Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Kang [2009] PGNC 47; N3603 (27 March 2009)

N3603

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 505 OF 2008

THE STATE

v

DAVID KANG

Mendi: Makail, J
2009: 24 & 27 March

CRIMINAL LAW - Sentence - Conspiracy to defraud - Maximum penalty of 7 years - Aggravating factors - Preplanning - Large amount of money - Prevalence of offence - Mitigating factors - First offender - Early guilty plea - Remorseful - No victim - One off incident - Sentence of 1 year imposed - Personal deterrence - Wholly suspended and placed on good behaviour bond - Criminal Code - Sections 19 & 407 (1)(b).

Cases cited:

Papua New Guinean Cases cited:
The State -v- Iori Veraga (2005) N2921
The State -v- Iori Veraga (2005) N2846
The State -v- Henry Eliakim (2007) N3190

Overseas Cases cited:
R-v- Jones [1832] EngR 870; (1832) 110 ER 485

Counsel:
Mr. J Waine, for the State
Mr. F Kirriwom, for the Offender

SENTENCE

27 March, 2009

1. MAKAIL J: The offender pleaded guilty to one count of conspiracy to defraud Mr. and Mrs. Paul La’a of K14,700.00 on or around July or August 2007 at Mendi contrary to sections 407(1)(b) of the Criminal Code.

RELEVANT ALLEGATIONS OF FACT

2. The relevant allegations of fact on which he pleaded guilty are as follows; Sometime between July and August 2007, the offender from Sumo village, in Nipa of the Southern Highlands Province picked up a cheque in the sum of K14,700.00 from the Department of Police in Mendi made out to Mr. and Mrs. Paul La’a. He took the cheque home and thought about a way to cash it. He discussed ways to cash the cheque with his wife, named Janet Kang and they agreed to do up identification cards in the name of Mr. and Mrs. Paul La’a. They did up the identification cards in the name of Mr. and Mrs. Paul La’a to match the names on the cheque. They also obtained a letter from their church pastor certifying that the offender and his wife were married and wish to open a bank account with BSP Mendi branch.

3. Armed with the identification cards bearing the names of Mr. and Mrs. Paul La’a and the letter from the church pastor, they went to BSP Mendi branch and managed to open an account. They gave the cheque of K14,700.00 to the bank officer to deposit and process payment but the bank officer suspected that something was not right and made further enquires. Upon further enquires, it was revealed that the offender and his wife were not the owners of the cheque. An alarm was raised which led to the police arresting and charging the offender for conspiracy to defraud Mr. and Mrs. Paul La’a of K14,700.00 contrary to section 407(1)(b) of the Criminal Code.

ALLOCUTUS

4. On allocutus, the offender says that he is sorry to the Court for breaking the law. He also says sorry to God for sinning and also says sorry to Paul Palenda for the wrong he has done. He also says sorry to his church pastor for bringing shame upon the church and himself for his actions.

5. He says that he was illiterate but with the assistance of village literacy programme run by his church, namely, the Good News Bible Church, he was able to read the bible in his local dialect. Being able to read, he became a pastor and has been a pastor for the last 9 years. He says that he has 2 daughters; one is 4 years old and the other is 2 years old.

6. He also says that the reason for committing the offence is that Paul Palena who is a relative of his and being an educated man come up with an idea that both of them should start a PMV business. On that basis, he put some money aside and gave it to the bank to finance a loan. The bank gave the loan and they bought a truck and used it for PMV business. Paul Palena registered the truck under his name. Sometimes later, they had a fall out and Paul Palena took the truck away, without giving him any money from the PMV business. Finally, he says that he has never been in trouble with the law before and asks for mercy.

THE RELEVANT LAW

7. The offence of conspiracy to defraud is provided under section 407(1) of the Criminal Code which carries a maximum of 7 years imprisonment. It reads:

"407. Conspiracy to defraud.

(1) A person who conspires with another person -

(a) by deceit or any fraudulent means to affect the market price of any thing publicly sold; or

(b) to defraud the public, or any person (whether or not a particular person); or

(c) to extort property from any person, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years". (Underlining is mine).

OFFENDER’S SUBMISSIONS

8. Mr. Kirriwom of counsel for the offender first gives an account of the offender’s personal details as follows:

* The offender is from Sumo village, Nipa of the Southern Highlands Province;

* He is 31 years old;

* He is married to Janet Kang;

* Out of the marriage, he has 2 children, aged 4 and 2;

* His wife is unemployed;

* He has no formal education but under went village literacy programme, which has enabled him to read bible; and

* He is a pastor and has served as pastor of Good News Bible Church for 9 years.

9. Secondly, in mitigation, Mr. Kirriwom points to the following as mitigating features operating in favour of the offender, thus justifying a lesser sentence than the maximum of 7 years, which are:

* The offender has pleaded guilty to the charge, thus saving the Court’s time and money to hold a full trial to determine his guilt;

* He is a first offender, as he has not been in trouble with the law before the commission of the offence;

* He has expressed remorse for committing this offence. He said sorry to the Court, God and Paul Palena;

* He is the sole bread winner for the family;

* He was a victim of circumstances, in that he and Paul Palena bought a truck and operated it as a PMV. He spent money to buy the truck by financing the loan from the bank and Paul Palena took it away. Paul Palena had it registered under his name (Paul Palena) and hired it out to the Police Department during the State of Emergency in 2006. But when Paul Palena received payments, he has not shared it with the offender. As a result, the offender picked up the cheque and claimed it as his share; and

* However, he has not benefited from the cheque payment as he was apprehended, and the money was given to Paul Palena. It was Paul Palena who benefited and him a looser at the end.

10. Finally, he submits that given the mitigating factors operating in favour of the offender, this is not a worst case of conspiracy to defraud. As such, the Court should exercise its sentencing discretion under section 19 of the Criminal Code and impose a non custodial sentence with or without a fine. If the Court intends to impose a fine, he asks that the offender’s bail money of K1,000.00 be converted into fine.

STATE’S SUBMISSIONS

11. Mr. Waine of counsel for the State did not either seriously oppose the submissions of Mr. Kirriwom nor disputed the mitigating factors as pointed out by Mr. Kirriwom except to refer the Court to the decision of His Honour Sakora J, in The State -v- Iori Veraga (2005) N2921, a case of misappropriation and conspiracy to defraud for some guidance as to an appropriate sentence for the offender in this case.

REASONS FOR DECISION

12. The offence of conspiracy consists of an agreement between at least two persons to do an unlawful act or a lawful act by unlawful means. This is the classic definition that owes its origin to Lord Denman CJ, in R-v- Jones [1832] EngR 870; (1832) 110 ER 485. See also The State -v- Iori Veraga (2005) N2846.

13. In this case, the offender and his wife agreed to steal K14,700.00 from Mr. and Mrs. Paul La’a by organizing identification cards for themselves in the name of Mr. and Mrs. Paul La’s to match the names of Mr. and Mrs. Paul La’a on the cheque. They also obtained from their church pastor a letter to certify that they were married and wish to open a bank account. They then presented their identification cards and the letter from their church pastor to BSP Mendi branch and successfully managed to get it opened.

14. However, they got busted when he presented the cheque for encashment at the bank when it was discovered that the offender and his wife were not the owners of the cheque. In my view, the intention was very clear at the outset when he collected the cheque at the Police Department and that is, to deny Mr. and Mrs. La’s of K14,700.00. Fortunately though, he got busted and the rightful owners did not loose a single "toea" so to speak.

15. The offender has expressed remorse which I accept and take into account. I also take into account that he pleaded guilty and is a first offender. I also take into account that he is married and has a wife and 2 small children to look after. Further, I take into account that he has served God faithfully as a pastor for the last 9 years until he fell into sin. Next, I take into account that it was a one off incident. It was not perpetrated over a period of time and undetected. I find this a favorable factor for the offender.

16. As a special mitigating factor, I accept that he did what he did because the victim who is a relative of his, had used him to purchase the truck and had it registered in his (victim’s) name and hired to the police but did not give the offender his share of the proceeds. I think it is grossly unfair on the part of the victim to do this to a relative, especially where a relative like the offender who is not fairly educated looks to that person for guidance and advice of such nature. I can understand the disappointment and feeling of betrayal of the offender. I think he is what his counsel has described in his submissions, "a victim of circumstances".

17. But I do not take me wrong here. The offender’s reason for doing what he did does not exonerate him from the wrong; it is only a factor that operates more favourably for him.

18. Lastly, I accept that there are no victims in this case. The attempt to defraud Mr. and Mrs. Paul La’a was busted and they lost not a single "toea". The offender on the other hand did not benefit at all from this exercise. I hold this factor in his favour.

19. Against these mitigating factors, one of the aggravating features is the prevalence of this offence, and generally speaking the offences which we would describe as "white collar", such as misappropriation and stealing. I hold this factor against the offender.

20. Secondly, these types of "white collar" offences like conspiracy to defraud are, perpetrated by very smart and intelligent people. It may sometimes involve a little or big planning depending on the size and complexity of the unlawful activity to be undertaken by the offender. It is no wonder, the offender in this case, on picking up the cheque from the Police Department, took it home and secretly planned with his wife as to how it could be cashed. It took a while for the both of them to come up with a plan.

21. I would say the plan they devised by using identification cards and letter from the church pastor was not only an intelligent way to obtain the money but also a cunning one. The plan could have been successful and he could have gotten away with it had it not been for the bank officer at the material time being suspicious of the offender and his wife. I hold this factor against the offender.

22. Thirdly, the offender is no ordinary person. He is a pastor of Good News Bible Church. He holds a position of trust and responsibility as far as his church is concerned. It is a huge responsibility. I must remind him that what he has done is not a good example to his church members and the public. He should be the person leading by example so that people will turn to God and become good Christians. Thus, I hold this factor against the offender.

23. Lastly, the amount involved is large. It being K14,700.00. I will hold it against the offender.

24. In deciding an appropriate sentence for the offender the questions I ask are:

1. what is the head sentence I shall impose on the offender?

2. should I suspend whole or part of the sentence?

3. if I suspend whole or part of the sentence, what kind of conditions should I impose on the offender?

What is the head sentence?

25. There is very little case law in this jurisdiction on the offence of conspiracy to defraud, although that is not a true reflection of the state of affairs in this country. But one of the more recent cases on conspiracy to defraud is Iori Veraga’s case (supra) which Mr. Waine has referred in his brief assistance to the Court. In that case, His Honour Sakora J, convicted a valuer implicated in the NPF Inquiry of two counts of conspiracy to defraud the NPF. There were three others involved in the conspiracy and the offender obtained K235,000.00. He pleaded not guilty. He was sentenced to 4 years imprisonment on each charge of conspiracy, to be served concurrently. He was given an extra 2 years for misappropriation convictions.

26. In another National Court decision in The State -v- Henry Eliakim (2007) N3190, the offender pleaded guilty to one count of conspiracy to defraud and one count of stealing money from his employer. The amount involved was K3,369.01. He was a field supervisor in a company and he planned with two others to submit false attendance sheets for ghost employees and obtain pay cheques. He put the plan into action over a three-month period until caught. His Honour Cannings J, held inter alia that the starting point for sentencing for conspiracy to defraud, is 3 years, 6 months imprisonment. His Honour sentenced the offender to 1 year, 6 months imprisonment for conspiracy to defraud.

27. I consider that the head sentence should be as what His Honour Cannings J, had suggested in Henry Eliakim (supra), that is 3 years, 6 months. So I apply 3 years, 6 months in this case.

28. Then weighing the mitigating factors I have set out above with the aggravating features present in this case, I consider that an appropriate sentence for this offender would be 1 year imprisonment because this is not the worst type of conspiracy to defraud case.

Should I suspend the sentence in part or wholly?

29. Then the next question is; should I suspend the sentence in part or wholly? This in my view requires the Court to first ask and then consider and make a decision whether or not to impose a suspended sentence based on a Pre-Sentence Report and a Means Assessment Report. Such reports would contain the community’s wish in relation to how an offender should be dealt with and more importantly, whether an offender should be returned to the community.

30. In this case, there are no reports as they were not requested by the offender through his counsel. But that does not necessarily mean that the Court cannot consider a non custodial sentence if there are no such reports provided to the Court. In my view, the Court may proceed to impose non custodial sentences if the circumstances of the cases justify the exercise of discretion under section 19 of the Criminal Code. I proceed on this basis and find that this is a case where a non custodial sentence would also be appropriate and it will be for the entire period of sentence. My main reason to reach that decision is that, the offender has not personally benefited from the money he attempted to take from the victim. The victim was the one who benefited.

31. In the end, I consider that a wholly suspended sentence appropriate in the circumstances and I so order that the 1 year imprisonment sentence be wholly suspended.

If the sentence is suspended, what kind of conditions should I impose on the offender?

32. The last issue is pretty much straight forward. I can see that the offender has learnt his lesson. It is also an embarrassment to him and his family given the pastoral standing in his church for almost a decade. In my view, the whole circumstances of the case justify the Court to place the offender on good behaviour bond for the period of the suspended sentence. If he re offends, he shall be dealt with appropriately.

ORDERS

The formal judgment of the Court there is:

1. The offender is sentenced to 1 year imprisonment in hard labour at Buihebi Corrective Institute.

2. The 1 year imprisonment sentence is wholly suspended on condition that the offender enters into a good behaviour bond for the period of suspended sentence.

3. The offender’s cash bail of K1000.00 shall be refunded forthwith.

Sentence accordingly.

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender