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State v Medako [2023] PGNC 140; N10258 (4 May 2023)

N10258

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1141 OF 2021

THE STATE

V

MILENG MEDAKO

Waigani: Linge, AJ
2023: 04^th May

CRIMINAL LAW – Plea of guilty to one (1) count of Receiving Stolen Property pursuant section 410(1)(a) of the Criminal Code.

Cases Cited:
Goli Golu v. State [1979] PNGLR 653
Ure Hane v State [1984] PNGLR 105
State v Lungio (2014) N5782
State v Kenori [2007] N4975
State v Philip Hilux Palu (2004) N2585
State v Tony Mwayawa (2008) N3557
State v Jelio Yawi (2009) N36313
Lialu v The State [1990] PNGLR 487

Counsel:
Mr. Pare, for the State
Mr. B. Popeu, for the Prisoner

DECISION ON SENTENCE

02^nd May, 2023

1. LINGE AJ: The prisoner was indicted on one (1) count (of Receiving Stolen Property contrary to section 410(1)(a) of the Criminal Code) Act Chapter No. 262.
   
2. The prisoner pleaded guilty to the indictment.
   
3. It is my duty to consider what appropriate sentence I should impose on the prisoner.
   
4. The offence of Receiving Stolen Property under the Criminal Code is indeed a serious offence. The maximum penalty of seven (7) years is subject to section 19 of the Criminal Code Act which provides for the Courts unfettered sentencing discretion.
   

Factors in Mitigations

5. The prisoner Mileng Medako showed remorse and apologized to the Court and to the victim and those affected by his offending in his allocutus. These are factors in mitigation raised by himself and as submitted by defence counsel which also includes:
   
   • (a) His voluntarily surrender to the Police.
   • (b) First time offender (No prior convictions as per the antecedent report)
   • (c) His guilty plea to the offence saving the Court’s time and the State’s resources in conducting a trial.
     

Aggravating factors

(1) Prisoner got proceeds of the armed robbery.
(2) He did not return the money.
(3) Prevalence of the crime.

6. It is trite law that the maximum sentence is reserved for the worst types of cases, see Goli Golu v. State [1979] PNGLR 653; Ure Hane v State [1984] PNGLR 105. This case is not a worst type of case to attract the maximum.
   
7. I consider the following cases:
   
   • (a) State v Lungio (2014) N5782, the prisoners pleaded guilty to one count of Receiving Stolen Property under section 410 (1) (a) of the Criminal Code. The value of the stolen item found on him was K1000.00. He knew the items were stolen. He was sentenced to 2 years in custody less the time spent in custody and the balance of the sentence was wholly suspended.
     
   • (b) In State v Kenori [2007] N4975, the prisoners pleaded guilty to one count of Receiving Stolen Property under section 410 (10(a) of the Criminal Code. The offender in that case received a solar panel worth K1, 500 which he knew had been stolen in an armed robbery. The prisoner was sentence to 2 years less the time spent in custody and the balance of the sentence was wholly suspended.
     
   • (c) The State v Philip Hilux Palu (2004) N2585. The offender innocently received a roll of chicken wire mesh, obtained by means of a break, enter and stealing. The court considered that this was not a worst case and taking into account the fact that the offender pleaded guilty, was a first-time offender, the value of the property was not substantial, the property was recovered, and that the offender had already spent 1 year 2 months in custody awaiting trial, he was sentenced to the rising of the court.
     
   • (d) The State v. Tony Mwayawa (2008) N3557: The offender received K300.00, which he knew was the proceed from an armed robbery. He pleaded guilty on a charge under Section 410 (10 (2) of the Code. Although he gave the money to the police after he was arrested, the police gave it back to him. Her Honour Davani J (as she then was) was of the opinion that a deterrent sentence was needed because of the prevalence of the offence and sentenced the offender to 3 years imprisonment less time in custody.
     
   • (e) The State v. Jelio Yawi (2009) N3631: The offender pleaded guilty to receiving K1205.96 worth of cheques which he knew were stolen during a robbery. He was charged under Section 410 (1)(2) of the Code. The Court took into account the offender’s guilty plea, that he was first time offender and that he did not benefit from the offence, and had cooperated with the police. However, against him, were the facts that the cheques were the proceeds of armed robbery and that he attempted to fraudulently negotiate the cheques. He was sentenced to 2 years, less time in custody. The balance was suspended on terms.
     
8. It has been submitted by Defence that the trend of sentencing for this offense on a guilty plea is 2 years and that this Court should maintain consistency when exercising it sentencing discretion.
   
9. The prisoner voluntarily surrendered to the Police on the 22 August 2020. He has been in custody for the 2 years 8 months 1 week and 6 days when calculated to this date. The Court has discretion to deduct time spent in custody pending sentence under section 3(2) of the Criminal Justice (Sentencing) Act.
   
10. In exercising the sentencing discretion, in Lialu v The State [1990] PNGLR 487 the Supreme Court (per Kapi DCJ) held that:
    

“This exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles.”

11. In the end I consider the fact that the prisoner has spent more than 2 years in custody and in the exercise of my discretion I will grant the following orders.
    

Order

12. The Order of the Court will be:

(1) I sentence the prisoner to 3 years

(2) I deduct the period already spent in custody which is 2 years 8 months 1 week and 6 days.

(3) The balance of 3 months 3 weeks 1 day is wholly suspended, and he is placed on probation for the period.

Ordered Accordingly

__________________________________________________________________

Public Prosecutor: Lawyers for the State

Public Solicitor : Lawyers for the Defendant