The State v Valentine Rainold

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ.
• Judgment Date: 14 March 2014
• Citation: (2014) N5533
• Court: National Court
• Year: 2014
• Judgement Number: N5533

Full : CR NO. 1181 OF 2013; The State v Valentine Rainold (2014) N5533

National Court: Toliken, AJ.

Judgment Delivered: 14 March 2014

N5533

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1181 OF 2013

THE STATE

V

VALENTINE RAINOLD

Misima: Toliken, AJ.

2014: 07th, 13th, 14th March

CRIMINAL LAW – Sentence – Breaking, entering and stealing of a store in company of another – Stole goods to value of K12052 - Plea – Mitigating factors and aggravating factors considered – Youthful first time offender – Youthfulness no longer consideration for leniency - Exceptional circumstances to be shown – What may constitute exceptional circumstances considered – Criminal Code Ch.262, s 398 (a)(i).

CONSTITUTIONAL LAW – Breach of Constitutional right to protection of the law – Breach of right to communicate with family members or lawyer of choice – Breach of right to bail while in detention - Prisoner let out of police cells and assaulted by victim’s relatives with tacit approval by police – Prisoner held in Custody without charge for 7 months and 10 days - Constitution, ss. 37 (1), 42 (2)(3)(6).

CRIMINAL LAW – Sentence – Appropriate sentence – Exceptional circumstances shown – Blatant and flagrant abuse of Constitutional rights – Mitigating factors outweigh aggravating factors – Sentenced to period already spent custody (1 year 5 months 20 days).

Cases Cited

Mandatititip v The State [1978] PNGLR 128

Goli Golu v The State [1979] PNGLR 653

Bakiri Pena v The State (1980) SC183

Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258

Avia Aihi v The State (No.3) [1982] PNGLR 92

Saperius Yalibakut v The State (2006) SC 890)

Hen Kuru v Was kombra (1981) N292 (L)

The State v Michael Kamban Mani (2002) N2246

The State v Brendan Oll and Nathan Saisai (2003) N2554

The State v Wali (2004) N2580

The State v Terence Ago (2004) N2673

The State v Dominic Kanga (2005) N2953

The State v Iari (2006) N3238

The State v Januguan (2008) N3363. I

Counsel

R. Christensen and H. Roalakona, for the State

P. Palek, for the accused

JUDGMENT ON SENTENCE

14th March, 2014

1. TOLIKEN, AJ. Valentine Rainold, on 07th of March 2014, the State indicted you with one count of breaking, entering and stealing, an offence under Section 398 of the Criminal Code Act Chap 262. (the Code) The charge was that:

“ ... on the 21st day of September 2012 at BWAGOIA in Papua New Guinea [you] broke and entered the shop of Linda Miller and stole store goods to the value of Twelve Thousand and Fifty Two Kina (K12,052.00)

2. The brief facts put to you for the purpose of getting your plea (arraignment) were that in the early morning of the 21st of September 2012, you and another person went to the Miskings Shop, owned by Linda Miller, here at Bwagoia Township and broke open a window at the right side of the shop. You entered the shop and stole store goods to the value of K12052.00. These included:

· Amplifiers

· Cans of paint

· Cassette players

· Mini woofers

· Boxes of cigarette and shoes

3. You carried the goods away to one Charlie Mahuru’s house where you kept them. From the stolen goods you took half a 10 kg bag of rice, drinks, noodles and biscuits for yourself.

4. You pleaded guilty to the charge. I entered a provisional plea of guilty which I confirmed after I had perused the committal court deposition. I then formally convicted you.

5. Before I administered the allocutus and heard submissions from your lawyer and the State, Mr. Palek asked for the matter to be transferred back to Alotau as he wanted a Pre-Sentence Report (PSR) prepared for you, which, unfortunately could not be done during the circuit as the Probation Officer was not with the court party. However, he did arrive on Misima later and has now prepared a PSR. Yesterday I heard you on allocutus and received submission from the lawyers on sentence.

6. The issue for me to consider is what would be an appropriate sentence for you. And to arrive at that I have to consider whether the circumstances of your case are such that I should impose the maximum penalty or a lesser term and whether any part of any such sentence should be suspended.

7. You are from Gulewa Village here on Misima Island. You were about 25 years old when committed this offence. You are now around 26 years old. You are the second born in a family of three children. Your parents are both still alive. You are currently single but have daughter from a de facto relationship. You were educated up to Grade 8 and are a simple villager, living a subsistence life. You are a member of the Seventh Day Adventist Faith.

8. In your address to the Court on sentence you said that when you were arrested you were held in police custody here Bwagoia for 6 months without being charged. While in custody the victims of your crime came and pulled you out of the cells and badly assaulted you resulting in your bleeding heavily from the nose and mouth. A policewoman intervened and stopped the beatings. You were place back in the cells and after 6 months in the cells you were transferred to Alotau Police Station where you held in custody for another 2 weeks before you were finally charged. You were then remanded at Giligili for the past 9 months.

9. Mr. Palek in your behalf submitted that your involvement in the offence was minimal in that you merely helped the main perpetrator to move the goods and as reward for your efforts you only got half a 10kg bag of rice, some biscuits, meat, drinks and noodles. Counsel said that most of the stolen goods were recovered hence the cost of those that were not returned would be just over K3000 out of the total value of K12000. He conceded though that you are caught by Section 7 of the Code as a principal offender.

10. Mr. Palek submitted that your human rights were abused right in front of the police who are entrusted to protecting such rights. He reiterated what you have already told the Court – that you were held in custody for over 6 months without charge. You were apprehended on 27th of September 2012 and only got charged on 07th of May 2013. And while in custody the police took you out of the cells and handed you over to the victims who then beat you up badly. Counsel submitted that your rights under Section 36 (Freedom from inhuman treatment) and Section 37 (Protection of the law) of the Constitution. Your Constitutional rights were breached by the very people who were supposed to protect you.

11. Mr. Palek cited several mitigating factors in your favour. These are that you pleaded guilty to the charge, are a first time offender, a youthful offender, you co-operated with the police, were unlawfully detained and assaulted by relatives of the victim and have shown remorse. He, however, conceded that the offence of breaking, entering and stealing is a very prevalent offence and this is an aggravating factor against you.

12. Counsel cited a couple of matters which he says can assist the court in arriving at an appropriate sentence for you. These are The State v Wali (2004) N2580 and The State v Iari (2006) N3238. I will return to these later. Counsel also submitted that you should be given the benefit of a doubt on mitigating matters raised in the depositions, in your address to the court and in his own submissions on sentence which are not contested by the prosecution. (Saperius Yalibakut v The State (2006) SC 890)

13. Mr. Palek also referred to your Pre-Sentence Report (PSR) which is mostly favourable to you though the victim Linda Miller wanted you to be imprisoned for 5 years. I will consider your PSR in a bit more detail a little later.

14. In conclusion Mr. Palek submitted that your mitigating factors far outweigh the aggravating factors so an appropriate sentence should be 2 - 4 years less pre-sentence custody period of 1 year 5 months and 2 weeks. The balance should then be suspended with conditions.

15. Ms. Roalakona for the State acknowledged that you are a first time offender, you pleaded guilty to the offence, you are youthful, that you were not the one who broke the window but your accomplice, despite being in custody with being charged you co-operated with the police and that some of the stolen were recovered.

16. She, however, said that there are aggravating factors against you. First, a large amount of goods were stolen valued at K12000. Secondly there was forced entry involved. Thirdly you were in the company of another person and counsel here pointed the court to The State v Terence Ago (2004) N2673 where in sentencing the offender for his part in an armed robbery Kandakasi J. Said:

“It is clear now that acting in the company of another and more seriously a group provides more strength and encouragement. This makes the commission of an offence by a group more serious than a case in which only one person is the offender. As such, those who act in a group deserve a higher penalty.”

17. Counsel...