The State v David Kang (2009) N3603

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 27 March 2009
• Citation: (2009) N3603
• Docket Number: CR NO 505 OF 2008
• Court: National Court
• Year: 2009
• Judgement Number: N3603

Full Title: CR NO 505 OF 2008; The State v David Kang (2009) N3603

National Court: Makail, J

Judgment Delivered: 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) 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) 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...