The State v Jonah Yohang Monalen (2004) N2677

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 23 September 2004
• Citation: (2004) N2677
• Court: National Court
• Year: 2004
• Judgement Number: N2677

Full Title: The State v Jonah Yohang Monalen (2004) N2677

National Court: Kandakasi J

Judgment Delivered: 22 or 23 September 2004

1 CRIMINAL LAW—Sentence—Burglary and stealing at night—Hammer and flat screw driver used—Number and value of items stolen not substantial—Properties not recovered—Prevalence of offence—No pre–sentence report supporting non–custodial sentence—No sentencing guidelines—One devised and applied—10 years imprisonment in hard labour imposed—Criminal Code s395(1)(c).

2 The State v Irox Winston, (13/03/03) N2347, Public Prosecutor v Don Hale, (1998) SC564, Re Application by Anderson Agiru (08/10/01) SC671, Application of John Mua Nilkare (15/04/97) SC536, Avia Aihi v The State [1981] PNGLR 81, Ian Napoleon Setep v The State (18/05/01) SC666, The State v Brendan Oll and Nathan Saisai (25/03/04) N2554, The State v Ian Bob Wali (11/06/04) N2580, The State v Michael Kamban Mani (21/05/02) N2246, Gimble v The State [1988–89] PNGLR 27, Dadly Henry Gorop v The State (03/10/03) SC732, The State v Paul Maima Yogol & Anor (21/05/04) N2583, The State v Andrew Yeskulu (24/04/03) N2410 referred to

___________________________

N2677

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 870 of 2004

THE STATE

-V-

JONAH YOHANG MONALEN

LORENGAU: KANDAKASI, J.

2004: 15th and 22nd September

CRIMINAL LAW - Sentence – Burglary and stealing at night – Hammer and flat screw driver used - Number and value of items stolen not substantial – Properties not recovered - Prevalence of offence – No pre-sentence report supporting non-custodial sentence – No sentencing guidelines – One devised and applied - 10 years imprisonment in hard labour imposed – Criminal Code ss.395 (1) (c).

Cases cited:

The State v. Irox Winston, (13/03/03) N2347.

Public Prosecutor v. Don Hale, (1998) SC564.

Re Application by Anderson Agiru (08/10/01) SC671.

Application of John Mua Nilkare (15/04/97) SC536.

Avia Aihi v. The State [1981] PNGLR 81.

Ian Napoleon Setep v. The State (18/05/01) SC666.

The State v. Brendan Oll and Nathan Saisai (25/03/04) N2554.

The State v. Ian Bob Wali (11/06/04) N2580.

The State v. Michael Kamban Mani (21/05/02) N2246.

Gimble v. The State [1988-89] PNGLR 27.

Dadly Henry Gorop v. The State (03/10/03) SC732.

The State v Paul Maima Yogol & Anor (21/05/04) N2583.

The State v Andrew Yeskulu (24/04/03) N2410.

Counsels:

A. Kupmain for the State

A. Raymond for the Prisoner

23rd September 2004

KANDAKASI J: You pleaded guilty to one charge of burglary at night of a dwelling house and stealing therefore a number of personal items belonging to a school teacher. You committed that offence at Ahus Community School, Ahus village Manus Province between 12 midnight on 13th and 6:00am on 14th April 2004. That conduct was contrary to s. 395 (1) (c) of the Criminal Code.

The State admitted into evidence, the District Court’s depositions with your consent. On reading the depositions, I was independently satisfied that, the evidence against you, including your record of interview, supported your guilty plea. I therefore accepted your guilty plea and convicted you on the charge presented. 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 to today.

The Relevant Facts

The relevant facts are these. Between 12 midnight on 13th and 6:00am on 14th April 2004, you armed yourself with a hammer and a flat head screw driver and went to Agatha Keleheu, a teacher at the Ahus Community School. At that time, Agatha Keleheu was away on a teachers’ in service at the Manus Secondary and no one was in her house. Once at the house, you used the hammer and the flat screwdriver to break and enter the house through the window. Upon gaining entry in that way, you stole number of Ms. Keleheu’s personal items such as clothes, food, laundry and stationary items having an estimated total of K151.00. You escaped with these items through the window you broke into. You used up all of the properties you stole.

The village leaders on learning, about the burglary and stealing from the teacher’s house carried out their investigations. Through that process, the leaders discovered a sugar container in your uncle’s house. That led to your apprehension by the village leaders and bringing you into the police station at Lorengau, even though you chose not to admit to committing the offence. At the police station, you admitted to committing the offence in both your record of interview and a confessional statement.

Submissions and Considerations

In your allocutus, you said sorry to the Court and the victim for committing the offence. You then asked for mercy or leniency from the Court and asked specifically for a good behavior bond.

Your lawyer added to that by informing the Court that you are 22 years old, single and come from Ahus Island, Manus Province. You are the fourth child out of a family of seven children. You are of the Roman Catholic faith and have been up to grade 6 formal education, with no formal employment. Your lawyer also informed the Court that, police arrested you on 26th April 2004 and was in their custody for four months before your release on bail. According to the record of interview, you escaped from lawful custody. Your lawyer informed the Court that the District Court dealt with your escaped from lawful custody with a 6 months wholly suspended sentence. There is however, nothing to confirm that, let alone a report on the compliance of the conditions if any for the suspended sentence for escape.

Similarly, there is no pre-sentence report supporting your call for a non-custodial or a lenient sentence. At the time of receiving the submissions of the parties, I left the option open for you to get your parents to provide details as to who would provide supervision or oversee you complying with any terms or conditions this Court might impose if it were to impose a non-custodial sentence. I also left open the option for your parents to indicate what part they will personally play in your punishment and rehabilitation. These options were left open until today and I have not received the kind of information required. Accordingly, it would be inappropriate to consider any non-custodial sentence.

The law is clear, there can be no suspension of sentence unless there is pre-sentence report representative of the community’s views in relation to sentence, support such an exercise of the Court’s discretion. As I said in a number of cases as in The State v. Irox Winston, (13/03/03) N2347 already:

“The Courts are charged with the judicial power of the people under our constitutional framework to appropriately deal with offenders on their behalf. The Courts therefore, have a constitutional duty to seriously take into account the peoples wishes in relation the kind of sentence an offender should receive in each case when they give consideration to the appropriate penalty to be imposed. Not only that, they should ensure at the same time that, the kind of sentence they arrive at is reflective of the people’s wish. This is in addition to taking into account all the other considerations a sentencing judge should take into account and then arrive at a sentence that is reflective of all of those considerations.”

In expressing that view, I had regard to a number of Supreme Court judgments as in Public Prosecutor v. Don Hale, (1998) SC564, Re Application by Anderson Agiru (08/10/01) SC671 and Application of John Mua Nilkare (15/04/97) SC536 citing with approval Avia Aihi v. The State [1981] PNGLR 81.

The Offence and Sentencing Tariffs

Your conviction is against s. 395 (1) of the Criminal Code. That provision reads in relevant parts as follows:

“395. Housebreaking: Burglary.

(1) A person who—

(a) breaks and enters the dwelling-house of another with intent to commit a crime in it; or

(b) having—

(i) entered the dwelling-house of another with intent to commit a crime in it; or

(ii) committed a crime in the dwelling-house of another,

breaks out of the dwelling-house; or

(c) breaks and enters the dwelling-house of another and commits a crime in it,

is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If the offence is committed in the night, the offender is liable, subject to...