The State v Martha Agua (2011) N4499

• Jurisdiction: Papua New Guinea
• Judge: Kangwia, AJ
• Judgment Date: 17 November 2011
• Citation: (2011) N4499
• Docket Number: CR 1252 of 2007
• Court: National Court
• Year: 2011
• Judgement Number: N4499

Full Title: CR 1252 of 2007; The State v Martha Agua (2011) N4499

National Court: Kangwia, AJ

Judgment Delivered: 17 November 2011

N4499

PAPUA NEW GUINEA

[IN THE NATIOANL COURT OF JUSTICE]

CR 1252 of 2007

THE STATE

V

MARTHA AGUA

Kundiawa: Kangwia, AJ

2011: 11 & 17 November

CRIMINAL LAW - Sentence – Conspiracy to Defraud - Sentence – False Pretence with intent to defraud- First time offender - no genuine remorse - Guidelines in The State v Wellington Bellawa discussed and adopted - Tariffs Suggested not appropriate – sentence of Four years and two years imposed to be served concurrently – suspended sentence with conditions imposed as appropriate.

Case Cited:

The State v Wellington Bellawa [1988-89] PNGLR 496;

Goli Golu v The State [1979] PNGLR 653;

The State v Daniel Mapiria (2000) (Unrepoted Judgement dated 1 October 2004) CR.1118/2000;

Doreen Liprin v State (2001) PNGLR 6;

The State v Dobi Au (No.2)(2004) N2247;

The State v Iori Veraga (2005) N2849;

The State v Buygonnes Tuse Nae (1996) N1474;

Yaip Joshua Avini & Onr. v The State [1997] PNGLR 212

Counsel:

J. Kesan, for the State

T. Ohuma, for the Prisoner

17 November, 2011

1. KANGWIA AJ: The prisoner was convicted on two counts arising out of the same set of facts after a Trial. First conviction was for conspiracy to commit a crime under section 515 of the Criminal Code which carries a penalty of imprisonment for a term not exceeding seven years.

2. The second conviction was for obtaining money by false pretence with intent to defraud the State under section 404 (1)(a) of the Criminal Code which carries a penalty of imprisonment for a term not exceeding five years.

3. The charges arose out of a false claim made under the name of the prisoner for a house to obtain K76, 700.00 through the Highlands Highway Rehabilitation Project (H.H.R.P). The money was paid to the accused who deposited it into her personal account. She had already used up more than K54, 000.00 when arrested and charged.

4. She is 33 years old now and married with 3 children. She is a Primary School Teacher. She is currently undergoing studies at University of Goroka. She has no record of any prior convictions.

ALLOCUTUS

5. On her allocatus she said; “I thank the Court for the opportunity to talk. I am married with three kids. Two are in school and one is at home. I am a primary school teacher and currently attending studies at Goroka University.

6. I spent the money repaying debts, distributing to family members, shopping and for school fees. Police confiscated K20, 950.00 from me when I was arrested. I spent the money in that way knowing the money to be rightfully mine. People were blaming me & my husband over it and a lot of burden was on me. I request to make restitution and also for time to do it as my husband is also sentenced and on probation for similar offences.

7. I gained nothing for the removal of my house at the village.

8. I have savings that I can use and the balance I propose to repay on a fortnightly basis. I have traveled back and forth for four years pending this case. I request probation to make restitution.”

SUBMISSION FOR PRISONER

9. It was submitted on her behalf that the pre-sentence report indicated her to be a suitable person for probation. The means assessment report concluded her ability to make restitution if ample time is given.

10. The following factors operated to be considered in her favor. She is a teacher of many years. She cooperated with Law enforcement agencies. She is on the payroll and has savings to make restitution. She is a first time offender. She has waited four years for this case to conclude and that should be treated as a punishment.

11. The offence is non violent and the prisoner was unlikely to reoffend. Others were also involved but she suffered alone.

12. Factors against her were that this was a trial. The offence is prevalent and the amount involved is substantial. There was a conspiracy to commit the offences.

13. If a custodial sentence is imposed, her education will be jeopardized. The guidelines in The State v Wellington Bellawa [1988-89] PNGLR 496 were appropriate in considering a sentence.

14. Her husband was sentenced to three years but was wholly suspended with a fine, probation and restitution orders instead.

15. It was submitted that a non custodial concurrent sentence with suspension be imposed.

SUBMISSION FOR THE STATE

16. The aggravating factors were that this was a trial where the State and the Court were put to incur time and expenses and the usual leniency to a guilty plea is not available to the prisoner. This was a serious dishonesty case involving a substantial amount of money.

17. The maximum sentences are five years for stealing by false pretence and seven years for conspiracy. Mr. Kesan concurred with Ms. Ohuma that a concurrent sentence was appropriate given the same set of facts which created the two offences.

18. It was also conceded that the guidelines in the Wellington Bellawa case were appropriate although the tariffs suggested there were out of date. It was submitted that the cases fell into the money range of K40, 000: 00 to K150, 000.00 which attracted a sentencing range of 3-5 years.

PRE SENTENCE & MEANS ASSESSMENT REPORT

19. The pre sentence report suggested that the prisoner was a suitable person for probation. That is not odd given her status as a female teacher. It was also suggested that she was willing to make restitution through fortnightly payments after some of it is paid from her savings with POSF.

DECISION

20. This was a serious case of conspiracy and dishonesty involving a substantial amount of public funds. Money intended for a worthy cause had been obtained fraudulently through the established system and flagrantly misapplied for personal purposes by the prisoner.

21. The maximum prescribed penalty for the offence is seven years for conspiracy to defraud and five years for obtaining by false pretence. The Court has discretion to impose sentences other than the prescribed maximum penalty through section 19 of the Criminal Code Act.

22. It is a general principle of Law that the maximum prescribed penalty must be reserved for the worst instance of the offences. In Goli Golu v The State [1979] PNGLR 653 the Supreme Court held that;

“the maximum penalty should be reserved for the most serious instances of the offence……. the punishment to be awarded should be strictly proportionate to the gravity of the offence”.

23. The principle has been applied in most fraud and misappropriation cases and is of general application for all cases involving criminal offences.

24. Applying that principle to the present cases the maximum prescribed penalty shall not be applied as these cases do not fall into the most serious instances of the offence which is subject to various factors and guidelines.

25. Sentencing guidelines for offences where dishonesty was involved are grounded in the case of Welling Bellawa v The State (supra). In that Case the Supreme Court suggested sentencing tariffs as well but tariffs suggested there are inappropriate to the present time.

26. The Courts have increased the sentences markedly from those suggested because of the prevalence and frequency of offences relating to money obtained dishonestly. However, the guidelines suggested in the case of Wellington Bellawa are relevant and of universal application for similar cases.

27. The Supreme Court in the Wellington Bellawa case suggested a number of factors that should be taken into consideration when determining an appropriate sentence. The factors relevant for the present cases includes, the plea entered, restitution, the amount involved, use of the money, remorse shown, public impact, the effect on the offender and any mitigating factor special to the offender.

28. These factors will be considered briefly as most of them were canvassed in the prisoner’s allocatus and in submissions by counsels on sentence.

1. Plea

29. The prisoner pleaded not guilty to both counts. The verdict was reached after a trial. The State and the Court were made to incur time and expenses unnecessarily. Although the prisoner was entitled to the full protection of the law under the presumption of innocence principle established by S. 37 of the Constitution, she ultimately had no defense or a plausible explanation with evidence to support her denials and create a reasonable doubt. Any discount one would get for a guilty plea is not available to the prisoner here.

2. Restitution

30. The pre sentence report shows that the prisoner is willing to make restitution. It also suggests that she is able to make restitution on a fortnightly basis until the full amount is settled. I am unable to accept that the willingness to make restitution is out of remorse or genuine feeling of indebtedness. It is an offer out of desperation to escape imprisonment. Restitution seems to be the only best thing the prisoner could offer to avoid a prison term.

31. Courts have treated restitution as an important factor to impose suspended sentences. See for example The State v Daniel Mapiria (2004) CR 1118/2000 where the Court suspended the whole...