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State v Yepin [2005] PGNC 186; N3503 (22 December 2005)

N3503

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 72 of 2005

THE STATE

V

MORRIS YEPIN

Vanimo: Kandakasi, J.
2005: 15th and 22nd December

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Particular offence – Wilfully making false promise with intend to defraud – Sentencing guidelines – Adopted and applied Wellington Belawa v State guidelines – Senior prison officer making promise to use his account to receive and remit to prisoners funds from their relatives – Prisoner agreeing to make use of – Payments made into officer’s account but not paid over to owners - Promises of shortening prison term to cover for failure to repay with no intent to do so – Receiving total of K500.00 – Breach of trust placed in offender – Offender prepared to restitute – 2 years fully suspended sentence on strict conditions imposed – Section 404, s.19 of the Criminal Code

Cases cited:

The State v John Kil (15/06/00) N1974.
Wellington Belawa v The State [1988-89] PNGLR 496, at pp. 500-50.

Text cited:

Criminal Law and Practice of Papua New Guinea DRC Chalmers, D Weisbrot, S Injia, WJ Andrew and D Nicol, Law Book Co, (Sydney) 2001, at pp. 378-381.

Counsel:

J. Wala, for the State.
G. Korei, for the Prisoner.

21st December, 2005

1. KANDAKASI J: You pleaded guilty to two charges of wilfully making false promises and thereby received a sum of K300.00 and K200.00 from prisoners between 11th and 21st June 2004, contrary to s.404 of the Criminal Code.

Relevant Facts

2. You were and still are a senior member of the Correction Service, holding the rank of a Lance Corporal, attached to the Vanimo Correction Services. Between 1st and 2nd June 2004, you were on active duty as officer in charge of the reception and discharge section. It is within your duties to receive and discharge prisoners coming into and going out of the prison.

3. On 9th June 2004, a prisoner, namely Somare Ova who had earlier come in as a prisoner from Aitape wrote out a fax with your assistance to his family asking for K500.00 toward the prisoner’s transport costs back to Aitape on his discharge. The prisoner asked at your suggestion that the monies be deposited into your bank account. You promised him that as soon as the money gets into the account, you would have it withdrawn and hand it over to him.

4. The prisoner’s family deposited K300.00 into your account on 10th June 2004. You withdrew the whole of that money on the same day and applied them to your own personal use, without the expressed approval of the prisoner. However, you did inform him of the money getting into your account but did not tell him that you used them. Later that became apparent as you could not give the prisoner his money despite repeated requests from him.

5. To cover up for stealing and applying to your own use the prisoner’s money, you promised him on 21st June 2004, that you would deduct his prison term. That did not happen as the prisoner reported you to your superiors which led to your arrest and now stand charged and convicted before this Court.

6. In much the same way you took K200.00 from the family or relatives of another prisoner, George Nixon Saus, also of Aitape. You applied to your own use that money. You did not adhere to repeated requests for repayment. To cover up for your stealing and applying to your own use the prisoner’s money, you made promises similar to the one made to Somare Ova. You also failed to deliver to George Nixon Saus on your promise.

The Offence and Sentencing Trend

7. Section 404 (1) of the Code proscribes the offence with which you have been charged and provides for its penalty in the following way:

"404. Obtaining goods or credit by false pretences or wilfully false promise.

(1) A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud-

(a) obtains from any other person any chattel, money or valuable security; or

(b) induces any other person to deliver to any person any chattel, money or valuable security, is guilty of a crime.

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

8. Neither your lawyer nor that of the State assisted the Court with any case on point. My limited research took me only to the judgment of my brother, Kirriwom J., in The State v John Kil.[1] That was a case of a former policeman deceiving a friend a policeman and borrowed K1,740.00 claiming that he had K21,000.00 as his finish pay from which he could repay the advance to him. Upon receiving the money, the prisoner disappeared until sometime later police located him and had him arrested and charged. When arrested he was willing to repay the money but police were not taking any more chances with him and wanted him punished although the complainant simply wanted his money back.

9. His Honour found that the case did not fall in the worse category. His Honour believed that the prisoner had learnt his lesson as a former law enforcement officer suddenly finding himself amidst inmates in prison where all law-breakers end up, some of whom have no respect nor regard for police. His Honour considered this couple with the prisoner’s willingness to repay the money he took from his friend would be sufficient punishment.
   
10. Further, His Honour did not find the offence was prevalent. His Honour found that the case could have been easily proceeded with under civil summons for debts as monies borrowed and not repaid. His Honour expressed the view that, no-one should ever go to prison at first instance in cases of this nature without first attempting to settle through restitution. The prison he said should be reserved for the worst case and as a very last resort after all avenues of non-custodial punishment have been exhausted.
    

11. In the end, His Honour imposed a fully suspended sentence of 8 months on various conditions, including orders for restitution.

12. The above case does give some guidance in determining an appropriate sentence in this kind of cases. However, I consider that following the suggestion that emanates from the authors of the book, Criminal Law and Practice of Papua New Guinea[2], is appropriate in the absence of any other guide to the contrary. The suggestion there is that the guidelines proposed by Bredmeyer J., in Wellington Belawa v The State [1988-89] PNGLR 496, at pp. 500-50, applies to s.404 offences. I am of the view that this is appropriate with the necessary modifications to reflect s.404. The relevant factors for consideration when considering sentences for offences under s.383A are:

"(1) The amount taken.

(2) The degree of trust placed in the offender including his rank. The higher the position of trust the greater the culpability. Thus if the offender holds a very senior position in the public service or in a company, the greater the punishment that will be imposed. The principle here is that ‘from whom much is given, much is expected’. The person who enjoys a high position of trust and respect and enjoys high salary and other perquisites should be expected to carry out his duties honestly and to set an example to others.

(3) The period over which the fraud or theft was perpetrated. Did the offender take the money on one day or was his guilty intention put into effect over a longer period of time?

(4) The impact of the offence on the public and public confidence.

(5) The use to which the money was put. Was the money put to some worthwhile purpose or was it wasted on luxuries or idle living?

(6) The effect upon the victim. Was the theft covered by insurance, for example, or was the money stolen from a widow and children waiting for their late husband’s pension? Ws the theft from family members etc?

(7) Restitution of the money whenever paid is always a mitigating factor because it restores the victim to the position he was in before the commission of the offence.

(8) Remorse. This is related to (7) and (9). If restitution is made, it may or may not show remorse. The sooner restitution is made after the commission of the offence, or after the detection of the offence, the more clearly it shows remorse. It fit is made on the eve of the trial immediately after conviction, it does not show remorse.

(9) A plea of guilty or not gaily. A discount is usually given for a plea of guilty. In some cases a plea shows remorse especially where the State evidence may have some weakness; in other cases it may not show remorse but purely submission to the overwhelming weight of the State case.

(10) Any prior record. I consider the absence of any record of little relevance in this kind of serious theft. Normally the offender has no prior convictions; if he did have prior convictions, he would be unlikely to be holding the position from which he committed the theft.

(11) The effect on the offender. The principal factors to consider here are: did he lose his job and is he likely to obtain another job?

(12) Matters of mitigation special to the accused such as illness, being placed under a great strain by excessive responsibility, or perhaps a long delay in being confronted with his dishonesty and the start of his trial.

13. In the earlier part of Bredmeyer J’s judgment, he suggested the following sentencing tariffs noting that, "although the amount taken is not the only factor, it is a major determinant of the appropriate sentence:"

(a) K1 and K1,000, a gaol term should rarely be imposed.

(b) K1,000 to K10,000, a gaol term of up to two years is appropriate.

(c) K10,000 and K40,000 two to three years imprisonment is appropriate.

(d) K40,000 and K150,000, three to five years imprisonment is appropriate.

Your Sentence

14. Applying the above guidelines to your case, I note that the amount of money involved is only K500.00. However, I note that you committed these offences when holding a senior rank and position with the Correction Services. Fortunately, on the facts you pleaded guilty to, you did not commit these offences over a long period of time. Rather, you committed the offence within the same period almost on a one off transaction though committed twice. There is no evidence of what, if any, the commission of your offences has had on the public and public confidence. Nevertheless, the effect of your offence on the victims is obviously that they lost their money to you by having accepted your false promises to them.

15. In your favour, I note that, you pleaded guilty to the two charges, expressed genuine remorse and have already repaid the total amount of K500.00 you stole from the victims. From the evidence available to the Court, it seems you did not apply the proceeds of your offence to wasteful and or luxurious living but applied to your children’s school fees. Further, this is your first ever offence and have come to learn the adverse consequence that can follow you if you decide to commit criminal offences. This is evident in you pleading guilty and repaying the amount you stole from the victims. As noted by Kirriwom J., in The State v John Kil[3], I trust that you have learned that your reception at the prison would be nasty if you are sent there either for this offence or any other because of the kind of attitude other offenders have against law enforcement agents like you. Indeed, I note that, for this very reason I granted you bail because there are no special provisions made in the prison to accommodate former law enforcement agents caught on the wrong side of the law, given the security risks that surrounds these category of offenders.

16. Now turning to the suggested tariffs, I note that amount of money involved places your case in the first of the suggested tariff ranges of K1.00 to K1,000.00. You received and applied to your own use a total sum of K500.00. This does not warrant custodial sentence. I am therefore of the view that a sentence similar to the one imposed by Kirriwom J., in The State v John Kil[4], is appropriate to reflect the particular circumstances of this case. I note that the amount of money involved in that case is two or three times more than the amounts involved in this case. Nevertheless, any gain in your case on that score, is in my view, outweighed by the breach of trust in your case. Accordingly, I impose upon you a sentence of 12 months. Then, I order that the whole of that sentence be suspended on the following conditions:

1. You pay a fine of K300.00 within four weeks from today partly by forfeiting your cash bail of K100.00 to the State, and the balance by cash into the Provincial Finance office.

2. You enter into a recognizance with a surety in the sum of K1,000.00 (not cash) to keep the peace and be of good behaviour for a period of 12 months commencing today.

3. If your employer allows you to continue in your current employment, you render 6 extra hours of free labour or service to the institution each week for 12 months from today, the specific hours of which shall be fixed by your Jail Commander.

4. You be home bound between the hours of 6.00 pm and 6.00 am each day for the currency of your suspended sentence.

5. During the currency of your sentence, you shall not leave your place of residence and the Township of Vanimo as well as the Sandaun Province unless leave of this Court has been first sought and obtained.

6. You will allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to report with such recommendations as he might consider appropriate either for a variation or an implementation of these terms.

7. The Probation Service shall furnish a bimonthly report to this Court of your performance and observance of these conditions with the first being due by 22nd February 2006.

8. If for whatever reason you breach any of these terms, the suspension of your sentence shall immediately be lifted and you will serve the full term from the date of the first breach.

9. You will be at liberty to apply for a review and or variation of any of these terms including a lifting of any of these terms and conditions provided there has been substantial compliance, which shall include a full compliance of term 1 above.

____________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

^[1] (15/06/00) N1974.
^[2] DRC Chalmers, D Weisbrot, S Injia, WJ Andrew and D Nicol, Law Book Co, (Sydney) 2001, at pp. 378-381.
^[3] Opt. Cit. note 1.
^[4] Opt. Cit. note 1.