The State v Lapun Mesa Pati

• Jurisdiction: Papua New Guinea
• Judge: Kaumi AJ
• Judgment Date: 14 March 2018
• Citation: (2018) N7186
• Court: National Court
• Year: 2018
• Judgement Number: N7186

Full : CR (FC) 174 of 2015; The State v Lapun Mesa Pati (2018) N7186

National Court: Kaumi AJ

Judgment Delivered: 14 March 2018

N7186

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 174 of 2015

THE STATE

V

LAPUN MESA PATI

Lae: Kaumi AJ

2018: 12, 19 February & 6, 14 March

CRIMINAL LAW – Criminal Code Act 1974, Part IV-Offences Relating to Property and Contracts, Division 1-Stealing and Similar Offences-Subdivision F-Obtaining Property by False Pretence - Cheating-Section 404 (1) (a)-Plea of Guilty-Division 3-Forgery and Like Offences: Personation-Subdivision B-Offences-Forgery-Section 463-Plea of Guilty-Uttering-Section 463

CRIMINAL LAW-Sentence-Guilty Plea-Mitigating and AggravatinFactors-Expression of Remorse non-genuine-Prevalent Offence-Sentencing Trends Considered-Property of Substantial value never recovered-Breach of Trust-Concurrent Term of 3 years imprisonment Imposed-Partial Suspension of 2 years based on PSR-Pre-Trial Custody Deducted

CRIMINAL LAW- Usual purposes of criminal sentencing such as Deterrence, Restitution or Rehabilitation are also relevant factors for consideration-Circumstances serious but not worst type of offence-Aggravating factors outweigh mitigating factors-Portion of sentence suspended-Criminal Code Ch.262, section 19 (1) (d) (6).

CRIMINAL LAW-Sentence-One Transaction Rule Applied-Totality Principle Considered

CRIMINAL LAW- It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

Facts

The offender pleaded guilty to one count of False Pretence, one count of Forgery and one count of Uttering and matter for sentence.

Held:

[1] The offences of false pretence, forgery and uttering were committed by the offender in the course of a single transaction and therefore all sentences should be concurrent.

[2] I am also conscious of the “totality principle”, that when the court has arrived at appropriate head sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total.

[3] “I now look at the total sentence that the offender is potentially facing, to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The Court needs to guard against imposing a crushing sentence, i.e. one that is over the top’ or manifestly excessive”: Cannings. J in The Independent State of Papua New Guinea v Benson [2006] PGNC 68

Cases Cited:

Doreen Lipirin v The Independent State of Papua New Guinea [2004] SC 673

Kali Mari v Indepenedent State of Papua New Guinea [1980] SC175

Public Prosecutor v Tardrew [1980] PNGLR 91

Saperus Yalibakut v The State SCRA No. 52 of 2005, 27/04/2006

The Acting Public Prosecutor v Don Hale (27/08/98) (SC564)

The Independent State of Papua New Guinea v John Kil [2000] PNGLR 253

The Independent State of Papua New Guinea v Louise Paraka (2002) N2317

The Independent State of Papua New Guinea v Jack Ostekol Metz (2005) N2824

The Independent State of Papua New Guinea v Lengade [2012] PGNC 76

The Independent State of Papua New Guinea Public v Jimmy Kendi N3129

The Independent State of Papua New Guinea v Lawrence CR (FC) 574 of 2012; N5695

The Independent State of Papua New Guinea v George Steven CR (FC) 184/14 DCJ Salika

The Independent State of Papua New Guinea v Dominic Kurai N3435

The Independent State of Papua New Guinea v Lawrence Pukali [2014] PGNC 252; N5695

The Independent State of Papua New Guinea v Fred Luke CR 98/2017

The State v Inema Yawok (1998) N1766)

The State v Jason Dungoia (2000) N2038

The State v Irox Winston (2003) N2347

Tom Longman Yaul v The State (2005) SC 803

The State v Jacky Vutnamur and Kaki Kialo (2005) N2919

The St v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801

The Independent State of Papua New Guinea v Benson [2006] PGNC 68

The St v A Juvenile, “TAA” (2006) N3017

State v Francis Wangi (2007) N5057

Wellington Belawa v. The State [1988-89] PNGLR 496

Legislation Cited

Constitution of Papua New Guinea

Criminal Code 1974

Criminal Justice (Sentencing) Act 1986

Counsel

Ms. M Tamate, for the State

Ms. Katurowe, for the Offender

SENTENCE

14th March, 2018

1. KAUMI AJ: INTRODUCTION: This is a decision on sentence for a man who on the 13th February 2018 was found guilty of one count of False Pretence contrary to Section 404 (1) (a), one count of Forgery contrary to section 462 and one count of Uttering contrary to section 463 of the Criminal Code Act Chapter 262.

ISSUE

2. The relevant issue is what the appropriate sentence is in his case.

AGREED BRIEF FACTS

3. The brief facts giving rise to the charge are as follows:

4. The State alleges that between the 10th of October and the 14th of October 2014, an employee of Premium Hire Cars Limited namely Alama Sonny, a Sales & Marketing Executive with In-Touch Media Company also commonly known as “FM Morobe” received a phone call. This man requested to hire a vehicle for two days to use during the Pride Show Program. He further requested for an invoice and the bank account details for Premium Hire Cars to be faxed to a number given by him.

5. On the 14th of October 2014, further communication was made between Agnes and Alama Sonny to confirm payment and delivery of the vehicle to Mr Sonny at Melanesian Hotel in Lae as per his request. Mr Sonny told Agnes that a payment was already made and the bank deposit details would be provided to them when the vehicle is delivered to him. The vehicle hired was a Toyota 10-Seater Land Cruiser bearing registration LBG 183 which was then taken to Melanesian Hotel by Danny Frank and Joshua Ipara (employees of PHC). When they arrived at Melanesian Hotel, two other men came out to meet them and said that Alama had sent them out to sign the vehicle rental papers and receive the vehicle. The State alleges that Lapun Mesa Pati was one of the two men who came out to receive the vehicle. The vehicle was inspected by the accused and the two employees of PHC were given a copy of an ANZ bank deposit butt and a copy of a letter requesting hire.

6. After two days of hire, the subject vehicle was not returned to PHC. The matter was reported to police and investigations were conducted to search for the vehicle and the persons who purportedly hired it. From these investigations, it was revealed that Alama Sonny’s true identity was David Palou alias “Papu David”.

7. The State alleges that the accused Lapun Mesa Pati was an accomplice to David Palou as he had communicated with Palou on the day the vehicle was delivered at the hotel. Furthermore, the accused was questioned as to the allegations and he freely admitted that he was there but denied any criminal or fraudulent intent and said that it was all David Palou’s plan. He further told the police that he and his accomplices took the vehicle to Goroka and sold it to a man known to the accused for K31, 000.00. These monies were then shared amongst themselves and the accused received K7, 000.00.

8. The State therefore alleges that the accused’s conduct by operation of section 7(1)(c) of the Criminal Code Act holds him responsible for committing the offences of false pretence pursuant to section 404(1)(a) and forgery and uttering pursuant to section 462 and 463 of the Criminal Code Act.

ANTECEDENT

9. The Antecedent Report provided to the Court by the State states that he has no prior convictions.

ALLOCATUS

10. When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him, the following is a paraphrased summary of his response:

“I have three points to tell this court, firstly, I am sorry to the court for what I did with my accomplices and I am sorry to the company Premium Hire Cars for what I did; secondly, when the Police arrested me they didn’t just arrest me in a way I can stand in this court. They assaulted me and damaged my feet. My medical report is in the Court file; thirdly, I am an old man. I am married with 8 children, 6 girls and 2 are my grandchildren. Lastly I ask for Probation or a Good Behaviour Bond and the Court’s mercy so I can go back to my company and be a guard”.

OTHER MATTERS OF FACT

11. The prisoner pleaded guilty and so I will give him the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus in submission that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890. In his allocatus the prisoner stated that when he was arrested he was badly assaulted by police and suffered injuries to his feet and I accept this.

SUBMISSION BY DEFENCE COUNSEL

12. The offender’s counsel, Ms Katurowe highlighted the offender’s mitigating factors as, his plea of guilt; his lack of prior convictions; his expression of remorse; his injuries...