The State v Edward Giragu Koima (2010) N4115

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 August 2010
• Citation: (2010) N4115
• Docket Number: CR NO 732 OF 2008
• Court: National Court
• Year: 2010
• Judgement Number: N4115

Full Title: CR NO 732 OF 2008; The State v Edward Giragu Koima (2010) N4115

National Court: Cannings J

Judgment Delivered: 24 August 2010

N4115

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 732 OF 2008

THE STATE

V

EDWARD GIRAGU KOIMA

Madang: Cannings J

2010: 20 May, 20, 24 August

CRIMINAL LAW – sentence – stealing – Criminal Code, Sections 372(1) & 10 – property valued at K130,992.00 stolen – offender and others dismantled and ransacked a house, stealing house and contents.

A 52-year-old man was convicted after a trial of one count of stealing a house and its contents valued at K130,992.00. The incident took place in a village when the owners of the house were absent. This is the judgment on sentence.

Held:

(1) The maximum penalty is seven years imprisonment.

(2) A useful starting point is the middle of the available range: three and a half years imprisonment.

(3) A co-offender was dealt with previously, and after pleading guilty was sentenced to five years imprisonment.

(4) Applying the principle of parity in sentencing, this offender deserved a heavier sentence than the co-offender who pleaded guilty. The appropriate sentence was six years imprisonment, and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Alice Kware & Addie Uvi CA 34-35/2006, 23.03.07

The State v A Juvenile, “KK”, CR 188/2009, 04.03.10

The State v Asi Taba, CR No 1443 of 2009, 22.07.10

The State v Danis Langu Jack, CR 183/2009, 21.12.09

The State v Douglas Boku CR 844/2009, 18.08.09

The State v Edward Giragu Koima (2010) N4037

The State v George Pelly, CR 672/2003, 04.03.10

The State v Martin Kairing Awi, CR 352/2008

The State v Philip Bira (2009) N3633

The State v Philip Bola Malagau & Michael Bio Tavulo, CR 678/1998, 17.02.09

The State v Tobby Alekun (2004) N2636

SENTENCE

This was a judgment on sentence for stealing.

Counsel

N Goodenough, for the State

D Joseph, for the offender

24 August, 2010

1. CANNINGS J: The offender, Edward Giragu Koima, is before the court to be sentenced after being convicted after trial of one count of stealing contrary to Sections 372(1) and (10) of the Criminal Code. The offence was committed on Friday 30 March 2007 at Karisokra village in the upper Bundi area of Madang Province. A house occupied by a New Tribes Mission couple, Paul and Susan Boothby, was broken into and ransacked by a group of people, including the offender. The house was dismantled and taken away, along with personal property inside it. The Boothby family was overseas at the time. Further details of the circumstances in which the offence was committed are in the judgment on verdict (The State v Edward Giragu Koima (2010) N4037).

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said (both in oral and written statements):

I respect the court’s decision to find me guilty of stealing but the court must understand that it was not my motive to steal. I denied the charge because I did not get the value of any of the victims’ property. There was a reason for the incident happening the way that it did. The dispute over the land had been going on for 12 years. It was like a balloon ready to explode at any time and it exploded. My son and I are being penalised for committing a crime but it was never our intention to commit a crime. We were forced to show our frustration and anger for the New Tribes Mission not vacating our land. I was not the instigator or the leader.

I too have suffered as a result of this incident. The police raided the village and burned down seven houses including mine and I have been left with nothing. Three of my children have had to leave school. My food gardens have been destroyed and we have had to leave the village. I am concerned about the welfare of my family. The court should also consider that some of the property was returned to the victims. I apologise for the damage that has been caused to my family’s and the village’s name. I was a land mediator and peace officer for many years before this incident. I have a very good community record. I ask for the mercy of the court, for a non-custodial sentence, a good behaviour bond or a court fine.

PRE-SENTENCE REPORT

4. The Madang branch of the Community Based Corrections & Rehabilitation Service prepared a report. The offender is 52 years old. He is married with seven children and has a stable marriage. He has lived all his life at Karisokra. He has a grade 6 education. He is a subsistence farmer and was a land mediator for 21 years. His health is sound. He is a community leader and was Vice-President of his Local-Level Government from 2002 to 2007. The report concludes that he is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mr Joseph urged the court to take into account that the offender is a first-time offender who has expressed remorse, that no one was injured during the commission of the offence, that much of the stolen property was recovered, and that the offender surrendered to the police. He submitted that a four-year sentence, with a partial suspension would be appropriate.

SUBMISSIONS BY THE STATE

6. Mr Goodenough submitted that a four-year sentence would not be sufficient as the offender’s son, Ludwick Gene, was given a sentence of five years for the same offence after pleading guilty before Batari J in late 2009. The present case is more serious, Mr Goodenough submitted, as Edward has expressed little or no remorse.

DECISION MAKING PROCESS

7. As a co-offender has already been sentenced by another Judge, I will need to apply the principle of parity in sentencing, by adopting the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the notional head sentence?

· step 5: what is the result of applying the parity principle?

· step 6: should the pre-sentence period in custody be deducted?

· step 7: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. The offence of stealing is created by Section 372(1) and the maximum penalty, if there are no circumstances of aggravation, is three years imprisonment. In this case the value of the thing stolen exceeded K1,000.00, which is a circumstance of aggravation under Section 372(10). This circumstance of aggravation has been charged in the indictment and the effect of this is that the maximum penalty is seven years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

9. I will use the middle of the available range: three and a half years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

10. Stealing is an offence that covers a wide array of situations and it is difficult to compare sentences but those that I have dealt with are shown in the following table.

SENTENCES FOR STEALING, SEC 372, CANNINGS J

No Case Details Sentence

1 The State v Tobby Guilty plea – offence committed in 2 years
Alekun (2004) Maprik market – offender came
N2636, Wewak from behind a woman, grabbed and
ran off with her bilum containing
K2,900.00

2 Alice Kware & Addie District Court appeal against 1 year;
Uvi CA 34-35/2006, sentence – guilty plea – two poker 1 year
23.03.07, Kimbe machine cashiers stole K2,000.00
from their employer – original
sentence of 2 years, 8 months
quashed

3 The State v Martin Guilty plea – punched and stole 3 years
Kairing Awi, CR from a man in the street (with
352/2008, 12.12.08, whom he had a grievance) mobile
Kimbe phone, camera, cash – total value =
K480.00

4 The State v Philip Guilty pleas – stole bilum and 2 years
Bola Malagau & K410.00 cash from man on bush
Michael Bio Tavulo, track – no weapons used
CR 678/1998,
17.02.09, Kimbe

5 The State v Douglas Guilty plea – stole 27 mobile 3 years
Boku CR 844/2009, phones from his employer, Digicel
18.08.09, Buka (with whom he had a grievance) –
total value = K8,100.00

6 The State v Danis Guilty plea – punched and stole 3 years
Langu Jack, CR property from a man in the street,
183/2009, 21.12.09, late at night – total value = K180.00
Kimbe

7 The State v George Trial – offender stole a 25 hp 2 years
Pelly, CR 672/2003, outboard motor from a dinghy
04.03.10, Madang moored at a wharf – conviction
under s 372(1) only – maximum
penalty of 3 years

8 The State v A Guilty plea – juvenile offender – 18 months
Juvenile, “KK”, CR went into unlocked house at night –
188/2009, 04.03.10, stole household property worth
Madang K2,106.50

9 The State v Asi Taba Trial – offender a company 2 years, 6
CR 1443/2009, employee who joined with other months
12.08.10, Madang employees in making and
implementing a plan to steal
company property, tinned fish,
valued at K58,399.00

STEP 4: WHAT IS THE NOTIONAL HEAD SENTENCE?

11. I will now determine a notional sentence, putting aside for a moment the previous sentence of five years imposed on Ludwick Gene. The only significant mitigating factor is that Edward is a first-time offender. I reject Mr Joseph’s submission that he expressed remorse. He did not. It seems that the...