The State v Brendan Oll and Nathan Saisai (2004) N2554

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 25 March 2004
• Court: National Court
• Citation: (2004) N2554
• Year: 2004
• Judgement Number: N2554

Full Title: The State v Brendan Oll and Nathan Saisai (2004) N2554

National Court: Kandakasi J

Judgment Delivered: 25 March 2004

1 CRIMINAL LAW AND PRACTICE—Sentencing—Break, enter and stealing—Sentencing guidelines—Need to consider sentences imposed in previous cases—Need for sentences in subsequent cases to be within the range of sentences being imposed unless circumstances justifying a departure exist—Prevalence of offence or its opposite relevant factor—Criminal Code s398(a)(i) and s19.

2 CRIMINAL LAW—Sentence—Break, enter and stealing from a mission warehouse—K5,860.00 estimated value of items stolen all recovered—First time offender—Guilty plea and cooperation with authorities—Victim agreeable to non–custodial sentence with conditions—Prevalence of offence and past sentences considered—Past sentences not deterring would be offenders—Two years wholly suspended sentence on terms imposed—Criminal Code s398(a)(i) and s19.

3 The State v Aiton Ipai (1997) N1629, The State v Rocky Masa Kuno (1988) N673(S), The State v Michael Kamban Mani (2002) N2246, Acting Public Prosecutor v Clement Maki and Tom Kasen (1981) SC205, Public Prosecutor v Don Hale (1998) SC564, The State v Robert Kawin (2001) N2167, The State v Abel Airi (2000) N2007 referred to

Decision on Sentence

___________________________

N2554

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 722 (A) of 2003

THE STATE

-V-

BRENDAN OLL and

NATHAN SAISAI

VANIMO: KANDAKASI, J.

2003: 12th, 19th and 25th March

DECISION ON SENTENCE

CRIMINAL LAW & PRACTICE – Sentencing – Break, enter and stealing – Sentencing guidelines – Need to consider sentences imposed in previous cases – Need for sentences in subsequent cases to be within the range of sentences being imposed unless circumstances justifying a departure exist – Prevalence of offence or its opposite relevant factor – Criminal Code ss 398 (a)(i) and 19.

CRIMINAL LAW - Sentence – Break, enter and stealing from a mission warehouse –

K5,860.00 estimated value of items stolen all recovered – First time offender – Guilty plea and cooperation with authorities – Victim agreeable to non-custodial sentence with conditions - Prevalence of offence and past sentences considered - Past sentences not deterring would be offenders – Two years wholly suspended sentence on terms imposed – Criminal Code ss.398(a)(i) and 19.

Cases cited:

The State v. Aiton Ipai (Unreported judgment delivered on 26/09/97) N1629.

The State v. Rocky Masa Kuno (Unreported judgment delivered on 4/07/98) N673(S).

The State v. Michael Kamban Mani (Unreported judgment delivered on 21/05/02) N2246.

Acting Public Prosecutor -v- Clement Makei and Tom Kasen SC205.

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

The State v. Robert Kawin (Unreported judgment delivered on 24/12/01) N2167.

The State v. Abel Airi (Unreported judgment on 20/11/00) N2007.

Counsel

F. K. Popeu for the State

D. Kari for the Accused

25th March, 2004

KANDAKASI, J: You both pleaded guilty to one charge of break, enter and stealing a number of a properties, including a chainsaw and various other items having a total estimated value of K5,860.00 from the Catholic Missions’ Bishops hill warehouse at Aitape, Sandaun Province on 7th January 2003. The charge against you was presented under section 398 (a)(i) of the Criminal Code.

Upon reading the evidence against you, including your respective records of interview, I informed you in Court that the evidence supported your guilty plea. I therefore accepted your guilty plea and convicted you on the charge presented against you. I then heard from both yourself and your lawyer on sentence. I also heard from the State on that issue as well and I reserved a decision on sentence pending receipt of a pre-sentencing report. I requested such a report in view of your argument for a suspended sentence. The probation service furnished a pre-sentence report and it is now before the Court.

The Facts

The facts as they appear from the material in the deposition and as put to you during your arraignment are these. Around midnight of the 7th of January 2003, at Aitape, you went to the Catholic Bishops hill and broke into the Mission’s warehouse by cutting the lock to the warehouse door with a bolt cutter. You then gained entry and stole from there a number of valuable items. That included a chainsaw, a wheelbarrow, 3 cartoons of 3”nails a battery for a wokabaut sawmill and other items. The total value of the items you stole was about K5, 860. You had the items stolen distributed amongst yourselves and others on the same day.

Police received information about the incident and carried out their normal duties. The police eventually identified you as the offenders. Therefore, they arrested you on the same day of the offence and fully recovered with your assistance all the properties you stole. You freely admitted to committing the offence, a position you have continued to take before this Court.

Submissions and Considerations

When the Court asked you to address it on your sentences, both of you said, you would leave that to your lawyer. Your lawyer then made submissions on your behalf essentially pointing out your respective personal and family backgrounds and that both of you are about 20 years old. He urged the Court to note that, both of you co-operated well with police and that you have pleaded guilty to the charges. He also urged the Court to note the recovery of all of the items you stole. In the circumstances, he asked the Court to impose a non-custodial sentence with probation orders. As noted in view of that submission, I called for a pre-sentence report from the probation services.

The Court now has the pre-sentencing report from the probation services. The Court expresses its appreciation for the efforts put toward it by the probation service here in Vanimo and Aitape.

The pre-sentence report has inputs from your immediate community including the victim of your offence. They support the call for a non-custodial sentence but on terms to help you to pay for your crime and to reform and become law loving and abiding citizens. They have indicated their preparedness to help you meet any probation orders this Court might make.

The State is supportive of your submission. Hence, there is no argument that you be given a non-custodial sentence but on terms.

The Offence

Section 398 of the Criminal Code provides for the offence of break, enter and stealing from a warehouse. This provision also provides for the penalty. This offence carries a maximum penalty of 14 years.

Both Counsels did not provide the Court with any case authority on point. My limited research has failed to produce a case of break, enter and stealing from a warehouse. However, I do note that there are some cases on break, enter and stealing from other buildings or structures.

One such case is the judgment in The State v. Aiton Ipai (Unreported judgment delivered on 26/09/97) N1629. There, Lenalia A.J.,(as he then was) imposed a part suspended sentence of 2 years on a guilty plea. The prisoner was a first time young offender with most of the items stolen valuing over K14, 000.00 recovered. He cooperated with the authorities like police. Further, the Court noted that the offender admitted to two further and pending charges committed in the one transaction.

Subsequently, Woods J imposed a custodial sentence of 3 years against the prisoner in The State v. Rocky Masa Kuno (Unreported judgment delivered on 14/07/98) N673(S). In that case, the prisoner also pleaded guilty to a charge of break, enter and stealing from a dwelling house at night. There, the prisoner acted with others and was armed.

As I noted in The State v. Michael Kamban Mani (Unreported judgment delivered on 21/05/02) N2246, none of these cases provide any assistance in terms of providing a guideline for sentencing in these types of cases. In the circumstances, I consider it necessary to suggest some guidelines for future purposes for break enter and stealing cases. I then said:

A closure examination of the above two cases make a number of points clear from which a guideline might be extracted. First, the maximum prescribed penalty should not be readily imposed. Instead it should be reserved for the worse type of the offence under consideration. Secondly, guilty pleas, and the offender being a first time young offender and the existence of such good factors operate in the offenders mitigation and sentences lower than the prescribed maximum may be...