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State v Kenori [2007] PGNC 181; N4975 (12 September 2007)

N4975

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 572 0F 2007

THE STATE

V

HENRY KENORI

Buka: Cannings J
2007: 6, 12 September

CRIMINAL LAW – sentence – receiving stolen property – Criminal Code, Section 410 – offender received a solar panel, knowing it had been stolen in an armed robbery – guilty plea – sentence of 2 years.

A man pleaded guilty to one count of receiving stolen property, a solar panel worth K1,500.00, which he received when he knew that it had been stolen in an armed robbery of a family home.

Held:

(1) The starting point for sentencing for this offence is 42 months imprisonment.

(2) Mitigating factors are: unaware of details of robbery; property returned to owner; co-operated with police; pleaded guilty; first-time offender.

(3) Aggravating factors are: property stolen in a major crime; property stolen in a violent crime; valuable property; did not give himself up.

(4) A sentence of two years was imposed.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v James Hilux Palu (2004) N2585
Tom Longman Yaul v The State (2005) SC803

SENTENCE

This was a judgment on sentence for receiving stolen property.

Counsel

L Rangan, for the State
P Kaluwin, for the offender

12 September, 2007

1. CANNINGS J: This is a decision on sentence for a 34-year-old man, Henry Kenori, who pleaded guilty to one count of receiving stolen property arising from the following facts. The offender committed the offence in August 2006 at Vogog village in the Tinputz area of Bougainville when he received a solar panel worth K1,500.00. He knew that it had been stolen in an armed robbery of a family home and trade store at Teaveava, near Puskot. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction for receiving stolen property under Section 410(1)(a) (receiving stolen property etc) of the Criminal Code, which states:

A person who receives any thing that has been obtained by means of ... any act constituting an indictable offence ... 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.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I did not think I was going to get into this trouble for receiving this stolen property. I apologise for what I have done.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). Significant mitigating factors amongst that material are that he co-operated with the police, made admissions in his police interview and signed a confessional statement. Also the stolen property was returned to the owner several weeks after the offender received it.

PERSONAL PARTICULARS

5. Henry Kenori is aged 34. He is married with five children, Catholic, the last born in a family of seven, educated to grade 2 and has never been formally employed.

SUBMISSIONS BY THE DEFENCE

6. Mr Kaluwin highlighted the guilty plea, the offender's co-operation with police, his remorse and the fact that the solar panel was returned to its owner soon after the offender received it. Though he knew it was stolen he did not know all the details of the armed robbery. The offender was suspected of being a member of the gang but has always denied any knowledge of the robbery, Mr Kaluwin submitted.

SUBMISSIONS BY THE STATE

7. Mr Rangan submitted that the offender should get a sentence that reflects the seriousness of the armed robbery that led to the property being stolen. It was a very serious robbery of a family whose home was invaded while they were sleeping by a gang of raskols armed with an M16 rifle and bushknives.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The maximum is seven years but the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of 42 months (three years, six months) as the starting point.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. There are few reported cases of sentencing for offences under Section 410. The only recent one is The State v James Hilux Palu (2004) N2585. Kandakasi J sentenced a man in Vanimo, who had been in remand for 14 months, to the rising of the court. The offender pleaded guilty to receiving a bundle of chicken wire that he knew was stolen in a break and enter of a warehouse at Aitape. His Honour took into account the guilty plea and the relatively low value of the property received.

STEP 4: WHAT IS THE HEAD SENTENCE?

12. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 5 focus on the circumstances of the incident. Numbers 6 to 10 focus on what the offender has done after the incident and how he has conducted himself. Numbers 11 to 13 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Was the crime in which the property was stolen a relatively minor crime? No, it was an armed robbery of a family in their home at night – the worst sort of armed robbery.
   
2. Was the property stolen without violence? No, the family that was robbed was threatened and traumatised by the robbery.
   
3. Was the offender unaware of the details of the crime in which the property was stolen? Yes.
   
4. Was the property received by the offender of a relatively low value? No. A solar panel is a valuable piece of property, especially in a rural area.
   
5. Has the offender returned the property to its owner? Yes.
   
6. Did the offender give himself up after the incident? No.
   
7. Did the offender cooperate with the police in their investigations? Yes.
   
8. Has the offender done anything tangible towards repairing his wrong? Neutral. There is no evidence that he has apologised, paid compensation or reconciled with the victims.
   
9. Has the offender pleaded guilty? Yes.
   
10. Has the offender genuinely expressed remorse? Neutral.
    
11. Is this his first offence? Yes.
    
12. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Neutral.
    
13. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral.
    

13. To recap, mitigating factors are:

• No 3 – unaware of details of robbery;
• No 5 – property returned to owner;
• No 7 – co-operated with police;
• No 9 – pleaded guilty;
• No 11 – first-time offender.
  

14. Aggravating factors are:

• No 1 – property stolen in a major crime;
• No 2 – property stolen in a violent crime;
• No 4 – valuable property;
• No 6 – did not give himself up.
  

15. The other factors (Nos 8, 10, 12 and 13) are neutral. After weighing all these factors and bearing in mind that there are five mitigating factors compared to four aggravating factors, I will fix the head sentence below the starting point. I fix a head sentence of two years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is nine months, one week, two days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

17. I will suspend the rest of the sentence on the following conditions:

(a) must within three months after the date of sentence pay K500.00 cash compensation to the victim and participate in a reconciliation ceremony supervised by the local Council of Chiefs and witnessed by a Community Based Corrections Officer;

(b) must attend the first sittings of the National Court at Buka in 2008, to demonstrate compliance with condition (a);

(c) must reside at the village and nowhere else except with the written approval of the National Court;

(d) must not leave Bougainville without the written approval of the National Court;

(e) must perform at least six hours unpaid community work each week at his local church under the supervision of the Parish Priest;

(f) must attend Church every weekend for service and worship;

(g) must report to the Probation Office at Buka on the first Monday of each month between 9.00 am and 3.00 pm;

(h) must not consume alcohol or drugs;

(i) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;

(j) must have a satisfactory probation report submitted to the National Court Registry at Kokopo every three months after the date of sentence;

(k) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

18. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

19. Henry Kenori, having been convicted of one count of receiving stolen property, is sentenced as follows:

Sentenced accordingly.
________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender