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State v Pelly [2011] PGNC 119; N4392 (15 September 2011)

N4392

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1461 0F 2009

THE STATE

V

GEORGE PELLY

Madang: Cannings J
2011: 3, 23, 25 August, 15 September

SENTENCE

CRIMINAL LAW – sentence – demanding property by written threat – Criminal Code, Section 390(2)(a) – guilty plea – demanding money with threat of exposure of pornographic photographs, allegedly of the complainant.

The offender pleaded guilty to one count of demanding property by written threat contrary to Section 390(2)(a) of the Criminal Code. He handed an envelope to the victim, containing a letter and a number of pornographic photographs allegedly of the victim. The letter contained a demand for payment of K2,000.00 cash within 24 hours and a threat that if the demand were not met the photographs would be sent to the police, to the victim's husband and to her workplace and would be posted on public notice boards for public viewing. In fact the photographs were not of the victim, but of a person unknown. The police intercepted the offender before any money was paid to him.

Held:

(1) The maximum penalty is 14 years imprisonment and 7 years is a useful starting point.

(2) The fact that no money changed hands and that the offender cooperated with the police after being arrested and pleaded guilty are the main mitigating factors.

(3) The great personal distress caused to the victim and the fact that she was entirely innocent of any wrongdoing were the major aggravating factors.

(4) A sentence of 5 years was imposed. The pre-sentence period in custody was deducted and the balance of the sentence suspended on various conditions including that K4,000.00 (double the amount unlawfully demanded) compensation be paid to the victim within three months.

Cases cited

The following case is cited in the judgment:

Saperus Yalibakut v The State (2006) SC890

SENTENCE

This was a judgment on sentence for demanding money by threat.

Counsel

S Collins & M Pil, for the State
J Mesa, for the offender

15 September, 2011

1. CANNINGS J: This is a decision on sentence for a 39-year-old man, George Pelly, who pleaded guilty to one count of demanding money by written threat contrary to Section 390(2)(a) of the Criminal Code. The offence was committed on 19 December 2008. The offender went to the workplace of the victim in Madang town, and gave her an envelope containing a letter and a number of pornographic photographs allegedly of the victim. The letter contained a demand for payment of K2,000.00 cash within 24 hours and a threat that if the demand were not met the photographs would be sent to the police, to the victim's husband and to her workplace and would be posted on public notice boards for public viewing. In fact the photographs were not of the victim, but of a person unknown. The police intercepted the offender before any money was paid to him.

ANTECEDENTS

2. The offender has two prior convictions, one for stealing and one for possession of pornography.

ALLOCUTUS

3. The offender was given the opportunity to address the court. He said:

I apologise to God, to the Judge, to the Court, to the lawyers and to the victim and her family for what I did. I have raised K4,000.00 compensation for the victim. The sum I demanded of her was K2,000.00. What I did was stupid and has brought shame to my wife and my children. I have learned my lesson and I will never do such a thing again. I was not the author of the letter. I have only limited education and cannot write good English. My little brother wrote it and put it in an envelope and asked me to deliver it. I am a scapegoat. I admitted my involvement to the police. I have a young family to look after.

OTHER MATTERS OF FACT

4. 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 (2006) SC890). He only made one demand (it was not a case of persistent demands or threats, which would have been aggravating factors), he caused the victim no physical harm, he gained nothing from the demand (as no money changed hands), he cooperated with the police from the beginning and made admissions when interviewed.

PRE-SENTENCE REPORT

5. George Pelly comes from Panitibun village in the Madang District. He is happily married with three school-age children. He has a grade 8 education. He has had some short term formal employment but prefers the life of a villager. He derives some informal sector income and his wife has a steady job in town. He has some health problems due to being shot by the police in 2003; medical evidence was provided in support of this assessment. He is well known and highly regarded in his local community. The victim was approached for her views but she wants to have nothing further to do with the case. She is not asking for compensation and prefers to leave it to the court to decide what should happen. He is considered suitable for probation.

SUBMISSIONS BY THE DEFENCE

6. Mr Mesa highlighted the offender's cooperation with police, his guilty plea, the absence of financial gain by the offender and his poor state of health. A sentence of four years would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Pil did not take issue with the sentence suggested by the defence counsel.

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 offence of which the offender has been convicted is created and has its maximum penalty set by Section 390(2) (demanding property by written or oral threats) of the Criminal Code, which states:

A person who, with intent to extort or gain any thing from any person—

(a) knowing the contents of the writing, causes any person to receive a writing—

(i) demanding, without reasonable or probable cause, any thing from, or that any thing be procured to be done or omitted to be done by, any person; and

(ii) containing threats of injury or detriment to be caused to any person, by the offender or any other person, if the demand is not complied with; or

(b) orally demands, without reasonable or probable cause, any thing from, or that any thing be procured to be done or omitted to be done by, any person, with threats to be caused to any person, by the offender or any other person, if the demand is not complied with,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

10. Therefore the maximum penalty is 14 years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. No sentencing guidelines have been set for this offence so the mid-point of the available range – seven years imprisonment – will be used as a starting point.

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

12. None are readily available.

STEP 4: WHAT IS THE HEAD SENTENCE?

13. I will determine a head sentence by listing and weighing the mitigating and aggravating factors in relation to the starting point of seven years.

14. Mitigating factors:

• no physical harm done to the victim;
• weapons not used or threatened;
• the offender did not gain financially;
• he made only one demand (it was not a case of persistent demands or threats);
• he cooperated with the police from the beginning and made admissions when interviewed;
• no further trouble caused to the victim;
• pleaded guilty;
• expressed remorse;
• the offender's health is poor.
  

15. Aggravating factors:

• the victim was entirely innocent (in that the photos were not of her);
• the distress that was inevitably caused to the victim;
• the gross violation of the victim's dignity;
• it was an attempt to blackmail;
• the offender has two prior convictions.
  

16. The fact that no money changed hands and that the offender cooperated with the police after being arrested and pleaded guilty are the main mitigating factors, which when weighed against the aggravating factors are sufficient to bring the appropriate sentence below the starting point. I fix a head sentence of five years imprisonment.

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

17. 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 one month.

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

18. Despite the pernicious nature of this crime, there was no physical violence involved and the offender gained nothing from it and he has received a sound pre-sentence report. He pleaded guilty and his health is poor. This combination of factors warrants a suspended sentence subject to strict conditions, one of which will be payment of compensation to the victim. I reiterate that the victim has not asked for compensation but I think she deserves it, and by forcing the offender to pay it to her, the message will be drummed into him that he has committed a very serious offence. The victim will not of course be obliged to accept the compensation. If she chooses not to accept it, the offender will need to notify the court so that the conditions of the suspended sentence can be amended. There will be a time limit of three months imposed. The balance of the sentence is therefore suspended on the conditions that the offender:

(a) must pay K4,000.00 cash compensation to the victim within three months after the date of sentence, and the payment must be organised and witnessed by an officer of the Probation Office, and the offender 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 this condition;

(b) must report to the Probation Office within three days after the date of sentence and settle on a community work program, involving at least three hours unpaid community work each week at a place notified to the Probation Office;

(c) must reside at his village 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;

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

(j) if he breaches any one or more of the above conditions, 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

19. George Pelly, having been convicted of the crime of demanding money by threat under Section 390(2)(a) of the Criminal Code, is sentenced as follows:

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