The State v Yani Paul and Linsey Icy (2019) N8026

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 20 September 2019
• Court: National Court
• Citation: (2019) N8026
• Docket Number: CR (FC) 124 & 125 of 2019
• Year: 2019
• Judgement Number: N8026

Full Title: CR (FC) 124 & 125 of 2019; The State v Yani Paul and Linsey Icy (2019) N8026

National Court: Berrigan J

Judgment Delivered: 20 September 2019

N8026

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 124 & 125 of 2019

THE STATE

V

YANI PAUL and LINSEY ICY

Waigani: Berrigan J

2019: 22 August, 6 and 20 September

CRIMINAL LAW – Practice and procedure – Sentence –S. 372(1)(10) of the Criminal Code – Stealing.

Cases Cited:

Goli Golu v The State [1975] PNGLR 653

Lawrence Simbe v The State [1994] PNGLR 38

The State v Timothy Tio (2002) N2265

The State v Niso (No 2)(2005) N2930

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

The State v Roselyn Waiembi(2008) N3708

The State v Maurani (2008) N3560

The State v Taba (2010) N3939

The State v Bobo (2011) N4416

The State v Tiensten (2014) N5563

The State v Tardrew [1986] PNGLR 91

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

References cited

Sections 7, 372(1)(10),of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms. G. Gunson, for the State

Mr. I. Pailaea, for Yani Paul and Linsey Icy

DECISION ON SENTENCE

20th September, 2019

1. BERRIGAN J: Both offenders pleaded guilty to one count of stealing, that they between 6 April 2018 and 27 April 2018 at Glory Garden Estate in the National Capital District, stole four hundred and thirty-four metres of electrical cable valued at K37, 633.18, the property of Glory Holdings Limited, contrary to section 372(1)(10) of the Criminal Code (Ch. 262) (the Criminal Code).

Facts

2. On several occasions during the relevant period the offenders, in the company of other persons entered the premises of Glory Garden Estate and gained access to a warehouse where electrical cables were stored. They used a bolt cutter to cut lengths of cable measuring a total of 434 metres. It was intended that the copper wire inside the cable would be sold for cash on the black market.

3. On 27 April 2018 the two offenders were seen carrying the cable out of the warehouse by an employee of Glory Garden Estate. He alerted security guards and other employees who gave chase to the offenders and their accomplices. The offenders were apprehended while their accomplices managed to escape.

4. To date the cables have not been recovered.

5. The offenders acted with common purpose, pursuant to s. 7 of the Criminal Code.

6. The issue for determination today is an appropriate sentence in each case.

Sentencing Considerations and Comparative Cases

7. 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.

8. 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 involved 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.

9. In general terms, this case falls within the third category of Wellington Belawa. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; and The State v Tiensten(2014) N5563.

10. The State submits that a sentence in the range of three to five years of imprisonment is appropriate. In support of its submissions it referred to the following cases:

(a) The State v Maurani (2008) N3560, Davani J, where the prisoner pleaded guilty to one count of stealing a chainsaw that was the property of a company, together with his co-accused. Both were sentenced to 3 years, 6 months’ imprisonment;

(b) The State v Taba (2010) N3939, Cannings J, in which the prisoner was convicted of stealing 1000 cartons of tinned fish valued at K58,399 from his employer, RD Tuna Canner Ltd. He had joined other employees to steal the tinned fish and sell to a third party. The prisoner was sentenced to 2 years 6 months’ less the 1 year 5 months spent in custody, leaving the balance of 1 year 1 months’ to be spent in hard labour; and

(c) The State v Bobo (2011) N4416, Maliku AJ, in which the offender pleaded guilty to stealing his brother-in-law’s ANZ bank card whereupon he went into town and purchased goods from various shops spending K1840.40. The prisoner was sentenced to 2 years’, wholly suspended on the conditions that the prisoner repay the money spent within 6 months from the date of his sentence.

11. Defence counsel too submits that a sentence range of three to five years of imprisonment would be appropriate. In support of his submission he referred to the following cases:

(a) The State v Timothy Tio(2002)N2265, Kandakasi J (as he then was) in which a security guard pleaded guilty to stealing a chainsaw, valued at K8000.00 from his employer and sold it to a third party for K3000.00. The chainsaw was later recovered. The offender was sentenced to 5 years’ IHL less time spent in custody; and

(b) The State v Roselyn Waiembi(2008)N3708, David J, in which the offender was employed as a clerk and pleaded guilty to stealing K15,000.She was sentenced to 3 years IHL less time spent in custody and the remainder of the sentence was suspended on condition of restitution.

12. I have also had regard to the following case which may provide guidance in determining sentence:

(a) The State v Ian Sevevepa, CR No.2007 of 2005, unreported, 10 May 2006, Lenalia J, in which the offender pleaded guilty to stealing the sum of K17,000.00 belonging to a service station proprietor. The money which was contained in a bag was placed on a table in the office by a female employee. While the female employee was sweeping the office, the prisoner walked into the office, pushed the female employee away, took the bag of money and ran away with it. Taking into account the prisoner's guilty plea, that he was a first time offender, the crime occurred in broad daylight; and part of the amount stolen was given to another person, the Court imposed a sentence of 3 years to be served in hard labour. The time spent in custody awaiting trial was deducted and the balance was ordered to be served out in custody.

13. The sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Nature and Circumstances of the Offence, including Matters of Aggravation

14. Applying the considerations set out in Wellington Belawa, the following matters of aggravation have been established.

15. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. The value of the goods stolen in this case, K37,633.18, was substantial. The offence was committed over a period of three weeks, on a number of occasions, at night and in the company of others. It clearly involved planning and ongoing dishonesty during the period.

16. It is not in dispute that the offence was committed for financial gain. It is unclear to what extent, if any, the offenders personally benefited from the earlier sale of the stolen cable. The impact on the victim has been significant in terms of financial loss.

Personal Circumstances and Matters in Mitigation

17. Yani Paul is 19 years old, single and from Dobu Village on Ferguson Island in Milne Bay Province. He was 18 at the time of the offence. His father is unemployed and his mother works as a maid. He comes from a family of 6 children. His elder brother is a security guard while his sisters are married. The offender was unable to complete his formal education due to the family’s financial circumstances and left school at Grade 5 in 2014. He is a member of the Revival Centre Church. The offender was not living with his parents at the time of the offending. It appears that the relationship is strained as a result of his unemployment. Probation Services was unable to contact the prisoner’s immediate family on the information provided. The...