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State v Peter [2020] PGNC 47; N8220 (5 March 2020)

N8220

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 127 OF 2019

THE STATE

v

RAYMOND PETER

Waigani: Salika CJ
2020: 12^th, 17^th & 19^th February, 5^th March

CRIMINAL LAW – Sentence – Unlawful use of motor vehicle - No circumstances of aggravation – Guilty Plea – First Time Offender – 1 year 5 months awaiting trial is an unnecessarily long time

Cases Cited:

GoliGolu v The State (1979) PNGLR 653
State v James Gurave Guba (2000) N2020

Counsel:

Mr. J Gubon, for the State
Ms A Pita, for the Accused

SENTENCE

5^th March, 2020

1. SALIKA CJ: INTRODUCTION: The prisoner in this matter pleaded guilty to one count of unlawful use of a motor vehicle namely a Toyota Camry Sedan, gold in colour, and registered as T6451, the property of James Lepi, without his consent.
   
2. The charge was laid under s 383 (2) of the Criminal Code Act.
   

FACTS

3. The facts were that:
   
   • (i) That on the 25^th day of September 2018 between 4 pm and 4.30 pm, the prisoner, Raymond Peter, drove a motor vehicle Taxi, described as a Toyota Camry Sedan, gold in colour and bearing registration number T6451 to the 9 Mile Plazza Inn Supermarket in NCD.
     
   • (ii) The said vehicle was reported by the owner James Lepi as stolen on the 14^th day of September, 2018, at the Kennedy Estate, 8 Mile, NCD, from the driver one Simon Tomba who was held up with knives by two men.
     
   • (iii) The said stolen vehicle was spotted at 9 Mile Plazza Inn Supermarket car-park and the accused was confronted and chased by security guards and the public who apprehended him.
     
   • (iv) The prisoner was then conveyed to the police station and arrested and charged.
     
   • (v) The State alleged that the actions of the accused in driving the motor vehicle to Nine (9) Mile Plazza Inn Supermarket on the 25^th September 2018 without the knowledge and consent of the owner contravened Section 383 (2) of the Criminal Code.
     

ISSUE

4. Having pleaded guilty to the charge, the Court’s duty is to impose the appropriate punishment on him. The question is; what punishment should be imposed on the prisoner.
   

THE LAW

5. The maximum sentence provided under s. 383 (2) is imprisonment to a term not exceeding 5 years. The Court is given discretion to impose a lesser term than the maximum prescribed by virtue of s 19 of the Criminal Code Act. Maximum penalty is reserved for the worst type of offence in this category of offences. See Goli Golu v The State (1979) PNGLR 653.
   
6. Under s 383 of the Criminal Code Act, the word “unlawful use” includes intention to deprive the owner of the motor vehicle or the person in possession of it either temporarily or permanently. It is this element of the offence that makes this charge serious.
   

SENTENCING CONSIDERATIONS TAKEN INTO ACCOUNT IN UNLAWFUL USE OF MOTOR VEHICLE CONVICTIONS

7. Kandakasi J (as he then was) in the State v James Gurave Guba (2000) N2020 expounded some relevant factors which may be taken into account in cases of this nature. In this case those factors may or may not apply. Those factors are:
   
   1. Serious injury to the owner of the vehicle – does not apply here.
      
   2. Serious damage to the motor vehicle – does not apply here.
      
   3. Was offence committed in the course of furtherance of another serious crime – does not apply here.
      
   4. Was vehicle taken by force from the owner – does not apply here.
      
   5. Whether the vehicle was left open or unlocked and the prisoner gained entry and then driving off – does not apply here.
      
   6. Whether the vehicle was used for other purposes other than the purpose for which it was given – does not apply here.
      

THIS CASE

8. This is a case where the motor vehicle was taken in a robbery. There is no evidence the prisoner was involved in the robbery. However, it is not disputed that he was driving the motor vehicle on the day it was taken off him. That is what he pleaded guilty to. The facts indicate that he had the key to the motor vehicle and the way things were, he was keeping the car permanently to himself. He was chased by the security guards and caught. Then he surrendered the motor vehicle to the owner.
   

MITIGATING FACTORS

9. The following mitigating factors are taken into account:
   
   1. First time offender.
      
   2. He is now 19 years old but was 18 when he committed the offence.
      

AGGRAVATING FACTORS

10. The following aggravating factors are noted:
    
    1. This is a prevalent offence.
    2. He had intention to keep the motor vehicle permanently.
       

PRE-TRIAL CUSTODY

11. This prisoner has been in custody for 1 year and 5 months. This period awaiting trial is far too long and is unnecessarily long.
    

ALLOCATUS

12. In his allocatus, the prisoner said he thought the motor vehicle was their vehicle and apologized to the Court and for using it.
    

SENTENCE

13. There are no aggravating factors associated with this case. The prisoner was simply using it. The factors cited in the matter of The State v Guba (2000) N2020 are not applicable in this case. He has served 1 year 5 months now in custody. I am of the view that the time spent in custody awaiting trial is sufficient. I sentence the prisoner to the term he had spent in custody which is 1 year 5 months.

________________________________________________________________
Public Prosecutor : Lawyer for the State

Public Solicitor: Lawyer for the Prisoner