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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO.1478 of 2010
BETWEEN:
THE STATE
AND:
JOSEPH SAPE
Prisoner
Mt. Hagen: David, J
2013: 11, 19 & 22 February
CRIMINAL LAW – sentence - pastor - obtaining money by false pretences – plea of guilty – first offender – acted alone – stood down from performing pastoral duties – previous good record – expression of remorse treated as neutral factor – nil restitution treated as neutral factor – serious breach of trust – sophisticated means adopted to commit crime through use of false identification card – method adopted to commit crime prevalent – offence committed over two months – multiple transactions conducted – amount of K3,485.00 substantial to church – deprivation of use of money to fund church activities – prisoner sole beneficiary of stolen money - offender an adult, relatively educated and a trained and serving pastor - sentence of 3 years partly suspended on terms - Criminal Code, Section 404(1)(a).
Cases cited
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Avia Aihi v The State (No.3) [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Wellington Belawa v The State [1988-89] PNGLR 496
Lawrence Simbe v the State (1994) PNGLR 38
The State v Takesi (1996) PGNC 13, N1468
The State v Louise Paraka (2002) N2317
The State v Pipi (2004) PGNC 197, N2574
Saperus Yalibakut v The State, SCRA No 52 of 2005, Unreported Judgment of the Supreme Court (Jalina J, Mogish J, Cannings J) delivered on 27 April 2006
The State v Kurai (2008) N3435
The State v Waiembi (2008) PGNC 240, N3708
Counsel:
Mr. Joseph Kesan, for the State
Mr. Emmanuel Thomas, for the Prisoner
DECISION ON SENTENCE
1. DAVID, J: The prisoner was convicted upon entering a plea of guilty to one count of obtaining money totaling K3,485.00 by false pretence, an offence prescribed under Section 404 (1)(a) of the Criminal Code.
2. The prescribed maximum penalty for the offence is imprisonment for a term not exceeding five years. That is subject to the sentencing discretion vested in the Court under Section 19 of the Code.
3. The short facts of this case are these. The prisoner was a pastor with the Christian Apostolic Fellowship Church of Papua New Guinea. He is married with five children. Until being arrested and charged for the offence, he was the pastor of the congregation at Hagen Tech. in the Western Highlands Province. On an unknown date in 2007, the prisoner obtained an identification card bearing his facial image, but with the name of another person called Tum Eresi. Tum Eresi is a pastor and the National Superintendent of the Christian Apostolic Fellowship Church of Papua New Guinea. He is a signatory to the account of the church operated at the Australia & New Zealand Banking Group (PNG) Limited with two others namely, Pastor Max Moto and Pastor Anson Isingi. Pastor Tum Eresi is the principal signatory to the account. After obtaining the false identification card, the prisoner, between October and December 2007, made out withdrawal forms in various amounts, forged the signatures of the three signatories and presented the completed withdrawal forms at the Mt. Hagen and Lae Branches of the Australia & New Zealand Banking Group (PNG) Limited to be processed. The prisoner presented to the bank the false identification card and withdrawals totaling K3,485.00 were processed. The matter was reported to the police on 25 January 2010 and the prisoner was subsequently formally arrested and charged on 26 March 2010.
4. The prisoner is aged forty eight years now and is from Kaleta village in the Mul-Baiyer District of the Western Highlands Province. He was the resident senior pastor of the Hagen Tech congregation of the Christian Apostolic Fellowship Church of Papua New Guinea outside Mt. Hagen city when he committed the crime. He has been resident there for over six years and currently stood down by his superiors from conducting pastoral duties. He has been married for over twenty two years now and there are five children from the marriage. He is the first born amongst three siblings in his family. He has two sisters who are both married and live with their husbands. He is currently in good health. His parents are deceased. His eldest son is a student at the University of Technology, Lae while the child after him, a daughter is in Grade 8 at the Mt. Hagen Primary School. Two others after them are attending elementary school and the last born is a baby. He completed Grade 6 at the Singua Community School in the Mul-Baiyer District. Thereafter, he successfully undertook training to become a pastor at the Kwinke Bible College for two years also in the Mul-Baiyer District. He has been a pastor with his church working in congregations within the Western Highlands Province for almost twenty two years now.
5. The prisoner does not have any prior conviction.
6. On his allocutus, he said despite being a senior pastor of his church and Christian, he was not an angel, but an earthly being who failed when confronted by temptation. This he said was an accident. He got the money because he faced financial difficulties in paying school fees for four children attending school. He said sorry to God and the Court. He told the Court that as he was a first offender, the Court should have mercy on him.
7. After administering the allocutus, the defence requested for a pre-sentence report to be compiled by the Probation Service and a deferral of submissions on sentence pending the compilation and filing of the report. I granted the request and directed that the report be compiled and filed by 19 February 2013. The pre-sentence report was duly compiled and filed by the Probation Service within the period given and I heard submissions on sentence on 19 February 2013. I thank Lilly Songoa, Probation Officer for the report.
8. I have considered the pre-sentence report. I note in particular:
9. The maximum sentence for a particular offence is usually reserved for the worst type of case and that each case must be decided on its own facts: Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105; Lawrence Simbe v the State (1994) PNGLR 38.
10. It was suggested by Kandakasi, J in The State v Louise Paraka (2002) N2317, that the sentencing guidelines in Wellington Belawa v The State [1988-89] PNGLR 496, a case involving dishonesty, should apply to all cases involving forgery, obtaining goods by false pretence, fraud, misappropriation and the like with necessary modifications in the absence of any authority to the contrary as an element of dishonesty is involved in all such cases. I with respect concur with His Honour.
11. In Louise Paraka, Kandakasi, J dealt with a case where the prisoner was charged with two counts of forgery and a further two counts for uttering two cheques worth K6, 000.00, offences contrary to Sections 462 (1) and 463 (2) of the Code. The prisoner pleaded guilty to all the charges. The prisoner was a claimant together with others as previous customary landowners in a compensation claim made against the State in respect of the land upon which the Holy Trinity Teachers College stands. The claim was settled by the State paying K800,000.00. Out of the settlement proceeds, the prisoner received a cheque for K1,700.00, but he changed the figure 1 to 4 making the cheque to read K4,700.00. He also did the same with another cheque made in favour of a Paul Akil for K1,150.00 which came into his possession and changed it to read K4,150.00. The cheques were cashed. In the process, the prisoner benefited by K6,000.00. The prisoner was given a three year suspended sentence with conditions including the repayment of K6,000.00.
12. In deciding an appropriate sentence where the offender has pleaded guilty, the Court is required to give the benefit of the doubt on matters of mitigation raised in the depositions, the allocutus or during submissions on sentence by the defence counsel that are not contested by the prosecutor: Saperus Yalibakut v The State SCRA No 52 of 2005, Unreported Judgment of the Supreme Court (Jalina J, Mogish J, Cannings J) delivered on 27 April 2006.
13. I would adopt the starting point of two and a half years for the offence under consideration as was propounded by Cannings, J in The State v Kurai (2008) N3435. However, the sentencing guidelines in Wellington Belawa would be borne in mine as well.
14. In Kurai, after being sacked from his employment, the prisoner took an order book from his former employer and obtained goods from a store worth K728.86 without authority. He pleaded guilty to one count of obtaining goods by false pretence. Mitigating factors there were; it was a one-off transaction, the offence was committed in the heat of passion while the offender was still angry over his sacking and had problems getting his finish pay; he returned nearly half of the value of goods fraudulently obtained; the value of goods fraudulently obtained was relatively small; the prisoner pleaded guilty; the prisoner expressed remorse; the prisoner was a first offender; and he had a good reputation in the local community. The main aggravating factor there was that the prisoner was guilty of absconding bail for six years before being arrested. The pre-sentence report reported that the prisoner was a suitable candidate for probation. A sentence of one year imprisonment was imposed less the pre-sentence custodial period and the balance was suspended on terms.
15. The issue for consideration and determination is what is the appropriate sentence that I should impose upon the prisoner?
16. In mitigation, it was submitted that; firstly, the prisoner pleaded guilty; secondly, he was a first offender; thirdly, he expressed remorse; and fourthly, the offence was committed over a short period of two months involving four transactions.
17. In aggravation, it was submitted that; firstly, there was a serious breach of trust by a serving pastor of a church congregation; secondly, the means adopted to commit the crime through the use of a false identification card was sophisticated; thirdly, the use of false identification cards to commit such offence and offences of similar nature was prevalent; fourthly, multiple transactions were conducted both here and in Lae branches of the complainant's bank; and fifthly, the amount taken which was in the vicinity of K4,000.00 was substantial.
18. On penalty, the prisoner through his counsel, Mr. Thomas submitted that this case falls under category 2 of the sentencing guidelines in Wellington Belawa. He urged the Court to impose a non-custodial sentence of two years on terms.
19. Mr. Kesan of counsel for the State did not seriously challenge the prisoner's suggestion of a non-custodial sentence to be on terms, but submitted that the term of imprisonment should be between two to three years.
20. The factors which mitigate the offence are; firstly, the prisoner pleaded guilty; secondly, the prisoner is a first offender; thirdly, the prisoner acted alone; fourthly, the prisoner was stood down from performing his pastoral duties; and fifthly, the prisoner has had a previous good record.
21. The prisoner expressed remorse on his allocutus, but it was made belatedly after he had denied the crime when arrested and interviewed by police. I will treat that fact as a neutral factor.
22. There was no restitution. I will treat that fact as a neutral factor as well.
23. The factors which aggravate the offence are; firstly, there was a serious breach of trust reposed in the prisoner by God, the Christian Apostolic Fellowship Church of Papua New Guinea as a whole including its membership and his superiors by a senior pastor with over twenty two years of service to his church and a serving pastor of a church congregation; secondly, the means adopted to commit the crime through the use of a false identification card was sophisticated; thirdly, the use of false identification cards to commit such an offence and similar crimes involving an element of dishonesty are prevalent; fourthly, the offence was committed over a two months period - it was not an accident as the prisoner has put it on his allocutus; fifthly, multiple transactions totaling four were conducted both here and in Lae branches of the complainant's bank – again it was not an accident as the prisoner has put it on his allocutus; sixthly, the amount taken of K3,485.00 to the church was quite substantial; seventhly, the church was deprived of money that it could have used to fund its activities; eighthly, the prisoner personally benefitted from the stolen moneys; and ninthly, the prisoner is an adult, relatively educated and coupled with him being a trained and serving pastor, he should know what is right from wrong according to our God's laws and the criminal laws of our country.
24. I have also considered; The State v Takesi (1996) PGNC 13, N1468; The State v Pipi (2004) PGNC 197, N2574; and The State v Waiembi (2008) PGNC 240, N3708.
25. In Takesi, the offender was a lawyer employed by the Office of the State Solicitor's Office. One of his duties was to represent the State at hearings involving claims for workers' compensation. He was engaged by a brother of a deceased worker to pursue a claim on his behalf and on behalf of the widow and her children with the Office of the Workers' Compensation. Three cheques totaling K11,715.26 were raised for the settlement of the claim. He then collected the cheques from the Office of the Workers' Compensation at Waigani claiming that he had authority from the claimants to collect them when he did not have any such authority. He successfully cashed a cheque drawn for K7,000.00 at TST Supermarket at Tokarara by producing a false identification card which had his facial image, but with the widow's name. The trial judge said this was a serious breach of trust of a lawyer and client relationship. He pleaded guilty to two counts of false pretence and was sentenced to two years in hard labour for each count to be served concurrently in custody.
26. In Pipi, the prisoner pleaded guilty to two counts, one for obtaining K500.00 by false pretence and the other for misappropriation of K500.00, the property of a financial institution. The prisoner was employed at the Police Headquarters at Konedobu, Port Moresby as the Accident Research Officer at its Traffic Section. He obtained a loan of K500.00 from the financial institution by completing a loan application form in the name of a police officer and having it signed with a forged signature. He had the loan application appear as if it were genuine and authentic and had been duly authorized by an authorized officer through the use of a false identification card bearing his facial image, but with false details including a false name, number and signature of the authorizing officer which he had produced using police facilities. A false Permanent Salary Variation Advise was produced and this enabled deductions of K135.00 to be made from the victim police officer's fortnightly salaries towards repayment of the loan. The prisoner only repaid K200.00 to the victim financial institution. The Police Department was also forced to recover the money for the victim police officer. The main aggravating factors there were; the degree of sophistication involved in producing the false identification card and execution of the crime; that he was an employee of the Police Department; and he had used police facilities to facilitate and commit the crime. For the count of obtaining money by false pretence, the prisoner was sentenced to one year imprisonment in hard labour and three months was to be suspended if the outstanding K300.00 were to be paid to the victim financial institution within twenty two days of sentence. For the count of misappropriation, the prisoner was sentenced to six months in hard labour. Both sentences were to be served concurrently.
27. In Waembi, the prisoner aged 33 years who was the Accounts Clerk of a law firm in Mt. Hagen pleaded guilty to one count of stealing K15,000.00, the property of her employer contrary to Section 372 (1) and (7)(a) of the Code. The offence was committed over a period of 2 years and 5 months. She stole that amount by including extra monies in the Cheque Requisition Forms every pay Friday; she would then take them to the principal of the law firm for his verification and endorsement. Friday being a busy day for the principal, he would sign the wages cheques without checking or verifying the details of the wages that were being paid. The extra monies the prisoner took using this method on a single occasion ranged from K50.00 up to K700.00. I sentenced the prisoner to 3 years imprisonment less the period of pre-trial detention. The remaining term was suspended with conditions including restituting the amount stolen within 12 months and doing free community work.
28. The very fact of the prisoner being a pastor let alone a serving one whether senior or not as I have indicated already is a serious aggravating factor. There are at least five types of leaders in the church at large who play an important role in God's work. These are identified in Ephesians 4: 11-16 and they are; apostles, prophets, evangelists, pastors and teachers. Verse 12 states that they are there for the 'equipping of the saints for the work of the ministry, for the edifying of the body of Christ.' A pastor's role is to shepherd, guide and guard God's people in their service to Him. The prisoner's conduct was contrary to his role and truly unchristian and unbecoming of a man of his calling and stature and I consider him unworthy and is not a fit and proper person to continue doing God's work as a pastor. I would strongly recommend to the Christian Apostolic Fellowship Church of Papua New Guinea that the prisoner be decommissioned as a pastor of the church.
29. The factors in aggravation outweigh those in mitigation. This calls for a sentence above the starting point and the tariff that applies to cases that fall under category two of the sentencing guidelines in Wellington Belawa. I think a head sentence of three years imprisonment to be served in hard labour is appropriate.
30. The prisoner was admitted to cash bail of K200.00 on the date of his arrest after being held for a short period in police custody. He has been in custody for 11 days since his conviction. I will deduct that period from the head sentence and that will leave him with two years, eleven months and 17 days (the remaining term) to serve.
31. The prisoner will serve his sentence at the Baisu Correctional Institution.
32. The pre-sentence report recommends that a non-custodial sentence is appropriate and the parties including the complainant concur with the recommendation. I have seriously considered the exercise of my sentencing discretion under Section 19 (1)(d) and (6) of the Code and I am aware that the discretion conferred on the Court must be exercised on some proper basis: Public Prosecutor v Thomas Vola [1981] PNGLR 412. The relevant principles applicable to suspension of part of a sentence under those provisions were discussed in Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91. I have considered those principles. In the present case, I think; suspension will promote the personal deterrence, reformation or rehabilitation of the offender and that it will promote the repayment or restitution of the stolen money.
33. In the exercise of my sentencing discretion, I will suspend the whole of the remaining term on the following conditions:
(a) the sum of K200.00 from bail monies shall be converted and applied towards part payment of restitution and disbursed to the Christian Apostolic Fellowship Church of Papua New Guinea by the Registrar of the National Court through the Mt. Hagen National Court Registry when ready;
(b) the balance of K3,285.00 shall be paid to the National Court Trust Account for disbursement to the Christian Apostolic Fellowship Church of Papua New Guinea by installments as follows:
(i) the first installment shall be K1,285.00 which must be paid by 22 March 2013;
(ii) the second installment shall be K1,000.00 which must be paid by 22 April 2013;
(iii) the last installment shall be K1,000.00 which must be paid by 22 May 2013.
4. the prisoner shall contact the Mt. Hagen Provincial Probation Officer within twenty four hours after the passing of this sentence and thereafter as and when required by him or her.
5. until the question of occupation by the prisoner of the church premises or manse at Hagen Tech is resolved between the prisoner and the Christian Apostolic Fellowship Church of Papua New Guinea, the prisoner shall not change his current residential address unless he has given the Mt. Hagen Provincial Probation Officer reasonable notice of his intention to do so.
6. the prisoner shall not leave the Western Highlands Province without the leave of this Court during the period of suspension.
7. the prisoner shall, for the purpose of the Probation Act, allow a Probation Officer to enter his home during reasonable hours to monitor his compliance of these terms and to make such recommendations as the Probation Officer considers appropriate either for a variation or an implementation of these terms. The Probation Service shall produce and furnish to the Court a report every three months until completion of the suspended sentence.
8. during the period of suspension, the prisoner shall provide free community service of two hours per day every government fortnight Friday at a public institution in Mt. Hagen or within the Western Highlands Province to be determined and supervised by the Mt. Hagen Provincial Probation Officer.
9. the prisoner will be at liberty to apply for a review of any of these terms including the lifting of any of them provided that there has been substantial compliance.
34. In the event that any one of the conditions for suspension of the remaining term is not complied with, then the prisoner's probation will be breached and he will be arrested and sent to gaol at Baisu to serve the whole of the remaining term which I have suspended.
35. As to the allegation by the complainant in the pre-sentence report that the prisoner is engaged in spreading disparaging remarks or remarks which were defamatory within the church about Pastor Tum Eresi, Pastor Max Moto and Pastor Anson Isingi and should cease from doing that, I consider that there are other avenues where this matter can be raised. I do not propose to make other observations on the matter.
36. A warrant of commitment shall issue forthwith to execute the sentence.
Sentenced accordingly.
________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner
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