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State v Larry [2011] PGNC 166; N4455 (22 November 2011)

N4455

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 844 0F 2011

THE STATE

V

GAIBOLE DICKSON LARRY

Madang: Cannings J
2011: 10, 17, 22 November

CRIMINAL LAW – sentence – Criminal Code, Subdivision VI.1.F (obtaining property by false pretences: cheating) – Section 404(1) (obtaining goods or credit by false pretence or wilfully false promise) – sentence on plea of guilty – obtaining K500.00 cash by false promise.

A man pleaded guilty to obtaining K500.00 cash from a friend by a false promise that he would repay the money. He made the promise with intent to defraud and failed to repay the money.

Held:

(1) The maximum penalty for an offence under Section 404(1) is five years imprisonment and a useful starting point for sentencing is the middle of the range: two and a half years imprisonment.

(2) A sentence of two years imprisonment was imposed. The pre-sentence period in custody was deducted and the balance of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Aaron Wai, CR 926/2005, 14.10.05
The State v Benson Raka, CR 447-450/2006, 17.08.06
The State v Dominic Kurai (2008) N3435
The State v Eddie Apuai, CR 1018/2005, 08.09.05

SENTENCE

This was a judgment on sentence for obtaining money by false promise.

Counsel

A Kupmain, for the State
M Mwawesi, for the offender

22 November, 2011

1. CANNINGS J: Gaibole Dickson Larry pleaded guilty to obtaining money by a wilfully false promise and with intent to defraud and has been convicted of that offence under Section 404(1)(a) of the Criminal Code and is now before the court to be sentenced. In June 2011 he introduced himself and his wife to the victim, "C", and her husband in Madang town. He told the victim that he urgently needed K500.00 cash and that if she gave it to him he would repay it quickly. That was a wilfully false promise and he acted with intent to defraud the victim. He did not repay the money that he had promised to repay, so the victim reported him to the police, who arrested and charged him.

ANTECEDENTS

2. The State claimed that he has a prior conviction for a similar offence but the offender denied that and the State has been unable to prove it, so he is to be regarded as having no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He stated that he is willing to repay the money but he has not been able to so far as he has been in remand. He is very concerned about the welfare of his three children.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). However, in this case I can find no mitigating factors in those materials.

PRE-SENTENCE REPORT

5. Gaibole Dickson Larry is 38 years old and married to two wives and has three children. He is of mixed Central and Madang parentage and until recently had lived mainly at his father's village, Taruru in the Kwikila area of Central Province. He has a grade 10 education. He claims that he has technical qualifications as a motor mechanic but I note that there is no proof of this in the report and his employment history is unspecified. He also claims to have been the victim of two major work accidents but there is no medical evidence to support these claims.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Mwawesi highlighted the guilty plea and submitted that his enquiries with the victim showed that she would prefer to see the offender given a non-custodial sentence, so as to increase the chances of her being repaid the money that the offender still owes her.

SUBMISSIONS BY THE STATE

7. Mr Kupmain agreed that a suspended sentence would be appropriate.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The maximum penalty under Section 404(1)(a) is five years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. As the maximum available sentence is five years, it is appropriate to use as a starting point the middle of the range: two and a half years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. I refer to three cases where the offenders had dishonestly obtained goods or money of a similar value to what is involved in the present case. These offenders were convicted of forging and uttering, a different offence to obtaining money by false promise, but the nature of the offences and the facts of each case are similar to the present case, so they provide useful benchmarks. In The State v Eddie Apuai, CR 1018/2005, 08.09.05, Kimbe, an employee in charge of tyres and other materials at a company workshop falsified documents and obtained four tyres and gave them to a friend. He was sentenced to six months imprisonment, which was suspended on various conditions. In The State v Aaron Wai, CR 926/2005, 14.10.05, Kimbe: a stores clerk used falsified requisitions to obtain materials, which were later recovered and returned to the company. He was sentenced to 12 months imprisonment, which was suspended on various conditions. In The State v Benson Raka, CR 447-450/2006, 17.08.06, Buka: the deputy governor of a school board was convicted of two counts of forgery and two counts of uttering for forging the signature of an authorised signatory to the school's bank account and obtaining K2,000.00, most of which he repaid. He was sentenced to 18 months imprisonment, which was suspended on various conditions.

12. The case of The State v Dominic Kurai (2008) N3435 is also a useful precedent. The offender pleaded guilty to an offence under the same provision that applies in the present case: Section 404(1)(a). He obtained goods from a store worth K728.86 by false pretences. He used the order book of his former employer without authority. He was sentenced to 12 months imprisonment, which was suspended on various conditions.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. Mitigating factors are:

• it was a one-off transaction;
• he pleaded guilty;
• it is an early guilty plea;
• first-time offender.
  

14. The aggravating factors are:

• commission of the offence involved a very serious breach of trust;
• the victim was an individual person of moderate means, as distinct from a large company or a wealthy person who would not be as seriously affected as the victim in this case;
• it was, from the victim's standpoint, a very large amount of money.
  

15. After weighing all these factors and comparing this case with other similar cases I impose a head sentence of two years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is five months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

17. The decision whether to suspend the sentence is not an easy one in this case. On the one hand, the pre-sentence report is rather sketchy. Not a lot is known of the offender's background and his record in the community. He appears to be a mystery man. The depositions suggest that he was acting like a conman. On the other hand, he has already spent five months in custody, so he has paid a substantial penalty already for his crime. The victim has expressed the desire to see him come out of jail and the State is not opposed to the idea of a suspended sentence. I have therefore decided to suspend the balance of the sentence on the following conditions, highlighted by the requirement that the offender repay the victim her K500.00, plus a moderate extra amount (K100.00) to compensate her for the inconvenience and stress she has endured:

(a) must within 21 days after the date of sentence pay to the victim the total sum of K600.00;

(b) must appear before the National Court at Madang on 15 December 2011 or at such other time set by the Court to prove compliance with condition (a);

(c) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

(d) must not leave Madang Province without the written approval of the National Court;

(e) must attend his local Church every weekend for service and worship and submit to counselling;
(f) must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;

(g) must not consume alcohol or drugs;

(h) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and her family;

(i) must have a satisfactory probation report submitted to the National Court Registry every six months after the date of sentence;

(j) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

18. Gaibole Dickson Larry, having been convicted of one count of obtaining money by false promise with an intention to defraud, contrary to Section 404(1)(a) of the Criminal Code, is sentenced as follows:

Sentenced accordingly.
___________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender