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State v Tokoye [2009] PGNC 268; N4210 (17 June 2009)

N4210

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 686 of 2007

STATE

V

LAPU TOKOYE

Mt. Hagen: Sagu AJ
2009: 17th June

CRIMINAL LAW - guilty plea - sentence - attempting to pervert justice -
prevent in deposing to false affidavit - deterrent approach to sentence - one year imprisonment

Cases Cited

State v Geyame Kiliki [1990] PNGLR 216
State v John Peril (2005) N2883

Counsel

Mr.J. Waine, for the State
Mr.N. Mawasi, for the Accused

DECISION ON SENTENCE

17th June, 2009

1. SAGU AJ. This is a decision on the sentence of the prisoner Lapu Tokoye who pleaded guilty to one count of Attempting to Pervert the cause of justice. The offender was charged under section 136 of the Criminal Code. This section reads;

"136. Attempting to pervert justice...

A person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert or defeat the course of justice is guilty of a misdemeanor.

Penalty: Imprisonment for a term not exceeding two years."

BRIEF FACTS

2. On 10th of May 2006 in Mt. Hagen the prisoner Lapu Tokoye signed a false Affidavit of Service in relation to Court proceedings WS 277/04 Ruth Paraia Plaintiff –v- Parapu Yange trading as Parapu Yange Business group Inc. The prisoner was to serve on the Plaintiff, Ruth Paraia a Notice of Motion filed by the Defendant. The prisoner failed to effect service of the Notice of Motion. However, he deposed of the Affidavit of Service falsely, stating that he had served the motion on Ruth Paraia.

3. Ws 277.04 was heard in the absence of the Plaintiff Ruth Paraia. The Court relied upon the false affidavit of service of the Offender and entered orders against the interest of the Plaintiff. The Offender attempted by pretending to serve a summons to prevent the course of justice in making false statements to the Court that he had actually served the summons to Mrs. Ruth Paraia.

GUILTY PLEA

4. The accused pleaded guilty and I entered a provisional guilty plea until I had read the Court depositions. The Record of Interview (ROI) revealed that the accused had denied the commission of the offence. The Court raised these; particularly answers to question 19 & 22 contained in the prisoner's Record of Interview with Mr. Mawasi Counsel for the prisoner and enquired of him whether his instructions were in order. The Defence Counsel responded saying that he had his instructions after discussing the same with the prisoner and had decided to wave the contents of the Record of Interview and therefore the prisoner's guilty plea was in order. I was satisfied and entered conviction against the prisoner.

ON ALLOCUTUS

5. He said the following on allocutus and I quote:

"I am sorry for this trouble and I apologize to the Court. This case has been going on for two years and I have spoiled myself. I have been on remand in custody for one year. I am sorry for my family."

SUBMISSION

DEFENCE

6. The Defence submitted in favour of a suspended sentence in the exercise of my discretion under section 19 CCA. The prisoner is not well educated having done grade 7 and therefore did not fully understand the nature of what he was doing. He had lost his wife during the currency of this case. He is married with three children. If it is any consolation the Court process in WS 277/04 is reinstated in the Civil Court list and pending. The prisoner had spent one year awaiting trial.

7. The PROSECUTION made no submission and left it to the discretion of the Court.

RELEVANT LAW

8. The maximum penalty for this offence is a term of imprisonment for a period not exceeding two years. However, the Court has discretion under section 19 of the Criminal Code Act to impose fines or suspended sentence on terms.

9. To assist me in deciding on an appropriate sentence, I considered the case The State v Geyame Kiliki [1990] PNGLR 216. In this case, on 6 June 1990, His Honour then Brunton, AJ dealt with the accused person, who had written a letter to a Grade V Magistrate telling her that "any Court ruling will provoke a breach of peace in the congregation and will destroy Christian Faith, justice and harmony with God's people in Labu Butu Congregation".

10. The accused was convicted and discharged under s. 19 (1) (f) of the CCA, then entered into a recognizance of K500.00 without surety, for a period of two years, conditional upon his keeping the peace and being of good behavior.

11. More recently, in the case of the State v John Peril (2005) N2883 her honor Justice Davani took into account the paramount interest of the child as a mitigating factor in sentence. In this case the prisoner had sent her victim, 16 year old daughter away to Rabaul to avoid her testifying against her Father who was charged with incest. The Father was serving sentence at the time of this case. The prisoner who had four young children pleaded guilty and the Court had this to say when considering sentence:

"Having carefully weighed these factors, I consider the children's interests to be paramount and find that their interests, when weighed against the aggravating factors of this case, far outweigh those factors."

12. The Court sentenced the Prisoner to the rising of the Court with conditions of a good behavior bond of 2 years and a surety of K200. 00.

PRESENT CASE

13. In the present case, upon considering the appropriate sentence, I take into account that you have pleaded guilty, which has saved the State cost and trial time. Your expression of remorse and that you are a first time offender. You say you have lost your wife but it is not clear how you lost her. For example whether she died or that she decided to separate and live away from you. It is also not clear of the status of your children, whether they are young and attending school etc. Since the status of your wife and children are unclear I will be slow to apply the principal of children as paramount consideration as laid in State v. Peril (supra).

14. The aggravating factor is that your action not only attempted to but it had actually achieved your desired outcome when the Court relied on your affidavit of service and entered orders against the plaintiff.

15. It is common knowledge that there have been many instances of people making and or signing false statements in relations to many court proceedings and have been getting away with and have not been prosecuted for diverting the cause of justice or for similar related offences. This can also be assessed by the many inconsistent or contradictory statements made to the Police in many criminal trial cases and or the deliberate failure of Witnesses to step forward to testify. Such conducts are becoming very prevalent in our country. I chose to impose a sentence that would deter potential offenders from interfering with the cause of justice one way or another. I chose to approach differently for the reasons expressed from the above two decided cases by my brother and sister as I am not bound by them except for a decision from the Supreme Court.

16. After considering all that I have said, I impose a sentence of one (1) year imprisonment in hard labour. However, Iam required under Section 3(2) of the Criminal Justice (Sentences) Act 1986 to deduct any time spend in pretrial custody. Accordingly, the one year imposed on you is deducted as time spent in custody leaving you nil balance term to serve. You are therefore sentence to the rising of the court.

17. You are discharged accordingly. Bail moneys are to be refunded.

_______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence