Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Boro [2007] PGNC 246; N5490 (16 October 2007)

N5490

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 11 0F 2007

THE STATE

V

ROBERT BORO

Madang: Cannings J
2007: 9, 16 October

CRIMINAL LAW – sentence – receiving stolen property – Criminal Code, Section 410 – offender received two solar panels, knowing them to have been stolen in the break and enter of a home – guilty plea – sentence of 2 years.

A man pleaded guilty to one count of receiving stolen property, two solar panels, which he received knowing that they had been stolen in the break and enter of a home.

Held:

(1) The starting point for sentencing for this offence (which carries a maximum penalty of seven years imprisonment) is 42 months imprisonment.

(2) Mitigating factors are: no violence; unaware of details of robbery; property returned to owner; co-operated with police; pleaded guilty; remorse; first-time offender. Aggravating factors are: valuable property; did not give himself up; has not repaired wrong.

(3) A sentence of two years was imposed. The pre-sentence period in custody was deducted and the rest of the sentence was suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Henry Kenori, CR No 572 of 2007, 12.09.07
The State v James Hilux Palu (2004) N2585
Tom Longman Yaul v The State (2005) SC803

SENTENCE

This was a judgment on sentence for receiving stolen property.

Counsel

M Ruarri, for the State
D Joseph, for the offender

16th October, 2007

1. CANNINGS J: This is a decision on sentence for a 30-year-old man, Robert Boro, who pleaded guilty to one count of receiving stolen property arising from the following facts. The property was two solar panels stolen in the break and enter of a home at the Pioneer Bible Translators base at Josephstaal, Madang Province. The break-in had occurred in the early hours of the morning of 8 June 2006. One of the thieves met the offender later that morning. The offender knew that the panels were stolen. He kept them until they were taken from him by a village leader. He has been convicted of an offence under 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.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding seven years.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I say sorry to the court for what I have done and I say sorry to the owners of the property. This is my first time in court. I have a wife and children to care for and I am disabled. Please have mercy and put me on probation.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he 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 SCRA No 52 of 2005, 27.04.06). Significant mitigating factors amongst that material are that he co-operated with the police and made early admissions.

PERSONAL PARTICULARS

5. Robert Boro is 30 years old, married with three children and educated to grade 6.

SUBMISSIONS BY THE DEFENCE

6. Mr Joseph submitted that a sentence of around 16 months imprisonment would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Ruarri did not push for a heavy sentence.

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. The maximum is seven years but the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of 42 months (three years, six months) as the starting point.

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

11. There are few reported cases of sentencing for offences under Section 410. In The State v James Hilux Palu (2004) N2585, Kandakasi J sentenced a man in Vanimo, who had been in remand for 14 months, to the rising of the court. The offender pleaded guilty to receiving a bundle of chicken wire that he knew was stolen in a break and enter of a warehouse at Aitape. His Honour took into account the guilty plea and the relatively low value of the property received. Last month in Buka, in The State v Henry Kenori, CR No 572 of 2007, 12.09.07 I sentenced a man to two years imprisonment for a similar offence. He pleaded guilty to receiving stolen property, a solar panel worth K1,500.00, which he received, knowing that it had been stolen in an armed robbery of a family home.

STEP 4: WHAT IS THE HEAD SENTENCE?

12. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 5 focus on the circumstances of the incident. Numbers 6 to 10 focus on what the offender has done after the incident and how he has conducted himself. Numbers 11 to 13 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Was the crime in which the property was stolen a relatively minor crime? Neutral. The break-and-enter of a home is not a minor crime but it is not as serious as an armed robbery.
   
2. Was the property stolen without violence? Yes.
   
3. Was the offender unaware of the details of the crime in which the property was stolen? Yes. One of the thieves met the offender in the garden and decided to give him the panels to keep the offender quiet. It appears that the offender did not know the details of the crime.
   
4. Was the property received by the offender of a relatively low value? No. A solar panel is a valuable piece of property, especially in a rural area.
   
5. Has the offender returned the property to its owner? Yes.
   
6. Did the offender give himself up after the incident? No.
   
7. Did the offender cooperate with the police in their investigations? Yes.
   
8. Has the offender done anything tangible towards repairing his wrong? No.
   
9. Has the offender pleaded guilty? Yes.
   
10. Has the offender genuinely expressed remorse? Yes.
    
11. Is this his first offence? Yes.
    
12. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Neutral.
    
13. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral.
    

13. To recap, mitigating factors are:

• No 2 – no violence;
• No 3 – unaware of details of robbery;
• No 5 – property returned to owner;
• No 7 – co-operated with police;
• No 9 – pleaded guilty;
• No 10 – remorse;
• No 11 – first-time offender.
  

14. Aggravating factors are:

• No 4 – valuable property;
• No 6 – did not give himself up;
• No 8 – has not repaired wrong.
  

15. The other factors (Nos 1, 12 and 13) are neutral.

16. After weighing all these factors and bearing in mind that there are seven mitigating factors compared to three aggravating factors, I will fix the head sentence below the starting point. I fix a head sentence of two years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

17. 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, two months.

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

18. Sections 19(1)(f) and (6) of the Criminal Code allow the National Court to suspend all or part of a sentence, provided that the offender enters into a recognisance (a pledge) to comply with conditions set by the Court. In the present case I have decided to suspend the remaining sentence, subject to the following strict conditions:

(a) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(b) must not leave Madang Province without the written approval of the National Court;
(c) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
(d) must attend his local Church every weekend for service and worship and submit to counselling;
(e) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;
(f) must not consume alcohol or drugs;
(g) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;
(h) must have a satisfactory probation report submitted to the National Court Registry at Madang every three months after the date of sentence;
(i) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

19. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

20. Robert Boro, having been convicted of one count of receiving stolen property, is sentenced as follows:

Sentenced accordingly.
____________________________________________
Public Prosecutor Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender