The State v Michael Kamban Mani (2002) N2246

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 21 May 2002
• Citation: (2002) N2246
• Court: National Court
• Year: 2002
• Judgement Number: N2246

Full Title: The State v Michael Kamban Mani (2002) N2246

National Court: Kandakasi J

Judgment Delivered: 21 May 2002

N2246

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1604 of 2001

THE STATE

-V-

MICHAEL KAMBAN MANI

WEWAK: KANDAKASI, J.

2002: 13th and 21st May

CRIMINAL LAW & PRACTICE – Sentencing – Break enter and stealing – Sentencing guidelines suggested based on past sentencing practices - Sentences imposed in previous cases need to be considered – Sentences in subsequent cases need to be within the range of sentences being imposed for the kind of offence under consideration unless circumstances justifying a departure exist – Prevalence or its opposite is a relevant factor to determine whether or not to depart from past sentences – Criminal Code ss 398 (a)(i) and 19.

CRIMINAL LAW - Sentence – Break, enter and stealing from an hospital ward office – Item stolen a portable generator valued at K2,500 recovered – First time offender – Guilty plea and cooperation with authorities from the beginning - Prevalence of offence considered – Sentencing tariffs suggested by counsel not supported by any authority rejected – Past sentences suggesting tariff considered - Past sentences not deterring would be offenders – Sentence of imposed and part suspended on terms including community service orders – Criminal Code ss.398(a)(i) and 19

Cases cited:

The State v. Sabrina Yakal [1988-89] PNGLR 129.

The State v. James Gurave Guba (19/12/00) N2020.

The State v. Jack Oroko Tepol (08/10/99) N194.

The State v. Sam Nimino [1977] PNGLR 226.

The State v. Aiton Ipai (26/09/97) N1629.

The State v. Rocky Masa Kuno (14/07/98) N673(S).

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

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

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

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

Counsel

Mr. M. Ruarri for the State

Mr. K. Doko for the Accused

DECISION ON SENTENCE

20th May, 2002

KANDAKASI J: You pleaded guilty to one charge of break, enter and stealing of a generator from a hospital ward office at the Yangoru Station on the 8th of September 2001. The charge against you was presented under section 398 (a)(i) of the Criminal Code.

Upon reading the evidence against you, including you record of interview, I informed you in Court that the evidence supported your guilty plead. I therefore accepted your guilty plea and convicted you of the charge 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 you argument for a part suspended sentence. The requested report was received yesterday and I heard further submissions based on it from you and the State.

The Facts

I note there is no dispute in this case in relation to the practice of using the depositions to extract the relevant facts for the purposes of sentencing. I consider it important however that I must state the law on it because there seem to be a view held by some that this should not be done. The practice is well established. One of the first judgements on that point is The State v. Sabrina Yakal [1988-89] PNGLR 129. I followed that judgement in The State v. James Gurave Guba (19/12/00) N2020. In The State v. Jack Oroko Tepol (08/10/99) N1941 per Kirriwom J and The State v. Sam Nimino [1977] PNGLR 226, the Supreme Court followed that practice. Usually the deposition is read to determine whether or not to accept a guilty plea. A guilty plea can only be accepted on the basis of the evidence or facts disclosed in the deposition. It follows therefore, that the facts as disclosed in the depositions become relevant facts, which must be considered to determine an appropriate penalty in order to meet the requirement that a penalty for an offence must reflect the circumstances in which the offence under consideration was committed.

In your case, the facts as they appear from the material in the deposition and the facts put to you during your arraignment are these. On the 8th of September 2001, you with another, Lesly Mani broke into Ward One Office at the Yangoru Health Center and stole from there a Yamaha generator set with an extension cord. Its model number was EF 1000 and engine number 010827. The generator belonged to the PNG Medical Research Institute, which you intended to deprive when you broke into the Ward office and stole those items. The value of the generator was estimated at K2, 500.

After having stolen the generator, you hid it in the bushes near your house. Subsequently on the 11th of September 2001, you sold the generator to a Noel Wangi of Wangei village for K3, 000.00. Following successful police investigations, the generator was recovered from Mr. Wangi and you were arrested and you admitted to break, entering and stealing and dealing with the stolen property in the way just described. You continued to admit your guilt both before this Court and the Committal Court. In your own address before sentence, your expressed your remorse.

Submissions and Considerations

In considering an appropriate sentence for you, your lawyer has asked me to consider your expression of remorse, your educational and family background. He also asked me to consider and take into account in your favour that, you freely pleaded guilty to the charge against you and that your have fully cooperated with the authorities, including the police. That made police work easy and that this Court’s time that would have been taken by a trial was saved. He also asked this Court to note that you are a first time offender and that, you have not benefited from the offence and the generator you stole was recovered.

I take all of these factors into account in your favour. At the same time, I am required to take into account the State’s submissions as well has the community or country’s call for appropriate punishments to be given to people like you who break the law and commit offences. This proceeds on the basis that, although an offence may be against a particular person, it is collectively against the society because the society does not allow this kind of behaviour.

The state submits and I accept that, the charge of break, enter and stealing involving amounts over K1, 000.00 attracts a maximum penalty of 7 years. You do not take issue with that. At the same time, both you and the State are agreed that the sentencing tariff in this type of cases is between 12 months and three years. However no authority has been cited to support that submission. It therefore requires me to consider the kind of sentences that have been imposed in this type of cases.

In The State v. Aiton Ipai (26/09/97) N1629, 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 and most of the items stolen valuing over K14, 000.00 were recovered. He cooperated with the authorities like police. Further the court noted that he 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 (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. The prisoner acted with others and was armed.

Non of these cases provide any assistance in terms of providing a guideline for sentencing in these types of cases. In the circumstances, I consider what I am just about to say should in my view provide as useful guides for sentencing in this type of cases.

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...