Uyabi v Roby [2011] PGDC 13; DC1057 (17 February 2011)

DC1057

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (GRADE FIVE) JURISDICTION]
GFCr 49 of 2010

BETWEEN

RONALD UYABI
Informant

AND

SANDY ROBBY
Defendant

Goroka: G.Madu

2010: August 13, 16 September 8, 24, 27
: October 19, 25 November 17, 18
: December 6, 10
2011: January 20 February 17

CRIMINAL - Particular offence – obtained credit by false pretence – Plea of guilty entered – Criminal Code Act s. 404(1) (a)

CRIMINAL – Sentence – consideration – mitigation and aggravating factors – non violence offence – imprisonment inappropriate – mitigation factors favourable – suspended sentence with probation and conditions – specific condition for unpaid community work and restitution.

Cases Cited

The State-v-Robert Kawin(24/12/01)N2167

References
Criminal Code Act Ss 404 (1)(a)

Counsel
Sergant Bonki, for the State
Sandy Robby, for the defendant
17 February 2011.

JUDGEMENT ON SENTENCE

G Madu, PM . : The accused pleaded guilty to obtaining credit in the sum of K10,000.00 as bank loan by false pretence for personal use with intent to defraud, an offence contrary to S. 404 (1)(a) of the Criminal Code Act (Ch. No. 262).

3. The facts show that the accused was employed as a Loans Officer by the Bank of South Pacific Limited, Goroka Branch. During her course of her employment on 5th of November 2008, she filled out a personal loan application form under the name of another person namely Robin Minu and applied for a loan of K10,000.00. With that application the accused attached the customer’s old pay slips and employment confirmation letter from his previous loan application file. After completing all necessary loan application documents she submitted she the above mentioned amount stating the purpose of the loan was wedding expenses.

When the loan document was submitted, the bank knew that the loan application belongs to Robin Minu. With the complainant previous loan repayment status and according to the bank loan scoring points statistics, the loan was approved thinking that the loan was for Robin Minu’s wedding Expenses. The accused then contacted Robin Minu to come to the bank.

When Robin Minu arrived at the bank he saw the accused, who told him that his loan was approved and asked for his Kundu Card. Robin Minu then gave his Kundu Card and Personal Identification Number (PIN) to the accused and she went to the main telling chamber, swipe the Kundu Card on the Eftpos machine, took the receipt to the paramount bank and got the cash of K10,000.00.

The accused then went to where Robin Minu was waiting and gave him his lunch money of K500.00 and put the rest of the money into her string bag and continue to do her normal day’s work. At that time the complainant Robin Minu told the accused that she was in desperate need of money and submitted the loan application under his name and therefore should honour her commitment to repay the loan from her fortnightly salaries.

The accused arranged for deductions to go from her salaries to Robin Minu’s Loan Account and after the 3rd deduction, she started to face financial problem and stopped paying the loan and placed a bank standing order. The loan repayment fees starting coming from the complainant Robin Minu’s fortnightly salaries which he was not aware. The deductions went on for couple of fortnights and the complainant made enquires and was told that his salaries were going through to pay his loan account.

The complainant confronted the accused and told her to put a stop to deduction of his salaries for loan repayment as the loan was hers and not his. The complainant then ceased employment with Coffee International Agency and started his own company. The loan repayment arrears accumulated as a result of non payment of loan so the bank started to put the complainant on notice for his arrears.

The accused did nothing so the bank placed a stop to all the bank account under the complainant’s name and when this was done Robin Minu was not allowed by the bank to access funds from his accounts because of the loan arrears. The complainant went and asked the accused to pay up the loan but the accused did not. The complainant then wrote a letter of complaint to the bank advising that loan was not obtained by him but by the accused by using his name and his old payslips

The bank then conducted an internal investigation and concluded that the accused deceived the bank by obtaining the loan valued at K10,000.00 under the complainant’s name for her personal use. The matter was then referred to the police and the accused was charged for this offence.

The crime of false pretence with intent to defraud pursuant to S. 404 (1) (a) of the Criminal Code attracts a maximum sentence of five (5) years imprisonment.

The accused on allocutus told the court to exercise leniency when sentencing. She also expressed remorse by saying sorry for what she did and promised not to do it again. She also asked the court to give her time to pay back the money.

The accused is 35 years old single mother with one child eight (8) years old and resides at Asaroyufa village, Goroka EHP. She was first educated at North Goroka Primary school then continued onto Goroka High School. She then went onto Sogeri National High School and then to University of Papua New Guinea studying and graduating with Bachelor of Arts in Business Studies from 1994-1997. She joined the former PNGBC in 1998 and continued with current BSP until her termination for committing this offence. She was earning fortnightly salary of K500.00. She has no prior conviction recorded against her.

Since the offence did not involve any violence and because of the matters you have raised in your allocutus, I ordered that a pre – sentence report and means assessment report be compiled and presented to court.

I now have the report before me which Mr. Worowi compiled and have given much thought to the recommendation. He recommends that you are a suitable candidate for probation supervision with additional condition of community service work. In the means assessment report Mr Worowi recommends that the court bail be converted to part payment to the victim and be additional condition of the probation order together with the savings you have with NPF.

I am satisfied with the report provided by the Probation officer which is comprehensive for the courts to take into account in sentencing.

I am convinced that you are not a danger to the society. The crime you committed is a serious crime, never- the- less a non violent crime. It did not involve any violence.

I am well aware of the prisons being over crowded. The CIS have limited resources to effectively cater for and look after all the detainees. It is my humble view that the courts have the duty in the interest of the community to consider alternative forms of punishment other than incarceration of detainees particularly with offences involving non violent crimes. This very much will depend on whether the crime involved violence or not, the facts and the circumstances of the particular case and so forth.

Suspension of sentence do not necessarily show leniency. Even sentences with appropriate orders such as the orders to perform unpaid community work are equally effective sentence. Such orders in my view should not be viewed as an exercise of leniency.

In considering sentence the following mitigating factors are considered:-

1. You have no prior convictions. It indicated that you have been a good law abiding citizen. You committed the crime once only in your 10 years of employment with the BSP bank.

2. You pleaded guilty. Because of your plea, you have not caused any unnecessary waste of time for the Court and the State to conduct a trial.

3. You are a single mother with a 9 years old son. I have no doubt that he will very much suffer if I send you to jail. In most cases children often suffer for crimes committed by parents. You have honestly spoken that you committed the crime because you had financial problem.

4. Restitution. You have told the Court that you want to be given time and you will repay the money borrowed. This will be paid out from your NPF savings.

The complainant Robin Minu advised in writing that the loan taken under his name has been fully repaid with the loan account having credit balance of K45.23. and as relatives both would settle the matter customarily out of Court.

The aggravating factors against you I consider are:-

1. You intentionally defraud by filling the loan application form in the complainant and attached his pay slip you got from his old application without his consent. You only informed him after the loan was approved.

2. You were placed in a position of trust as a loans officer but you abused it by completing the loans application under another person’s name when the loans was for you personally. You failed to show honesty to your employer.

In this case I am of the view that I should not send you to jail. Firstly I do not consider you to be a dangerous or violent person who would be a threat to other members of the community who want to live in peace and obey the law.

You have committed a serious crime which you did intentionally to defraud your employer. Your employer trusted you to be honest with your clients but you failed and therefore lost trust and confidence by your employer and therefore you were terminated and must be punished for your actions. You have indicated your willingness to pay by forfeiting your savings with NPF. You must therefore repay the money.

Although there are some aggravating factors, I am of the view that mitigating factors should be considered more favourably because the offence is a non violence one. The other factor is that the complainant was well aware of the fraud but allowed it on the condition that the accused repaid the loan account and when that did not happen the matter was reported to the BSP Bank management who then referred the matter to police.

In considering the sentence I adopt the principal developed by Kandakasi J in the case of The State-v- Robert Kawin (24/12/01) N2167. The court made the following statement “ First, the maximum prescribed penalty should not readily imposed. Instead it should be reserved for the worse type of the offence under consideration. Secondly guilty pleas, and the offender being the first time young offender and existence of such good factors operate in favour of sentences lower than the prescribed maximum. Thirdly if the properties stolen are recovered it may operate as a factor in mitigation of an offender whilst on the other hand if the properties stolen is substantial and or has not been recovered a higher sentence may be imposed. Fourthly, prevalence and effect of the offence against the victim and the community or society as a whole is an important factor for consideration”.

Considering the aggravating and mitigating factors in the light of Kawin’s case, this case falls into second principles and the sentence imposed would be lower than the maximum.

The court view would be that a custodial sentence would not serve any good purpose as offence committed is non -violent one and that the accused not a threat to the society. The accused is genuine about not re-offending and should be given a second chance to prove that she can be better person who can be trusted and this can be realised if she can be placed on probation with conditions.

I sentence the prisoner to two (2) years head sentence. I deduct 25% utilitarian value of plea of 6 months. The prisoner serves 18 months imprisonment in light labour. However 18 months is suspended in full and the prisoner to go on probation for two (2) years with the conditions:-

1. The probationer serves two years probation term and shall do 100 hours of unpaid community work at the recommended work site, Mt. Zion Blind Centre and Asaroyufa No.2 Village Court Area at Asaroyufa Village.

2. The probationer shall not leave Asaroyufa village during her probation term.

3. The probationers court bail of K500.00 be converted to part payment to the victim.

4. The probationer is ordered to settle the outstanding payment in full upon receiving National Provident Fund (NPF) savings and witnessed by CBC Officer.

Orders accordingly.

_______________________________
Lawyer for the Informant: Police Prosecution.
Lawyer for the Defendant: Sandy Robby In Person.