State v Kaidori [2016] PGNC 232; N6425 (20 July 2016)

N6425

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 706 OF 2007

THE STATE

V

RUBIN J.B. KAIDORI

Alotau: Toliken, J
2016: 07th, 16^th June
And 20^th July.

CRIMINAL LAW – Sentence – Receiving stolen property – Plea – Offender receives cigarettes and alcoholic liquor stolen from a Lodge – First time offender – Property not of substantial value – Prevalent offence – Need for deterrence – Appropriate starting point 3 1/2 years – Appropriate head sentence 4 years less time in custody – Nil suspension – Criminal Code Ch. 262, s 410 (1)a).

Cases Cited:

Avia Aihi v The State (No. 3) [1982] PNGLR 92
Goli v Golu v The State [1979] PNGLR 653
The State v. Jelio Yawi (2009) N3631
The State v Lungio (2014) N5781
The State v. Philip Hilux Palu (2004) N2585
The State v Timothy Gorden (2012) N5172
The State v. Tony Mwayawa (2008) N3557

Counsel:

R. Roalakona, for the State
P. Palek, for the Prisoner

JUDGMENT ON SENTENCE

20^th July, 2016.

1. TOLIKEN J: In the early hours of 30^th September 2002, the Napatana Lodge was burgled by several youths. They stole alcoholic beverages, cigarette packets and cash valued at K12, 000.00 belonging to the Lodge. About 6.00p.m. on that day, the prisoner Rubin J.B. Kaidori, was found to have had in his possession 2 bottles of McMillan Scotch Whiskey (valued at K400) and 4 packets of Cool cigarettes valued at K28.00, which he had knowingly received from his friends who had stolen them from Napatana Lodge.

2. On 07^th June 2016, the prisoner was indicted and arraigned on the above facts for one count of receiving contrary to Section 410 (1)(a) of the Criminal Code Ch. 262 (the Code).

3. I confirmed the plea after perusing the committal court depositions. However, the defence was not ready for the allocutus as they wanted a Pre-Sentence Report. I then adjourned to 16^th June 2016 for the allocutus and submissions on sentence. I administered the allocutus on 16^th June and then heard submissions. I was, however, unable to pass sentence, so I do so now.

4. The offence of receiving is a serious offence. And depending on how the property was obtained initially, the penalty can either be 7 years if the thing received was obtained by simple stealing, or 14 years if obtained by means of a crime such a robbery or break, enter and stealing. (Section 410 (1)(2))

5. In this case the prisoner was charged under Section 410 (1) of the Code which stipulates a maximum penalty of 7 years imprisonment. It does not, however, mean that the prisoner will be given the maximum penalty, because the maximum is usually reserved for the worst cases.

6. Furthermore the sentence in this case will depend on the circumstances this case. (Goli v Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92)

7. I must now decide what an appropriate sentence for the prisoner will be. And that involves determining whether or not the offence is one that deserves the maximum. If it is then I can impose the maximum. If it is not, I have the discretion to impose a lesser sentence.

8. The prisoner is now 36 years old. He was born in 1983, so at the time of the offence he would have been around 19 years old. He is from Bimam Village in the Rabaraba sub-district of the Milne Bay Province. He is single. He comes from a family of two. His parents have both passed away. He is an Anglican and only has a Grade 6 education. He is a first time offender. At the time of his conviction on plea he had been in custody for 2 years and 10 months and 2 weeks.

9. The prisoner apologised to the shareholders of Napatana Lodge. He said he was really sorry. He denied involvement in the burglary itself but admitted that he did receive the properties in question. He said he was only a simple man with a black heart and he begged for mercy and leniency. He asked to be placed either on probation or good behaviour bond.

10. Mr. Palek submitted on behalf of the prisoner that since he did not take part in the actual robbery, albeit, knowing that the properties were stolen, an appropriate starting point should be 3 1/2 years. And taking into account his mitigating factors which include the fact that he is a first time offender and his guilty plea, among other factors, an appropriate head sentence should be in the range of 1 - 3 years.

11. Ms. Roalakona submitted on behalf of the State that an appropriate sentence should be 3 - 5 years whilst acknowledging the prisoner's mitigating factors and the fact that he has a favourable Pre-sentence Report.

12. The prisoner's culpability is pretty low. He knew though where the whiskeys and the cigarettes came from and willingly took them. Notwithstanding that the total financial loss to the victim from the burglary was in excess of K12,000.00, the value of the properties received by the prisoner was just K428.00. This is not necessarily a worst instance of receiving, so it cannot attract the maximum penalty.

13. Regardless of that a starting point for the offence of receiving, whether on conviction on plea or after trial, should be 3 1/2 years. So I fix a starting point for the current case at 3 1/2 years.

14. What then should be an appropriate head sentence? This will depend on the prisoner's mitigating and aggravating factors. I also need to consider what sentences other judges have imposed on similar cases in order to maintain some consistency and parity.

15. I find the following factors as mitigating the offence. The prisoner pleaded guilty, even though this cannot by any means be said to be an early plea. He is a first time offender, poorly educated having attained a Grade 6 education only, which cannot be called an education at all to say the least, and he was of prior good character before he committed the offence.

16. The only aggravating factors I find against the offender are that the offence is prevalent and that the prisoner escaped from custody while awaiting his trial after a mere 3 months after his committal to stand trial, and that he remained at large until he was arrested sometime in July 2014.

17. What has been the sentencing trend? The following cases show what the general trend had been in the recent past.

18. The State v. Philip Hilux Palu (2004) N2585: There 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.

19. The State v. Tony Mwayawa (2008) N3557: The offender there received K300.00, which he knew was proceeds from an armed robbery. Although he gave the money to the police after he was arrested, the police gave it back to him. Her Honour Davani J. 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. He had pleaded guilty on a charge under Section 410 (1)(2) of the Code.

20. The State v. Jelio Yawi (2009) N3631: There the offender pleaded guilty to receiving K1205.96 worth of cheques which he knew were stolen during a robbery. He tried to cash the cheques at a store. The employees of the store, however, became suspicious and called the police resulting the offender’s arrest. He was charged under Section 410 (1)(2) of the Code. His Honour Cannings J. took into account the offender's guilty plea, that he was a first time offender and that he did not benefit from the offence, and had co-operated 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. His Honour sentenced the prisoner to 2 years, less time in custody. The balance was suspended on terms.

21. The State v Timothy Gorden (2012) N5172: The offender there pleaded guilty to receiving several firearms which he knew were stolen from the Popondetta Police Station armoury during a break and enter. The offender pleaded guilty early, was a first time offender and had expressed some remorse, but his offence was aggravated by the fact the properties obtained were police issued guns, stolen from a police armoury during a break and enter of a Police Station. And whilst the offender did not benefit because he was caught before he could deal with the guns he had intended to sell the guns.

22. Even though the circumstances of the case warranted an indictment under Subsection (2) of Section 410, the State indicted the offender under Subsection (1)(a) instead, alleging merely that the guns were stolen by means of simple stealing. I was therefore obliged to impose a sentence below 7 years.

23. The defence submitted there that an appropriate stating point should be 4 years and since the offender had already spent 3 years 7 months and 8 days while awaiting trial, he should be sentenced to the rising of the court.

24. I took the view that this was worst case, holding that "the combined effect of [the] crime and the break, enter and stealing from the Police Station is an attack on the Constitution and the rule of law." I set the starting point at 7 years - the maximum - and imposed a head sentence of 6 years. I deducted the time spent in custody. None of the balance was suspended.

25. The State v Lungio (2014) N5781: There the offender pleaded guilty to knowingly receiving stolen property. They had broken into the house of a missionary and stole properties worth about K4,000.00, which they divided up amongst themselves and their companions. When they were arrested by the Police they had in their possession a tape recorder, radio, earphones, two cassette recorders and a jacket, the total value of which was K1,000.00. They were each sentenced to 2 years less time in custody. The balance were suspended on terms.

26. The sentences in the above cases ranged from a sentence to the rising of the court to 6 years. Sentences between 2 to 3 years seem to be the norm. But then again the sentence for each offence is very much dictated to by it peculiar set of facts and the circumstances of the offender, and guided by the need for personal and general deterrence.

27. The circumstances of the case at hand would, in my view, attract a head sentence at the starting point of 3 1/2 years or just above it.

28. The prisoner pleaded guilty, is a first time offender and the properties received were not of substantial value. However, receiving stolen property is a prevalent offence. One reason why this is so, is because of the fact that there is a lot of profit to be made from stolen property. A receiver is often the conduit by which stolen property is conveyed, and therefore, he plays no lesser part in the proliferation of the offences of simple stealing, break, entering and stealing and robbery. Receivers of stolen goods must therefore be appropriately punished so that they and like-minded person can be deterred.

29. This case is a bit similar to The State v Lungio (supra) except that the prisoner here consumed the stolen whiskey and cigarettes while Lungio and his co-accused were caught with properties still in their possession. They were served sentences of 2 years each. However, this does not mean that the prisoner will get a similar sentence.

30. There is need for deterrence and therefore an appropriate sentence for this prisoner should be 4 years and I sentence him accordingly. I deduct the period of 2 years 10 months and 2 weeks for time in custody. None of the balance will be suspended. The prisoner will serve his sentence at Giligili Corrective Institution.

Orders accordingly.
___________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor : Lawyer for the Prisoner