The State v Allan Nareti and Amstrong Kupe (2004) N2582

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 26 March 2004
• Court: National Court
• Citation: (2004) N2582
• Year: 2004
• Judgement Number: N2582

Full Title: The State v Allan Nareti and Amstrong Kupe (2004) N2582

National Court: Kandakasi J

Judgment Delivered: 26 March 2004

1 CRIMINAL LAW—Sentence—Stealing K10,250.00 in cash from a drunkard—Breach of de–factor trust—Parents prepared to repay full amount stolen by way of loan to offenders—Guilty plea by first time offenders—Offence out of character—Prevalence of offence—Sentencing tariffs and guidelines considered—Real chance of rehabilitation exists with good parental and community support—5 years fully suspended on terms imposed—Criminal Code s398(a)(i) and s19.

2 The State v Robert Kawin (2001) N2167, Seo Ross v The State (1999) SC605, The State v Michael Kamipe (1996) N1471, The State v Timothy Tio (2002) N2265, 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), Public Prosecutor v Don Hale (1998) SC564, Doreen Liprin v The State (2001) SC673, The State v Eric Emmanuel Vele (2002) N2252, The State v Micky John Lausi (2001) N2073, The State v Dobi Ao (No 2) (2002) N2247, The State v Jimmy Solomon (2001) N2100, R v Davey [1980] 2 A Crim R 254 referred to

Decision on Sentence

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 236 & 237 of 2004

THE STATE

-V-

ALLAN NARETI and AMSTRONG KUPE

VANIMO: KANDAKASI, J.

2004: 9th , 16th , 19th and 26th March

CRIMINAL LAW - Sentence – Stealing K10, 250.00 in cash from a drunkard – Breach of de-factor trust – Parents prepared to repay full amount stolen by way of loan to offenders – Guilty plea by first time offenders – Offence out of character - Prevalence of offence – Sentencing tariffs and guidelines considered – Real chance of rehabilitation exists with good parental and community support - 5 years fully suspended on terms imposed – Criminal Code ss.398(a)(i) and 19.

Papua New Guinea Cases cited:

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

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

The State v. Michael Kamipe (11/9/96) N1471.

The State v. Timothy Tio (21/05/02) N2265

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

Acting Public Prosecutor v. Don Hale (1998) SC 564.

Doreen Liprin v. The State (9/11/01) SC675 (?).

The State v. Eric Emmanuel Vele (24/07/02) N2252.

The State v. Micky John Lausi (27/03/01) N2073.

The State v. Dobi Ao (No 2) (01/05/02) N2247.

The State v. Jimmy Solomon (6/7/01) N2100.

Overseas Cases cited:

R v. Davey [1980] 2 A Crim R 254

Counsel

F.K. Popeu for the State

D. Kari for the Accused

DECISION ON SENTENCE

26th March 2004

KANDAKASI J: Both of you pleaded guilty to one charge of stealing K10,250.00 in cash from a Jack Seimone being the property of Lumi Health Center here in Vanimo on the 30th of May 2003, which conduct was contrary to s. 372 (1) and (10) of the Criminal Code.

Following your guilty pleas, the State admitted into evidence the District Court depositions containing the evidence against you. After a careful consideration of its contents, I was satisfied that, there was basis for the charge and your respective guilty pleas. I therefore, accepted your guilty pleas and had both of you convicted on the charge presented. Then on your application, I ordered the furnishing of a pre-sentence of report as well as a means assessment report and deferred a decision on your sentence until after the receipt and consideration of the requested reports.

The Court did receive the reports it requested from the probation services here in Vanimo. However, the Court found out that, it required more information before arriving at a final decision on your sentences. It therefore directed the probation service to furnish additional information. That was after the Court partly heard from your respective parents as to their preparedness to assist you to repay the money you stole and as to the parts they will play in your rehabilitation efforts.

On Friday, the 19th of this instant, the Court received the additional information it requested from the probation service. It also heard further from your parents and then adjourned for final decision on your sentence to today. This is now the Court’s decision on sentence.

The Facts

On 28th May 2003, the victim of your offence, Jack Seimoni went to the BSP Bank and withdrew in cash a sum of K10, 250.00 for the purchase of food rations for the Lumi Health Centre. The money came from the Department of Sandaun. The victim put the money in his bag and carried it around with him whilst going on a beer drinking and playing pokies spree the next day. Whilst on this spree, the victim met you, Amstrong Kupe at your father’s house whilst looking for more beer. Soon Allan Nareti, you joined in. On finding that there was no beer at Mr. Kupe’s house, the victim, Mr. Seimoni asked both of you to go and look for a motor vehicle for him so he could go and look for more beer.

You responded favorably by going and looking for a motor vehicle for him. You did not however quickly return to him with a motor vehicle. He therefore, got impatient and went with a Vincent Wawala and another to the lodge where he had been staying and from there to a Otto Welly’s house and sat on the lawn on the side of the road. There, he and his companion went off to sleep with his hands around the bag containing the money, after being up the whole night. The time was about 2:00am.

When the victim woke up from his sleep, he found the zip to his bag where he put the money opened. He quickly searched for the money and found out that it was gone. After having made enquiries elsewhere, you two were asked about the money and both of you denied taking it.

The matter was eventually reported to police. Police investigations resulted in information of Armstrong having spent a lot of money on beer at the Beach Hotel, where a dance was going on in the night of 30th May 2003. They also received information that Allan Nareti played a lot of money on pokies on 31st May 2003.

Police eventually arrested you and took you to the police station. There, they conducted separate records of interview with each of you and Allan Nareti admitted to having stolen the money off from Mr. Seimoni’s bag. Allan Nareti, you also admitted to sharing the money between yourselves and spending it all on beer, pokies and dances and flying to Wewak, thereby making any recovery of it impossible. Armstrong chose not to say anything to the police.

Submissions and Considerations

In your address before sentence, you elected to leave it all to your lawyer. For submissions on your behalf, your lawyer adopts the information and recommendations put forward in the respective pre-sentence reports. These reports highlight the fact that, this is your first ever offence and that, you are both law-abiding citizens. The commission of this offence was therefore out of character. There is preparedness on the part of your parents and relatives and the community to help repay the money you stole and for you to do community work. Both of you do not have any permanent employment or a source of income.

Based on these, your lawyer submits that, you should be given a non-custodial sentence to help you reform and to avoid being turned into hard-core criminals if sent to prison. The State makes no submissions, choosing instead to leave it to the Court’s discretion.

The Law

The Court needs to first consider what the law says in relation to sentence because justice must and can only be administered or arrived at according to law. Section 372 (1) and (10) of the Criminal Code creates 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. Proceeding therefore unassisted, I note that, I have published a number of judgments dealing with your kind of cases. One of them is my judgment in The State v. Robert Kawin.

(24/12/01) N2167.

1 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 2 years, I noted that there were no...