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State v Fungas [2008] PGNC 257; N3937 (18 September 2008)

N3937

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1025 0F 2006

THE STATE

V

ESSAU FUNGAS

Madang: Cannings J
2008: 8, 18 September

SENTENCE

CRIMINAL LAW – sentence – receiving stolen property – Criminal Code, Section 410 – guilty plea – offender received K1350.00 cash, knowing it to be stolen money – sentence of 18 months.

A man pleaded guilty to receiving K1,350.00 cash, knowing it to be stolen money.

Held:

(1) The maximum sentence under Section 410(2) is 14 years imprisonment.

(2) Mitigating factors are: no violence; unaware of details of how money was stolen; money recovered by police; co-operated with police; pleaded guilty; remorse; first-time offender.

(3) Aggravating factors are: did not give himself up; involved a third party.

(4) A sentence of 18 months was imposed. The pre-sentence period in custody was deducted and the rest of the sentence was suspended on conditions.

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 Henry Kenori, CR No 572 of 2007, 12.09.07
The State v Robert Boro CR 11/2007, 16.10.07
Tom Longman Yaul v The State (2005) SC803

Abbreviations

The following abbreviations appear in the judgment:

CR – Criminal
J – Justice
N – National Court judgment
No – number
SC – Supreme Court judgment
v – versus

SENTENCE

This was a judgment on sentence for receiving stolen property.

Counsel

N Goodenough, for the State
A Meten, for the offender

18 September, 2008

1. CANNINGS J: This is a decision on sentence for Essau Fungas, who has been convicted, after pleading guilty, on one count of receiving stolen property. He was at his home at Bilia, near Madang town, on 1 February 2006, when two people approached him, gave him K1,350.00 cash and told him to hold on to it. He was not told where it had come from but he must have known that it was dirty money – it had been stolen. Two days later he gave the cash to another person, in two bundles, and asked them to look after it. The next day the police arrived, conducted a search, found the money and charged him.

2. Essau Fungas has been convicted 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.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. 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 say sorry to God and to the court for what I have done. This is my first time in court. Please have mercy and put me on probation.

OTHER MATTERS OF FACT

5. 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).

6. Significant mitigating factors amongst that material are that he co-operated with the police and made early admissions.

PERSONAL PARTICULARS

7. Essau Fungas is 33 years old, married with one child and educated to grade 8. He is currently employed in the stevedoring industry.

SUBMISSIONS BY THE DEFENCE

8. Mrs Meten submitted that a sentence of around one year imprisonment would be appropriate.

SUBMISSIONS BY THE STATE

9. Mr Goodenough did not push for a heavy sentence.

DECISION MAKING PROCESS

10. 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?

11. The maximum is 14 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?

12. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of seven years as the starting point.

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

13. Before I fix a sentence, I will consider other sentences I have imposed for this offence. These cases are shown in table 1.

TABLE 1: SENTENCES FOR RECEIVING STOLEN PROPERTY

STEP 4: WHAT IS THE HEAD SENTENCE?

14. Mitigating factors are:

• no violence;
• unaware of details of how the money was stolen;
• money received by police;
• co-operated with police;
• pleaded guilty;
• remorse;
• first-time offender.
  

15. Aggravating factors are:

• involved a third party;
• did not give himself up;
  

16. After weighing all these factors and bearing in mind that there are more mitigating factors than aggravating factors, and comparing this case with the cases mentioned in table 1, I will fix the head sentence well below the starting point. I fix a head sentence of 18 months imprisonment.

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

17. 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 ten months.

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

18. Sections 19(1)(f) and (6) of the Criminal Code allow the National Court to suspend all or part of a sentence, provided that the offender enters into a recognisance (a pledge) to comply with conditions set by the Court.

19. In the present case I have decided to suspend all of the remaining sentence, subject to the following strict conditions:

(a) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(b) must not leave Madang Province without the written approval of the National Court;
(c) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;
(d) must attend his local Church every weekend for service and worship and submit to counselling;
(e) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;
(f) must not consume alcohol or drugs;
(g) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;
(h) must have a satisfactory probation report submitted to the National Court Registry at Madang every three months after the date of sentence;
(i) 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.

20. 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

21. Essau Fungas, having been convicted of one count of receiving stolen property, is sentenced as follows:

Sentenced accordingly.
___________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the offender