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State v Solomon [2001] PGNC 111; N2100 (6 July 2001)

N2100

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 47 of 1999

THE STATE

v.

JIMMY SOLOMON

WAIGANI: KANDAKASI, J.
2001: MARCH 8
2001: JULY 6

CRIMINAL LAW – Particular offence – Fraudulently uttering cheques and misappropriation – Guilty plea to all charges – First time offender – Expression of remorse – Offender prepared to repay amounts stolen – Pre-sentencing report recommending non-custodial sentence – Relatives and siblings prepared to assist and supervise offender in his reformation efforts – Unsafe to send offender to prison – 5 years fully suspended sentence imposed on terms – ss. 383(A)(1), 44(1) and 462 Criminal Code.

Cases Cited:
The State v. Abel Airi (28/11/00) N2007
The State v. John Micky Lausi (27/03/01) N2073
Public Prosecutor v. Don Hale (1998) SC564

Counsel:
Ms. M. Zurenoc, for the State
Mr. J. Tekwie, for the Defendant

20th July 2001

DECISION ON SENTENCE

KANDAKASI, J: On the 9th of March 2001, you pleaded guilty to two counts of fraudulently uttering two cheques valued at K1, 450.00 drawn from account number 03791601 in the name of Dwyers Office Supplies and K4, 900.00 drawn from account number 61270541 in the name of Placement PNG Pty Limited. You also pleaded guilty two counts of false pretence in relation to those cheques. After perusing the depositions, I was satisfied that there was basis to support your guilty pleas. I therefore confirmed your guilty pleas and convicted you on each of the charges.

You then argued for a non-custodial sentence and indicated your preparedness to repay the money over a period of time if given the opportunity to do so. The State did not opposed that submission provided the court makes an order for restitution. The issue for me to determine therefore, is whether or not a non-custodial sentence is appropriate and whether or not there should be an order for restitution.

Pre-sentencing Report

To assist me in arriving at a decision, I call for a pre-sentencing report. The first pre sentencing report was received on the 30th of March 2001. Amongst others, that report indicated that you have a drug problem but you are taking steps to get out of it. There was however no indication in that report has to the kind of services that are available and whether in fact you would be assisted in your endeavours to get away from your drug problems. I therefore, ask for a further per-sentencing report this time focusing on what could be done to assist you to rehabilitate from your drug problem.

The further pre-sentencing report has now being received. That report reports of preparedness on the part your siblings and your other relatives as well as the National Narcotic Bureau to assist with your rehabilitation from your drug problems.

The reports confirm that your siblings and other relatives are prepared to assist you to help repay the funds you obtained by fraudulent means and to get away from your drug problem. The report also shows that, if you are repatriated to your home province to Western Province, there is no hope of you getting any assistance of any relatives as most of your relatives are in Port Moresby. Similarly, you will most definitely not receive any assistance in your endeavours to get out of your drug problem. Further the report emphases that, if you are ordered to serve time in prison, you have the risk of being subjected to great harm, both physically and mentally. The report points out to one of the gang leaders under whom you had to operate in a drug trade is already in prison. Hence, if you are sent there, there is a likelihood of you being harmed.

The Law

I have already covered the principles governing the imposition of a non-custodial sentence as a form of punishment in my judgements in The State –v- Abel Airi (28/11/00) N2007 at pages 10 to 12 and The State v. John Micky Lausi (27/03/01) N2073 at pages 8 to 10. I need not repeat them here save to say that, in appropriate cases, non-custodial sentences may be imposed on whatever terms the court considers appropriate, if to do so would meet the community’s interest of reforming an offender which offers a greater protection than sending offenders to prison which may hardly return a penitent prisoner to become a useful member in society again. It is useful however, to quote what I consider to be the law, based on authorities on point at page 9 of the judgement in The State –v- Micky John Lausi case in the following terms:

"It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such order is made in the community interest and is generally designed to prevent re-offending which a prison sentence, standing alone, seldom does. A person so released as an obvious incentive not to re-offend. Therefore, there should be no misconceptions as to what will occur if he does. From time to time, persons charged with more serious offences may be death with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that a particular offender will be positively damaged by immediate incarceration."

Nevertheless, before deciding to impose a non-custodial sentence, a sentencing judge has to remind him or herself of what the Supreme Court said in Public Prosecutor v. Don Hale (1998) SC564 at page 5. The Supreme Court made it clear that a pre-sentencing report should be called for, considered and if such a report calls for a non-custodial sentence only then, should such a sentence be imposed. That proceeds on basis that, under our Constitution, the courts exercise their judicial powers on behalf of the people. Hence, if a prisoner is to be returned to community under a non-custodial sentence, there must be inputs from the community as to what role it will play in the supervision of the offender put to a program of reformation. That is why in this case, I called for a pre-sentencing report. The reports have greatly assisted me in considering an appropriate sentence for you.

Type of Sentence in this Case

Base on the pre-sentencing report and my impression of you in Court, I am firmly of the view that, sending you to prison to serve time there will not assist you in your efforts to free yourself of your drug problems and reform you as an offender. There is a risk of dangers to your life and or if not, there is a risk of you being turned into a hard core criminal. You might not even get the kind of support the members of your family are now prepared to give if you are returned to them and the community under their care and supervision.

Based on my observation of you in Court, you appear not to impress me as a risk or harm to society. This is so because you did not commit the offence with any violence as in an armed robbery or murder case. You pleaded guilty to the charges and expressed your deep remorse for having committed the offences. You are prepared to work hard with the support of your family to raise sufficient funds to repay the amounts you have stolen. The Probation Service has recommended you be given a non-custodial sentence on terms. Similarly, the National Narcotics Bureau is also prepared to assist you in your efforts to get away from your drug problem. You have siblings who are ready to assist you in your reformation efforts. Further, the State is not arguing for a custodial sentence and is instead supporting the call for a non-custodial sentence and an order for restitution. In these circumstances, I considered it appropriate that you should be given a non-custodial sentence but on strict terms to show and express the community’s disapproval for the kind of conduct you engaged yourself in, leading to the charges with which you have been convicted.

The maximum prescribed penalty for any of the offences you have been found guilty of is 10 years in the case of misappropriation under section 383A(1) of the code. As for the other offences respectively under section 44(1) and 462 of the code, they carry a maximum of 5 years and 3 respectively.

Having regard to the particularly circumstances of this case, I propose to impose a sentence of 5 years cumulative for all the offences to be suspended on the following conditions:

1. You repay the full amount of K1,450.00 to Dwyers Office Supplies and K4, 900.00 to Placement PNG Pty Limited within 12 months from today.
   
2. You under go a course of drug counselling and advice and a program of rehabilitation under the supervision care and control of the National Narcotics Bureau for a period of 12 months and a further period of 12 months or more as the National Narcotics Bureau may consider necessary and appropriate for your rehabilitation program.
   
3. Except for any meaningful employment, you are banned from idol loitering in the various centres and streets of the city of Port Moresby for a period 5 years.
   
4. You shall remain indoors between the hours of 6.00pm and 6.00am each day for five years.
   
5. You shall render free community service to the Cheshire Homes or the Port Moresby General Hospital or such other public establishment or institution at the rate of 5 hours per week at the direction, supervision and control of the Probation Service.
   
6. You shall allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to make such recommendations, as they consider appropriate either for a variation or an implementation of these terms.
   
7. The Probation Service shall attend on you each quarter to do a comprehensive review and report to this court of your compliance of these terms.
   
8. If for whatever reason you breach any of these terms you will serve the balance of the term of the suspended sentence of 5 years.
   
9. You shall be at liberty to apply for a review and or variation of any of these terms supported by appropriate evidence or material.
   
10. You shall immediately enter into your own recognition to keep peace for the currency of your suspended sentence.

______________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor