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State v Yannam [2008] PGNC 319; N3958 (22 February 2008)

N3958

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 68 0F 2008

THE STATE

V

DANNY YANNAM

Madang: Cannings J
2008: 15, 22 February

SENTENCE

CRIMINAL LAW – sentence – Criminal Code, Subdivision VI.1.C (offences analogous to stealing) – Section 383A (misappropriation of property) – sentence on plea of guilty – K800.00 misappropriated – sentence of 1 year

A man pleaded guilty to misappropriation. He got K800.00 in good faith from a family he had befriended on the pretext that he would buy them a TV set and other items. He took the money and never returned and never provided the goods.

Held:

(1) The starting point for sentencing for the amount misappropriated is two years imprisonment.

(2) A sentence of one year imprisonment was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Augustine Seckry CR 376 of 2005, 19.04.05
The State v Joyce Gulum CR 1620 of 2005, 06.04.06
The State v Paul Taro CR 237 of 2006, 03.08.06
The State v Rictor Naiab CR 387 of 2005, 08.09.05
The State v Steven Lasin CR No 1631 of 2006, 17.08.07
Wellington Belawa v The State [1988-89] PNGLR 496

SENTENCE

This was a judgment on sentence for misappropriation.

Counsel

J Wala, for the State
A Turi, for the offender

22 February, 2008

1. CANNINGS J: This is a decision on sentence for a man, Danny Yannam, who pleaded guilty to one count of misappropriation.

2. He was at Ramu Sugar on 23 January 2006 where he met the complainant, Geoffrey Karl. He asked Geoffrey if he had any electrical appliances that needed repairing. Geoffrey invited him to his house and allowed him to check his TV set. He checked the TV and told Geoffrey it was beyond repair and that he could get another one at a discount price at the Supa Value store in Lae. He could also get some other store goods at a good price, he said. Geoffrey gave him K800.00 cash to buy those items but he never provided them, never came back and never returned the money. He applied it to his own use contrary to the conditions on which it had been entrusted to him.

3. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted Danny Yannam of misappropriation under Section 383A of the Criminal Code.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I apologise to the victim for what I did and I apologise to the court. I ask for mercy. I have six children to care for. I am worried about their school fees. I am the first born in a family of seven and I am responsible for the whole family. I intend to repay the money to the complainant.

OTHER MATTERS OF FACT

6. As the offender has pleaded guilty he will be given the benefit of the 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 SCRA No 52 of 2005, 27.04.06).

7. However, in this case there are no special mitigating factors that are apparent.

SUBMISSIONS BY DEFENCE COUNSEL

8. Ms Turi highlighted the guilty plea and the offender's preparedness to repay the money to the victim. A sentence of one year imprisonment, fully suspended, would be appropriate, she submitted.

SUBMISSIONS BY THE STATE

9. Mr Wala suggested that one to two years would be appropriate. He did not press for a custodial sentence.

DECISION MAKING PROCESS

10. 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?

11. As the amount of money misappropriated is less than K2,000.00 the maximum penalty under Section 383A(2) is five years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. The Supreme Court set out some starting point ranges in Wellington Belawa v The State [1988-89] PNGLR 496, depending on the amount of money misappropriated. Thus:

• K1.00 to K1,000.00 – a jail term should rarely be imposed;
• K1,000.00 to K10,000.00 – two years imprisonment;
• K10,000.00 to K40,000.00 – two to three years imprisonment;
• K40,000.00 to K150,000.00 – three to five years.
  

13. However, since that case, circumstances in Papua New Guinea have changed. There is an enhanced level of community concern about corruption, dishonesty and misappropriation in walks of life. I do not think that it is any longer appropriate to say that if the amount involved is less than K1,000.00 the offender should necessarily receive a fully suspended sentence. The starting point for that amount of money should be less than the next category, ie less than two years. But as I have said in other cases, the starting points should be double.

14. In this case therefore the starting point should be two years imprisonment.

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

15. Before I fix a sentence, I will consider other misappropriation sentences I have handed down recently. These cases are shown in the table below.

TABLE 1: SENTENCES FOR MISAPPROPRIATION,
CANNINGS J, 2005-2007,

STEP 4: WHAT IS THE HEAD SENTENCE?

16. Mitigating factors are:

• transactions committed over short period;
• private arrangement;
• co-operated with police;
• pleaded guilty;
• remorse;
• first-time offender;
• offender's family will suffer greatly.
  

17. Aggravating factors are:

• large amount of money for the victim;
• serious breach of trust;
• money not put to good use;
• impact on victim;
• has not yet been punished;
• did not give himself up;
• has not repaid any of the money.
  

18. After weighing all these factors and comparing this case with other misappropriation sentences I have imposed, the head sentence should be within the starting point range. I impose a head sentence of one year imprisonment.

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

19. 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 four months, two weeks.

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

20. I have not received a pre-sentence report that perhaps would warrant some suspension of the sentence. I think it is best for the offender and the victim and the community if the offender serves out his time in jail. The offender acted like a conman and the community expects such people, who prey on their fellow citizens, to be imprisoned.

SENTENCE

21. Danny Yannam, having been convicted of one count of misappropriation, is sentenced as follows:

Sentenced accordingly.
___________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender