State v Yawi [2009] PGNC 44; N3631 (19 May 2009)

N3631

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1354 0F 2008

THE STATE

V

JELIO YAWI

Bialla: Cannings J
2009: 13, 14, 18, 19 May

SENTENCE

CRIMINAL LAW – sentence – receiving stolen property – Criminal Code, Section 410 – guilty plea – offender received cheques worth of K1,205.96, knowing them to have been stolen – sentence of 2 years.

A man pleaded guilty to receiving cheques worth K1,205.96, knowing them to be stolen; and he tried to negotiate them at a store. The cheques had been stolen in an armed robbery.

Held:

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

(2) Mitigating factors are: no violence; did not benefit from the stolen property; cooperated with police; pleaded guilty; remorse; first-time offender.

(3) Aggravating factors are: the armed robbery of which the cheques were the proceeds was a violent crime; the attempt to fraudulently negotiate the stolen property.

(4) A sentence of 2 years 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 (2006) SC890
The State v Essau Fungas CR 1025/2006, 18.09.08
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
A Kupmain, for the State
S Maliaki, for the offender

19 May, 2009

1. CANNINGS J: This is a decision on sentence for Jelio Yawi who has been convicted, after pleading guilty of one count of receiving stolen property.

2. On 14 April 2008, there was an armed robbery in front of the Bank South Pacific branch in Bialla. An employee of Dominant Trading Ltd was held up at knifepoint and 76 cheques worth a total of K33,726.00 were stolen. At some time during the next 15 days the offender, Jelio Yawi, received two of those cheques, worth a total of K1,205.96. He knew that they had been stolen. On 29 April 2008 he attempted to negotiate them at Hamamas Trading, Mamota, but his plan was intercepted when the Hamamas Trading staff became suspicious and called the police, who confirmed that those cheques were amongst the stolen cheques from the Dominant Trading robbery. He was arrested and charged.

3. Jelio Yawi 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

4. The offender has no prior convictions.

ALLOCUTUS

5. 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:

It is true that I knew these cheques were stolen. I have realised that what I did was wrong in the eyes of God and was against the laws of the country. I ask the court to take into account that I did not benefit from this enterprise. I apologise to the owners of the cheques. I have spent a long time in custody already. Please have mercy and put me on probation.

OTHER MATTERS OF FACT

6. 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 (2006) SC890).

7. Significant mitigating factors amongst that material are that he cooperated with the police.

PRE-SENTENCE REPORT

8. Jelio Yawi is 26 years old. His parents are from Holik in the Yangoru area of East Sepik Province. He was born and raised at Woo settlement in Bialla and regards West New Britain as his home. He is the first born child in a family of eight. He presently lives in a high-post permanent house at Woo, owned by is father. His parents are both alive and live in Bialla and they are strongly supportive of their son, however they acknowledge that he has done wrong.

9. He married an Arowe lady in 2000. They have three children and their marriage is stable. His wife regards him as a responsible and faithful partner and a good father. He graduated from Ponini Technical School with a certificate in agriculture. He was employed with Hargy Oil Palms as a field supervisor at Togulo Plantation at the time of his arrest but is no longer employed as he has been in custody and attending to this case. He survives financially by selling garden produce. His health is OK. He has been brought up as a Catholic but has recently converted to his wife’s church, the Four Square Church. He is well regarded by his church pastor. His community record is sound. The committee chairman for Woo Settlement, Gela Vilale, speaks highly of him. He says Woo is not a high-crime area and the offender has never been in trouble with the law before.

10. The general manager of Dominant Trading was interviewed. The company is not seeking compensation and is content to leave the offender’s sentence to the discretion of the court.

11. The report concludes that the risk of Jelio Yawi re-offending is small. He is not considered a threat to the community. He is suitable for probation.

SUBMISSIONS BY THE DEFENCE

12. Ms Maliaki highlighted the guilty plea and that the offender has no prior convictions. He has been in custody a long time and has assisted the police in their investigation of the armed robbery that led to the crime he committed. The favourable pre-sentence report warrants a sentence of no more than 18 months, she submitted.

SUBMISSIONS BY THE STATE

13. Mr. Kupmain submitted that there were two major aggravating factors: the offender clearly had knowledge of the violent robbery that resulted in the cheques being stolen; and he had an intention to defraud, when he attempted to negotiate the cheques.

DECISION MAKING PROCESS

14. 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?

15. 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?

16. 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?

17. 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

No	Case	Details	Sentence
1	The State v Henry Kenori, CR No 572 of 2007, 12.09.07, Buka	Guilty plea – offender received a solar panel, worth K1,500.00, knowing that it had been stolen in an armed robbery of a family home.	2 years
2	The State v Robert Boro CR 11/2007, 16.10.07, Madang	Guilty plea – offender received two solar panels, knowing that they had been stolen in the break and enter of a family home.	2 years
3	The State v Essau Fungas CR 1025/2006, 18.09.08, Madang	Guilty plea – offender received K1,350.00 cash, knowing it had been stolen.	18 months

STEP 4: WHAT IS THE HEAD SENTENCE?

18. Mitigating factors are:

• no violence involved in receiving the property;
• did not benefit from his crime;
• cooperated with police;
• pleaded guilty;
• remorse;
• first-time offender;
• favourable pre-sentence report.
  

19. Aggravating factors are:

• the armed robbery of which the cheques were the proceeds was a violent crime;
• he had a fraudulent intention regarding the use of the stolen property that he had received.
  

20. 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 two years imprisonment.

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

21. The offender claims to have been detained in custody at the Bialla police lock-up from 29 May 2008 until now, a period of almost one year. He has not applied for bail. For security reasons he wanted to stay in some sort of protective custody at Bialla. Having heard about the nature of his detention – he seems to have become trusted by the police and has been coming and going from custody – I will exercise my discretion under Section 3(2) of the Criminal Justice (Sentences) Act by allowing a pre-sentence period of six months.

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

22. 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.

23. In the present case I have decided because of the very favourable pre-sentence report to suspend all of the remaining sentence, subject to the following conditions:

(a) must reside at the family home at Woo Settlement, Bialla, and nowhere else except with the written approval of the National Court;
(b) must not leave West New Britain without the written approval of the National Court;
(c) must perform at least six hours unpaid community work each week at the Four Square Church, Bialla, under the supervision of the Church’s Senior Pastor;
(d) must attend Four Square Church, Bialla, every weekend for service and worship and submit to counselling;
(e) must report to the Probation Office at Kimbe on the first Monday of every third month between 9.00 am and 3.00 pm, commencing September 2009;
(f) must not consume alcohol or drugs;
(g) must keep the peace and be of good behaviour;
(h) must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;
(i) must report to the National Court in Kimbe for consideration of his progressive probation report as and when required and the first such appearance shall be in September 2009;
(j) 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.

24. 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. (Tom Longman Yaul v The State (2005) SC803).

SENTENCE

25. Jelio Yawi, having been convicted of one count of receiving stolen property contrary to Section 410(1)(a) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	2 years
Pre-sentence period to be deducted	6 months
Resultant length of sentence to be served	18 months
Amount of sentence suspended	18 months, subject to conditions
Time to be served in custody	Nil, subject to compliance with conditions of suspended sentence.

Sentenced accordingly.

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