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State v Borowi [2018] PGNC 429; N7535 (23 October 2018)

N7535

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) No. 160 - 161 OF 2018


THE STATE


V


EMMANUEL BOROWI


Lae: Numapo AJ
2018: 10th, 17th & 23rd August; 07th, 20th, 28th Sept & 23rd October.


CRIMINAL LAW – Particular Offence – Conspiracy to Defraud – Forgery – Uttering – Misappropriation – The greater Degree of Trust the more serious the offence - A Series of Dishonest Acts – Totality Principle – The Belawa Guidelines - Sentencing Discretion.


Held:


(i) The degree of trust held by the offender – the greater the degree of trust the more serious the offence.

(ii) Offences were committed over a period of time in a series of dishonest acts which in itself an aggravating factor.

(iii) Sentencing tariffs for misappropriation may also apply to other related stealing offences in the absence of any specific guidelines that provides a useful guide to the Court, Re: Louise Paraka.

(iv) Totality principle applies where a number of offences were committed in a single transaction so that the net sentence is not too crushing on the prisoner.

(v) Prisoner sentenced to a concurrent term of 3 years as head sentence less the pre-trial custody period.

(vi) Sentence to be partially suspended if restitution is made.

Cases Cited:


Goli Golu v The State [1979] PNGLR 653
State v Louise Paraka (2002) N2317
State v Iori Varaga [2005] N2849
State v Robert Kawin [2001] PGNC 42; N2167
State v Niso (No.2) [2005] N2849
State v Lapun Mesa Pati CR (FC) No. 174 of 2015
State v Raka Benson [2006] PGNC 68; N4481
Wellington Belawa v The State [1988-89] PNGLR 496


Counsel:


T.Aihi, for the State
S. Katurowe, for the Defence


SENTENCE
23rd October, 2018


  1. NUMAPO AJ: This is a decision on sentence. The accused EMMANUEL BOROWI of Wauningi village, Aitape, Sandaun Province pleaded guilty to one count of Conspiracy to Defraud, two counts of Forgery, two counts of Uttering and one count of Misappropriation contrary to Sections 407 (1), 462 (1), (3) B (i), 463 (2) and 383A (1) (a) (2) (b) (d) respectively of the Criminal Code.
    1. BRIEF FACTS
  2. Between 29th of November and 13th of December 2016, the Prisoner conspired with others and defrauded Westpac Bank Limited by agreeing to forge the signature of another person, Yana Aminie on a number of withdrawal slips and withdrew a total of K5,000.00 belonging to the complainant. He then dishonestly applied the money to his own use and use of others, money belonging to the complainant.
    1. MAXIMUM PENALTY
  3. The maximum penalty for the offences prescribed by law is as follows:
  4. However, section 19 of the Criminal Code gives the Court a wider sentencing discretion to impose a lesser sentence in place of the prescribed maximum penalty. In addition, the Supreme Court in the famous case of Goli Golu v The State [1979] PNGLR 653 held that maximum penalty should be reserved only for worst type of offence. This has become a trite law and also applies to other offences as well. Sentencing tariffs setting out the starting points on sentence also provides some flexibility in deciding the appropriate sentence between the lower end and upper end of the sentencing scale.
    1. SENTENCING TARIFFS
  5. Sentencing tariffs for misappropriation was set by the Supreme Court in the case of Wellington Belawa v The State [1988-89] PNGLR 496 as follows:
  6. His Honour Kandakasi J in the State v Louise Paraka (2002) N2317 suggested that the Belawa Guidelines should also apply to cases involving forgery, obtaining goods by false pretence, fraud and stealing with necessary modification in the absence of any authority to the contrary. In that case, the Prisoner pleaded guilty to two (2) counts of Forgery and two (2) counts of Uttering contrary to sections 462 (1) and 463 (2) of the Criminal Code respectively. The Court applied the Belawa Guidelines.
  7. In the present case the amount involved is K5,000.00 and therefore, falls under category 2 of the Belawa Guidelines which carries a maximum of two (2) years imprisonment. It should be noted however, that the Belawa case was decided in 1989 and since then the Courts have recognized the need to impose higher sentences due to prevalence of the offence and the need for deterrence.
    1. COMPARABLE CASES
  8. Counsels cited some case precedence which I found very useful for purposes of consistency in sentencing. I list some of them below:
  9. The offender pleaded not guilty to one count of conspiracy and misappropriation to defraud NPF of K60, K300 and K175,000 respectively as valuation fees which were considered as excessive. The money was put to his own use and use of others money belonging to NPF. After a lengthy trial the accused was found guilty and convicted.

The court imposed 4 years each on each count on conspiracy to be served concurrently and 2 years on misappropriation. Prisoner was sentenced to 6 years to serve in total.


(2) State v Robert Kawin [2001] PGNC 42; N2167
  1. The offender pleaded guilty to forging the signature of his workmate who has entrusted his transactions with him (prisoner). The prisoner forged the complainant’s signature on the withdrawal slip and withdrew K50.00 from his account held with PNGBC. He committed the same act again and withdrew a further K2, 200.00 from the complainant’s account. He was sentenced to 2 years imprisonment as a first time offender.
  2. The prisoner was found guilty and convicted of Conspiracy to Defraud, Forgery and Uttering and Misappropriation. He conspired with other unknown persons to defraud the Bank of PNG of K500,000. He knowingly forged a Westpac Bank (PNG) Ltd cheque account and fraudulently uttered a false document on an account of another person Raymond Mell and withdrew the money and applied it to his own use and the use of the others. He was sentenced to 3 years and 6 months for conspiracy; 1 year and 3 months for forgery; 1 year and 3 months for fraudulent uttering a false document and 7 years and 6 months for misappropriation. He was given a concurrent term for Count 1, 2 and 3. Minus the pre-trial custody period which was 8 months the prisoner was sentenced to 6 years and 10 months.
  3. The prisoner pleaded guilty to one count of False Pretence, one count of Forgery and one count of Uttering under sections 404 (1), 462 and 463 of the Criminal Code. The prisoner and his accomplices hired a vehicle belonging to Premium Hire Cars. They presented a forged deposit butt to the hire car company and got the vehicle which they never returned. Instead they took the vehicle to Goroka and sold it and shared the proceeds amongst themselves. The prisoner was given K7,000.00 as his share. He was sentenced to 12 months for Forgery and Uttering.
  4. The prisoner pleaded guilty to two counts of Forging and Uttering. He forged the signature of the authorized signatory on a bank withdrawal slip then presented to the bank and withdrew K500.00. Later he forged and uttered yet another bank withdrawal slip and withdrew K1,500.00 belonging to another entity namely, a school. Prisoner was the Deputy Chairman of the School’s board. He had repaid most of the money. He was sentenced to 18 months imprisonment. His term was wholly suspended.
  5. The sentencing trend in the comparable cases shown above indicated a suspended sentence at the bottom end of the sentencing scale up to seven (7) years at the top end.
    1. AGGRAVATING CIRCUMSTANCES AND MITIGATING FACTORS
  6. In the present case the aggravating circumstances, mitigating factors and the extenuating circumstances are as follows:
  1. PRESENT CASE
  1. The present case falls under Category 2 of the Belawa Guidelines which carries an imprisonment term of two (2) years.
  2. There are several factors I take into account in deciding what should be the appropriate sentence in this present case. Firstly, I note that the prisoner abused the trust of a fellow worker. The complainant works with him in the same company, the Guard Dog Security. They were not only work colleagues but were also good friends. The greater the degree of trust, the more serious the offence. Secondly, the offence was committed over a period of time. The first transaction to withdraw K500.00 went undetected for several days and after that the prisoner withdrew another K4,500.00 from the complainant’s bank account. In total the prisoner withdrew K5,000.00 money belonging to the complainant. There was on the part of the prisoner a series of dishonest acts over a period of time that indicated a sinister motive and a serious state of mind in carrying out these acts as opposed to it being a spur of the moment thing. I have no doubt in my mind that there was some degree of planning involved to steal from the complainant. Thirdly, the prisoner put the money to his own use and use of others and in so doing caused the complainant to suffer financially. Complainant is employed as a security guard and earns a meagre salary each fortnight. K5,000.00 is a lot of money and could have been his savings over a period of time hence the loss is quite substantial.
  3. Finally, although the offender is a first time offender the seriousness of the offence and the need for general deterrence outweighs any personal factors in mitigation. I am also mindful of the fact that as a result of this case, the prisoner has lost his job and the prospect of getting another job in the future is very slim and this may have a long term effect on him. However, as I have always said on many occasions in the past that these are the consequences one should have thought about before committing the offence. Part of that means that the prisoner must be prepared to face the appropriate penalty prescribed under our laws and the hardship that may follow as a direct result for breaking the law. The hardship that the prisoner will face must be balanced with the seriousness of the offence he committed and the importance of making it clear that those who commit such offences can expect the same.
  4. As the various offences were committed together in a single transaction, I intend to apply the ‘totality principle’ held in Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, where the Supreme Court stated that:

“The effect of the totality principle is to require a sentencer who passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate is just and appropriate...The principle applies to all situations in which an offender may become subject to more than one sentence; where sentences are passed on different counts in an indictment or indictments, where the offender is subject to a suspended sentence or probation, where he is already serving a sentence of imprisonment or makes appearances in different courts within a short period of time. In all such cases the final duty of the sentencer is to make sure that the totality principle of consecutive sentences is not excessive.’’


  1. Furthermore, I apply the sentencing tariffs set out under the Belawa Guidelines on the other offences as well in the absence of any specific guidelines on the same as was held in The State v Louise Paraka (supra).
    1. SENTENCE

21. I make the following Orders:


(i) Count 1 – Conspiracy to Defraud

I sentenced the prisoner to Two (2) years imprisonment.


(ii) Count 2 – Forgery

I sentenced the prisoner to Two (2) years imprisonment.


(iii) Count 3 – Uttering

I sentenced the prisoner to Two (2) years imprisonment.


(iv) Count 4 – Misappropriation

I sentenced the prisoner to Three (3) years imprisonment.


(v) Further Orders:

Orders Accordingly.


Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyers for the Defence


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