Gure v Tukiki [2009] PGDC 70; DC1005 (5 January 2009)

DC1005

PAPUA NEW GUINEA
IN THE GRADE V COURT OF CRIMINAL JURISDICTION

Case Number GFC 7 of 2007

BETWEEN:

KEKE GURE
(Informant)

AND:

ANDREW TUKIKI
(Defendant)

MADANG: M SELEFKARIU, PM
2008: 8 August- 23 December
2009: 5 January

CRIMINAL: Offence of false pretence-Sentence- Received bank cheque from Madang Port Services and failed to deliver a fibre glass water tank as promised, however repaid part of the money after police intervened - Plea of guilty- Defence submits the Wellington Belawa sentencing guidelines be applied and ask for suspended sentence- Court ordered means assessment report with the hope of restitution and report recommends offender suitable for probationary supervision as he is willing to settle the amount owing by instalment payments – 18 months suspended sentence imposed with terms- Criminal Code Act, s 404 (1) & s 19.

CASES CITED:

Wellington Belawa v The State [1988-1989] PNGLR 496
The State v Eric Emmanuel (unreported) (24/ 07/ 02) N2252
The State v Louise Paraka (unreported) (24/01/02) N2317
Acting Public Prosecutor v Don Hale (unreported Supreme Court judgment) (27/08/98) SC564

Counsel:

Sergeant N Pitu of Police Prosecution for State
Mr. J Kolkia for Defendant

JUDGMENT ON SENTENCE

5 January 2009

SELEFKARIU, PM: You have pleaded guilty to the offence of false pretence with intend to defraud the owner, Madang Port Services of their property in the money when you failed to deliver a fibre glass water tank equivalent to the value of the cheque that was paid to you as promised.

Additional facts are that you received a Westpac Bank cheque number 44950 for the amount of K3343.00 from the Manager of Madang Port Services on 29 November 2006 for the payment of a 2000 litres fibre glass water tank and promised to deliver the same but failed to do so.

The Manager saw you about the refund but was unsuccessful because you could not refund the money in full.

The matter was reported to police and upon their intervention you said you managed to repay part of it through the Police Dog Unit in the sum of K1200.00. The prosecution has not given any evidence to the contrary and so I would accept that the balance remaining which you still owe is K2143.00.

The transaction appears to be a simple commerce or contract but your conduct says otherwise and so the police action culminating to coming to court and now to be sentenced shows clearly your fraudulent intention.

I have received submissions from both sides which I am thankful for especially your written submissions prepared by your counsel.

In your submissions you submitted that you pleaded guilty to the charge and that you have no prior records of conviction which makes you to be a first offender.

You are 47 years old, married with three children, from Kolem village, Finschafen District of Morobe Province. Your wife is from Simbai area of Madang Province and being self-employed you are the only bread winner for your family. Whilst you are held in custody and your children who are school aged and attend school are being looked after by their uncle here in Newtown Suburb of the Madang Town.

Your counsel submitted that the principles of law as regards sentence for these types of offences are well established in our jurisdiction as enunciated in the case of Wellington Belawa v The State (supra) and requested me to follow and apply them in your case when considering your sentence.

By law and as an inferior court I am bound to follow the precedent set out in Belawa’s case. I will only paraphrase the principles and not lay them out in full as I consider not necessary because in a similar case as yours re Dorothy Prentice Heni which I will also deliver judgment on her sentence today I have already outlined the sentencing guidelines in full.

In using the guidelines your counsel submitted that the amount you misappropriated and its balance you still owe attracts a sentence for two years imprisonment. According to record you were on bail but was arrested and detained for breaching your bail.

Since your arrest you have been in custody for about 9 months for which you asked that should the court sentence you to prison the time you spent in custody be deducted.

Other factors in your favour is that you pleaded guilty, being a first offender as you have no prior record of conviction and you said you are remorseful towards the victim and the wrong you committed.

I think pleading guilty is a show of remorse but a genuine remorse is one which is coupled with payment of restitution for the value of the property you misappropriated or owes to the victim. The courts have considered that an early payment of restitution and in your case at the time the Manager saw you would be a genuine remorse but not when police intervened. But since you have paid part of the money you ought to be given some credit but how much is entirely left to my discretion.

In summary the prosecution submits that such an offence for which you stand charge deserves a custodial sentence because of its prevalent and the effect it has on the victim and the community.

In addition to the mitigation factors, through your counsel you submitted and relied on a number of case laws eg. The State v. Eric Emmanuel (supra) and The State v. Louise Paraka (supra).

These cases represent the trend in which for these types of cases the courts have endeavoured to impose sentences for terms of imprisonment but wholly suspend them subject to special merits of the case. I therefore take account of the mitigation factors especially the part restitution and your time in custody.

Furthermore you submitted that in cases of this nature the courts have begun to impose orders for restitution with the view that payment of compensation has been always a communal responsibility which is also in line with section 158 (1) of the Constitution,see Acting Public Prosecutor v. Don Hale (supra).

In consideration of your submissions and the principles of law I accept the position that offences of this nature are quite prevalent and deserve stronger punishment in order to deter the offender and the community at large.

Recent reforms in our laws promulgate the need for restorative justice in order to give the victim some consideration and prominence in our criminal justice system.

Incarceration of offenders has been the aged old form of punishment restraining the offenders from the community for sometime but has not given any relief or redress to the victim.

Orders like restitution are viewed to be very appropriate taking into account the victim’s interest thus restoring the victim to his original position before the commission of the offence.

Having considered both the aggravating and mitigating factors, I am satisfied that your case deserve custodial sentence.

But you have spent some considerable time in custody and to continue to hold you in custody do not afford you the opportunity to find money that you owe to the victim and to make a restitution which means the victim remains worst still even though you have been punished.

It is therefore appropriate that your sentence be suspended, pursuant to section 19 Criminal Code Act; so that you can with the help of your family and relatives put together the amount of money you owe to the victim and make the restitution as recommended in the means assessment report.

I must thank the Probation Services for making available the means assessment report which has assisted me greatly to determine your sentence.

Accordingly I convict you and sentence you to 18 months imprisonment but suspend the whole of its execution on condition that you enter into recognition for two years probation with the following conditions:

1. That you shall keep peace and be of good behaviour for the whole of your probation period.
   
2. That you shall pay as restitution to the victim the sum of K2143.00 which shall be paid upon instalment at the rate of K300.00 fortnightly commencing 16 January 2009 and to continue thereafter until the full amount is paid. A payment schedule be made out and kept by the Probation Service Office in Madang which shall be produced to court upon demand.
   
3. That you shall not leave Madang Town until you comply with condition (2) of this order.
   
4. That you shall refund your bail of K200.00 which was set aside upon your detention for breaching your bail.
   
5. That should you breach any of the above conditions you shall be committed to serve the full term of your suspended sentence minus the time you have spent in custody.
   

__________________________________

Police Prosecution for State
Lawyers for Defendant: Paul Paraka Lawyers