State v Krufher (No. 2) [2017] PGNC 110; N6750 (20 April 2017)

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CRIMINAL LAW –Trial - Sentence -The maximum penalty for an offence under Section 407 and Section 410 is seven and fourteen years imprisonment respectively - A sentence of 4 years imposed on count 1– A sentence of 4 years imposed on Count 2 – Count 2 is made concurrent to Count 1 - Count 2 made cumulative to Count 3 – total 7 years sentence to be served.

CRIMINAL LAW – Sentence - Totally principle considered – Sentencing principle of deterrence and restitution used – Seven years (7) wholly suspended with Probation and conditions - K15, 228.00 ordered to be paid forthwith in default remand.

CRIMINAL LAW – Plea – Sentence – Sentenced to 2 years imprisonment – The whole of the sentence to be wholly suspended upon payment of K7, 614.00 to the victim forthwith in default remand.

Counsel:

Mr. P Tusais and Mr. A Kupmain, for the State
Mr. F Fingu, for the prisoner Emma Sakumai
Mr. D Sakumai, for prisoner Francis Krufher

1. GEITA J: Both prisoners were indicted on three counts each for conspiracy to defraud, receiving stolen property and stealing. Prisoner Emma Sakumai pleaded guilty to one count of stealing contrary to section 372 (1) (a) of the Criminal Code. The offence attracts a term of imprisonment not exceeding three years. She was however acquitted on the counts of conspiracy to defraud and receiving stolen property.

Prisoner Francis Krufher was found guilty after trial on all three counts: for conspiracy to defraud contrary to section 407 of the Criminal Code. The offence attracts a term of imprisonment not exceeding seven (7) years; Found guilty after trial for receiving stolen property under section 410 (1) (a) which attracts a term of imprisonment not exceeding 14 years; and found guilty after trial for stealing contrary to section 372 which attracts a term of imprisonment not exceeding three (3) years.

2. The facts as found on your respective convictions following trial on 18 October 2016 are these: Between January and April 2007 at Wewak both Prisoners conspired to defraud; received stolen property and stole K47, 840.95 belonging to Abog Bruane (deceased) by deceit. The crimes were committed through direct bank withdrawals, ATM cash withdrawals and or EFTPOS transactions over a period of time until detected leaving only K22, 842.26 in the account (See State v Francis Krufher & Emma Sakumai (No 1) (2016) N6510 – Judgment on verdict).

3. Emma Sakumai, aged 60 years said in her allocutus that she is married with six school age children and is the only breadwinner. She expressed remorse, asked for leniency and indicated her willingness to repay all the monies that she stole. This was her first time in Court after an unblemished working record of 20 years as a Primary School Teacher. She showed remorse and apologised to the school and her family. She pleaded for probation orders with conditions.

4. Prisoner Francis Krufher is married with two wives and several children from those marriages. He is the son-in law of Emma Sakumai. He is a well-known figure in Wewak Town community and operates a family real estate company and a small mechanical workshop. He apologised to the Court and to the complainant and his family for what had happened. He pleaded for leniency and asked for orders by way of restitution to make good what was stolen and expressed a desire to have his family in Manus and Wewak reconciled again.

6. Emma Sakumai’s mitigating factors include her no prior conviction and her impressive employment record as a Teacher over a long period of her working career. She expressed remorse and displayed willingness to repay the K8, 000 that was stolen, starting with K1000 paid into the complainant’s bank account on 9^th November 2016. A favourable pre-sentence report and means assessment report, considered in parts in her mitigation. Her suitability for Probation was highly recommended.

7. Francis Krufher likewise presented no prior convictions. Shaming associated with his arrest leading up to his eventual conviction and expressed remorse.

8. For prisoner Sakumai the offence involved a breach of trust towards the complainant who trusted her late husband for the use of her Post Office Box number and that the stealing occurred over a period of time. For Krufher the offence was committed over a period of time and involved a breach of trust towards a family member.

9. For her part prisoner Emma Sakumai was misled by her late husband into believing that the overt scheme to steal from the complainants father’s POSF monies was proper to which she benefitted by receiving K8,000.00. She became aware of the fraud when alerted by ANZ Bank Officers. For his part prisoner Francis Krufher committed the offence as he felt obliged to assist his in-laws in the way he did or face ridicule and shame.

10. Under normal circumstances community attitudes are also captured in the pre-sentence report. However this time around there appears to be none. One can only speculate that the long passage of time has since dimmed community attitudes so the matter is best rested for now otherwise there would be public outcry over this theft.

11. The two pre-sentence reports, speaks highly of the prisoner’s suitability for probation. The report covers in great detail their family background, their education and past work history together with their future plans. The prisoner’s willingness to make some repayments upfront and their ability to repay the remaining monies over a period of time is well documented in their reports. Both prisoners have already demonstrated their willingness by repaying some of the stolen monies to the complainant and his family members.

12. Mr. Francis Fingu for the prisoner Emma Sakumai submitted that the offence committed fell within the third category of sentences (3 years) as set out in the Wellington Balewa case. (Wellington Balewa v The State [1988-89] PNGLR. In light of the prisoner’s willingness to make full restitution Mr Fingu submitted that a non-custodial sentence be considered pursuant to Section 19 Criminal Code Act. The Court was referred to the general principles relating to suspension of sentences pronounced in the case of the State v Frank Kagai [1987] PNGLR 320. In short suspension of sentence of imprisonment should not to be seen as an exercise of leniency etc., to which I agree.

13. Mr. Darrol Sakumai for the prisoner Francis Krufher concurred with prisoner Emma Sakumai, (no relations with him) the application and suitability of the Wellington Balewa (supra) and Frank Kagai (supra) cases in his client’s case. Defence Counsel submitted for a concurrent sentence instead of a cumulative sentence for the avoidance of a sentence crushing on the prisoner. (Tremellan v R [1973] PNGLR 116 and The Public Prosecutor v Terrence Kaveku [1977] PNGLR 110 and Mase v The State [1991] PNGLR 88 cited.) Mr Sakumai’s attempts to explain away some justification for the use of the monies and attempts made to repay what’s owing by the prisoners a good try however, they are not supported by credible evidence hence of very little use to this Court. For the moment they remain convicted for the K22, 842.26 out of the total K47, 840.95 stolen.

14. Mr. Kupmain for the State called for a long term deterrence sentence in light of the deprivation of the complainant’s father’s life time savings by the prisoners. Since there is willingness on the part of the prisoners for immediate restitution, Mr Kupmain submitted that such monies be placed in the National Court Trust Account for the complainant and his relatives to access later on. Generally a softer approach of restitution and suspended sentence was opted for by the State.

15. Now applying the facts in your case to the law and sentencing principles in such offences all ingredients canvassing what should constitute mitigating and aggravating factors including any extenuating circumstances in the case of Wellington Belawa (supra) equally apply here, hence I need not look beyond the case authority in Wellington Belawa (supra) and will be guided largely by the principles contained therein. Most of which are contained in an English judgment Barnette J found very helpful and applied them in the Belawa case: (R v Barrick (1985) 81 Cr App R 78). I find the two additional factors added by Barnette J in the case referred to above fitting in this case: the amount taken and the question of restitution. For the purpose of this judgment I endorse and apply the principles in this case.

16. Furthermore having considered the facts and circumstances of this case alongside the two prisoners in this case regarding each of those matters mentioned above: (1) The amount taken; (2) “The quality and degree of trust reposed in the offenders including their relationships to the victim: “immediate family relatives”; (3) “The period over which the fraud or thefts have been perpetrated”; (4) “The effect upon the victim”; (5) “The effect on the offenders themselves”; (6) Restitution; (9) and the list goes on. I find that all those matters mentioned above adequately considered and mirrored in the prisoners case. Unfortunately they all weigh heavily against both prisoners more so prisoner Krufher in aggravation. Any extenuating circumstances pleaded on their behalf by their respective Lawyers in my view found little or no weight at all in their favour.

17. The prisoners maintained their innocence since their arrest and prosecution at their Committals up to the eve of trial when prisoner Emma Sakumai changed her plea to one of guilt on the count of stealing. Its only upon their successful convictions, four years later both prisoners now plead their close family relations and their last minute attempts to make restitution adequate and favourable mitigating factors. The genuineness of their remorse and concern for depriving one of their kind, a family member, to my mind is shallow and a slap in the face of the complainant and his surviving mother who suffered the most in this crime. Courts have said in many cases that last minutes attempts by prisoners and their families to pay compensation or make restitution should not prevent Courts from sentencing offenders to the very crimes that they have committed. I find some comfort in the National Court case of The State v Taulaola Pakai (2010) N4125 in which His Honour Hartshorn J said: ...A plea for leniency to avoid the suffering of one’s family should have little or no weight when an appropriate sentence is being considered”. (Emphasis mine). Might I add here that last minute desperate attempts to make restitution and shallow attempts to make remorse in this types of cases also should have little or no weight when considering appropriate sentences? It is often acknowledged by Courts that offenders who enter early pleas usually find favour of courts in mitigation and occasionally rewarded with some form of reduced sentences. Prisoner Emma Sakumai pleaded guilty and so will be considered some form of reduced sentence. Prisoner Francis Krufher will be denied this leniency.

18. Defence Counsel has relied heavily on the lead authority in this types of cases: (Wellington Balewa v The State [1988-89] PNGLR. However it is no secret that the sentencing range in that case was outdated and no longer appropriate due to the frequency and the prevalence of misappropriation cases, warranting deterrence sentences. Barnette J’s sentiments expressed over very light sentences in these types of offences some 26 years ago still remains true to this day. The Courts have responded to Barnett J’s laments in the case of The State v Nancy Leah Uviri [2008] N5468. His Honour Judge Cannings said that the Wellington Balewa case may be used but it’s outdated and that there is an advanced level of community concern about corruption. Judge Canning’s improved sentencing range in Nancy Leah Uviri (supra) is in the following:
From:

19. Considering what type of punishment that I should give you, I have recourse to what National Courts have said in the case of Balewa (supra) and more so in the recent case of The State v Nancy Leah Uviri [2008] N5468. I will accept and apply the principles in that case. I acknowledge that both your pre-sentence report and means assessment reports spoke highly of you both and your ability to pay restitution. They are important considerations and have been taken on board: (Public Prosecutor v Don Hale ( 1998) SC 564 and Gima & Arnold v The State (2003) SC 730.

20. It is also acknowledged that you Emma Sakumai have so far paid back K1000 from the K8000 you supposedly stole. For Francis Krufher there were no recorded tangible repayments save his ability to pay up K10, 000 upfront if so ordered by court. Putting family concerns and obligations aside there appears to be a lack in any genuiness and sincerity in restitution on his part.

21. Now moving onto whether prisoner Francis Krufher’s sentence should be made cumulative or concurrent, I say in the following. This process entails the exercise of discretion by Courts however Courts must be guided by the applicable principles: where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be made concurrent; where the offences are so differently in character or in relation to different victims, cumulative sentences would be appropriate. In your case you have been convicted of 3 counts in the course of a single transaction hence concurrent sentence in nature. (Tremellan v R [1973] PNGLR 116.) More so to guard against the sentence being too harsh and oppressive and or crushing on the prisoner: (The Public Prosecutor v Terrence Kaveku [1977] PNGLR 110 and Mase v The State [1991] PNGLR 88.)

22. Applying these principles and relevant considerations to your case, I hold the view that since you both have been also convicted as principle offenders who aided and abetted each other in this fraudulent enterprise any and all sentencing considerations should reflect that conviction and apply to you both, saved by the one instance of guilty plea. The three related counts of stealing, fraud and conspiracy pleaded in this indictment amounts to K22, 842.26, if apportioned in three equal parts would amount to approximately K7614.00. It follows in my considered view that any restitution orders against the prisoners should reflect this maxim.

23. Due to the foregoing reasons and principles, you both are sentenced in the following:

1. Prisoner Emma Sakumai – On the count of Stealing.	You are sentenced to 2 years in hard labour. The whole of the sentence will be suspended upon the repayment of K7, 614.00 within three (3) days from today. Your bail monies will be refunded to you forthwith. Your Warrant of Commitment will be issued forthwith.
2. Prisoner Francis Krufher – On count (1) of Conspiracy to Defraud	You are sentenced to 4 years in hard labour.
Prisoner Francis Krufher – On count (2) of Receiving stolen property.	You are sentenced to 4 years in hard labour.
Prisoner Francis Krufher – On count (3) of Stealing.	You are sentenced to 3 years in hard labour. Count (1) will be served concurrent with Count (2). Count (2) will be made cumulative to Count (3). You are therefore sentenced to seven years (7). The whole of your 7 years sentence will be suspended with conditions on Probation as follows:- a. You repay K15, 228.00 to the victim and his family forthwith. Such payment will be made into Wewak National Court Registry for safe-keeping and collection by the victim/complainant and his family members. b. You are placed on Probation for three (3) years under supervision of Wewak CBC Officers. Your bail monies will be returned to you forthwith Your Warrant of Commitment will be issued forthwith.

Public Prosecutors: Lawyer for the State
Public Solicitor: Lawyer for Prisoner Sakumai

National Court of Papua New Guinea

State v Krufher (No. 2) [2017] PGNC 110; N6750 (20 April 2017)