The State v Dominic Kurai (2008) N3435

• Jurisdiction: Papua New Guinea
• Date: 19 August 2008
• Citation: (2008) N3435
• Docket Number: CR NO 721 0F 2000
• Court: National Court
• Year: 2008

Full Title: CR NO 721 0F 2000; The State v Dominic Kurai (2008) N3435

National Court: Cannings J

Judgment Delivered: 19 August 2008

SENTENCE

CRIMINAL LAW – sentence – Criminal Code, Subdivision VI.1.F (obtaining property by false pretences: cheating) – Section 404(1) (obtaining goods or credit by false pretence or wilfully false promise) – sentence on plea of guilty – store goods worth K728.86 obtained by false pretences – sentence of 1 year.

man pleaded guilty to obtaining goods from a store worth K728.86 by false pretences. He used the order book of his former employer without authority.

Held:

(1) The maximum penalty for an offence under Section 404(1) is five years imprisonment and a useful starting point for sentencing is the middle of the range: two and a half 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 Aaron Wai, CR 926/2005, 14.10.05 ; The State v Eddie Apuai, CR 1018/2005, 08.09.05; The State v Benson Raka, CR 447-450/2006, 17.08.06

Abbreviations

The following abbreviations appear in the judgment:

CR – Criminal

J – Justice

K – kina

LLG – Local-level Government

Ltd – Limited

NBPOL – New Britain Palm Oil Ltd

NCP – Niugini Civil and Petroleum Ltd

No – number

PNGLR – Papua New Guinea Law Reports

SCRA – Supreme Court Criminal Appeal

v – versus

SENTENCE

This was a judgment on sentence for obtaining goods by false pretences.

1. CANNINGS J: The offender, Dominic Kurai, used to work for Niugini Civil and Petroleum Ltd in Kimbe. The company sacked him in the early part of 2000 and, being angered by that, he got hold of a company order book, went to the K-Mart department store in Kimbe, saw a shop assistant who knew him (and who did not realise that he had been sacked) and collected store goods worth K728.86.

2. Soon afterwards K-Mart asked NCP to pay for the order and only then was it discovered what the offender had done. He was charged with obtaining goods by false pretences with an intention to defraud, contrary to Section 404(1)(a) of the Criminal Code. He has pleaded guilty. Having satisfied myself that there is sufficient evidence of the elements of that offence I have convicted him and he now has to be sentenced.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He stated:

I did this because when the company terminated me they did not pay me my finish pay. I respect the court and point out that this is the first time I have appeared before any court. I apologise for what I have done. I will never do such a thing again. I have a family, including five children, to look after. I ask the court for mercy and for probation.

OTHER MATTERS OF FACT

5. 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).

6. I take into account his assertion that he had not been paid his finish pay when he was terminated by NCP. That is not a defence but it helps explain why the offender acted in the way he did. Also, during the course of the police investigation, the offender returned a pair of Stockman shoes worth K360.00 that he obtained with the order book, which is almost half of the value of the goods he obtained.

PRE-SENTENCE REPORT

7. A pre-sentence report prepared by the Kimbe branch of the Community Based Corrections Service confirms that Dominic Kurai, from Laiagam, Enga Province, is happily married with five children. He moved to Kimbe 14 years ago and has no plans to leave West New Britain. He lives with his family at the Section 10 settlement. He was educated to grade 6 at Wabag.

8. He was employed as a security guard in Kimbe for several years before taking up a job with NCP. He was employed there for a year before being sacked (he says he was sacked because the boss’s camera was stolen; the company thought he stole it but he still denies this). He is now unemployed and helps his wife sell second hand clothing to provide a source of income for the family. The Ward 4 Councillor for Kimbe Urban LLG, John Robin, says that Dominic Kurai is not a trouble-maker. He is a hard working and well regarded member of the local community. The report concludes that he is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Yapao highlighted the guilty plea and the relatively small amount of money that was involved. It was a one-off incident and the offender’s first offence. A sentence of six months, fully suspended would be appropriate.

SUBMISSIONS BY THE STATE

10. Mr Popeu agreed that, in relative terms, this was not a serious case. He did not press for a custodial sentence.

DECISION MAKING PROCESS

11. 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?

12. The maximum penalty under Section 404(1)(a) is five years...