N5781

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1002 & 1003 OF 2013

THE STATE

V

BEN NAIRA LUNGIO & NECKLA DAVID

Kimbe: Cannings J
2014: 7, 23 August

CRIMINAL LAW – sentence – receiving stolen property – Criminal Code, Section 410 – guilty plea – offenders broke into missionary's house and stole personal items and divided stolen property amongst themselves.

Two men pleaded guilty to receiving stolen property. The offenders broke into the house of a missionary and stole properties worth about K4,000.00. The stolen property was divided up amongst themselves and their companions. The offenders were arrested by the Police when 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 knew it was stolen property and they had received it. This is the judgment on sentences.

Held:

(1)	The maximum sentence for receiving stolen property (Criminal Code, Sections 410(1)(a)) is seven years.

(2)	Mitigating factors are: nobody physically injured; guilty plea; first-time offenders; young offenders; property returned; not much stolen.

(3)	Aggravating factor: stolen from a person who was living in the community for the community's benefit.

(4)	Sentence of two years each were imposed, the pre-sentence periods in custody were deducted and remaining sentences were suspended subject to compliance with 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 Jelio Yawi (2009) N3631
The State v Robert Boro CR 11/2007, 16.10.07

SENTENCE

This was a judgment on sentence for receiving stolen property.

Counsel

F K Popeu, for the State
D Kari, for the offender

23rd August, 2014 

1. CANNINGS J: This is a decision on sentence for two men, Ben Naira Lungio and Neckla David who pleaded guilty to one count each of receiving stolen property contrary to Section 410(1)(a) of the Criminal Code. The offence was committed at Kandrian on 8 November 1994. The day before they went to Kurmalak Island with others and broke into the house of a New Tribes missionary and stole properties worth about K4,000.00 and went back to the mainland. The stolen property was divided up amongst themselves and their companions. They were arrested by the Police on 12 November 1994 and had in their possession a tape recorder, radio, earphones, two cassette recorders and a jacket, the total value of that property being K1,000.00. They knew it was stolen property.

ANTECEDENTS

2. Neither offender has a prior conviction.

ALLOCUTUS

3. The offenders were given the opportunity to say what matters the court should take into account when deciding on punishment:

Ben Naira Lungio: I apologise for what I did many years ago. I have settled down. I have a business in the village and I am married with seven children. I will never do such a thing again.

Neckla David: I say sorry for what I did when I was a young person and knew no better. I have settled down. I have a block to look after and I am married with five children. I ask for the mercy of the court.

OTHER MATTERS OF FACT

4. As the offenders pleaded guilty each 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). In that regard, I will take into account that they each made admissions to Police when interviewed in Kimbe on 17 November 1994. Each said it was not his idea and he just tagged along after having a few beers.

PERSONAL PARTICULARS

5. The offenders are now aged in their mid to late 30s. They are each married and have stable marriages and have stayed out of trouble since committing these offences almost 20 years ago.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kari submitted that moderate sentences are required. The incident happened a long time ago when they were much younger. The sentences should be fully suspended.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that three years imprisonment would be sufficient and he took no issue with the proposal for suspended sentences.

DECISION MAKING PROCESS

8. 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?

9. 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.

The maximum penalty is therefore seven years.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. I use a starting point of three and a half years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. Before I fix a sentence, I will consider other sentences I have imposed for this type of 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	
4	The State v Jelio Yawi (2009) N3631	Guilty plea – offender received two cheques worth about K1,200.00, stolen in an armed robbery.	2 years	

STEP 4: WHAT IS THE HEAD SENTENCE?

12. Mitigating factors are:

•	nobody physically injured;
•	guilty plea;
•	first-time offender;
•	young offender;
•	property returned;
•	not much stolen.

13. Aggravating factor:

•	Stolen from a person who was living in the community for the community's benefit.

14. After weighing all these factors and bearing in mind that there are more mitigating factors than aggravating factors, the head sentence should be below the starting point. I impose a head sentence of two years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

15. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one year, six months for each offender.

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

16. The special circumstances of this case warrant fully suspended sentences. The offenders have come forward after many years to face up to the consequences of what they did many years ago. They appear to have stayed out of trouble since then. I suspend the balance of the sentence on the following conditions:

(a)	must attend at the Probation Office within 24 hours after release from custody;
(b)	must reside at a place advised to the Probation Office and nowhere else except with the written approval of the Probation Service;
(c)	must not leave West New Britain Province without the written approval of the Probation Service;
(d)	must perform at least three hours unpaid community work each week;
(e)	must each pay K500.00 to New Tribes Mission and provide proof of payment to the Probation Office within six months after the date of sentence;
(f)	must report to the senior Probation Officer on a regular basis on times and dates to be nominated by the senior Probation Officer;
(g)	must attend their local churches every weekend for service and worship and submit to counselling;
(h)	must not consume alcohol or drugs;
(i)	must keep the peace and be of good behaviour;
(j)	must have a satisfactory probation reports submitted to the National Court Registry at Kimbe every six months after the date of sentence;
(k)	must appear before the National Court at Kimbe for probation review as and when required by the Court;
(l)	if either offender breaches any one or more of the above conditions, he shall be brought before the National Court to show because why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

17. Ben Naira Lungio and Neckla David, having been convicted of one count of receiving stolen property under Section 410(1)(a) of the Criminal Code, are each sentenced as follows:

Length of sentence imposed	2 years	
Pre-sentence period to be deducted	3 months	
Resultant length of sentence to be served	1 year, 9 months	
Amount of sentence suspended	1 year, 9 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 Offenders