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State v Fang [2018] PGNC 326; N7387 (24 July 2018)

N7387

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 51 OF 2018

THE STATE

V

XIE XIAO FANG alias JACK SIA

Waigani: Miviri AJ
2018 : 12^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation s383A CCA – plea – easipay power voucher K5000 – illegally generated– offence committed in Lae – first offender – saved court time & general administration – mitigation outweighed – non custodial term –suspended sentence with conditions – bail refunded forthwith.

Facts

Prisoner bought an illegally generated easipay voucher for K5000 and used it.

Held

Guilty plea
First offender
Mitigation outweighed
Non custodial term appropriate.

Cases:

Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC 564
Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91
The State v Belawa [1988-89] PNGLR 496
The State v Eric Emmanuel Vele [2002] PGNC 93; N2252
The State v Paul Tiensten [2014] PGNC 224 ; N5563
The State v Zuvani [2004] PGNC 127; N2641

Counsel:

H. Roalokona, for the State
I. Pailaea, for the Defendant

SENTENCE

24^th July, 2018

1. MIVIRI AJ: Xie Xiao Fang also known as Jack Sia pleaded guilty that he between the 25^th May and the 9^th June 2017 at Lae in Papua New Guinea purchased an illegally generated easipay electricity voucher generated by the PNG Power cash dispense unit in the sum of K5000 which he purchased illegally and used. He did so through a mobile application, "Wechat". Then he used it knowing that it was illegal.
   

Charge

2. He is charged pursuant to Section 383A (1) and (2) of the Criminal Code with Misappropriation. He was dishonest and applied the proceeds of that dishonest to his own use or to use of others. The maximum penalty in his case is 10 years because the value of what he stole and used is more than K2000 which is by reference to Section 383A (2) (d) of the Code. Obviously the maximum sentence under that section but it is not immediate and warranted here given its facts and circumstances. But certainly a determinate term is in order upon the prisoner.
   

Issue

3. What is an appropriate sentence given for the prisoner?
   

Mitigation

4. The prisoner is originally from Fuqing City, Fujian Province in China aged 34 years old, a business man who owns and operates Namora Limited. He is married to a Papua New Guinean wife who is originally from Domara, Abau Central Province. He operates out of Waigani now Section 137 Allotment 18 Opposite Waigani Police Station. He is a first offender who has pleaded guilty to the charge. It is a genuine guilty plea and is in favour of the prisoner. He by that fact accepts that he has wronged and must face what is due emanating strong mitigation in his favour. He has a clean record and this is his first offence.
   

Restitution

5. On top of that he has gone ahead and paid by Bank of South Pacific cheque number 000015 drawn on the account of Zhitong Trading Limited PNG Power Limited in the sum of K7000 dated the 25^th October 2017. This is in response to a letter dated the 16^th October 2017 from PNG Power Limited to Zhitong Trading Limited P. O.Box 1781 Vision City NCD that reimbursement is K5000 for illegal purchase of easipay units on top of that is penalty fee of K2000 a total amount of K 7000 payable to PNG Power Limited. His response is the cheque in that amount set out above. It means he has paid even before the proceedings in the committal court dated the 23^rd March 2018. He was formally arrested and charged in a record of interview on the 22^nd September 2017. The proceedings before me took place on the 12^th July 2018.
   
6. What the prisoner has shown is genuine of the heart to make good what he has wronged. He has not waited for a formal court order to settle the matter. He is genuinely sorry when he says in his allocutus. It is from the heart not by word but by deed. That is clearly in his favour and will be reflected in the sentence passed. The submission made on his behalf by counsel is confirmed in all material particulars by the means assessment and the presentence reports and these are taken account duly in the sentence that is passed upon the prisoner here.
   

Antecedents

7. Prisoner is 35 years old originally from Fuqing village in Fujian, China. He is married to a Papua New Guinea from Domara in the Central Province with two young children aged 11 and 9 years old. He has no record of any prior convictions known to the law. Is educated to grade 12 in Fuqing High School reaching grade 12 graduation. He runs the family business Zhitong Trading located at Waigani Market. He has lived and worked in Papua New Guinea for 14 years. He pleads for mercy of the court in his allocutus. And that others also involved were not charged except him. He asks that due consideration be taken of that fact.
   

Aggravation

8. Effectively what the prisoner has done has cheated PNG Power of revenue due to it. Here the figure is K5000. In addition those who are genuine paying customers have suffered because he has got away with power cheaply not for them. Revenue due to the PNG Power limited has been effected by his action because that revenue contributes to the cost of maintaining and supplying power to all. It will effect the level of the service and the quality of the service. Taxes that are paid by PNG power to the State to the consolidated revenue will be effected if the conducts of persons like the prisoner are not controlled with strong deterrent and punitive sentences which are called for here.
   
9. Those who are in the country from their country of origin to do and to conduct business and a living must respect the laws of Papua New Guinea and adhere without failure. Prisoner is a Chinese citizen and must respect the laws of Papua New Guinea and institutions and instrumentalities of government such as PNG Power Limited if he is to remain here and conduct business and maintain a living. The offence was perpetrated well organized because the generation of the vouchers was not one of but a serious. Obviously it was well organized for it to be sourced from that and to be distributed for sales over the internet and to be accorded income by those who so conducted. Persons such as the prisoner contributed to this spiral and aggravated the offence by their involvement. It was fundamental in sentence to phase out because the effects pointed out were very serious. There was general deterrence both for the prisoner and for those were involved in the crime.
   
10. There is real value attached to the means assessment report including his conduct set out above in this regard. In Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91 (2 April 1986) the court had this to say:
    

"suspension of sentence pursuant to section 19 (6) of the criminal code is, or maybe appropriate in three broad categories. The categories are not exhaustive (1) where suspension will promote the personal deterrence, reformation, or rehabilitation of the offender; (2) Where suspension will promote the repayment or restitution of the Stolen money or goods; (3) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or health."

11. Suspension of sentence is in order given the matters set out above coupled with Public Prosecutor v Bruce Tardrew (supra) it will indeed promote personal and general deterrence. The prisoner is settled in life and no doubt from all set out above will not see a repetition of this again. He has effectively paid in full and on top of that a penalty of K2000 giving a total sum of K7000. Mitigation outweighs aggravation and therefore given a non custodial term is in order.
    
12. It is also consistent with Reformation or rehabilitation is without any basis here upon the prisoner material that has been furnished by the presentence and means assessment report do not evidence that there must as in the case of Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC 564 (27 August 1998). The facts here do not sway that is appropriate given. Nor on the basis of restitution as that has not been demonstrated here. It would be an error of law to so act without.
    

Maximum Sentence

13. The maximum sentence due for the offence upon the prisoner is 10 years imprisonment because the amount is K 5, 000.00 by the call of section 383A (2) of the Code it is an amount above K2000. At the same time by the range and tariff set out in Belawa v The State [1988-89] PNGLR 496 where the amount is K10, 000 to K40, 000 suggested terms is 3 years imprisonment as appropriate. The amount here is K 5, 000.00 therefore would be certainly 5 years by this tariff and range but maxed to 10 years by section 383A (2) of the Code. It is not the worst case of its kind given all the facts set out above.
    
14. It is not the extreme seen in State v Paul Tiensten [2014] PGNC 224 ; N5563 (28 March 2014) where the court imposed 9 years IHL ordering that 4 years of that sentence will be suspended if payment of K 10, 000,000.00 was made within 4 years from the date of sentence. The balance of 5 years will be served at the Bomana Jail. This is the lower end of the scale as compared.
    
15. It is likened to State v Eric Emmanuel Vele [2002] PGNC 93; N2252 where Prisoner took the initiative to make repayment of K 11,091.23 even before the formal orders of court and had a balance remaining of K4, 008.77 to settle the money stolen from the Port Moresby Westpac Bank Limited where he was employed as Supervisor international Bank centre. And the presentence report recommended probation with community supervision which the court acceded to The same is so here like cases must be treated alike and this will be effected here in view: State v Zuvani [2004] PGNC 127; N2641 (25 August 2004).
    
16. The proportionate sentence given all set out above would be 2 years IHL and I so impose that upon the prisoner. In the exercise of my discretion under section 19 (6) of the Criminal Code given that he has paid all moneys owing of K5000 and a penalty fee on top of K2000, supported by the presentence and the means assessment report dated the 19^th July 2018, I order that sentence of 2 years is fully suspended on 2 years Good behaviour Bond. I further order that his bail moneys are refunded forthwith.
    
17. 2 years IHL suspended on 2 years Good behaviour.
    
18. Bail Money refunded forthwith.
    

Ordered Accordingly,
__________________________________________________________________Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant