N3157
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 681 & 682 of 2005

THE STATE

V
LEVO MIHA & CECIL KEHARA

Kerema: Kandakasi, J.
2006: 19 and 23 October

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Receiving stolen property – Property proceeds of break, enter and stealing – Not worse kind of offence - Guilty plea – First time offenders - Property recovered – Value of property not substantial – Eight months wholly suspended sentence on conditions imposed - Criminal Code s.410(1)(a) and s. 19. 

Cases cited:

The State v. James Hilux Palu (25/03/04) N2585.
The State v. Robert Kawin (24/12/01) N2167.

Counsels:

Mr. D. Mark, for the State.
Mr. P.Kapi, for the Prisoner.

23 October, 2006

1.	KANDAKASI J: Both of you pleaded guilty to a charge of receiving stolen property between 10th and 21 February 2005, contrary to s.410 (1) (a) of the Criminal Code here in Kerema. On being satisfied that the evidence before the Court provided sufficient support for your guilty plea, the Court accepted your guilty pleas and had you both convicted on the charge as presented.

Allocutus and Submissions

2.	After convicting you, the Court allowed both of you to address the court in relation to your sentences. Both of you said this is your first ever offence and were sorry for what you have done. You then asked for mercy or leniency and pleaded for community service orders and good behaviour bond. 

3.	Your lawyer added by drawing the Court’s attention to the pre-sentence report from the probation service, which gives both of your personal and family backgrounds. The report concludes with a recommendation for both of you to be given community based sentence instead of being sent to the prison to serve your respective sentences. Your lawyer made submissions endorsing the pre-sentence reports recommendations. In so doing, he pointed out that both of you pleaded guilty to the charge and that this is your first ever offence. The State through its counsel endorsed your lawyer’s submissions.

The relevant facts

4.	The relevant facts in your case is this. On the night of Thursday 10 February 2005, there was a break, enter and stealing from the Kerema CID office. Those who broke in helped themselves to certain goods that were in that office. That included two radio cassette players and 30 to 40 CDs that were kept as Court exhibits. One of the radio cassette players was identified as an Enzer Brand serial number SA1408BB-085. One of the persons involved in the break and enter came and gave the radio to you, Cecil Kehara on the same night of the break, enter and stealing of the CID office. Cecil, you hid the radio that night and then in the morning of the next day, you passed it onto a Laksy Hilake for him to sell. At the time of doing that, you informed Mr. Hilake that the radio was a stolen property. 

5.	 On Friday 18 February 2005, Mr. Hilake approached you, Levo Miha when you were at the market doing your marketing. He told you that he had a radio cassette player for sale at K150 and asked if you would be interested in buying it. You told him, you were interested but did not have the full purchase price. You therefore offered to pay K50 first and the balance later. Mr. Hilake accepted your offer so you gave him K50 in exchange for the radio with promise to pay for the balance later. 

6.	Later that day, Levo, you took the radio home. On your wife learning that you had spent K50 on the radio cassette player, she argued with you as to why you could do that, because you had your children’s school fees yet to be paid and other necessities of life. As Levo was arguing with his wife, Cecil, you went to him and demanded the balance of the purchase price. Since, Levo, you did not have the money and because of your argument with your wife, you asked Cecil to get the radio and go but he did not. So the radio remained with you until the 21 February 2005.

7.	On 21 February 2005, Levo, you further sold the radio to a man from Dawa. You put the radio in a flour bag and passed it onto the Dawa man. When the radio was with that Dawa man, the legal and original owners of the radio, a Justine and Maima Ai identified the radio has theirs previously stolen and reported the matter to police. That eventually led to your arrests and charges.

The Offence, Sentencing Trend and Tariffs

8.	The offence of receiving stolen property is prescribed with its penalty by the Criminal Code in section 410 in these terms:

"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)	…

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."

9.	Both counsels were not able to assist the Court with the relevant sentencing guidelines, trend and tariffs for this offence. I had stated precisely that situation in the case of The State v. James Hilux Palu. There, I found that there was no case to assist me with the way in which sentence should be approached in these types of cases. I therefore, considered the issue and decided to adopt guidelines I suggested for stealing offence cases under s. 372 of the Criminal Code in the case of The State v. Robert Kawin. In so doing I said: 

"… [I]n accordance with the well-accepted practice in our jurisdiction, the maximum prescribed sentence should be reserved for the worse category of the offence of stealing. A worse case of stealing would be one that might have factors like, the total value or the actual amounts of money stolen, falling just short of K1, 000.00, thereby escaping an application of the provisions of subsection 10. It would also be a worse case if say, an element of a breach of trust whether legal or a defector kind of trust not caught by any of the other subsections in s. 372 exists, and the offence is committed in furtherance of an illegal activity or another offence. 

At the same time, I observed that, at the end of the scale would be a simple case of stealing, such as, pocket picking, or someone leaving some valuable item mistakenly at a place and another person steals it with full knowledge of its owner. Stealing in such a situation should attract a sentence of a few months, about 3 to 4 months. 

I further stated that, there would be cases in between these two extremes. Cases falling in this category would be cases where for example, the amount of money or the value of item stolen is small but the offence is committed in pursuance of an illegal activity or another offence. There might also be cases where the amount of money or value of item stolen is substantial but not necessarily up to K1, 000.00. In such cases, the sentence could range from more than 4 months and closer to the maximum prescribed sentence of 3 years.

Finally, I said a guilty plea by a first time offender or a young offender could reduce the kind of sentence suggested. I observed in that regard that, the need to do that, has been made clear in a large number of cases though in the context of other offences as in the case of Gimble v The State [1988 – 89] PNGLR 271, by the Supreme Court at page 275.

I did not intend that, what I suggested in terms of the above should be rigid or mandatory. Instead, I made it clear that, these are suggestions put forward as a guide in the absence of any other guideline to the contrary. A judge could therefore, impose a sentence outside the suggested guidelines provided; there is a good reason to do that.

In your case, I am of the view that, what I suggested in the above case relevant and applicable with the necessary modifications. Accordingly, I adopt those guidelines for the purposes of determining an appropriate sentence in your case."

10.	Then going by these guidelines, I noted that, the James Hilux Palu case was a simple case of receiving stolen property with nothing more. That had to be distinguished from a case in which the recipient has encouraged directly or indirectly the stealing of the property at the first place so he could benefit from it. Further, I note that the value of the property in question was around K100.00. That was not substantial. Again, I contrasted the case with a case of receiving goods of substantial value. In addition, I noted that, there was no evidence or even a suggestion that the value of the property stolen diminished to any extent, as opposed to being damaged or destroyed or used up. 

11.	Given those factors, I did not find that case falling into the worse kind of receiving stolen property cases. Instead, I found that, the case would fall somewhere in the lower end of the scale. That should attract a sentence of a few months to 1 or 2 years. Then noting that the offender had good mitigating factors, including his guilty plea and being a first time offender, I considered a period of 1 year 2 months he already spent in custody while waiting for his trial sufficient sentence. I therefore sentenced him to the rising of the Court.

Your Case

12.	In both of your cases, I take into account your respective personal and family backgrounds as outlined in the pre-sentence report. According to that report, I note that Levo Miha, you are 32 years old and married with two children. There are however 7 people living with you at the Opao camp here in Kerema. Both of your parents are dead. You have 4 brothers and 2 sisters. All of your siblings are alive save for one of your sisters who passed away. Education wise, you have been up to grade 6 primary school education level. Presently, you are unemployed and live on selling smoke products and betel nuts. You will be able to afford a court fine if that does not exceed K300. Health wise, there are no concerns. You have not been in trouble with the law before.

13.	As for Cecil Kehara, you are 30 years old and reside with your parents at Havoro site here in Kerema town. You have two brothers and 4 sisters. Both of your parents are alive and well. You have reached grade 5 level of primary education and currently unemployed. You are not married and are dependant on your parents. You have no health concerns. You have not been in trouble with the law before.

14.	The pre-sentence report has inputs from the original owner of the radio cassette player. They are happy that their property was recovered in good condition. They prefer that you be given a non custodial sentence with community service orders. That is ultimately the recommendation of the probation service.

16.	In terms of the factors in your aggravation and mitigation, I note there is one factor in your aggravation. That is the fact that you committed an offence that is prevalent. Happily receiving and using a known stolen property is the ultimate end of the other serious offences of break, enter and stealing and armed robbery. If people like you and others in the community refused to deal with stolen goods or property, there would be no encouragement for armed robbers, break, enter, stealing and other stealing offenders. It logically follows therefore that, if the sentences for the kind of offence you committed is sterner, it would help minimize commission of the other serious offences.

17.	Against the only factor in aggravation, there are number of mitigating factors. First, both of you are first time offenders. That means you have not been in trouble with the law before. The law allows for offenders in your position to be dealt with less severely than an offender who has been in trouble with the law.

18.	Secondly, I take into account the fact that both of you pleaded guilty to the charge. That saved the State the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need for the relevant witness to come to Court and testify against you which would have been an inconvenience forced upon them by your unlawful conduct at the first place. 

19.	Thirdly, I note that the stolen property was recovered to the original and legal owners without any damage to it. Indeed the owners confirm that happening and have indicated a support for you to receive a non custodial but community service order based sentence. 

20.	The value of the stolen property is not before me. But it is clear that it was being sold for a price of K150. The actual value may be beyond that to some where in the region of K300 to K600. Nevertheless, I cannot assume that value. I can only go by what is before the Court. Accordingly, I am of the view that the value of the stolen property is not high.

21.	Finally, I note that there is no evidence of you been part of the gang that broke into the CID office and stole the radio cassette player and other goods that were there. There is also no evidence that you facilitated the commission of the offence purposely for you to receive the stolen goods for you to then sell them.

35.	Weighing the factors for and against you, I note that the factors in your mitigation far outweigh those in your aggravation, I consider a head sentence of 8 months is appropriate and I impose it against both of you. I am then prepared to suspend the whole of that sentence as I believe that sending you to prison will not better reform you and turn you into a better person. Instead, sending you to jail might turn you into worse criminals and you would not be of any use to the State or the people if I send you there. Thus a sentence outside the prison system would better serve the elements of punishment, deterrence and rehabilitation. 

36.	The suspension will be on the following terms:

(1) 	Immediately, upon the handing down of this decision, you attend on Mr. Joseph Frank, the Volunteer Probation Officer who is with the Catholic Mission here and settled with him a supervised 8 hours per week free community service schedule commencing 6 November 2006 week to be rendered to the township of Kerema for the suspended period of 8 months and have that schedule delivered to the Court later today or no later than 9:00am tomorrow for the Court’s approval;

(2)	Once the Court endorses the work schedule under term (1) above, you commence implementing it by or before the 6 of November 2006. 

(3	You immediately enter into a recognizance to keep the peace and be of good behaviour for the whole of the suspended period of 8 months commencing today;

(4)	You be home bound between the hours of 6:00pm and 6:00am each day;

(5)	You shall reside only at your respective homes here in the township of Kerema and shall not leave the township of Kerema or the Gulf Province without first seeking and obtaining the approval of the Court during currency of your suspended sentence;

(6)	Any member of the Police here in Kerema and the country shall be at liberty to enforce and report to the Court any attempted or any actual breach of any of the terms of the suspension of sentence.

(7)	You will allow for and permit Mr. Joseph Frank to visit your home at your costs on a regular basis to monitor your compliance of these terms and to report with such recommendations as he might consider appropriate either for a variation or an implementation of these terms;

(8)	The Probation Service shall furnish a bimonthly report to this Court with the first being due by December 6, 2006. 

(9)	If for whatever reason you breach any of these terms, you will serve the full sentence of 8 months from the date of the breach; and

(10)	You will be at liberty to apply for a review and or variation of any of these terms including a lifting of any of these terms and conditions, provided there has been substantial compliance, which shall include a full compliance of terms 1, 2, and 3 above.

___________________________

Public Prosecutor: Lawyers for the State 
Public Solicitor: Lawyer for the Prisoners