The State v Obert Poesan Pokanas (2004) N2702

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 23 September 2004
• Citation: (2004) N2702
• Court: National Court
• Year: 2004
• Judgement Number: N2702

Full Title: The State v Obert Poesan Pokanas (2004) N2702

National Court: Kandakasi J

Judgment Delivered: 23 September 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Cumulative or concurrent sentence—Offences committed against the same victim at the same place, time and date—One transaction—Concurrent sentence appropriate.

2 CRIMINAL LAW—Sentence—Stealing outboard motor engine after castaway of boat—First time offender—Guilty plea—Property of substantive value—Property recovered—5 years sentence imposed—Criminal Code s372(5).

3 CRIMINAL LAW—Sentence– Castaway of vessel—No sentencing guidelines—Devised and applied one—First time offender—Guilty plea—Parents assisted in arrest of prisoner and paid compensation—Parents not seriously supportive of non–custodial sentence—Need for a deterrent sentence—10 years with option to suspended either a part or whole of it on conditions imposed—Criminal Code s19 and s440.

4 The State v Romney Naptelai Simonopa (29/04/04) N2551, Gimble v The State [1988–89] PNGLR 271, 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, The State v Timothy Tio (21/05/02) N2265, The State v Robert Kawin (24/12/01) N2167, The State v Richard Dusal Bix and Siprian Sipi Karo (06/06/03) N2415, The State v Edward Toude & 3 Ors (No 2) (18/10/01) N2299, The State v Abel Airi (28/11/00) N2007, The State v John Micky Lausi (27/03/01) N2073, The State v Jimmy Solomon (20/07/01) N2100, The State v Rex Rongo (20/12/00) N2035, The State v Fredinand Naka Penge (24/05/02) N2244 referred to

___________________________

N2702

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1280 of 2004

THE STATE

-V-

OBERT POESAN POKANAS

LORENGAU: KANDAKASI, J.

2004: 17th and 23rd September

CRIMINAL LAW – PRACTICE & PROCEDURE – Cumulative or concurrent sentence – Offences committed against the same victim at the same place, time and date – One transaction – Concurrent sentence appropriate.

CRIMINAL LAW - Sentence – Stealing outboard motor engine after castaway of boat – First time offender – Guilty plea – Property of substantive value – Property recovered – 5 years sentence imposed – Criminal Code s. 372 (5).

CRIMINAL LAW – Sentence- Castaway of vessel – No sentencing guidelines – Devised and applied one – First time offender – Guilty plea - Parents assisted in arrest of prisoner and paid compensation – Parents not seriously supportive of non-custodial sentence – Need for a deterrent sentence - 10 years with option to suspended either a part or whole of it on conditions imposed – Criminal Code ss. 19 and 440.

Cases cited:

The State v. Romney Naptelai Simonopa (29/04/04) N2551.

Gimble v. The State [1988 – 89] PNGLR 271.

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.

The State v. Timothy Tio (21/05/02) N2265.

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

The State v. Richard Dusal Bix and Siprian Sipi Karo (06/06/03) N2415.

The State v Edward Toude & 3 Ors (No 2) (18/10/01) N2299.

The State v. Abel Airi (28/11/00) N2007.

The State v. John Micky Lausi (27/03/01) N2073.

The State v. Jimmy Solomon (20/07/01) N2100.

The State v. Rex Rongo (20/12/00) N2035.

The State v. Fredinand Naka Penge (24/05/02) N2244.

Counsels:

A. Kupmain for the State

A. Raymond for the Prisoner

23rd September 2004

KANDAKASI J: You pleaded guilty to one charge of stealing an outboard motor and another charge of casting away of a vessel here in Lorengau on 14th February 2004, which conducts were contrary to s. 372 and s. 440 respectively of the Criminal Code.

The State admitted into evidence, the District Court 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 both of the charges 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 to today.

The Relevant Facts

The relevant facts giving rise to the charges and your guilty plea and convictions are these. On Monday 09th February 2004, you saw a 23 feet boat with an outboard motor, a 40 horse power, Yamaha brand anchored at the boat shed, here in Lorengau. You noticed no one working on the boat and you decided to steal the motor.

On Saturday 14th February 2004, in the early morning hours around 1:00am you went to the boat shed, checked and ensured that no one was present and watching. Thereafter, you went and untied the rope that was anchoring the boat and let it drift off at sea. The boat drifted to Rara Island, where a third party found it and later recovered to the owner through a number of other third parties including the police.

Before letting the boat drift away, you got on the boat, removed the Yamaha outboard motor, and carried it away onto the shore through the beach in front of the NBC and hid it in the nearby bushes. Then you went looking for a Jerry’s boat along the Lorengau River to take the outboard motor you stole away to your home island, Ahus. Unfortunately, for you, Jerry was not there so you returned to where you hid the outboard motor, took it to Ward 2 and hid it in the bushes near the elementary school.

On 16th February 2004, your father questioned you about the boat and the outboard motor and you told him the above story. Thereupon, your father informed the police and the police came and arrested you. They then took you to the police station where they cautioned you and interviewed you. During the interview, you admitted to the casting away of the 23 feet boat and stealing the outboard motor from the boat before casting it away.

Submissions and Considerations

In your address before sentence, you said sorry for what you did and said you would not do that again. Then, you asked for a lenient sentence in terms of a good behaviour bond.

Your lawyer added that you are 20 years old, single and come from Ahus Island, Manus Province. You are the first born in a family of 5 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 15th February 2004, soon after the commission of the offence and was in their custody for four months before your release on bail.

Your lawyer then proceeded to make submissions on your behalf for the Court’s consideration before sentence. She urged the Court to note and take into account in your favor the fact that you pleaded guilty to two charges, one of which carries a maximum of life imprisonment. She further urged the Court to note in your favour that, you are a first time offender with no prior convictions. Furthermore, your lawyer submitted that you did not benefit from your offence, because the owner recovered both the outboard motor and the boat. Additionally, your lawyer urged the Court to note that, your father was instrumental in your arrest and the recovery of the outboard motor and the boat. Finally, she urged the Court to note in your favor that your father paid K200.00 to the victim of your offence to assist him to repair the motor.

On top of all of the above, your lawyer referred to the pre-sentence report and submitted that there is community support for a community base sentence. That report suggests that, you be given a non-custodial sentence with community service order returnable on Ahus Island digging toilets and attend counseling.

The State on the other hand points out that the pre-sentence should be taken seriously particularly when it states that you are an unstable person moving from place to place and not staying in one particular place. Further, he pointed out that your parents appear to have lost control of you for about nine years now and appear unprepared to take you into their care and keeping if the Court were to impose a non-custodial sentence. The State pointed out additionally that, the report speaks of you being a person capable of influencing other people into criminal conducts. Further, along with what the State submits, I note that there is no input from the...