DC937

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION

DCR 1254 OF 2009

THE STATE
Informant

V

BERNARD KWARI
Defendant

Madang: J. Kaumi
2009:22nd, 23rd November: 1st December

SENTENCE

CRIMINAL–: Sentence -Passing valueless cheques contrary to Section 14 (1) of the Summary Offences Act Chapter 264 – Plea of Guilt –-Need for proper Guidelines to be followed in the course of deciding appropriate sentence for purposes of Uniformity and Consistency- Sentencing Guides and trends discussed – Mitigating and Aggravating Factors – Expression of Remorse –No Prior Conviction- non custodial sentence-– Need for Deterrence.

PRACTICE AND PROCEDURE: Court can use depositions to extract the relevant factors for purposes of sentence-

PRACTICE AND PROCEDURE: Offender given the benefit of the doubt on mitigating matters raised in depositions, the allocatus or in submissions not contested by prosecution. 

Cases cited

Wellington Belawa vs. The State [1988-89] PNGLR 496
State v Ao (2) [2002] N2247
The State v Louise Paraka (24/01/02) N2317
State v Michael Kamban Mani (21/05/02) N2246
The State v Eric Emmanuel (24/07/02) N2252
Doreen Lipirin vs. The State (2004) SC673
The State v Gibson Haulai (25/03/04) N2555
Saperus Yalibakut vs. The State SCRA No 52 of 2005; 27.04.06
The State v Raka Benson (2006) CR 447&450

Legislation

Constitution of PNG
District Court Act, Chapter 40
Summary Offences Act, Chapter 264

Abbreviations

The following abbreviations appear in the judgment
BSP Bank South Pacific
CJ Chief Justice
CONST Constitution
COURT District Court
CR Criminal
DC District Court
GBB Good Behavior Bond
J Justice
K Kina
NC National Court
No Number
PNGLR………Papua New Guinea Law Reports
SCRA………...Supreme Court criminal Appeal
SECT Section
SP South Pacific
SUBS Subsection
SOA Summary Offences Act
ST State
S C Supreme Court
v……………….versus
VGE Village

TABLES

The following tables appear in the judgment.

1. CONSIDERATIONS

2. SENTENCE

PLEA

A man pleaded guilty to obtaining goods by passing a valueless cheque and the following reasons for sentence were given.

Counsel

First Constable David Bel; for the Police.
Defendant in person, for the accused

INTRODUCTION

1. Kaumi. M. The defendant is charged with having obtained goods namely; two cartons of SP beer by passing a cheque number 009186 for the sum of K300.00 which was not paid on presentation to the bank against which it was drawn, namely the Bank South Pacific, Madang Branch contrary to Sect 14 Subs (1) of the S O A. I adopt the outline only of judgment of Cannings. J in The State v Raka Benson (2006) CR 447&450.

CONVICTION

2. The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then after reading the Summary of Facts and confirming them with the defendant confirmed the plea and convicted him as charged. 

3. He was convicted of one count of obtaining goods by passing a valueless cheque.

FACTS

4. The relevant facts upon which I will proceed to sentence you are these: 

5. On Saturday the 05th September 2009, at about 4:00 pm the defendant was Gumugi bottle shop at Mis village, Madang. There he asked the complainant Mambe Kosak who was the shopkeeper at the time if he could see the bottle shop owner but was told that the owner was not home. The defendant went ahead and wrote out a cheque for K300.00 (cheque no 009186) and consequently got (2) cartons of SP beer plus an additional K60.00 from the shop. 

6. The defendant left a letter with the shopkeeper and advised him that he would return on the afternoon of Monday 07th September 2009 to give the cash money and pick up the cheque.

7. The transaction took place without the presence of the shop owner Mr. Nelson Gem who later learnt about the cheque and took it to BSP in town to cash it. Upon presentation at the bank, the bank teller informed Nelson Gem that the account under Nusa Building and Contracts was dormant and that the bank would not accept the cheque.

8. The matter was reported to Police and the defendant was given ample time to settle the matter but did not eventuate. However the complainant insisted that the defendant be dealt with by the law.

9. The matter was followed up and the defendant was apprehended and taken to the Police Station where he was formally cautioned arrested and charged. He was informed of his Constitutional rights and later placed in the cell.

ANTECEDENTS

10. The offender is aged 38 years of Monji village, Kubalia, East Sepik Province. He is the owner of Nusa Builders and Contractors Company in Madang, has no prior convictions, lives at 26 Bus stop, Madang and is married with 4 children.

ALLOCATUS 

11. I administered the allocatus to the offender where he was given the opportunity to address the Court on what matters the court should take into account when deciding on punishment A paraphrased summary of his response follows:

"Mi askim long marimari blo kot . Mi gat wokman istap na mi gat meri pikinini istap. Ol wokman ino kisim pei iet. Mi gat wok wantem Provincial Government long LLG long Raicoast tasol ol payment ikam bai stages, so mi askim olsem mi bai lukluk na stretim mama blo bottleshop long liklik taim. Probably next month ol wokman na mama blo bottleshop wantem."

OTHER MATTERS OF FACT

12. As the offender has pleaded guilty he will be given the benefit of doubt on mitigating matters raised in the depositions, the allocatus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (1), (Jalina J; Mogish J Cannings.J ).

SUBMISSIONS BY THE STATE

13. Senior Constable Bel for the State submitted 

(a). What the defendant did was not good for his company

(b). That before writing out the cheque the defendant should have known whether or not there was sufficient funds,

(c). That it was fortunate that the deft was in Madang so he was easily apprehended by Police,

(d). Finally that the Court should consider the circumstances of the matter and consider a deterrent sentence.

ISSUE

14. These submissions give rise to only one issue for this Court to determine and that is what is the appropriate sentence in your case is.

DECISION MAKING PROCESS 

15. To determine the appropriate sentence I will adopt Canning’s. J’s decision making process in The St v Raka Benson (2) and that is;-

Step 1: what is the maximum penalty prescribed by Parliament?

Step 2: what is a proper starting point?

Step 3: what are the type of sentencing guidelines and trends per judgments for this type of offence?

Step 4: what are the particular circumstances in which you committed this offence from which come the factors in your aggravation as well as those in your mitigation?

Step 5: what is the starting point for the Head sentence for the offence?

Step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY PRESCRIBED BY PARLIAMENT?

16. The offender has been convicted of an offence under Sect 14(1) of the SO A.

17. Sect14 VALUELESS CHEQUES states:

(1). A person who obtains or pays for any goods, money, valuable security,credit, benefit or advantage by passing a cheque that is not paid on presentation to the bank against which it is drawn is guilty if an offence.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

(2). It is defence to a charge for an offence against Subs (1) if the person charged proves that he had reasonable grounds for believing that the cheque would be paid in full on presentation.

(3). The fact that at time the cheque was passed there were some funds to the credit of the account against which the cheque was drawn is not of itself a defence to a charge of an offence against Subs(1).

18. The offender faces a maximum penalty of a fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

19. The court has a sentencing discretion whether to impose the maximum penalty by virtue of the empowering penalty clause under Subs (1).

STEP 2: WHAT IS THE PROPER STARTING POINT?

20. Sentencing guidelines are handed down by the S C occasionally whilst in the process of deliberating the on criminal appeals or reviews. These guidelines are often coined as a starting point for various types of cases. The National Court then applies those starting point in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances.

21. In the present case I have unable to locate a suitable precedent so I will use the mid point of 6months as the starting point for the offence.

STEP 3: WHAT ARE THE TYPE OF SENTENCING GUIDELINES AND TRENDS PER JUDGEMENT FOR THIS TYPE OF OFFENCE?

22. I have again conducted a search of published decisions from 1995 to 2008 for the offence of obtaining goods by passing valueless cheques in our jurisdiction on Pacli but have come up with none. This does not mean in anyway that the incidents of this offence are few hence the absence of publicized judgments, certainly that would be a fallacy .On the contrary what it highlights is the fact that not all judgments have been publicized.

23. There is an absence of the publicized judgments up to now in our jurisdiction that would provide a guideline as to what are appropriate considerations to be taken on board in arriving at a sentence for this type of offence and there is need for such guidelines for purposes of uniformity and consistency of sentence.

24. I am therefore inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice, His Honor Kandakasi. J’s guidelines on sentencing in St v Michael Kamban Mani (3) that:-

(a). The maximum prescribed penalty should not be imposed but should be reserved for the worst type of the offence under consideration;

(b). Guilty pleas and the offender being a first time offender and the existence of "such good "factors operate in the offender’s mitigation and sentence lower than the prescribed maximum may be imposed.

(c). The prevalence or otherwise of the offence which could be reflective of the ability of the previous sentence to either deter or not to deter would be offenders.

(d). The kind of sentences that one being imposed in similar but less serious offences should be considered to ensure that sentences in a higher or serious offense is not lower than these imposed for the less serious offences.

25. Furthermore the trend of sentence in offences of dishonesty such misappropriation and fraud has seen National Courts follow suite after the authority of Doreen Lipirin v The St (4) in imposing suspended terms over custodial terms to allow offenders ample time to repay money or return the property he or she has misappropriated, and may I say at outset here that the offence for which the offender has been charged with is one involving dishonesty and deceit and is in the same category as misappropriation and fraud and so corollary the considerations applied to arrive an appropriate sentence in respect of the more serious offences apply where appropriate.

26. In Doreen Lipirin v The St (5) the then Chief Justice’s proposal in addition to reducing the sentence,proposed that the appellant be given more time to look for alternative employment to repay the amount misappropriated and that the Court make orders for free community services under the Probation Services supervision His Honor’s reasons were:

"I believe it is time to consider seriously whether offences of misappropriation of amounts of the kind (K6000.00) warrant custodial sentences, I do believe the court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment."

The converse implications of a sentence of imprisonment are whilst the immediate effects are that of deprivation of liberty …the cost to the state and the community will exceed considerably the amount of money misappropriated. It would be no benefit to the society .The purpose of punishment can as easily be obtained in alternate orders to imprisonment .The offender is no…threat to society".

27. His Honor Kandakasi .J in later decision stated in The St v Dobi Ao (2) (6)

"But that with respect, does not necessarily mean head sentences be drastically reduced .Instead it means,there be sterner head sentences and then either have then either have them wholly suspended or it be made part custodial and part non-custodial. This is to show the seriousness of the offence and to serve both the purpose of deterrents and rehabilitations of an offender. It will also give the offender a consideration to faithfully meet any conditions that might be imposed for suspending either in part or in whole the head sentence. The absence of a sanction for failing to meet such conditions might give no reason to the offender to comply.

28. He noted also that in The St v Gibson Haulai (7):

"… {J}Just ordering restitution without more in the form of a punishment would not serve any deterrence. Rather it would encourage people with criminal minds to misappropriate monies belonging to other persons, apply them to their own use interest free and made to repay only the principle amount under a restitution order. People with means to repay would hence be encouraged and get away with it.Hence,it is necessary that there be additional conditions attached to a restitution order to show the community’s abhorrence of the commission of such offences and to help deter other would be offenders ."

29. He then express the view that a non custodial sentence does not grant the offender immediate liberty.Rather,such sentences only allow offenders to serve their penalty outside the prison system for such reasons as those noted in the above passages..Hence, the need to impose a sterner head sentence and conditions for a suspended sentence that will make that clear to an offender, if that is the way the Court is going to proceed.

30. Taking the above views into account he imposed wholly suspended sentences in the St v Eric Emmanuel Vele (8).The St v Louise Paraka (9) and the St v Dobi Ao (No 2) (10).

31. I also take into consideration His Honor Cannings.J.’s guidelines in St v Raka Benson (11).This was a forgery and uttering case which though is a different offence is nevertheless an offence involving dishonesty as is the immediate case and so it’s sentencing guidelines therefore relevant.

STEP 4: WHAT ARE THE PARTICULAR CIRCUMSTANCES IN WHICH YOU COMMITED THE OFFENCE FROM WHICH COME THE FACTORS IN YOUR AGGRAVATION AS WELL AS THOSE IN YOUR MITIGATION?

32. His Honor Cannings.J in St v Raka Benson (12) developed relevant considerations based on the sentencing criteria given by the Supreme Court in Wellington Belawa v The St (13).That was a misappropriation case but the sentencing principle for that crime are similar to those for forging and uttering and he also considered them relevant.

33. Going by Cannings.J in Raka Benson (14) I have adopted his considerations which I consider not only relevant but also pertinent given the lack or absence of relevant guidelines in our jurisdiction.

34. These considerations are as follows:

TABLE 1: CONSIDERATIONS

No	Consideration	Answer	Mitig	Aggrav	
1.	Was only a small amount of money involved?	No the offender was in a special position of trust .He was a recognized businessman and an in-law of the bottle shop owner.
		•		
2.	Was the offender in no special position of trust?
	2. No the offender was in a special position of trust .He was a recognized businessman and an in-law of the bottle shop owner.
		•		
3.	 Did the transactions take place over a short period and not involved a pre-meditated, cunning plan of deceit?
	Yes the transaction took place over a short period.	•			
4.	Was the property applied to a good use?
	No, the property was not put into a good use. He has pleaded guilty and has not offered any explanation as to how his consumption of alcohol was a good use.		•		
5.	Did the offender’s actions have only a small adverse effect on other persons eg: the owner of the property, and were the victims in a position to carry the losses caused by the offender?
	No The sum of K500.00 for his small bottle shop owned by a villager is a lot of money. The bottle shop owner must have been greatly distressed when she learned that the K300:00 cheque was dishonored. 
		•		
6.	Did the offender’s actions have only a small adverse effect on public confidence in the integrity of the public sector, the banking system or the private sector or a company?
	Yes, the offender’s actions would have had only a small adverse effect on public confidence in the integrity of the banking system.
	•			
7.	Did the offender give himself up before being detected?
	No, did not give himself up

		•		
8.	Did the offender cooperate with the police in their investigations?	No, -did not cooperate with police 
		•		
9.	Has the offender repaired his wrong e.g. repaying the money?
	-No repayment of money		•		
10.	Has the offender pleaded guilty?	Yes, he pleaded guilty.	•			
11.	Has the offender genuinely expressed remorse?
	-No, no genuine remorse 
		•		
12.	Is this his first offence?	Yes 
	•			
13.	Has the offender and his family already paid a heavy price for his actions?	Neutral, No evidence has been advanced in by the offender he and his family have already paid dearly for his actions	N/A	N/A	
14.	Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?	No he is not a youthful offender He is a mature aged family man with a business employing several people and thus holding a position of responsibility and trust in the local community and should have known better.
		•		
15.	Are there any other circumstances of the misappropriation or the offender that warrant mitigation of the head sentence?
	Yes, there are no other circumstances that warrant mitigation .He was plain greedy when he committed the offence.
	•			

Rationale

35. His Honor Cannings.J’ rational behind the above considerations was that they had been framed so that an affirmative (yes) answer to anyone be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will; be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. 

36. His Honor stated however that sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors maybe strongly mitigating. Others may be mildly mitigating. The same goes for aggravating factors.

CATEGORIZATION OF THE LISTED CONSIDERATIONS

37. There are three sorts of considerations listed:

(a). Numbers 1 to 6 focuses on the circumstances of the passing of the valueless cheques.

(b). Number 7 to 11 focus on what the offender has done since he committed the crime and how he has conducted himself.

(c). Number 12 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

(d). Number 13 is a neutral factor in that no heavy price already paid.

STEP 5: WHAT IS THE STARTING POINT FOR THE HEAD SENTENCE FOR THE OFFENCE?

38. Passing valueless cheque:-6 months Imp.

39. After weighing all these factors and bearing in mind that there are five mitigating factors compared to nine aggravating factors, the head sentence should be the staring point of 6months.

40. Total potential sentence

Count 1-6months.

Total six months.

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

41. In consideration of the afore sentencing principles relating to offences of dishonesty this is an appropriate case in which to consider a suspended sentence in view of the fact that restitution that has not taken place yet .However strict conditions be imposed.

42. There is a risk immediately suspending the sentence that the offender might too quickly forget that he has been convicted of criminal offence involving deceit and breach of trust.

43. The sentence should provide a deterrent against similar acts of dishonesty by other businessmen.

44. The offender is sentenced to six months imprisonment.

45. The whole term of imprisonment is suspended and the defendant is placed on Good Behavior bond for six months.

46. This suspension is to allow the defendant time to reconcile with his in-law making good what he did wrong to her.

SENTENCE

47. Bernard Kwari having been convicted of one account of obtaining goods by passing a valueless cheque is sentenced as follows:

TABLE 2: SENTENCE

Length of sentence is imposed 	6months	
Pre-sentence period to be deducted 	Nil days	
Resultant length of sentence to be served	6months	
Amount of sentence suspended	6months subject to conditions as prescribed herein	

Police Prosecution for the State 
Defendant in Person
____________________________________
1. SCRA No 52 of 2005, 27.04.06
2. (2006) CR 447&450
3. (21/05/02) N2246
4. (2004) SC673
5. Supra 4
6) [2002] N2247
7. (25/03/04) N2555
8. (24/07/02).N2252
9. (24/01/02) N2317
10. Supra 6
11. Supra 2
12. Supra 2
13.) (1988-89).PNGRL.496
14. Supra 2