The State v Henry Manari & Thomas Maiaii

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 17 February 2022
• Neutral Citation: N10128
• Docket Number: CR (FC) NO. 125 & 127 OF 2021
• Counsel: Ms S. Ilave, for the State,Mr M. Sumbuk, for the Accused
• Citation: N10128, 2022-02-17
• Hearing Date: 05 December 2023,17 February 2023,05 December 2022
• Court: National Court

N10128

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 125 & 127 OF 2021

The State

v.

Henry Manari & Thomas Maiaii

Waigani: Berrigan J

2022: 5^th December

2023: 17^th February

CRIMINAL LAW — SENTENCE — S 372 of the Criminal Code — Stealing — Offenders stole container containing 2000 pieces of roofing iron worth K61,500 — Convicted following trial — Sentence of 4 years, wholly suspended on conditions including restitution and community service.

Cases Cited:

The State v Manari & Anor (2022) N9976

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

Dorren Liprin v The State (2021) SC673

The State v Alice Wilmot (2005) N2857

State v Taba (2010) N3939

State v Koima (2010) N4115

State v Tio (2002) N2265

The State v Neville Miria (2013) N5102

The State v Simon Paul Korai (2009) N3820

The State v Roselyn Waiembi (2008) N3708

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

The State v Vagi (2017) N6994

The State v Yani Paul & Anor (2019) N8026

Lawrence Simbe v The State [1994] PNGLR 38

Sanawi v The State (2010) SC1076

David Kaya and Philip Kuman v The State (2020) SC2026

The State v Tardrew [1986] PNGLR 91

The State v Frank Kagai [1987] PNGLR 320

Legislation and other materials cited:

Sections 19, 372(1)(7)(a)(10) of the Criminal Code

Counsel

Ms S. Ilave, for the State

Mr M. Sumbuk, for the Accused

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Offender

DECISION ON SENTENCE

17^th February, 2022

1. Berrigan J: The offenders were convicted following trial of one count of stealing two thousand sheets of corrugated zinc roofing iron to the value of K61,500, contrary to s. 372(1)(7)(a)(10) of the Criminal Code: The State v Manari & Anor (2022) N9976.

2. Henry Manari was employed as a semi-trailer driver with Highway Transport Ltd in Port Moresby. Thomas Maiai was a wharf clerk at Motuke United Ltd. On Saturday, 20 July 2019 Henry Manari used the Highway Transport Ltd semi-trailer to steal a container containing the corrugated iron from the back of the PNG Concrete Aggregates' office and take it to a vacant lot at Dogura pursuant to a plan with Thomas Maiai and others with a view to selling the roofing iron. Police investigations revealed that the iron was subsequently taken to another yard at Dogura, where more than 600 sheets of iron were recovered under search warrant. Further investigations led police to recover about 70 sheets from Saraga Settlement. The offenders were subsequently arrested and charged. Two others had gone on the run, together with other employees of PNG Concrete Aggregates.

3. On allocutus Henry Manari apologised to the Court and to everyone involved. He is very sorry for what happened. Thomas Maiai thanked the Court and the Offices of the Public Prosecutor and Public Solicitor. It was his first time to offend. He and his wife have a young family and are expecting their fourth child. Both plead for their sentence to be served outside of prison so that they may make restitution.

Sentencing Principles and Comparative Cases

4. 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.

5. 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 misappropriated 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.

6. Whilst the suggested scale of tariffs in Wellington Belawa is relevant it is to be noted that the offender in this case has been convicted of stealing. Unlike misappropriation which attracts a maximum of 10 years for amounts more than K2000 (and less than K1 million post the 2013 amendments), stealing contrary to s372(1)(7)(a)(10) of the Criminal Code attracts a maximum penalty of 7 years of imprisonment.

7. The defence submitted in aggravation that the monetary value of the stolen goods was high, the offence was perpetrated with others over time, and the offence is prevalent. In mitigation the offenders cooperated with police, are first-time offenders, expressed remorse, and whilst acknowledging it is no excuse, said on allocutus that they had been driven to commit the offences.

8. Counsel submitted that a sentence of three to seven years was appropriate, partly or...