report.

15. I have also had regard to the following cases in which sentences were imposed for stealing:

(a) The State v Ian Sevevepa, CR No.2007 of 2005, unreported, 10 May 2006, Lenalia J, in which the offender pleaded guilty to stealing the sum of K17,000.00 belonging to a service station proprietor. The money which was contained in a bag was placed on a table in the office by a female employee. While the female employee was sweeping the office, the prisoner walked into the office, pushed the female employee away, took the bag of money and ran away with it. Taking into account the prisoner's guilty plea, that he was a first time offender, the crime occurred in broad daylight; and part of the amount stolen was given to another person, the Court imposed a sentence of 3 years to be served in hard...