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State v Kapi [2008] PGNC 258; N3936 (18 September 2008)

N3936

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 981 0F 2008

THE STATE

V

SIMON KAPI

Madang: Cannings J
2008: 9, 11, 18 September

SENTENCE

CRIMINAL LAW – sentence – conspiracy to defraud – Criminal Code, Section 407 – guilty plea – offender presented forged deposit slip to shipping company for the purpose of acquiring passenger tickets – sentence of 12 months.

A man pleaded guilty to conspiring to defraud a shipping company, by presenting a forged deposit slip for the purpose of buying passenger tickets.

Held:

(1) The maximum sentence under Section 407 of the Criminal Code is seven years imprisonment.

(2) Mitigating factors are: relatively small amount of money involved; not the mastermind of the attempted fraud; no position of trust abused; the intended victim did not lose anything; a one-off transaction; co-operated with police; pleaded guilty; remorse; first-time offender.

(3) Aggravating factor is: did not give himself up.

(4) A sentence of 12 months was imposed. The pre-sentence period in custody was deducted and the rest of the sentence was suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Henry Eliakim (2007) N3190
Tom Longman Yaul v The State (2005) SC803

SENTENCE

This was a judgment on sentence for conspiracy to defraud.

Counsel

N Goodenough, for the State
A Meten, for the offender

18 September, 2008

1. CANNINGS J: This is a decision on sentence for a West Sepik man, Simon Kapi, who has been convicted, after pleading guilty, of one count of conspiracy to defraud. He came to Madang early in 2008 and got himself caught up in an attempt to defraud Lutheran Shipping.

2. On 4 February a deposit of K20.00 was made to Lutheran Shipping's account at BSP Lae. On the morning of 15 February Simon Kapi attended the reservations counter of Lutheran Shipping in Madang. He presented a forged deposit slip, showing the amount deposited at BSP Lae as K2,820.00. He provided a list of 34 passenger names. He was informed that there had been an increase in ticket prices, so he left and came back later the same day with a list of 25 names. He presented the same deposit slip. The Lutheran Shipping staff became suspicious so they rang BSP Lae and the bank advised that the amount of the deposit was only K20.00.

3. The police were called. The fraud was brought undone. Simon told the police that the list of names had been provided to him by his uncle, Jelson Miria, who the police are still looking for.

4. Simon Kapi has been convicted under Section 407(1)(b) of the Criminal Code, which states:

A person who conspires with another person ... to defraud the public, or any person (whether or not a particular person) ... is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I am guilty and I ask for forgiveness from God and from the Court. This is the first time in my life that I have done such a thing. I would like to go back to my church.

OTHER MATTERS OF FACT

7. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890).

8. Significant mitigating factors amongst that material are that he co-operated with the police and made early admissions.

PERSONAL PARTICULARS

9. Simon Kapi is 23 years old and educated to grade 6. His parents are deceased. He has never had formal employment.

SUBMISSIONS BY THE DEFENCE

10. Mrs Meten submitted that a sentence of around one year imprisonment would be appropriate.

SUBMISSIONS BY THE STATE

11. Mr Goodenough did not push for a heavy sentence.

DECISION MAKING PROCESS

12. 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 sentences 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?

13. The maximum is seven years but the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

14. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of 42 months as the starting point.

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

15. Last year in Bialla, in The State v Henry Eliakim (2007) N3190, I dealt with a man who pleaded guilty to one count of conspiracy to defraud and one count of stealing money from his employer. The amount involved was K3,369.01. He was a field supervisor in a company and he planned with two others to submit false attendance sheets for ghost employees and obtain pay cheques. He put the plan into action over a three-month period until caught. 16. Each offence was allotted a notional sentence: count 1, 18 months; count 2, 18 months; a total of 36 months. The sentences were made concurrent as the offences were part of the same set of transactions.

17. I sentenced the offender to a total period of 18 months. I ordered that he spend three months in custody and suspended the balance of the sentence, subject to various conditions including that he make restitution, in kind, to his former employer within six months after the date of release from custody.

STEP 4: WHAT IS THE HEAD SENTENCE?

18. Mitigating factors are:

• there was, from the company's point of view, a relatively small amount of money involved;
• he was obviously not the mastermind of the plan to defraud the company;
• he did not breach any position of trust;
• the fraud was unsuccessful and no one suffered;
• it was a one-off transaction, not a continuing pattern of deceit.
• he co-operated with police;
• he pleaded guilty;
• he expressed remorse;
• he is a first-time offender.
  

19. The only aggravating factor is:

• he did not give himself up and may well have got away with the fraud if the company staff had not been alert.
  

20. After weighing all these factors and bearing in mind that there are more mitigating factors than aggravating factors, and comparing this case with Eliakim's case, I will impose a sentence well below the starting point. I fix a head sentence of 12 months imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

21. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is three months.

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

22. Sections 19(1)(f) and (6) of the Criminal Code allow the National Court to suspend all or part of a sentence, provided that the offender enters into a recognisance (a pledge) to comply with conditions set by the Court.

23. This is a relatively minor case and the offender has already spent three months in custody. The offender gives the impression that he has learned his lesson and I think the chance of him re-offending is low. I will therefore suspend the entire remaining sentence, subject to the following strict conditions:

(a) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(b) must not leave Madang Province without the written approval of the National Court;
(c) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;
(d) must attend his local Church every weekend for service and worship and submit to counselling;
(e) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;
(f) must not consume alcohol or drugs;
(g) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;
(h) must have a satisfactory probation report submitted to the National Court Registry at Madang every three months after the date of sentence;
(i) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

24. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence (see Tom Longman Yaul v The State (2005) SC803).

SENTENCE

25. Simon Kapi, having been convicted of one count of conspiracy to defraud, is sentenced as follows:

Sentenced accordingly.
___________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offende