State v Gorden [2012] PGNC 321; N5172 (26 November 2012)

N5172

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 1123 OF 2006

THE STATE

V
TIMOTHY GORDEN

Popondetta: Toliken AJ
2012: 08th August, 26th November

CRIMINAL LAW – Sentence – Receiving – Guns obtained from break, enter and stealing from Police armoury – Criminal Code Act Ch. 262, s 410

CRIMINAL LAW – Sentence – Plea of guilty – First time offender – Guns obtained by means of a crime – Need for deterrent sentence – Head sentence of 6 years less period in pre-trial custody – Period to be served 2 years, 1 month 5 days – Criminal Code Act Ch. 262, s 410 (2)

Cases Cited:

Goli Golu v. The State [1979] PNGLR 653
Acting Public Prosecutor v. Andrew Amona Yongga [1981] PNGLR 314
Zimbin David v. David Yapu [1988] PNGLR 178
The State v. Wali (2004) N2580
The State v. Philip Hilux (2004) N2585
The State v. Tony Mwayawa (2008) N3557
The State v. Jelio Yawi (2009) N3631

Counsel:

M. Ruarri, for the State
A. Ninkama, for the Prisoner

SENTENCE

26th November, 2012

1. TOLIKEN AJ. On the of 08th August 2012 the State indicted you for one count of receiving stolen property, an offence under Section 410 (1)(a) of the Criminal Code Ch. 262.
   
2. The State alleged that you:
   

TIMOTHY GORDEN of PUHEMA, Popondetta in the Oro Province [stand] charged that [you] on the 11 day of December, 2008 at POPONDTTA in Papua New Guinea received several shotguns, the property of the Independent State of Papua New Guinea which had been obtained by means of stealing. (sic)

THE FACTS

3. The brief facts to the offence are as follows.
   

On the 11th day of December, 2008 at about 9.00 pm, a group of boys numbering up to six (6) entered the Popondetta Police Station yard through the main gate. They went to the Police Armoury and cut the padlock to steel door of the armoury. Three of them entered the armoury, removed the guns and passed them to their accomplices outside and they escaped through the back of the Police Station. The thieves were aided in their theft by the heavy rain thunder and lightning that night.

The police conducted their investigations and you were found with group of boys in possession of a bag containing the guns that were stolen from the Police Armoury. You denied participating in the theft but admitted to receiving the stolen guns.

4. You pleaded guilty to the charge and also admitted the brief facts when these were put to you. I confirmed your plea but only after I had perused material on District Court committal file and having satisfied myself that the evidence supported your plea.
   
5. I was not able to pass sentence on you then so I do now.
   

YOUR PERSONAL PARTICULARS

6. At the time of the offence you were a single man of 25 years of age. You come from Puhemo Village, in the Oro Province where you reside with your mother and three brothers. You are the eldest. Your father passed away in 1999. You are not formally employed but sustain yourself and family through subsistence farming. You attended Popondetta Primary School – hence educated only to Primary School level. You are a member of the Anglican Church. You are a parishioner of the Resurrection Parish. You have no previous convictions. At the time of your plea you had been in remand custody for 3 years, 7 months and 8 days. To date you have actually been in pre-trial custody for 3 years 10 months and 25 days.
   

ADDRESSES TO THE COURT

On Allocutus

7. You addressed the Court on sentence or penalty. You apologised to Court and the citizens of the country. You said you were just standing around when the stolen guns were given to you. You pleaded for leniency.
   

Your Lawyers

8. Your lawyers made a detailed written submission on your behalf, citing the law, the sentencing trend by this court for this kind of offences and the peculiar circumstances of your case. They then proffered to the court what they think should be the appropriate sentence or penalty for you.
   
9. Mr. Yavisa cited two cases which he said should assist the Court in arriving at an appropriate sentence for you. These are Acting Public Prosecutor v. Yongga [1981] PNGLR 314 and Zimbin David v David Yapu [1988] PNGLR 178. I will discuss these cases later on in this judgment.
   
10. They also submitted that there are factors that lessen or reduce the gravity or seriousness of your offence. These include your early plea of guilty, that you are a first time offender and that you expressed genuine remorse to the court, the State and the Police. They, however, conceded that there is at least one aggravating factor – the fact that the guns were stolen from a Police Station by means of a break and enter. Furthermore your lawyers said that you were apprehended in the vicinity where the bag of guns were but was not in possession of the bag or one of the guns. This they said should be taken as an extenuating circumstance in your favour.
    
11. Finally they said an appropriate starting point in your case would be 4 years but given that your mitigating factors outweigh the aggravating factors that should be reduced to just three years. And given the length of time you have been in custody awaiting trial (three (3) years, seven (7) months and eight (8) days – at the time of submissions - which they said would have been sufficient punishment for you, you should therefore be sentenced to the rising of the Court.
    

Lawyer for the State

12. Mr. Ruarri for the State on the other hand submitted that whilst the normal penalty for this offence is 7 years, where, the property received was obtained by means of a crime- as in this case - then the maximum penalty would be 14 years. Mr. Ruarri pointed the court to what he says are the aggravating features of your offence. These are that the guns were stolen from a police station, receiving stolen property encourages the crimes of robbery, stealing and breaking, entering and stealing, the use of guns in the commission of the offence which may have resulted in deaths or serious injuries to other persons and that the offence is prevalent.
    
13. Counsel referred me also referred the court to several cases which he said could guide it into arriving at an appropriate sentence. These are: The State v. Tony Mwayawa (2008) N3557; The Acting Public Prosecutor v. Andrew Amona Yonnga [1981] PNGLR 314; The State v. Philip Hilux (2004) N2585 and The State v. Jelio Yawi (2009) N3631. Mr. Ruarri called for an immediate custodial sentence.
    

THE LAW

14. The offence of Receiving Stolen Property is created under Section 410 (1) (a) of the Criminal Code. It provides:
    

410. Receiving stolen property, etc.

(1) A person who receives anything 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 is liable to imprisonment for a term not exceeding 14 years.

(3) ...

(4) ...

15. Receiving is a serious offence which can attract a maximum of 14 years imprisonment. In Zimbin David v David Yapu [1988] PNGLR 178, Bredmeyer J. said at p. 182 that:
    

"... [R]eceiving is regarded by the law as very serious, e.g, 14 years maximum imprisonment against three years imprisonment for simple stealing and this is so for two reasons. The first, is that the receiver is very often "the fence", the one who sells the stolen property, and without him, in some types of theft there would be no thieves, e.g., the receiver of stolen car parts. Secondly, ... the receiver runs less risk of being caught."

16. Of course it is settled that maximum penalty is reserved for the worst of offences (Goli Golu v. The State [1979] PNGLR 653).
    
17. There is doubt that over the years there would have been a corresponding increase in cases of receiving with offences of stealing, robbery and break and entering. And of course only a fraction of these ever end up in court. Because this offence is also tried summarily by Principal Magistrates in the District Courts and there is a kindred offence of possession of stolen property (s 16 of Summary Offences Act ) which are also dealt with by the District Courts, very few of these cases come up to the National Court. I have therefore with the limited resources available to me while on circuit not been able to find other cases. So how have the courts treated those cases that have filtered through to them?
    

SENTENCING TREND

18. Let us quickly survey the cases that have been cited to the court by counsel.
    

No.	Case	Particulars	Sentence
1.	Acting Public Prosecutor v. Yongga [1981] PNGLR 314	Prisoner/appellant pleaded guilty to receiving K28,000 worth of goods stolen from the wharf over an 18-month period – Sophisticated operation involving the misuse of company dockets and the sale of all the received goods for cash - Sentence to 1 year of one year	Sentence increased on appeal to 3 years
2.	Zimbin David v David Yapu [1988] PNGLR 178	Prisoner convicted after trial for receiving a sum of K100.00 under circumstances which he ought to have known was stolen – Fined K600.00 i/d 6 months imprisonment. On appealed against the conviction and sentence he was fined K250.00 i/d 2 ½ months imprisonment.	Sentence reduced to fine of K250 i/d 2 ½ months imprisonment
3.	The State v. Tony Mwayawa (2008) N3557	Prisoner received K300 from a robbery	3 years imprisonment
4.	The State v. Philip Hilux Palu (2004) N2585	Prisoner innocently received a roll of chicken wire mesh, obtained by means of a break, enter and stealing—Not worse kind of offence—Guilty plea—First time offender—Property recovered—Value of property not substantial—1 year 2 months already spent in custody awaiting trial sufficient sentence	Rising of the Court
5.	The State v. Jelio Yawi (2009) N3631	Prisoner pleaded guilty to receiving K1205.96 worth of stolen cheques – Knew cheques were stolen in a case of robbery – Tried to cash them in a store- Mitigating factors - First offender – Remorseful – Did not benefit from crime – Co-operated with police – Pleaded guilty – No violence used – Aggravating factors – Cheques proceeds of armed robbery, a violent crime – Attempt to fraudulently deal with cheques.	2 years

19. As we can see from the above, the average sentence had been between 2 – 3 years.
    

YOUR CASE

20. At the outset your case is quite different from the cases cited above. Here is not a case of receiving what I might call ordinary proceeds of a crime but rather the receipt of guns stolen from a police armoury – a very serious crime indeed. But before I go further let me consider your particular circumstances.
    

Factors in Mitigation

21. I take the following factors into account as mitigating your offence:
    
    1. You pleaded guilty to your crime at the first opportunity
    2. You are a first time offender
    3. You showed some remorse
       

Aggravating factors

22. But against the above, I find the following aggravating factors:
    
    1. The properties obtained by you were police issued guns stolen from a police armoury
       
    2. The guns were stolen during a break, entering and stealing from a police station
       
    3. Though you did not benefit from them as you were caught in time you intended to deal with guns for profit.
       

So what would be an appropriate sentence for you?

APPROPRIATE SENTENCE

23. I have given serious thought to what an appropriate sentence for you should be. Should I sentence you to the rising of the Court as submitted by your lawyers, because they reckon that the mitigating features of your offence out-weigh the aggravating factors?
    
24. In my view yours is a very serious case indeed. It is not a simple case of receiving which would attract a term not exceeding 7 years. Rather the guns you received were obtained by means of a crime – breaking, entering and stealing - and that attracts a term of up to 14 years. Fortunately for you the State did not allege this fact, which is a circumstance of aggravation, in the indictment. It merely alleged that the guns were obtained by means of stealing and counsel did not seek the application of Subsection (2) of Section 410 in his submission. Hence I am left to consider an appropriate sentence for you within the range provided under Subsection (1)(a) – a sentence not exceeding 7 years.
    
25. Unlike Philip Hilux Palu (supra) you were not an innocent receiver. You knew that the guns were stolen from the Police Station at Popondetta and that is a further, if not, the most aggravating feature of your offence. So in these circumstances I cannot imagine if any matter can get any worse than this.
    
26. It is obvious to me that you intended to profit from guns. I particularly take a strong view of the fact that the properties in question were obtained from a police station. I view that act to be tantamount to an attack of an important institution of the State whose Constitutional duty is to uphold the law and, regardless of whether you were involved in the actual breaking into of the police station and subsequent theft of the guns or a mere "fence" for the disposal of the guns, the matter calls for a stiff penalty. This is not only to punish you and deter you and like-minded persons but also to exact respect by people like you for the law and those State institutions like the police whose duty it is to enforce the law so that citizens including yourself can enjoy the rights and freedoms that are guaranteed under the Constitution.
    
27. In this regard I echo the words of His Honour Kandakasi J in The State v. Wali (2004) N2580. There the prisoner had pleaded guilty to one count of break, enter and stealing two firearms and some cash from the Maprik Police Station. His Honour said in the context of that case before him that:
    

"..., attacking a police station or its establishment is a more serious offence. It is already worse enough to attack a single policeman. It is far worse to attack a whole establishment. The country's security depends on them. It is organized from the headquarters down to the little establishments. It is not just any other establishment. A police station is the one place, or that which assures the community that, their security is taken care of by the presence of a policeman or of a police station amongst them. The mere presence of a police station brings with it law and order and respect for authority and the lives and properties of others. Hence, an offence against a police establishment has to be dealt with severely and sternly to give the police force and the community the protection they need in order for them to provide the community and the country security and law and order.

28. I do accept that there is no evidence that you were involved in breaking into and stealing the guns from the Police Station. However, you knowingly received the guns and definitely would have dealt with them were you not caught in time by the police.
    
29. Crimes of robbery and breaking, entering and stealing are on the rise. And maybe one reason for this is that there is a lot of profit involved in the sale and/or re-selling of properties stolen in such circumstances. There seems also not to be a shortage of buyers for such goods and this effectively helps these offences to thrive almost abated.
    
30. I accept your personal antecedents - that you are a first time offender and have pleaded guilty to the charge. These, however, pale into insignificance when compared with the fact that you received police issued firearms which you knew had been stolen from the Police Station. You displayed total disrespect for the law, for an important and vital State institution, and you thought nothing of the fact that in receiving the guns you were playing a part in weakening the capability of an already under-staffed and under-resourced Police Force whose members are struggling against all odds in ensuring that the security of the community and the State at large is protected. The combined effect of your crime and the break, enter and stealing from the Police Station is an attack on the Constitution and the rule of law.
    
31. Therefore I propose to impose a stiff deterrent sentence. In the circumstances your offence must attract a starting point at the very top i.e. the maximum penalty of 7 years. I, however, take into account your mitigating factors particularly your plea and the fact that this is your first offence. I will therefore impose a head sentence of 6 years. From this I deduct 3 years 10 months and 25 days for pre-trial custody period. The resultant sentence should therefore be 2 years 1 month and 5 days. You will therefore serve 2 years, 1 month and 5 days imprisonment at the Biru Corrective Institution.
    
32. There will be no suspension of the sentence lest the Court is seen as condoning or rationalizing your particular type of offence.
    
33. Orders accordingly.

________________________________________________________

Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Accused