State v Mwayawa [2008] PGNC 199; N3557 (19 September 2008)

N3557

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1157 OF 2007

THE STATE

V

TONY MWAYAWA
Prisoner

Alotau: Davani .J
2008: 18th, 19th September

CRIMINAL LAW – Sentence – receiving stolen property – plea matter – K300.00 taken – s.410 of Criminal Code Act

CRIMINAL LAW – Sentence – Deterrent – 3 years

Facts

The prisoner received K300.00, the proceeds of an armed robbery, knowing it to be the proceeds of that robbery. After arrest, although he gave the K300.00 to the police, they returned it to him.

Issue

What is an appropriate sentence?

Held

1. Sentence must be a deterrent as offence is very prevalent.
   
2. A fair sentence, considering all mitigating and aggravating factors is 3 years, less time spent in custody on remand.
   

Cases cited

Acting Public Prosecutor v Andrew Amona Yongga [1981] PNGLR 314
Zimbin David v Yapu David [1988] PNGLR 178

Counsel:

P. Kaluwin, for the State
B. Pidu, for the Prisoner

SENTENCE

19 September, 2008

1. DAVANI .J: On 18th September, 2008, Tony Mwayawa (the ‘prisoner’) pleaded guilty to one count of receiving stolen property, charge laid under s.410(1)(2) of the Criminal Code Act (‘CCA’). This provision reads;
   

"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) any act done at a place outside Papua New Guinea that –
  
  • (i) if it had been done in Papua New Guinea would have constituted an indictable offence; and
    
  • (ii) is an offence under the laws in force in the place where it was done,
    

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 shall be imprisoned for a term not exceeding 14 years."

Evidence

2. The evidence that the prisoner pleaded guilty to were that on 20th April, 2005, whilst the prisoner was at Malaia, a robbery was committed. The prisoner knew about the robbery. He was given K300.00 which he received, knowing the K300.00 to be proceeds of the robbery.
   

Allocatus

3. He told the Court that he was forced to accept the K300.00. He also told the Court of a peace ceremony between the victims and his family where the prisoner’s family agreed to repay the victims the K300.00 and for the both families to be at peace.
   

Mitigating factors

4. These are that this is the prisoner’s first offence, his expressions of remorse and the fact that he returned the K300.00 to the Police immediately after he was arrested. His evidence is that the Police returned these monies to him. His guilty plea is also in his favour.
   

Aggravating factors

5. The prisoner knew the K300.00 were proceeds of an armed robbery, yet the prisoner accepted these monies.
   

Analysis of evidence and the law

6. The offence of receiving stolen property is very prevalent and common in this country. It is common knowledge in this country that proceeds of robberies are usually shared amongst relatives and friends with no thought of the consequences. Usually, it is very difficult for the Police to trace the missing proceeds because relatives of accused persons have either not said anything, preferring to remain silent or that the monies have been used up. The same applies to stolen properties.
   
7. In this case, it is a sum of K300.00. Although very minimal, the prescribed penalties of a term not exceeding 7 years (s.410 (1)) and a term not exceeding 14 years (s.410 (2)) are a reflection of the seriousness of the offence.
   
8. In this case, the K300.00 were proceeds of an armed robbery. The appropriate penalty is a term not exceeding 14 years, subject to the Court’s sentencing discretion.
   
9. Prisoner’s counsel asked the Court for a suspended sentence whereas the State submitted that a suspended sentence is not proper because of the prevalence of the offence.
   
10. Counsel for the prisoner referred the Court to filed written submissions which more or less, discuss the law in relation to this offence together with aggravating and mitigating factors. The cases referred to were the Acting Public Prosecutor v Andrew Amona Yongga [1981] PNGLR 314 (SC208) where the prisoner was sentenced to a term of 2 years wholly suspended, but on appeal, was increased to 3 years. In that case, the respondent was charged with having received 60 stolen spades knowing them to have been stolen, and which he pleaded guilty to. On submissions, the trial Court heard that the prisoner was involved in 18 other similar offences which extended over a period of 18 months involving goods to the value of K28, 000.00.
    
11. On appeal to the Supreme Court, the sentence of 2 years was increased to 3 years.
    
12. In Zimbin David v Yapu David [1988] PNGLR 178 (N687), the appellant was convicted by a Grade V Magistrate for having received stolen property. The amount received was K100.00. On conviction, the appellant was fined K600.00 in default, 6 months imprisonment.
    
13. On appeal against the severity of sentence, the appeal was upheld and a fine of K250.00 was substituted in default 2 ½ months imprisonment.
    
14. I must consider these aggravating factors against the mitigating factors which are the guilty plea, the peace ceremony, the prisoner is a first time offender and the obvious expression of remorse. The aggravating factor is that the offence is a very prevalent offence.
    
15. In this case, the prisoner maintains that he was forced into receiving the monies. But what is most prominent is the fact that he returned the monies to the Police to give to the victim but the Police gave it back to him.
    
16. The cases cited to me by counsel occurred in the 80’s. Due to effluxion of time, the sentencing range must increase, though not by leaps and bounds. The Courts must send a message to the citizens of this country that receiving stolen property, knowing it to be stolen, even from friends or family members, is a crime and that the perpetrators must suffer the consequences. I consider a sentence of 3 years to be appropriate under the circumstances as a means of deterring individuals or groups.
    
17. The prisoner has served 2 years 2 months and 1 week. This will be applied towards reduction of sentence. He shall serve the remaining 10 months 2 weeks and 3 days in hard labour.
    

Public Prose3cutor: Lawyer for the State
Stevens Lawyers: Lawyer for the Prisoner