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State v Palu [2004] PGNC 182; N2585 (25 March 2004)

N2585

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 722(B) of 2003

THE STATE

-V-

JAMES HILUX PALU

VANIMO: KANDAKASI, J.
2004: 12th, 19th and 25th March

DECISION ON SENTENCE

CRIMINAL LAW & PRACTICE – Sentencing – Receiving stolen property – Property stolen by break, enter and stealing - Sentencing guidelines suggested and applied.

CRIMINAL LAW - Sentence – Receiving stolen property – Property proceeds of break, enter and stealing – Not worse kind of offence - Guilty plea – First time offender - Innocent recipient of property - Property recovered – Value of property not substantial – 1 year 2 months already spent in custody awaiting trial sufficient sentence – Prisoner sentenced to the rising of the Court - Criminal Code s.410(1)(a).

Cases cited:
The State v. Brendan Oll and Nathan Saisai, (Unreported judgment delivered on 25/03/04) N2554.
The State v. Robert Kawin (24/12/01) N2167.
Gimble v The State [1988 – 89] PNGLR 271.

Counsel:
F. K. Popeu for the State
D. Kari for the Accused

25th March, 2004

KANDAKASI, J: You pleaded guilty to one charge of receiving a stolen property on 7th January 2003 contrary to s.410 (1) (a) of the Criminal Code at Aitape, here in the Sandaun Province.

On being satisfied that the evidence before the Court provided sufficient support for your guilty plea, the Court accepted that plea and had you convicted of the charge against you. The Court then asked you to address the Court in relation to your sentence. You decided to leave that to your lawyer.

Your case follows the decision I have just handed down in the matter of the The State v. Brendan Oll and Nathan Saisai, (Unreported judgment delivered on 25/03/04) N2554. These prisoners broke into a warehouse at the Catholic Bishops Hill at Aitape. After stealing a number of valuable items having an aggregate value of K5, 860.00, they came to where you were and they distributed the items that they had stolen. They gave you a chicken wire mess.

Eventually, police were notify of the break, enter and stealing offence. Due to excellent police work, the offenders were identified and yourself as one receiving one of the stolen properties on the same day of the offence. You freely admitted to receiving a chicken wire mess. You maintained that position up to the presentation of the indictment against you in this Court.

Your lawyer informed the Court on your behalf that, you are 29 years old married with two children, aged 8 and 4 years. He also informed the Court that you live with your wife and children at Aitape. Further, he informed the Court that, both of your parents are alive and that you are 3rd in a family of 3 sisters and 4 brothers. Furthermore, you are educated up to high school level education and that you were working with a Vincent Molson prior to your arrest and remand in custody awaiting your trial. You have been in custody for 1 year and about 2 months to date.

Your lawyer then argued for a custodial sentence up to the period you have already spent in custody, whilst noting at the same time that the offence carries a maximum of 7 years. He made that submission based on your guilty plea, being a first time offender and the recovery of the property to its legal owner.

The State makes no submission, choosing instead to leave it to the discretion of the Court.

The offence of receiving stolen property is prescribed with its penalty by the Criminal Code in section 410 in these terms:

"410. Receiving stolen property, etc.

(1) A person who receives any thing that has been obtained by means of—

(a) any act constituting an indictable offence; or

(b) ...

knowing it to have been so obtained, is guilty of a crime.

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

(2) If the offence by means of which the thing was obtained is a crime, the offender is liable to imprisonment for a term not exceeding 14 years."

Counsels were not able to refer the Court’s attention to any case on point. My limited research also failed to disclose any case on point. This could mean that, there is no case to provide some guidance for sentencing in this kind of cases. In these circumstances, I wish to do as I did in The State v. Robert Kawin (Unreported judgment delivered on 24/12/01) N2167.

That was a case of stealing brought under subsection (1) instead of subsection (10) of s. 372 for two counts of stealing by forgery in a breach of a trust situation. In sentencing the prisoner on a plea of guilty to a cumulative sentence of 2 years, I noted that there were no sentencing guidelines and I tried to formulate one. In so doing, I stated that, in accordance with the well-accepted practice in our jurisdiction, the maximum prescribed sentence should be reserved for the worse category of the offence of stealing. A worse case of stealing would be one that might have factors like, the total value or the actual amounts of money stolen, falling just short of K1, 000.00, thereby escaping an application of the provisions of subsection 10. It would also be a worse case if say, an element of a breach of trust whether legal or a defector kind of trust not caught by any of the other subsections in s. 372 exists, and the offence is committed in furtherance of an illegal activity or another offence.

At the same time, I observed that, at the end of the scale would be a simple case of stealing, such as, pocket picking, or someone leaving some valuable item mistakenly at a place and another person steals it with full knowledge of its owner. Stealing in such a situation should attract a sentence of a few months, about 3 to 4 months.

I further stated that, there would be cases in between these two extremes. Cases falling in this category would be cases where for example, the amount of money or the value of item stolen is small but the offence is committed in pursuance of an illegal activity or another offence. There might also be cases where the amount of money or value of item stolen is substantial but not necessarily up to K1, 000.00. In such cases, the sentence could range from more than 4 months and closer to the maximum prescribed sentence of 3 years.

Finally, I said a guilty plea by a first time offender or a young offender could reduce the kind of sentence suggested. I observed in that regard that, the need to do that, has been made clear in a large number of cases though in the context of other offences as in the case of Gimble v The State [1988-89] PNGLR 271, by the Supreme Court at page 275.

I did not intend that, what I suggested in terms of the above should be rigid or mandatory. Instead, I made it clear that, these are suggestions put forward as a guide in the absence of any other guideline to the contrary. A judge could therefore, impose a sentence outside the suggested guidelines provided; there is a good reason to do that.

In your case, I am of the view that, what I suggested in the above case relevant and applicable with the necessary modifications. Accordingly, I adopt those guidelines for the purposes of determining an appropriate sentence in your case. Then going by these guidelines, I note that, this was a simple case of receiving stolen property with nothing more. This has to be distinguished from a case in which the recipient has encouraged directly or indirectly the stealing of the property at the first place so he could benefit from it. Further, I note that the value of the property in question is around K100.00. That is not substantial. Again, I contrast this with a case of receiving goods of substantial value. In addition, I note that, there is no evidence or even a suggestion that the value of the property stolen did not diminished to any extent, as opposed to being damaged or destroyed or used up.

Given these factors, I do not find your case falling in the worse kind of receiving stolen property. Instead, I find that, your case would fall somewhere in the lower end of the scale. That should attract a sentence of a few months to 1 or 2 years. Then noting that you have good mitigating factors, including your guilty plea and being a first time offender, I consider the 1 year 2 months you have already spent in custody while waiting for your trial is sufficient sentence in your case. I therefore sentence you to the rising of the Court.
_____________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor