Kepiou v Heni [2009] PGDC 71; DC1007 (5 January 2009)

DC1007

PAPUA NEW GUINEA
IN THE GRADE V COURT OF CRIMINAL JURISDICTION

Case Number GFC 3 of 2008

BETWEEN:

MARK KEPIOU
(Informant)

AND:

DOROTHY PRENTICE HENI
(Defendant)

MADANG: M SELEFKARIU, PM
2008: 15 February- 23 December
2009: 5 January

CRIMINAL: Offence of false pretence-Sentence- Obtaining accommodation service at Dalcrest Guest House, Madang for K1 144.00 with intent to defraud owner where she failed to settle her bills as promised- 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 and her willingness to settle the amount owing within two months- 2 years 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: Today’s proceeding is for your sentence for the offence of false pretence and intending to defraud the owner of the Dalcrest Guest House by obtaining accommodation service without paying for it as promised.

Through your counsel you submitted a plea of guilty and including the prosecution have addressed the court on sentence.

As to the facts of your case you booked yourself into the Dalcrest Guest House on 27 November 2007 and held yourself as a former lecturer of the University of Goroka and that you expected a payout of your final entitlements in the sum of K62, 000.00 to be made to you and promised to settle your bills by Friday 03 November 2007 which you never paid till today.

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.

Additional particulars about you are: you are 30 years old, married with a son, from Iokea village, Kerema in the Gulf Province and a gynaecologist by profession.

On the principles of law regarding sentence for offences of this nature your counsel has asked that the sentencing guidelines as found in the case of Wellington Belawa v The State (supra) be considered and applied in your case when considering your sentence.

This case was decided in1989 and the judge then, Bredmeyer J sought assistance from the guidelines in the English Court of Appeal in Barrick’s case (1985) 82 Cr App R78. The guidelines set out the various factors to take into account when sentencing offenders for cases of obtaining property by false pretences or cheating.

As the guidelines now stand as the present principles of law and being promulgated by a superior court of the land as an inferior court I am bound to follow them.

I shall try to discuss some of the factors that are relevant and applicable to your case.

They are:

• The amount taken or owing;
  
• The period over which the fraud was perpetrated;
  
• The impact of the offence on the public and public confidence;
  
• The effect of the offence upon the victim;
  
• Restitution; (Note whenever restitution is made when fraud is detected it acts as mitigation because it restores the victim to the position he was in before the commission of the offence);
  
• Remorse. The sooner the restitution is made after the commission of the offence, or the detection of the offence, the more clearly it shows remorse. If it is made after the conviction it does not show remorse;
  
• A plea of guilty acts as a show of remorse especially where the State evidence may have some weakness. A plea of guilty couple with early restitution may show genuine remorse;
  
• Any prior record of your conviction;
  
• The effect of the offence on yourself; and
  
• Matters of special mitigation to you such as illness, perhaps a long delay in your trial and spending time in custody awaiting trial as in your case.
  

Then the same court put forward a scale of sentences as submitted in your submissions to be used as guide by the court when sentencing and to adjust upwards or downwards subject to the various factors shown above.

I now reproduce the scale of sentences as submitted by your counsel:

• Where the amount misappropriated is between K1.00 and K1,000.00, a gaol term should rarely be imposed;
  
• Where the amount misappropriated is between K1, 000.00 and K10, 000.00; a gaol term of up to two (2) years is appropriate;
  
• Where the amount misappropriated is between K10, 000.00 and K40, 000.00, two to three years imprisonment is appropriate;
  
• Where the amount misappropriated is between K40, 000.00 and K150, 000.00, three to five years imprisonment is appropriate.
  

In your case you obtained accommodation service in the sum of K1, 144.00. Using the above scale the amount you owe falls within the second category which attracts a sentence for two years imprisonment.

You also submitted that you spent more than 9 months in custody whilst awaiting your trial.

You also 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 the courts have decided to impose sentences for terms of imprisonment and wholly suspend them for this type of offences.

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 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 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 to restrain 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 important in order to try and restore 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 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 am empowered to suspend your sentence pursuant to section 19 of Criminal Code Act.

At this juncture I must thank the Probation Services for making available the means assessment report for me to consider and find an appropriate sentence in your case.

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

1. That you shall keep peace and be a good behaviour for the whole of your probation period;
   
2. That you shall pay as restitution to the victim the sum of K1, 144.00 which shall be paid within a month from today;
   
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 K1, 000.00 that was set aside when you were detained for breaching your bail; and
   
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 spent in custody.
   

______________________________________
Police Prosecution for State
Lawyers for Defendant: Paul Paraka Lawyers