The State v Timothy Gorden (2012) N5172

• Jurisdiction: Papua New Guinea
• Judge: Toliken AJ
• Judgment Date: 26 November 2012
• Citation: (2012) N5172
• Docket Number: CR 1123 OF 2006
• Court: National Court
• Year: 2012
• Judgement Number: N5172

Full Title: CR 1123 OF 2006; The State v Timothy Gorden (2012) N5172

National Court: Toliken AJ

Judgment Delivered: 26 November 2012

N5172

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1123 OF 2006

THE STATE

V

TIMOTHY GORDEN

Popondetta: Toliken AJ

2012: 08th August, 26th November

CRIMINAL LAW – Sentence – Receiving – Guns obtained from break, enter and stealing from Police armoury – Criminal Code Act Ch. 262, s 410

CRIMINAL LAW – Sentence – Plea of guilty – First time offender – Guns obtained by means of a crime – Need for deterrent sentence – Head sentence of 6 years less period in pre-trial custody – Period to be served 2 years, 1 month 5 days – Criminal Code Act Ch. 262, s 410 (2)

Cases Cited:

Goli Golu v. The State [1979] PNGLR 653

Acting Public Prosecutor v. Andrew Amona Yongga [1981] PNGLR 314

Zimbin David v. David Yapu [1988] PNGLR 178

The State v. Wali (2004) N2580

The State v. Philip Hilux (2004) N2585

The State v. Tony Mwayawa (2008) N3557

The State v. Jelio Yawi (2009) N3631

Counsel:

M. Ruarri, for the State

A. Ninkama, for the Prisoner

SENTENCE

26th November, 2012

1. TOLIKEN AJ. On the of 08th August 2012 the State indicted you for one count of receiving stolen property, an offence under Section 410 (1)(a) of the Criminal Code Ch. 262.

2. The State alleged that you:

TIMOTHY GORDEN of PUHEMA, Popondetta in the Oro Province [stand] charged that [you] on the 11 day of December, 2008 at POPONDTTA in Papua New Guinea received several shotguns, the property of the Independent State of Papua New Guinea which had been obtained by means of stealing. (sic)

THE FACTS

3. The brief facts to the offence are as follows.

On the 11th day of December, 2008 at about 9.00 pm, a group of boys numbering up to six (6) entered the Popondetta Police Station yard through the main gate. They went to the Police Armoury and cut the padlock to steel door of the armoury. Three of them entered the armoury, removed the guns and passed them to their accomplices outside and they escaped through the back of the Police Station. The thieves were aided in their theft by the heavy rain thunder and lightning that night.

The police conducted their investigations and you were found with group of boys in possession of a bag containing the guns that were stolen from the Police Armoury. You denied participating in the theft but admitted to receiving the stolen guns.

4. You pleaded guilty to the charge and also admitted the brief facts when these were put to you. I confirmed your plea but only after I had perused material on District Court committal file and having satisfied myself that the evidence supported your plea.

5. I was not able to pass sentence on you then so I do now.

YOUR PERSONAL PARTICULARS

6. At the time of the offence you were a single man of 25 years of age. You come from Puhemo Village, in the Oro Province where you reside with your mother and three brothers. You are the eldest. Your father passed away in 1999. You are not formally employed but sustain yourself and family through subsistence farming. You attended Popondetta Primary School – hence educated only to Primary School level. You are a member of the Anglican Church. You are a parishioner of the Resurrection Parish. You have no previous convictions. At the time of your plea you had been in remand custody for 3 years, 7 months and 8 days. To date you have actually been in pre-trial custody for 3 years 10 months and 25 days.

ADDRESSES TO THE COURT

On Allocutus

7. You addressed the Court on sentence or penalty. You apologised to Court and the citizens of the country. You said you were just standing around when the stolen guns were given to you. You pleaded for leniency.

Your Lawyers

8. Your lawyers made a detailed written submission on your behalf, citing the law, the sentencing trend by this court for this kind of offences and the peculiar circumstances of your case. They then proffered to the court what they think should be the appropriate sentence or penalty for you.

9. Mr. Yavisa cited two cases which he said should assist the Court in arriving at an appropriate sentence for you. These are Acting Public Prosecutor v. Yongga [1981] PNGLR 314 and Zimbin David v David Yapu [1988] PNGLR 178. I will discuss these cases later on in this judgment.

10. They also submitted that there are factors that lessen or reduce the gravity or seriousness of your offence. These include your early plea of guilty, that you are a first time offender and that you expressed genuine remorse to the court, the State and the Police. They, however, conceded that there is at least one aggravating factor – the fact that the guns were stolen from a Police Station by means of a break and enter. Furthermore your lawyers said that you were apprehended in the vicinity where the bag of guns were but was not in possession of the bag or one of the guns. This they said should be taken as an extenuating circumstance in your favour.

11. Finally they said an appropriate starting point in your case would be 4 years but given that your mitigating factors outweigh the aggravating factors that should be reduced to just three years. And given the length of time you have been in custody awaiting trial (three (3) years, seven (7) months and eight (8) days – at the time of submissions - which they said would have been sufficient punishment for you, you should therefore be sentenced to the rising of the Court.

Lawyer for the State

12. Mr. Ruarri for the State on the other hand submitted that whilst the normal penalty for this offence is 7 years, where, the property received was obtained by means of a crime- as in this case - then the maximum penalty would be 14 years. Mr. Ruarri pointed the court to what he says are the aggravating features of your offence. These are that the guns were stolen from a police station, receiving stolen property encourages the crimes of robbery, stealing and breaking, entering and stealing, the use of guns in the commission of the offence which may have resulted in deaths or serious injuries to other persons and that the offence is prevalent.

13. Counsel referred me also referred the court to several cases which he said could guide it into arriving at an appropriate sentence. These are: The State v. Tony Mwayawa (2008) N3557; The Acting Public Prosecutor v. Andrew Amona Yonnga [1981] PNGLR 314; The State v. Philip Hilux (2004) N2585 and The State v. Jelio Yawi (2009) N3631. Mr. Ruarri called for an immediate custodial sentence.

THE LAW

14. The offence of Receiving Stolen Property is created under Section 410 (1) (a) of the Criminal Code. It provides:

410. Receiving stolen property, etc.

(1) A person who receives anything that has been obtained by means of—

(a) any act constituting an indictable offence; or

(b) any act done at a place outside Papua New Guinea that—

(i) if it had been done in Papua New Guinea would have constituted an indictable offence; and

(ii) is an offence under the laws in force in the place where it was done,

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.

(3) ...

(4) ...

15. Receiving is a serious offence which can attract a maximum of 14 years imprisonment. In Zimbin David v David Yapu [1988] PNGLR 178, Bredmeyer J. said at p. 182 that:

“... [R]eceiving is regarded by the law as very serious, e.g, 14 years maximum imprisonment against three years imprisonment for simple stealing and this is so for two reasons. The first, is that the receiver is very often “the fence”, the one who sells the stolen property, and without him, in some types of theft there would be no thieves, e.g., the receiver of stolen car parts. Secondly, ... the receiver runs less risk of being caught.”

16. Of course it is settled that maximum penalty is reserved for the worst of offences (Goli Golu v. The State [1979] PNGLR 653).

17. There is doubt that over the years there would have been a corresponding increase in cases of receiving with offences of stealing, robbery and break and entering. And of course only a fraction of these ever end up in court. Because this offence is also tried summarily by Principal Magistrates in the District Courts and there is a kindred offence of possession of stolen property (s 16 of Summary Offences Act ) which are also dealt with by the District Courts, very few of these cases come up to the National Court. I have therefore...