N4751

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 316 OF 2011

STATE

V

SIPE GOHUSE
Offender

Goroka: Ipang AJ
2012: 13th, 19th & 22nd June

CRIMINAL LAW – Sentence – Criminal Code Act, Section 319 – Grevious Bodily Harm – Offender cut victim's both ankles – inflicting serious and fatal injuries. 

CRIMINAL LAW – Sentencing Principles considered and applied – Criminal Law (Compensation) Act, 1991 considered – Pre Sentence Report considered – mitigating and aggravating factors taken in to account – 3 years imprisonment considered. 

Cases Cited

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92

Legislations 
Criminal law (Compensation) Act, 1991
Criminal Justice (Sentences) Act 

Counsels

Mr. T.Ai, for the State
Mr. E. Thomas, for the Prisoner

DECISION ON SENTENCE

22 June, 2012

1. IPANG AJ: This is the decision on sentence for the offender who pleaded guilty to one count of grevious bodily harm that he caused on Alison Kimisive on the 23rd of February, 2012 

Brief Facts

2.	The brief facts of this case as I found are these; The prisoner had met with two others namely Manu Benny and Samuel Bandi and told them that he had a Bank South Pacific (BSP) stamp he had brought from Port Moresby. They all then agreed to use that BSP stamp on a deposit butt and fill false information and use that to hire a vehicle to be picked up the next day. On 6th August, 2010 a butt of a BSP deposit slip purporting confirmation of a sum of K6, 622.64 paid in to Ceeman Rental Cars was shown and a hire vehicle was taken out. On Monday, the Manageress of Ceeman Hire Cars took the BSP Deposit Slip Butt dated 6th August, 2010 to the bank and learnt that the deposit slip butt was a fake one. 

Prior Convictions 

3.	 The prisoner is a first –time offender and has no prior convictions.

Allocutus

4.	 Prisoner apologized and expressed remorse for the role he played.

5.	At the request of the Counsel for the prisoner, the Court Ordered a Pre-Sentence Report which was completed and filed on the 23rd September, 2011. The PSR presented this brief report.

The offender is second born in the family of 4 sisters. The sisters are Mavis, Teine, Miriam and Rebecca. Their mother is residing at Piswara and the father has re-married and is living in Port Moresby. They are originally from Pila village in Chuave District of Chimbu Province. According to the mother, all the children were born in Goroka.

The offender is married with 2 children ages between 4 and 2 years old. The offender said he comes from a poor family and that living in a settlement like Piswara is difficult and they rely mostly on sale of betel-nuts and loose cigarettes from day to day. The community spoke highly of the offender as a good law abiding person who has not broken a law previously. Community leaders say offenders always respect and mind his own business. He has plans to continue his education. The offender said sorry for what he had done. The PSR recommends the offender as a suitable candidate for probation supervision.

Relevant Law

6.	 The s.515 (a) of the Criminal Code Act is in the following words;

515 Conspiracy to Commit Crimes 

A person who conspires with another to commit a crime or to do any act in any part of the world that- 

a.	If done in Papua New Guinea would be a crime. 

Is guilty of a crime.

Penalty: if no other penalty is provided - 
a.	Imprisonment for a term not exceeding seven years.

7.	The maximum penalty that can be imposed for the offence of Conspiracy to Commit Crimes under s.515 (a) of the Criminal Code Act is seven (7) years. 

8.	Mr. R.Kasito of Counsel for the prisoner gave the following personal particulars or details of the prisoner:

•	He is estimated to be 33 years old.
•	He is married and has two (2) children ages 4 and 2 respectively.
•	He is from Pila village, Chuave District of Chimbu Province. However he resides at Piswara Settlement in Goroka and was a resident at Piswara at the time of his arrest.
•	He is the second born out of a family consisting four (4) sisters.
•	Both his parents are alive but have divorced, with his father residing in Port Moresby and his mother residing at Piswara Settlement;
•	The highest education level achieved by the prisoner is grade 12. He completed his grade 12 in 1996 at Holy Rosary Secondary in Chimbu Province.
•	His employment history included being a part time shop assistant at SaveYu Investment at Kama Red Corner in Goroka. However, he was unemployed at the time of his apprehension and interrogation.
•	He identified himself with Anglican faith.

9.	A part from submitting on the prisoner's personal particulars, Mr. Kasito submitted the following in mitigation for the prisoner; with a view that a lesser than a maximum penalty be considered for the prisoner. The following mitigating factors were submitted:

•	That the prisoner is a first time offender 
•	The property i.e. the vehicle that was taken by fraud was returned after being used for two (2) days. A telephone call was made to the victim to get the vehicle from University of Goroka.
•	The prisoner's action did not have an adverse effect on the victim's business as the business is still in operation.
•	The prisoner co-operated well with police during police investigations.

10.	The factors which are considered as aggravating factors are:

•	There is some elements of pre-planning or pre-meditation;
•	The prisoner did not give himself up.
•	The prisoner has not repaired the wrong.
•	The use of Bank South Pacific (BSP) Bank Stamp which has not been recovered.

11.	Given the identification of both the mitigating and the aggravating factors; Mr. Kasito of Counsel for the prisoner submitted that the mitigating factors out weigh the aggravating factors and because of this he said the head sentence should be below the starting point. 

State's Submissions

12.	Mr. Umpake of the Counsel for the State did not firmly oppose or contended the prisoner's submission. He submitted that in this case the prisoner played a key role by providing the fraudulent stamp. He said the stamp made the employees at the Ceeman Rental Cars believe the transaction was a genuine one and acted in good faith. He said the prisoner benefited from this fraudulent transaction by taking a ride in the hired vehicle that was fraudulently obtained. He said anything could have happened to the hire vehicle and the company could have lost the vehicle and eventually suffered loss of business. He submitted for a sentencing range from 1-4 years with or without suspension depending on the seriousness and circumstances of the case. He said given the circumstances of the case, he submitted that the appropriate sentence should be within the range of 1-3 years. On the question of wholly or part suspension of the sentence, State Counsel submitted that it was entirely the court's discretion. 

What would be an appropriate sentence for the prisoner?

13.	In order to arrive or work out an appropriate sentence for the prisoner, I will consider previous cases which will offer some guidance. I will refer to the past decided cases of; State v Henry Eliakiam (supra) State v Kang (supra) and State v Iori Veraga (supra). These cases do not deal with offence of conspiracy to Commit Crime (s.515) but they deal with offence of conspiracy to defraud. These cases are used as guidance as sentencing principles are basically the same.

14.	In the State v Kang (supra) the prisoner picked up a cheque for the sum of K14, 700.00 from the Police Department in Mendi, Southern Highlands Province. The Cheque was drawn under the name Mr. & Mrs. Paul La'a. The prisoner took the cheque home and planned it with his wife to cash the cheque. In order to achieve their evil intention, they both made identification cards bearing the names of Mr. & Mrs. Paul La'a. They also approached a church pastor who supported them and wrote a letter saying they were husband and wife trying to open a bank account. The prisoner and his wife took the cheque to BSP Mendi Branch where they opened an account. They presented the cheque to be deposited. The Bank Teller was suspicious and made enquires in which fraud was uncovered. Prisoner was eventually arrested and charged for conspiracy to defraud.

15.	In considering appropriate sentence for the prisoner Makail, J acknowledged and followed the approach taken by Cannings, J in State v Henry Eliakim (supra) that the starting point should be from 3 years and six (6) months. His Honour considered that large sum of money was involved and there was pre-planning however considered that the prisoner had pleaded guilty, shown remorse, he had no prior convictions and was a first time offender and also did not benefit from the fraudulent transaction. Makail, J suspended the custodial sentence in its entirety and placed the prisoner on a good behavior bond for the duration of the suspended period.

16.	In State v Henry Eliakim (supra), the prisoner who was a Field Supervisor in the company conspired with two (2) others and submitted the attendance sheets for ghost employees and eventually obtained pay cheque's totaling K3, 369.01. He was arrested and charged for the offences of conspiracy to defraud and for stealing. He pleaded guilty to both charges Cannings, J held that the starting point for conspiracy to defraud should be 3 years & 6 months. His Honour went on and sentenced the prisoner to 18 months imprisonment for the offence of conspiracy to defraud and 18 months imprisonment for the offence of stealing. Both sentences were made to be served cumulatively to a total of 36 months. His Honour then ordered the prisoner to serve only three (3) months imprisonment and suspended the rest of the terms with conditions. 

17.	In the recent case of State v Iori Veraga (supra) the prisoner who was indicted on two (2) counts of conspiracy to defraud the formerly National Provident Fund now known as NASFUND was found guilty following the trial. He was found guilty to have conspired with three (3) others to defraud NPF. He was found to have personally benefited with a sum of K27, 455.00. Sakora, J sentenced the prisoner to four (4) years imprisonment on each count and ordered the sentences to be served concurrently. Prisoner was then to serve only 4 years imprisonment.
 
18.	In Iori Veraga's case (supra) and Henry Eliakim's case (supra) apart from other favorable factors considered for prisoners, a factor which stood out against both prisoners was that both had in their respective cases benefited (monetary benefits) from their fraudulent transactions. As reflective of this factor, both prisoners were dished out with their respective custodial sentences or imprisonment terms. Unlike in the Kang's case (supra) the court found that the prisoner did not benefit from the fraudulent transaction and he was given a one (1) year suspended prison term with conditions attached. 

19.	In the present case though a false BSP Bank deposit slip was filled out for the sum of K6, 622.64 and presented to Ceeman Rental Cars no actual cash monies passes hands. The hired vehicle was used for two (2) days which would amount to K1400.00 or K1600.00 from K700 to K800 hire rate per day. The question then is; did the prisoner benefit from the fraudulent transaction? The answer to this question would definitely be "yes". After the vehicle was hired out he took a ride around Goroka Town and eventually travelled on that hire car to Siane in Chimbu Province and travelled back to Goroka the next day. 

Ranking this present case, which category would this case fall under?

20.	Balancing out the mitigating factors and the aggravating factors and the specific circumstances of this case, the circumstances are such that they do not place this case under the worst category. So in terms of penalty, the present case does not warrant imposition of the maximum penalty of seven (7) years imprisonment. It is an established sentencing principle that the maximum penalty is reserved for most serious or worst type of cases. The nature and circumstances of each case must be considered and determined on its own merits. See Goli Golu v The State [1982] 653; Avia Aihi v The State (No.3) [1982] PNGLR 92 and Ure Hane v The State [1994] PNGLR 105.

Rationale Sentencing Trend

21.	The appropriate sentencing approach in the present case in my view would be to follow the approach in Henry Eliakim's Case (supra) and David Kang's Case. In Kang's Case Makail, J commented that "the types of 'White Collar' offences like conspiracy to defraud are perpetrated by very smart and intelligent people. It may sometimes involve little or big planning depending on the size and the complexity of the unlawful activity to be undertaken by the offender."

22.	In this present case the prisoner together with his two (2) friends Manu Benny and Samuel Bandi conspired with each other and executed a well planned crime. The crime was committed in an intelligent and convincing manner. Booking for hire vehicle was made on the 5th August, 2010. It was made possible with the Bank South Pacific (BSP) Bank Tellers Stamp. The butt of the bank deposit was fraudulently filled out for the sum of K6, 622.64 and paid to Ceeman Hire Cars on Friday 6th August, 2010. The hire vehicle was taken out on the same day, Friday 6th August, 2010. The vehicle was used on Saturday 7th & Sunday 8th and on Monday 9th August, 2010 the fraud was discovered. 

23.	 I am holding the prisoner responsible as it was through him and the BSP stamp he brought from Port Moresby that made it quite possible for the plan to be executed. He knew it was illegal for him to be holding on to the BSP stamp. He has been educated upto grade 12 level and knew very well what he was doing was totally illegal. 

24.	In the circumstances I consider a head sentence of three (3) years imprisonment would be appropriate. From the three (3) years imprisonment, I deduct the pre-trial and pre-sentence period spent in custody which is 1 year, 1month. This will leave the balance of 1 year, 11 months. The prisoner will serve 1 year, 11 months However, from the balance of sentence the prisoner is to serve only Five (5) months imprisonment at Bihute Corrective Institution whilst the rest of sentence is suspended on conditions that after completion of the custodial sentence, prisoner will serve six (6) months probation with the following conditions. 

1.	To report to OIC –CBC office Goroka.
2.	Prisoner to do 250 hours of community work around the Police Station & CBC office area to be supervised by Arresting Officer & CBC Community Works Co-ordinator.
3.	Not to commit any form of offence within the probation period.
4.	Not to consume drugs like marijuana etc.
5.	Not to consume any form of alcoholic drinks.
6.	To receive three (3) sessions of counseling from Family Voice – Goroka.
7.	Prisoner shall not leave Piswara Settlement during the term of his probation unless with leave of the National Court.

____________________________________

Acting Public prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused