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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 1027 0F 2010
THE STATE
V
ANGELA TOKONAI
Madang: Cannings J
2012: 13 March, 7, 17 May
CRIMINAL LAW – sentence – Section 404(1) (obtaining goods or credit by false pretence or wilfully false promise) – sentence on plea of guilty – sea cucumber worth K15,865.50 obtained with dud cheque – sentence of 3 years.
The offender falsely pretended to a man that she had sufficient funds in her bank account and drew a cheque for K15,865.50 to pay him for sea cucumber. Three days later the victim presented the cheque but it was dishonoured, and the offender failed to make good the debt. The offender pleaded guilty to the offence of obtaining goods by false pretence. This is the judgment on sentence.
Held:
(1) The maximum sentence under Section 404(1) is five years and a useful starting point for sentencing is the middle of the range: two and a half years imprisonment.
(1) Mitigating factors are: pleaded guilty; only a moderate degree of criminal intent; genuine preparedness to repay money; victim willing to be repaid by instalments.
(2) Aggravating factor: substantial amount of money involved.
(3) A sentence of three years was imposed, fully suspended subject to conditions including repayment of the value of the goods by instalments, as agreed to by the victim.
Cases cited
The following cases are cited in the judgment:
Saperus Yalibakut v The State (2006) SC890
The State v Dominic Kurai (2008) N3435
SENTENCE
This was a judgment on sentence for obtaining goods by false pretence.
Counsel
J Morog & M Pil, for the State
W Dogura & E Thomas, for the offender
17 May, 2012
1. CANNINGS J: Angela Tokonai pleaded guilty to one count of obtaining goods by false pretence contrary to Section 404(1)(a) of the Criminal Code. She admitted entering into a verbal agreement at Madang with the victim, "JK", to purchase from him 132.5 kg of sea cucumber for a price of K15,865.50. She wrote out a cheque for that amount drawn against her account at BSP Madang, knowing that the account had been closed a few months earlier and had no money in it. She told the victim not to present the cheque immediately but to hold on to it and the next day she would give him that amount in cash. The next day came and JK could not find the offender, and it turned out that she had gone to Lae. He waited two more days without receiving any cash from the offender and presented the cheque at the bank but it was dishonoured. He then tried to recover the sea cucumber from the offender but could not get it back so he reported the matter to the police. The offender is now before the court to be sentenced.
ANTECEDENTS
2. The offender has no prior convictions.
ALLOCUTUS
3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. She said:
I thank the court for the time that has had to be spent on my case. I wish to make it clear that what I have been convicted of is not what I intended to do. There was a misunderstanding about the cheque that I handed over. I just needed more time to settle the payments but there was a lack of patience and I was arrested and I lost everything and spent four months in custody. I could not pay what I was supposed to. I am sorry that I did not honour my promise to the complainant. I apologise in the eyes of God for what I have done. I have every intention of paying to the complainant what is owed to him. That is my priority. That is why I need a suspended sentence. I will honour whatever conditions the court imposes. I am concerned about the welfare of my children. So please consider me for a non-custodial sentence.
OTHER MATTERS OF FACT
4. As the offender has pleaded guilty she will be given the benefit of reasonable 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 (2006) SC890). I am prepared to accept what the offender said in allocutus: that she intended to pay the victim his money. This does not provide a defence to the charge, as drawing a cheque while knowing that there are insufficient funds in an account is a false pretence, which also shows an intention to defraud, but the offender's version of events puts a different slant on what happened and tends to lessen the degree of criminal intent involved.
PRE-SENTENCE REPORT
5. Angela Tokonai is of mixed East Sepik and Southern Highlands parentage. She regards Hawain village in East Sepik as her home village. She is 35 years old, a divorcee with two children, boys aged 8 and 12. She has three sisters and one brother. She lives in Madang town. She has a grade 12 education and has completed an Advanced Diploma in Business Management from Central Queensland University, Rockhampton, Australia. She had a variety of jobs after graduating in 1999 until 2004 when she became a licensed trader in sea cucumber. She lost everything when arrested over the present matter in September 2009 and was in remand for several months. She is now employed by the James Barnes Company in Madang. She has a sufficient stream of income to pay off the amount owed to the victim, K15,865.50, in monthly instalments of K1,000.00. Her health is generally sound though she occasionally suffers from high blood pressure when she gets tangled up in difficult situations. The victim was interviewed for purpose of preparation of the report and he is agreeable to the proposal to be paid at the rate of K1,000.00 per month. She is recommended for probation.
SUBMISSIONS BY DEFENCE COUNSEL
6. Mr Thomas highlighted the guilty plea, the lack of prior conviction, the expression of remorse and the offender's explanation of how the offence came to be committed. It was not a worst case scenario. The sentence should be no more than two years, all of which should be suspended.
SUBMISSIONS BY THE STATE
7. Mr Pil highlighted the large amount of money involved and submitted that a strong deterrent sentence is required but offered no objection to a fully suspended 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?
9. The maximum penalty under Section 404(1)(a) is five years imprisonment.
STEP 2: WHAT IS A PROPER STARTING POINT?
10. As the range of available sentences is small, it is appropriate to use as a starting point the middle of the range: two and a half years imprisonment.
STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?
11. In The State v Dominic Kurai (2008) N3435 the offender pleaded guilty to obtaining goods from a store worth K728.86 by false pretences. He used the order book of his former employer without authority. I imposed a sentence of 12 months, which was fully suspended on conditions.
STEP 4: WHAT IS THE HEAD SENTENCE?
12. The head sentence will be determined by working within the range of zero to five years, with a starting point of 30 months.
13. Mitigating factors are:
14. Aggravating factors are:
15. Though the number of mitigating factors is greater than the number of aggravating factors, the amount of money is very substantial, especially given that the victim was not a large company but an individual person, so I consider that a sentence of only two years (as suggested by defence counsel) would not sufficiently reflect the seriousness of the offence. The appropriate head sentence is three years imprisonment.
STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?
16. Yes. 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: four months, two weeks.
STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?
17. This was a non-violent crime. The offender has already paid a heavy price for what she did by losing her business. She has received a good pre-sentence report. She appears to have learned her lesson. She wants the chance to make good the victim's loss. The proposal for a non-custodial sentence is not opposed by the State. This is a good case for a suspended sentence. The method of payment proposed by the offender, K1,000.00 per month, which is evidently acceptable to the victim, is acceptable to the court. As to the duration of the payments, the offender should pay to the victim not only the amount of K15,865.50 that she owes him, but an extra amount, of K1,134.50, which will be a moderate component of compensation, to compensate the victim for the stress and inconvenience the offender caused him. Therefore the balance of the sentence will be suspended on the following conditions:
(a) must by the end of June 2012 commence paying to the victim the sum of K1,000.00 per month, which shall be due at the end of each month, and which payments shall be reported to and supervised by the Probation Office and continue for 17 consecutive months;
(b) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(c) must not leave Madang Province without the written approval of the National Court;
(d) must attend her local Church every weekend for service and worship and submit to counselling;
(e) must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;
(f) must not consume alcohol or drugs;
(g) must have a satisfactory probation report submitted to the National Court Registry every six months after the date of sentence;
(h) if the offender breaches any one or more of the above conditions, she shall be brought before the National Court to show cause why she should not be detained in custody to serve the rest of the sentence.
SENTENCE
18. Angela Tokonai, having been convicted of one count of obtaining goods by false pretence, contrary to Section 404(1)(a) of the Criminal Code, is sentenced as follows:
| Length of sentence imposed | 3 years |
| Pre-sentence period to be deducted | 4 months, 2 weeks |
| Resultant length of sentence to be served | 2 years, 7 months, 2 weeks |
| Amount of sentence suspended | 2 years, 7 months, 2 weeks |
| Time to be served in custody | Nil, subject to conditions of suspended sentence |
Sentenced accordingly.
___________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender
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