N6293
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

	CR NOs.134, 135 & 136 OF 2005	

THE STATE
V
LAWRENCE SAUSE

Kokopo: Lenalia J.
2016: 22nd, 30th March & 22nd April & 3rd May

CRIMINAL LAW – Attempt to commit an offence – Plea of guilty – Criminal Code Section 509 (1).

CRIMINAL LAW – Attempting to commit the offence of stealing – Plea – Principles of sentencing in attempting to commit a crime or a misdemeanor.

Cases cited:
	
The State v Julius Ombi (2004) N2552
The State v Tobby Tani (1994) N2063

Counsel:

Mr. L. Rangan, for the State
Mr. Kaluwin, for the Accused

3rd May, 2016
1.     LENALIA J: The prisoner pleaded guilty to one count of attempting to commit an indictable offence contrary to s.509 (1) of the Criminal Code. The charge dates back to 19th December 2014. The offence took place here at Kokopo town where the accused attempted to steal an amount of K2, 500.00. The amount was written out in a company cheque leaf the property of ‘BEST HIRE CAR’. The proprietor of the company is Mr. Arthur Nuga. The company is also located here in Kokopo town. The offender was detected when he tried to cash the cheque at ANZ Bank here in Kokopo. 
2.    The above section states:
“(1) A person who attempts to commit an indictable offence is guilty of    indictable offence, that unless otherwise stated, is a misdemeanor.
(2) When a person who commits an indictable offence is punishable on    summary conviction, and a person who attempts to commit such an    offence may also be summarily convicted.” 
3.    Before 19th December 2014, the owner of the BEST HIRE CAR parked his vehicle unlocked in front of a shop near the old market place. Someone opened his vehicle and stole the company cheque book. Then on the above date, the prisoner signed a cheque leaf from that stolen cheque book and joined the queue at the ANZ bank and presented the cheque to cash it. 
4.    After presenting the cheque to the Bank Manageress, she wanted to confirm cashing of such cheque with the owner of the hire car company. The prisoner sat on the queue and waited for confirmation of the status of the cheque. The manageress called Mr. Nugathe proprietor of the hire car company, and inquired if he had authorized the cashing of the cheque N0.0189050014055987. Arthur informed the manageress that, somebody had stolen his company Cheque Book and police should be immediately alerted. 
5.    The manageress called the police C.I.D office and the police came together with Mr. Nuga. Police inquired with the prisoner and told him about the fact that, the cheque he was representing to the bank to be cashed was stolen from its owner. He was arrested and charged for attempting to steal. 

Addresses on Sentence

6.    The prisoner said sorry for what he did but that, the person who passed on the cheque to him is not in court. 

7.   Mr. Kaluwin submitted that his client did not benefit from the proposed transaction. He argued that his client is the first time offender and the court should consider this fact on sentence.  

8.    Mr. Rangan made submission on the serious nature of this case. Counsel submitted that, the prisoner well knew that the cheque leaf was unauthorized and he was not the owner of such document but he went ahead and wanted to cash it, well knowing the consequences that would follow. Counsel submitted that this crime is serious and the offender should be appropriately punished as well as to deter others. 

Application of Law

9.   This is an attempted stealing case. The offence of attempting to commit offences is defined by s.4 of the Criminal Code in the following terms:

	“(1) When a person, intending to commit an offence – 

(a)	begins to put his intention into execution by means adapted to its fulfillment; and

(b)	manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

	(2) It is immaterial, except so far as regards punishment whether,

       (a) the offender does all that is necessary on his part for                        completing the commission of the offence; or
 
 (b) the complete fulfillment of his intention is prevented by   
	  circumstances independent of his will; or
	
(c)	he desists of his own motion from further prosecution of his   
  intention.
	
            (3) It is immaterial that by reason of circumstances not known to the 
                  offender it is impossible in fact to commit the offence.
	
           (4) The same facts may constitute one offence and an attempt to commit 
                 another offence.” 		

10.    Under s.510 (1) (2) of the Criminal Code, the prisoner can be sent to jail for seven years imprisonment. If an offender commits a misdemeanor, he is liable to a punishment equal to one half of the greatest punishment to which an offender is convicted of the crime attempted to commit. (See s.511). On the instant case, the offender can be imprisoned to half of the maximum penalty prescribed by s. 510 of the Code. This section states:

“(1) A person who attempts to commit a crime of such kind that a person convicted of it is liable to the punishment of death or imprisonment for life or for a term of 14 years or more, with or without any other punishment, is liable, if no other punishment is provided,to imprisonment for seven years.

(2) A person who attempts to commit a crime of any other kind, is liable, if no other punishment is provided, to a punishment equal to one-half of the greatest punishment to which an offender convicted of the crime that he attempted to commit is liable”. 

11.   On sentence, the court considers the prisoner’s statement in allocutus. I consider counsels’ submission on sentence. I consider the terms of the pre-sentence report. The prisoner and his wife were interviewed. I have noted their comments. The complainant was also interviewed by phone. He expressed anger at the manner the prisoner took to cash his company cheque. 

12.   He said it was good that the offender was caught otherwise he was tempted to take the law into his own hands. 

13.    The Ward Member of Takekel Ward was contacted for his comments. He told the author of the reports that, the offender is usually a good person abiding with law and cooperates well with his community and he believes that the offender has learned a lesson from the instant experience. 

14.     I cannot recall any comparative cases of attempting to steal to compare with the instant cases. Counsels had not cited any case law authorities on attempting to steal. I have two attempted rape cases that I want to refer to which cases were indictable crimes. In The State v Julius Ombi (2004) N2552, it was a case of abduction and attempted rape where the prisoner was found guilty of both abduction and rape, the prisoner was sentenced to 9 years concurrent sentences for attempted rape and abduction.

15.    In The State v Tobby Tani (1994) N2063, the victim was a stepsister to the prisoner’s wife.  Prior to the commission of the offence, the prisoner was drunk. He had an argument with his wife.  It led to the prisoner locking his wife in their bedroom and kicked the victim outside that room. He then dragged the victim to the nearby and attempted penetration. Failing that, he subjected her to a number of indecent and sexual indignities. He pleaded guilty to the charge and received a sentence of 4 years in hard labour. I note here those were attempted sexual penetrations cases which facts were totally different from the instant case.

16.    On the instant case, the Court accepts the fact that, the prisoner did not benefit from the action that he took in trying to cash the cheque. What is serious though is this was a blatant disregard of what could happen if the transaction went through. It means the prisoner did not worry about what would happen if he was found out. 

17.   The Court notes here that the offence of attempting to commit any offences is serious. The court considered the prisoner’s guilty plea to this serious charge. It is obvious, the prisoner did not expect anything to happen. The court is of the view that, there may be accomplices and they should be arrested and charged as well. The person who was responsible for stealing the cheque book from Mr. Nuga’s vehicle ought to be charged. 

18.   The facts do not show where the offender got the cheque leaf from. He could be responsible himself. I consider he did not benefit from the action he took thereby, he took all necessary steps to complete the offence but the complete fulfillment of the crime was prevented by being detected.

19.    The prisoner ordered to pay a fine of K1, 500.00 in default of payment, he shall be imprisoned to a term of 1 (one)year 6 (six) months. His bail money can be converted into part payment of this fine. This fine shall be paid by 3pm today.

__________________________________________________________
The Public Prosecutor:  Lawyer for the State
The Public Solicitor:  Lawyer for the Accused