Marum v Lapai [1993] PGLawRp 532; [1993] PNGLR 341 (22 March 1993)

PNG Law Reports 1993

[1993] PNGLR 341 - Albert Marum v Pitu Lapai 

[1993] PNGLR 341

N1147

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ALBERT MARUM

V

PITU LAPAI

Rabaul

Doherty J

11 March 1993

22 March 1993

CRIMINAL LAW - Possession of goods illegally acquired - Circumstances of acquisition to be considered - Court cannot say maximum fine is too low and, therefore, a custodial sentence must be imposed.

CRIMINAL LAW - Sentencing - First offender.

Facts

The appellant was convicted of being in possession of goods reasonably suspected of being stolen. He had purchased a car stereo for K50 from three "boys" on a bus. He was sentenced to three months in hard labour. He appealed against his conviction and sentence on the grounds that, firstly, he had given a reasonable explanation as to how he came into possession of the goods and, secondly, the sentence was excessive.

Held

N1>1.       In considering how a person acquired goods, consideration must be given to the place, nature of the property, price, and circumstances of the acquisition. Some common sense must be applied.

N1>2.       It is erroneous to say the maximum fine provided by law is insufficient and, therefore, a custodial sentence must be imposed.

Cases Cited

Papua New Guinea Case Cited

Belawa v The State [1988-89] PNGLR 496.

Other Case Cited

O'Sullivan v Tregaskis [1947] SAStRp 55; [1948] SASR 12.

Counsel

E Jubilee, for the appellant.

N Sios, for the respondent.

22 March 1993

DOHERTY J:  The appellant was convicted on 29 December 1992 of being in possession of stolen property contrary to s 16 of the Summary Offences Act Ch 264. He was found guilty after a trial. The property was a car stereo radio which was stolen from a private vehicle in Rabaul.

Clearly, the radio had been stolen. Evidence had been adduced by the owner and by the police who took the report.

The stereo had come into the possession of the appellant when he bought it for K50. There is no direct evidence from the lower court as to the condition of the radio, its age, or the normal price for such radios, and I cannot assess whether K50 is the realistic value of such a radio. The appellant does not appear to have argued this point in the lower court, i.e. K50 was a realistic price and, therefore, he had no reason to query where it came from.

Clearly, the radio was within the physical possession and control of the appellant. The learned magistrate found this to be so, and I agree with him. The appellant did not seem to deny that in the lower court nor here. His explanation was that he bought it from a person called Hosea Batia for K50. He said he then took it to his house. He did not say that Hosea Batia was, in fact, his employee, a driver of his PMV bus. Hosea Batia did not confirm nor corroborate this story. He said instead that some people got on the bus at a bus stop and offered him the radio. He took "the boys" to the appellant and dropped them there. The appellant bought the stereo radio from them.

When the appellant's version of events was put to Mr Batia, he said that that was not correct. He said he had merely transported "the boys" to the appellant's house, where the transaction took place directly. There were three of these "boys".

I agree with the learned magistrate that the evidence of the appellant and his witness is inconsistent, and one of them has to be telling a lie. The learned magistrate found that the three youths were known to the appellant. I cannot find such direct evidence on the depositions, but I agree with him that the manner of purchase without a trading licence is not the normal means of purchase of such an item.

Counsel for the appellant says that once the defendant gives an explanation on the balance of probabilities as to how he came into possession of the goods, the onus moves to the prosecution to rebut the defendant's explanation. He also says that the purchasing of the radio is a transaction done between the defendant and the person selling, and that amounts to a "basis of acquisition". He says that the issue is not whether the defendant should have suspected that it was stolen or illegally acquired but whether it came into his possession legally.

I have not been referred to any direct Papua New Guinea case law on this offence, although it is not an uncommon charge. The writers Desailly and O'Neill in "Criminal Jurisdiction of Magistrates in Papua New Guinea" cite the case of O'Sullivan v Tregaskis [1947] SAStRp 55; [1948] SASR 12 at 16, where the court said: "It is manifestly impossible to enumerate or define all the circumstances that may reasonably attract suspicion to the property, but, for this purpose, regard may be had to the nature of the property, to the circumstances in which it has been found, and to the behaviour of the defendant, with respect to it". That case also refers to suspicion being incited by something abnormal or incongruous in acquisition.

I, with respect, agree with that and consider that some common sense must be applied to the facts, the circumstances, place of acquisition, price and nature of the property when looking at a transaction such as the purchase of goods. It is not enough to say a price was paid and, therefore, that is a legal contract and, automatically, the onus shifts to the prosecution to rebut a defendant's explanation. A contract is a legally binding contract only if all elements are present. These include a good title and a right to sell on the part of the seller. Offer, acceptance, and consideration are not the sole elements in a contract.

I agree with the learned magistrate that the circumstances of this sale, three "boys" on a PMV bus selling a radio, not at a normal outlet for sale, without an apparent trading licence and the type of property not normally sold on PMV buses, could give rise to question as to how the goods were acquired. I must disagree with counsel - suspicion as to where the goods came from and how they were obtained must be a relevant matter in the back of the mind of the purchaser.

I do not uphold the appeal on this ground. I consider that the appellant was properly convicted and agree with the finding of the learned magistrate.

The appellant also appealed against his sentence. He was sentenced to three months in hard labour. Counsel for the appellant stresses several aspects of the assessment of this sentence. He contends that there was a stress on the appellant being a businessman, and that conviction on a plea for another offence under the same section was taken into account. The State does not challenge that the offence which the magistrate considered as a prior conviction did, in fact, occur after the events of this charge. Hence, I agree that he should have been treated as a first offender. I cannot find anything in the learned magistrate's records or his reasons for decision that indicates to me he placed over-emphasis on the appellant being a businessman. All people are the same in the eyes of the law. The Supreme Court said in Belawa v The State [1988-89] PNGLR 496, "more should be expected of those to whom more is given". But caution must be exercised in adopting such a broad criteria, as it was referring to persons in positions of trust.

The maximum sentence is a fine of K200 or imprisonment up to two years, and I think the learned magistrate erred in deciding that the maximum fine was insufficient, given this was a first offence, and not the worst example of such an offence. The learned magistrate seems to say that the appellant could well afford K200. He says, "If he can afford that, he can afford anything less as I do so impose that that would not be justified at all" (sic). I find it difficult to fully understand this statement. It may be that the appellant can afford K200, and the courts have said that certain fines do not really punish the well off; but the legislators have made the decision to impose a maximum fine of K200 or imprisonment for a term not exceeding two years, an amendment that was introduced in 1985. That amendment increased the maximum custodial sentence but not the maximum fine. In fact, it decreased the fine for a second offence.

The courts have said that this offence must be treated seriously, as the person who buys or acquires goods knowing or suspecting they were illegally acquired gives an outlet to others who commit crimes such as theft or break, enter, and steal to dispose of the goods they have taken. The offence is a serious one. However, a first offender should not receive the maximum penalty, even though it was on a trial, particularly when the offence is not the worst example.

I find the learned magistrate erred in saying the K200 fine was insufficient and, therefore, he must impose a custodial sentence. Parliament has set the limits, and the Courts must work within that frame.

I, therefore, uphold the ground of appeal that the punishment was excessive. Instead, I impose a fine of K100 and the default penalty of six weeks in hard labour. I further order that the defendant be of good behaviour for 12 months from 1 January 1993. I impose the date 1 January 1993 and not today's date to take account of the period the appellant has been awaiting a hearing.

K100 of the K200 recognizance is to be converted to the fine, and the balance of K100 is to be returned.

Lawyer for the appellant: Ephraim Jubilee & Lawyers.

Lawyer for the respondent: Public Prosecutor.