State v Pati [2018] PGNC 113; N7186 (14 March 2018)

N7186

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 174 of 2015

THE STATE

V

LAPUN MESA PATI

Lae: Kaumi AJ

2018: 12, 19 February & 6, 14 March

CRIMINAL LAW – Criminal Code Act 1974, Part IV-Offences Relating to Property and Contracts, Division 1-Stealing and Similar Offences-Subdivision F-Obtaining Property by False Pretence - Cheating-Section 404 (1) (a)-Plea of Guilty-Division 3-Forgery and Like Offences: Personation-Subdivision B-Offences-Forgery-Section 463-Plea of Guilty-Uttering-Section 463

CRIMINAL LAW-Sentence-Guilty Plea-Mitigating and AggravatinFactors-Expression of Remorse non-genuine-Prevalent Offence-Sentencing Trends Considered-Property of Substantial value never recovered-Breach of Trust-Concurrent Term of 3 years imprisonment Imposed-Partial Suspension of 2 years based on PSR-Pre-Trial Custody Deducted

CRIMINAL LAW- Usual purposes of criminal sentencing such as Deterrence, Restitution or Rehabilitation are also relevant factors for consideration-Circumstances serious but not worst type of offence-Aggravating factors outweigh mitigating factors-Portion of sentence suspended-Criminal Code Ch.262, section 19 (1) (d) (6).

CRIMINAL LAW-Sentence-One Transaction Rule Applied-Totality Principle Considered

CRIMINAL LAW- It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

Facts

The offender pleaded guilty to one count of False Pretence, one count of Forgery and one count of Uttering and matter for sentence.

Held:

[1] The offences of false pretence, forgery and uttering were committed by the offender in the course of a single transaction and therefore all sentences should be concurrent.

[2] I am also conscious of the “totality principle”, that when the court has arrived at appropriate head sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total.

[3] “I now look at the total sentence that the offender is potentially facing, to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The Court needs to guard against imposing a crushing sentence, i.e. one that is over the top’ or manifestly excessive”: Cannings. J in The Independent State of Papua New Guinea v Benson [2006] PGNC 68

Cases Cited:
Doreen Lipirin v The Independent State of Papua New Guinea [2004] SC 673
Kali Mari v Indepenedent State of Papua New Guinea [1980] SC175
Public Prosecutor v Tardrew [1980] PNGLR 91
Saperus Yalibakut v The State SCRA No. 52 of 2005, 27/04/2006
The Acting Public Prosecutor v Don Hale (27/08/98) (SC564)
The Independent State of Papua New Guinea v John Kil [2000] PNGLR 253
The Independent State of Papua New Guinea v Louise Paraka (2002) N2317
The Independent State of Papua New Guinea v Jack Ostekol Metz (2005) N2824
The Independent State of Papua New Guinea v Lengade [2012] PGNC 76
The Independent State of Papua New Guinea Public v Jimmy Kendi N3129
The Independent State of Papua New Guinea v Lawrence CR (FC) 574 of 2012; N5695
The Independent State of Papua New Guinea v George Steven CR (FC) 184/14 DCJ Salika
The Independent State of Papua New Guinea v Dominic Kurai N3435
The Independent State of Papua New Guinea v Lawrence Pukali [2014] PGNC 252; N5695
The Independent State of Papua New Guinea v Fred Luke CR 98/2017
The State v Inema Yawok (1998) N1766)
The State v Jason Dungoia (2000) N2038
The State v Irox Winston (2003) N2347
Tom Longman Yaul v The State (2005) SC 803
The State v Jacky Vutnamur and Kaki Kialo (2005) N2919
The St v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801
The Independent State of Papua New Guinea v Benson [2006] PGNC 68
The St v A Juvenile, “TAA” (2006) N3017
State v Francis Wangi (2007) N5057
Wellington Belawa v. The State [1988-89] PNGLR 496

Legislation Cited

Constitution of Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

Counsel

Ms. M Tamate, for the State
Ms. Katurowe, for the Offender

SENTENCE

14^th March, 2018

1. KAUMI AJ: INTRODUCTION: This is a decision on sentence for a man who on the 13^th February 2018 was found guilty of one count of False Pretence contrary to Section 404 (1) (a), one count of Forgery contrary to section 462 and one count of Uttering contrary to section 463 of the Criminal Code Act Chapter 262.

ISSUE

2. The relevant issue is what the appropriate sentence is in his case.

AGREED BRIEF FACTS

3. The brief facts giving rise to the charge are as follows:

4. The State alleges that between the 10^th of October and the 14^th of October 2014, an employee of Premium Hire Cars Limited namely Alama Sonny, a Sales & Marketing Executive with In-Touch Media Company also commonly known as “FM Morobe” received a phone call. This man requested to hire a vehicle for two days to use during the Pride Show Program. He further requested for an invoice and the bank account details for Premium Hire Cars to be faxed to a number given by him.

5. On the 14^th of October 2014, further communication was made between Agnes and Alama Sonny to confirm payment and delivery of the vehicle to Mr Sonny at Melanesian Hotel in Lae as per his request. Mr Sonny told Agnes that a payment was already made and the bank deposit details would be provided to them when the vehicle is delivered to him. The vehicle hired was a Toyota 10-Seater Land Cruiser bearing registration LBG 183 which was then taken to Melanesian Hotel by Danny Frank and Joshua Ipara (employees of PHC). When they arrived at Melanesian Hotel, two other men came out to meet them and said that Alama had sent them out to sign the vehicle rental papers and receive the vehicle. The State alleges that Lapun Mesa Pati was one of the two men who came out to receive the vehicle. The vehicle was inspected by the accused and the two employees of PHC were given a copy of an ANZ bank deposit butt and a copy of a letter requesting hire.

6. After two days of hire, the subject vehicle was not returned to PHC. The matter was reported to police and investigations were conducted to search for the vehicle and the persons who purportedly hired it. From these investigations, it was revealed that Alama Sonny’s true identity was David Palou alias “Papu David”.

7. The State alleges that the accused Lapun Mesa Pati was an accomplice to David Palou as he had communicated with Palou on the day the vehicle was delivered at the hotel. Furthermore, the accused was questioned as to the allegations and he freely admitted that he was there but denied any criminal or fraudulent intent and said that it was all David Palou’s plan. He further told the police that he and his accomplices took the vehicle to Goroka and sold it to a man known to the accused for K31, 000.00. These monies were then shared amongst themselves and the accused received K7, 000.00.

8. The State therefore alleges that the accused’s conduct by operation of section 7(1)(c) of the Criminal Code Act holds him responsible for committing the offences of false pretence pursuant to section 404(1)(a) and forgery and uttering pursuant to section 462 and 463 of the Criminal Code Act.

ANTECEDENT

9. The Antecedent Report provided to the Court by the State states that he has no prior convictions.

ALLOCATUS

10. When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him, the following is a paraphrased summary of his response:

“I have three points to tell this court, firstly, I am sorry to the court for what I did with my accomplices and I am sorry to the company Premium Hire Cars for what I did; secondly, when the Police arrested me they didn’t just arrest me in a way I can stand in this court. They assaulted me and damaged my feet. My medical report is in the Court file; thirdly, I am an old man. I am married with 8 children, 6 girls and 2 are my grandchildren. Lastly I ask for Probation or a Good Behaviour Bond and the Court’s mercy so I can go back to my company and be a guard”.

OTHER MATTERS OF FACT

11. The prisoner pleaded guilty and so I will give him the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus in submission that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890. In his allocatus the prisoner stated that when he was arrested he was badly assaulted by police and suffered injuries to his feet and I accept this.

SUBMISSION BY DEFENCE COUNSEL

12. The offender’s counsel, Ms Katurowe highlighted the offender’s mitigating factors as, his plea of guilt; his lack of prior convictions; his expression of remorse; his injuries sustained at the time of his apprehension caused by police; and his early admission in the record of interview.

SUBMISSION BY THE STATE

13. Ms Tamate highlighted that the complainant had lost an asset of great value and this was a loss of business. And that there was serious dishonesty in the manner the complainant was contacted and fooled into hiring out the car. Further that the offender’s participation in the crime resulted in success. That this demonstrated how smart the offender was in executing the criminal offence and this showed no respect for the law. Further that the mastermind David Palou from Manus was still at large.

14. That the offence was prevalent and this called for a deterrent penalty.

15. The State submitted that the Court should consider head sentences of 3 years for all 3 offences to be served concurrently and suspension be partial with strict conditions.

DECISION MAKING PROCESS

16. In arriving at a penalty that befits the offences for which the prisoner has pleaded guilty to, I adopt and apply parts of the process His Honour Cannings. J adopted in State v Francis Wangi (2007) N5057 in determining the appropriate penalty at paragraph 8 and reproduce it here:

“To determine the appropriate penalty I will adopt the following decision making process:

Step 1: what is the maximum penalty?

Step 2: what is a proper starting point?

Step 3: what sentence have been imposed for equivalent offences?

Step 4: what is the head sentence?

Step 5: should the pre-sentence period in custody be deducted?

Step 6: should all or part of the sentence be suspended?”

STEP 1: WHAT IS THE MAXIMUM PENALTY?

17. Section 403 of the Criminal Code states:

1. A representation made by words or otherwise of a matter of fact, past or present that –

1. Is false in fact; and
   

Penalty: A term of imprisonment of not more than 5 years.

18. Section 462 of the Criminal Code states:

1. A person who forges any document, writing or seal is guilty of an offence that, unless otherwise stated is a crime
   

Penalty: If no other punishment is provided- imprisonment for a term not exceeding three years.

19. Section 463 of the Criminal Code states:

(1) In this section, “fraudulently “means with an intention-

1. That the thing in question shall be or used or acted on as genuine, whether in Papua New Guinea or elsewhere, to the prejudice of some person, whether a particular person or not; or
   
2. That some person, whether a particular person or not, will, in the belief that the thing in question is genuine, be induced to do or refrain from doing some act, whether in Papua New Guinea or elsewhere.
   
   • (2) A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.
     
   • (3) It is immaterial whether the false document or writing, or counterfeit seal, was made in Papua New Guinea or elsewhere,
     

STEP 2: WHAT IS THE STARTING POINT?

20. The proper starting points for the offences the offender has pleaded guilty are:

[i] False Pretence- 30 months (midway point)

[ii]Forgery – 18 months (midway point)

[iii]Uttering- 18 months (midway point)

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

21. I will now consider the sentencing trends in recent history.

Table 1. NATIONAL COURT SENTENCES FOR FORGERY and UTTERING, 1980-2017

Case	Details	Sentence
Kali Mari v Indepenedent State of Papua New Guinea [1980] SC175	Appeal against sentence of 18 months for uttering by fraudulent alteration, by K1,000.00, of the credit balance shown in a bank passbook –appeal upheld- trial judge erred by giving too much weight to what was regarded as an intelligent, pre-mediated cunning plan- the offender’s plan was better categorised as naive.	1 year imposed
Public Prosecutor v Tardew [1980] PNGLR 91	Appeal by the Public Prosecutor against suspension of 54 months of five-year concurrent sentence for eight offences re forging and uttering four cheques worth a total of K82,202.73 - the offender was operations manager of the National Computer Centre, which printed government cheques for the Department of Finance – sentence confirmed – appeal against suspension upheld – offender committed to custody.	5 years imposed
Doreen Lipirin v The Independent State of Papua New Guinea [2004] SC 673	Review of conviction and sentence for forging, uttering and misappropriating re K6,000.00 – the offender was a bank teller and misappropriated the money from her employer – the National Court sentenced her to 1 year for forging, 1 year for uttering and 3 years for misappropriating , all to be served concurrently, and suspended execution of sentence for two months to allow money to allow money to be repaid – money not repaid and offender committed to custody – Supreme Court review of conviction unanimously dismissed; review of sentence granted 2:1 (Kapi DCJ dissenting): nine months in custody sufficient, offender given two years to repay money and community service ordered.	2 years and 9 months
The Independent State of Papua New Guinea v George Steven CR (FC) 184/14 Re Salika DCJ.		3 years imposed. Suspended on conditions
The Independent State of Papua New Guinea v Roland Tom, Kaleu Kopen CR No 774/2005		6 years imposed (Salika DCJ)
The Independent State of Papua New Guinea v Louise Paraka (DCJ Salika)	Prisoner pleaded guilty to 2 counts of forgery and 2 counts of uttering.	3 years imposed. Suspended upon restitution.
The Independent State of Papua New Guinea v Fred Luke CR 98/2017	Prisoner pleaded guilty to one count of forgery of a false document purporting to be a Bank of South Pacific deposit slip.	Maximum of 3 years imposed.
The Independent State of Papua New Guinea v Benson [2006] PGNC 68	Prisoner pleaded guilty to two counts of forgery and two counts of uttering.	18 months imposed. 17 months, 3 weeks and 3 days suspended conditionally.
The Independent State of Papua New Guinea v Lengade [2012] PGNC 76 (28/05/12)		1 year imposed. 3 months suspended.

Table 2. NATIONAL COURT SENTENCES FOR FALSE PRETENCE, 2002-2013

Case	Details	Sentence
The Independent State of Papua New Guinea v Lawrence [2014] PGNC 252; N5695 (22 July 2014) (Salika DCJ)	Prisoner found guilty of one count of false promise with intent to defraud and one count of forgery.	5 years imposed
The Independent State of Papua New Guinea Public v Jimmy Kendi N3129	Prisoner found guilty after a trial on two counts of False Pretence and one count of misappropriation of K4,298,037.33	4 years imposed
The Independent State of Papua New Guinea v Dominic Kurai N3435	Prisoner pleaded guilty to one count of False Pretence. He obtained goods by false pretence form a trade store worth K7	12 months imposed. Suspended with conditions
The Independent State of Papua New Guinea v John Kil	Bill Kure advanced to prisoner K1,470.00 after prisoner falsely promised him that he would repay Kure upon him getting his termination entitlements. Prisoner a former police man.	18 months imposed. Suspended conditionally. Repaid.
The Independent State of Papua New Guinea v Jack Ostekol Metz (2005) N2824	Prisoner falsely represented to Guest House in Madang that he was expecting millions of Kina from Sale of Treasury Bills. He convinced the Manager of the Guest House to accommodate him and that he would pay from the sale of the Treaury Bills. Prisoner was accommodated for 8 months at the guest house and incurred a bill of K70,445.36 which he could not pay.	3 years and 6 months imposed. Person incurred at a Guesthouse an amount of K70,445.36 which he couldn’t repay.

22. The above cases all demonstrates that the Supreme and National Court view the offences of Forgery, Uttering and False Pretence seriously.

Table 3. NJSS Sentencing Data Base

NJSS Sentencing Data Base 27 False Pretence cases: 10 cases with 12, 24 and 30 months of imprisonment fully suspended. 80% of the cases used midway point as a starting point. 20 male offenders 7 female offenders Most aged between 31-40 years old. 18 pleaded guilty 6 pleaded guilty, and cooperated with the police. 5 pleaded guilty, cooperated with the police and showed remorse One offender did all the above and paid compensation as well and was given a fully suspended sentence.

23. The Papua New Guinea Sentencing Database System or PNGSD sentencing statistics is the brainchild of the Chief Justice Sir Salamo Injia and form on component of the PNGSD database. They provide a guide to the pattern of sentences imposed by the National Court for criminal offences. It is intended to assist the courts in achieving consistency in imposing sentences.

24. I have accessed the PNGSD sentencing statistics and am respectfully indebted to the Chief Justice for his initiative and the hardworking staff of PNG SD for the wide range of statistics available on 129 offences thus covered. The matters of relevance which are of invaluable assistance to sentencing courts are matters such as offenders’ gender, age at time of offence, counts of principal offence, number of other offences, plea, early guilty, not guilty, criminal history, offender on conditional liberty at time of offence, offender’s mental health, proven cases, dismissed cases, number of cases for an offence where imprisonment fully suspended and the list goes on. It certainly goes without saying that the Papua New Guinea Sentencing Database System or PNGSD sentencing statistics is a very valuable tool for use by sentencing courts within PNG, the Pacific region and globally now and in the future.

25. The PNG SD statistics reveal inter alia that of 27 case for false pretence; 10 cases had 12, 24, 30 months imposed. All fully suspended conditionally. Eleven (11) cases partially suspended and 5 cases imprisonment.

STEP 4: WHAT IS THE HEAD SENTENCE?

26. In order to arrive at a head sentence for each of the offences the offender has pleaded guilty to, I have to consider the particular circumstances in which he has committed the offences and the result of which will come the factors in his aggravation as well as those in his mitigation.

27. His Honour Cannings J in State v. Benson (supra) at paragraph 16 set out a number of considerations in a series of questions in determining the head sentence and which I adopt. I find his method encapsulating and applicable with adjustments with respect to the particular circumstances of the case before me.

28. The considerations I use in determining the head sentence for each offence are based on considerations applied in similar cases by Salika DCJ in the State v. Pukali (supra) and Cannings. J in The State v Benson (supra) who developed their relevant considerations based on considerations outlined in Wellington Belawa v. The State (supra), Mari Kali v The State (supra), Public Prosecutor v Tardrew (supra) and Doreen Lipirin v The State (supra).

29. The considerations are:

1. Was the property’s value very low?

No it was worth K148, 000.00.

2. Was the offender not in any special position of trust?

No, he was a client whom the company trusted.

100. Did the transaction take a short period and not involve a pre-meditated cunning plan of greed?

No, it took two days and involved a pre-meditated cunning plan of greed in which the offender and another contacted the hire car company and the next day presented a forged bank deposit butt for the hire of the car for two days and successfully took possession of the car. This scam was planned by the mastermind David Palou who is still at large.

4. Was the property put to good use?

No, it was sold to a buyer in Goroka.

5. Were the documents not forged and why?

No, the bank deposit butt was forged to convince the company to hire out its car to the offender and accomplices in order for it to be sold to a third party.

6. Was the purpose of the forgery not achieved?

No, the car was successfully hired out to the offender and his accomplices and later sold for K31, 000.00 to a man in Goroka from which the accused received K7, 000.00 for the role he played.

7. Did the offender’s actions have only a small effect on the other persons, e.g. the owner of the property and were the victims in a position to carry the losses caused by the offender?

No, it had a big adverse effect on Premium Hire Cars and the company also suffered a great monetary loss.

8. Did the offender’s action have only a small effect on the public confidence in the integrity of the public sector, the banking system or the private sector or a company?

No.

1. Was the offender affected by what he did?

Yes, he regrets what he did.

10. Did the offender give himself up before being detected?

No.

11. Did the offender cooperate with the police in their investigations?

Yes.

50. Did the offender repair his wrongs, e.g. by replacing the stolen vehicle or repaying his share of the proceeds of the crime of K7, 000.00 to the complainant?

No

13. Has the offender pleaded guilty?

Yes

14. Has the offender genuinely expressed remorse?

No

• Is this his first offence?

Yes

16. Has the offender and his family already paid a heavy price for his actions?

No, he is still on pay, working and getting a salary.

17. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?

No

18. Are there any other circumstances of the offences or the offender that warrant mitigation of the head sentence?

Yes, he was not the mastermind. David Palou was the mastermind and is still at large.

RATIONALE

30. The above considerations have been framed so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point.

31. Clearly the aggravating considerations outweigh the mitigating factors.

32. For the offence of false pretence there was a pre-meditated cunning plan of deceit which was successfully executed resulting in the loss of property worth K148, 000.00 and as such the circumstances of this matter though not in the worst category of cases are serious and warrant a lifting of the head sentence above the starting point of thirty months so the head sentence will therefore be thirty six months imprisonment.

32. For the offence of forgery circumstances of this matter are serious as it involved the forgery of a bank document and as such warrants a lifting of the head sentence above the starting point of eighteen months so the head sentence will therefore be twenty four months imprisonment.

33. For the offence of uttering the actions of the offender were blatant, cunning and deliberately calculated to fool the complainant into hiring out its vehicle and these circumstances are serious and warrant a lifting of the head sentence above the starting point of eighteen months so the head sentence will therefore be twenty four months imprisonment.

34. The aggregate result of these three sentences is seven years.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

35. Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

36. This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.

37. The offender spent two months in custody and it is proper that this period is deducted.

STEP 6: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY

38. The three charges for which the offender has pleaded guilty to arise out of the same or closely related facts or ‘one transaction’, and I will treat them as part and parcel of the same transaction for purposes of sentencing.

39. I note that the ‘one transaction’ rule dictates that where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent. See The State v Jacky Vutnamur and Kaki Kialo (2005) N2919 ; The St v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801 and The St v A Juvenile, “TAA” (2006) N3017. They were armed robbery cases but the same principles apply irrespective of the nature of the crime.

40. Cannings. J in State v Benson (supra) summarized the principle of the “ one transaction rule” in the following manner:

• Firstly, apply the “one transaction rule”. Where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent.
• Secondly, where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable, e.g. burglary and violence to the householder, or assault plus escaping from custody, or sexual assaults on different victims.
• Thirdly, apply the “totality principle”. When the Court has arrived at appropriate head sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total. See The State v Jacky Vutnamur and Kaki Kialo (supra); The State v Lucas Soroken Sembengo, Bob Alois Wafi & Raphael Lawrence Mandal (supra); and The State v A Juvenile, “TAA” (supra). They were armed robbery cases but the same principles apply irrespective of the nature of the crime.
  

41. The offences of false pretence, forgery and uttering were committed by the offender in the course of a single transaction and therefore all sentences should be concurrent.

42. The aggregate result of these three sentences of false pretence three years, forgery two years and uttering two years is seven years and are to be served concurrently as a three year term.

43. I am also conscious of the “totality principle”, that when the court has arrived at appropriate head sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total. See The State v Jacky Vutnamur and Kaki Kialo (supra)

44. I note that this is the offender’s first ever offence which means in other words that he has not been convicted by a court of law before. The law allows for a lenient sentence in appropriate cases where the offender is a first time offender. The conversed of that, is a repeat offender may be given a far stiffer sentence. The idea behind this is to avoid crushing a first time offender with a heavier penalty and the risk of turning the offender into a hard core criminal. Hence a lighter sentence would serve as a punishment as well as serve the communities desire to prevent the offender from re-offending.

45. I adopt what Cannings. J in The State v Benson (supra) said with respect to the “Totality Principle”:

“I now look at the total sentence that the offender is potentially facing, to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The Court needs to guard against imposing a crushing sentence, i.e. one that is over the top’ or manifestly excessive”.

46. A Toyota Land Cruiser ten seater vehicle valued at K148, 000 was hired out to the offender and his friends which they subsequently sold in Goroka to a man, and has never been recovered to date. Motor Vehicles especially Toyota Land cruisers ten seaters are a much sought after vehicle in this country given its rugged terrain and wet weather and such is its demand that the price of a brand new one is in the hundreds of thousands of kina. Toyota Land cruiser ten seater vehicles don’t fall off trees like leaves and people desiring to own one face an onerous task of raising the necessary funds to purchase one from a motorized dealer. Needless to say Premium Hire Care Company lost a valuable asset.

47. These crimes of false pretence, forgery and uttering were perpetuated in unison and exposed man’s potential for deceit and cunning so the sentence must accordingly reflect the society’s concern of such conduct and the sentence of 36 months is not excessive in the circumstances.

48. Therefore 2 months is deducted from 36 months. The resultant length of sentence is 34 months to be served.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

49. In this case the Toyota Land cruiser ten seater vehicle valued at K148, 000 has never been recovered.

50. The offender has never attempted to repay his share of the K7, 000.00 he received from the proceeds of the crime to the complainant’s company.

51. The offence is prevalent and there needs to be deterrent sentence to deter likely-minded persons in the community.

52. The offender has received a favourable pre-sentence report which recommends non-custodial term and is based on views obtained from the Community as well as the victim, offender and his family however on the same token I note the victim’s call for the offender to be made to face the full brunt of the law so for the aforementioned reasons above and the circumstances of this case, there should only be a partial term of suspension conditionally.

53. The circumstances of this case are serious but do not fall into the worst category of cases. Therefore the sentence I impose is a sentence which will serve the purposes of sentencing of Deterrence and Rehabilitation.

54. Two years of the head sentence are suspended on the following condition:

1. Upon his release the offender will keep the peace and be of good behaviour for a period of the suspended portion of his sentence (2 years)
   
2. The offender will reside at your residence at Wakang Street, West Taraka, Lae.
   

100. You will not leave the Morobe Province without written permission from the National Court.
     

4. You will report to the senior Community Corrections Officer (Probation Officer) at Lae at the end of every month.
   
5. You will have a favourable probationary report filed at the Lae National Court Registry by the CBC Officer in Lae after every six (6) months.
   
6. If you break any of the above conditions you will be arrested and brought before the National Court to explain why you should not be imprisoned for the suspended balance of your sentence.
   

SENTENCE

55. The orders of the Court are as follows:

Length of Sentence imposed	3 years
Pre-sentence period to be deducted	2 months
Resultant length of sentence to be served	34 months
Amount of sentence to be suspended	2 years
Time to be served in custody	10 months to be served at Buimo Correctional Institute.
Bail	Refunded forthwith

Sentence accordingly.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender