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State v Teiyo [2020] PGNC 104; N8302 (21 February 2020)

N8302

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 234, 235 & 236 OF 2018

THE STATE

V

RAYMOND TEIYO

Alotau: Toliken, J
2019: 22^nd August
2020: 21^st February

CRIMINL LAW – Sentence – Receiving – Plea - Prisoner received 19 footer dinghy and 40HP engine obtained by means of armed robbery – Mitigating and aggravating factors considered – Prior conviction for armed robbery – Purpose of sentence – Punishment or retribution – Starting point of 7 years – Appropriate head sentence - 8 years less time in custody – Suspension inappropriate – Criminal Code Ch. 262, s 410 (2).

Cases Cited

Ure Hane v The State [1984] PNGLR 105
Avia Aihi v The State (No. 3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Utieng v The State; SCR 15 of 2000 (Unnumbered judgment dated 23^rd November 2000)
The State v Harry Steven (2019) N7895
The State v Kaidori (2016) N6425
State v Timothy Gorden (2012) N5172

Counsel

A Kupmain, for the State
N Wallis, for the Prisoner

JUDGMENT ON SENTENCE

21^st February, 2020

1. TOLIKEN J: On 22^nd August 2019, the prisoner, Raymond Teiyo, pleaded guilty to an indictment charging him with one count of receiving stolen property contrary to Section 410 (1)(2) of the Criminal Code.
   
2. He was charged that on 27^th March 2017 at Samarai Island, he received a 19 footer dinghy and a 40HP Yamaha Engine belonging to one Redford Namuri which was obtained by means of an armed robbery with knowledge that it was so obtained.
   
3. The brief supporting facts are that on Monday 27^th March 2017 about 1:00 am, some robbers went to the Coral Sea Marine Culture Wharf on Samarai Island and stole several Outboard Motor Engines including a 40HP Engine with a 19 footer dinghy belonging to Redford Namuri. They later gave the dinghy and outboard motor engine to the prisoner. At the relevant time, the prisoner knew that the dinghy and outboard motor were stolen property.
   
4. This offence carries a maximum penalty of 14 years since the properties were obtained by means of a crime i.e. armed robbery. (Section 410(2) of the Code).
   
5. The law is, however, trite that the maximum penalty is resolved for the worst types of offending. It is also settled that each case must be treated according to its own set of facts and circumstances so that the sentence or punishment fits the crime. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105)
   
6. I must, therefore, decide whether this is a worst instance of receiving in which case the prisoner may very well be served the maximum. If it is not, what then should be an appropriate sentence?
   
7. Mr, Wallis for the prisoner submitted that this is not a worst case and I do agree with him. It is, however, not necessarily a trivial matter and so I must impose a sentence that is appropriate to the circumstances under which the offence was committed and the appropriate object of sentencing for this type of offence, be it retribution or deterrence.
   
8. The prisoner is 40 years old now but was 38 when he committed the offence. He is married with 3 children and comes from a family of 3 siblings. He is the last born. His father is deceased, but his mother is still alive and resides in Port Moresby. He is a member of the United Church and was educated up to Grade 4 only. He is a simple villager and has a prior conviction for armed robbery for which he was sentenced to 7 years. He has been in custody for a period of 2 years 9 months and 12 days.
   
9. In his plea in mitigation, the prisoner apologised for breaking the law and to the owner of the property in question. He apologized to his own family for bringing shame upon them. He asked for probation so that he can care for his family whom he said had suffered already during his incarceration. He said his father died in 2010 leaving behind his widowed mother who is now very old. His wife had been struggling in bringing up their children and cannot manage to care for their welfare alone. He said probation supervision will give him the opportunity to help not only his family, but also the community as a whole in church activities and maintenance of law and order.
   
10. Mr Wallis submitted that the offence is mitigated by the following factors:-
    
    • (i) The properties were recovered in good condition and returned to the owner.
    • (ii) The prisoner co-operated with the police and led them to the exact location where the properties were kept.
    • (iii) He had no part in the planning of the robbery nor did he take part in it and only came to know afterwards that the properties had been stolen in a robbery.
    • (iv) He has expressed remorse.
    • (v) He plead guilty thus saving time and money for the State had he forced a trial.
    • (vi) He was badly beaten up by the police when he was apprehended.
    • (vii) He plans to compensate the victim.
    • (viii) He is a semi-literate simple villager.
      
11. Except for his expression of remorse which I find to be not genuine, I accept all the other factors as mitigating his offence.
    
12. There are, however, aggravating factors. These are:-
    
    • (i) This is a very prevalent offence. In fact, armed robbery, is very prevalent in this provisions and it goes without saying that a lot of people, like the prisoner here, are benefiting from these ill-gotten properties when they knowingly receive them from robbers and in the process perpetrating the cycle of robbery and profiteering therefrom.
    • (ii) The prisoner has a prior conviction for armed robbery for which he was sentenced to 7 years.
    • (iii) The properties were of substantial value.
      
13. Mr. Wallis submitted that an appropriate sentence for the prisoner ought to be between 4 – 6 years. He further submitted that the sentence could then be partially suspended, and that the prisoner be placed on probation with very strict conditions.
    
14. The prisoner does indeed have a favourable Pre-sentence Report. (PSR) The victim Redford Namuri and Ward Councillor Betuel Kipo both support probation supervision. This of course weighed heavily or influenced the favourable recommendation by the Probation Officer for the prisoner to be placed on probation with a condition that the prisoner does not have any contact with prison criminals.
    
15. Mr. Kupmain on the other hand submitted that it is doubtful that any sentence will rehabilitate the prisoner. The prisoner admitted that he knowingly received the property in question. Counsel submitted further that the people who stole the properties were the prisoner’s former colleagues or partners in crime.
    
16. What then should be an appropriate sentence for the prisoner?
    
17. I will first have to fix a starting point. I would think that a starting point for this type of receiving i.e. where the property received was obtained by means of a crime, the starting point ought to be 7 years as the level of culpability and the degree of harm can be objectively assessed as pretty high. Hence, I fix the starting point at 7 years.
    
18. Now, there is no denying that armed robberies are very prevalent in this province. We, in fact, appear to hold the record for robberies with our coastal waters or robberies at sea. This is the largely due to the sparseness and distribution of the many islands that make up the province and the vast coastline along the mainland.
    
19. Of course, with that is a concomitant increase in the offence of receiving and profiteering that is associated with this type of offence. It is an open secret that there are many beneficiaries to armed robberies and burglaries. Of course, robbers are hardly ever caught because they are often harboured and shielded by those beneficiaries.
    
20. The prisoner must, therefore, receive an appropriately stiff sentence, the purpose for which is not necessarily to deter him because he has been sentenced already for the kindred offence of robbery, but obviously has not learned anything from his 7 years imprisonment. Hence, the purpose of his sentence here is purely for retribution or punishment.
    
21. Too many innocent people – individuals and businesses – have suffered under the hands of armed robbers and their friends like the prisoner here. This Court will be failing them if this type of behaviour is visited upon with a lenient sentence. This Court has a duty to ensure that offenders such as the prisoner here, even though they may not have taken part in the robberies themselves but who nonetheless provide a safe haven for stolen goods, are removed from our communities for sufficiently long periods so that people can feel safe.
    
22. I do note that the prisoner’s PSR is favourable and that the victim and Ward Councillor have no issue with placing the prisoner on probation. However, those sentiments are misplaced to say the least. This is not our normal misguided and frustrated youthful offender. This is a grown man who has a prior conviction for armed robbery and is now in Court for receiving property that was obtained by means of a robbery. He has not learned from his previous sentence and I too will ask - how can he possibly change?
    

The prisoner is worried about his aged mother and the welfare of his wife and children. He didn’t think about them when he wilfully and willingly received the stolen properties from his criminal friends. No doubt his family has suffered and will continue to suffer, but the prisoner has no-one else to blame but himself. (Utieng v The State; SCR 15 of 2000 (Unnumbered judgment dated 23^rd November 2000)

23. Mr Wallis cited several cases to assist me in arriving at an appropriate sentence. For instance:
    
    • (i) The State v Harry Steven (2019) N7895; The offender received K6,540.00, being part of K200,000 stolen from BSP in Kiunga. The prisoner who had no prior conviction pleaded guilty before His Honour Koeget J and was sentenced to 3 years less time in custody.
    2. The State v Kaidori (2016) N6425. The offender had in his possession 2 bottles of whiskey and 4 packets of cigarettes which he knowingly received from his friends who had burgled the Napatana Lodge here at Alotau and stole K12,000.00 worth of spirits and cigarettes. On a plea of guilty, I sentenced him to 4 years imprisonment. The offender was also a first-time offender.
    3. In the State v Timothy Gorden (2012) N5172, the offender had received several firearms which he knew were stolen during a burglary at the Popondetta Police Station Armoury. The offender pleaded guilty and was a first-time offender but due to the seriousness of the offence which was also an affront to the authority of the State, I sentenced him to 7 years imprisonment.
       
24. Other cases cited by Counsel attracted less sentences, but what is common among them is that offenders were invariably first-time offenders.
    
25. The prisoner here is not a first-time offender. He has a relevant prior conviction. Even though his mitigating factor appear to outweigh his aggravating factors, I am of the firm opinion that he ought to receive a sentence slightly above the starting point.
    
26. I, therefore, sentence the prisoner to 8 years imprisonment. From this, I deduct 2 years, 9 months and 12 days for time spent in pre-trial custody.
    
27. Despite a favourable PSR, I will not consider suspending the sentence or part of it. This is to send a strong message to people who benefit from or harbour armed criminals that you will lose your liberty and that your innocent wives, children and other family members will suffer also.
    
28. I order accordingly.
    
29. The prisoner has the right to appeal to the Supreme Court within 40 days.

______________________________________________________________
P. Kaluwin, Public Prosecutor: Lawyer for the State
L. B. Mamu, Public Solicitor: Lawyer for the prisoner