Posa v Terrence [2007] PGDC 36; DC535 (22 May 2007)

DC535

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 21 of 2007

BETWEEN

ERIC POSA
Informant

AND

SAMUEL TERRENCE
Defendant

Goroka: M Gauli, PM
2007: May 22

CRIMINAL- Particular offence – False pretence – Obtained money by false pretence – Obtained betting tickets without paying – Obtained tickets from his employer – Plea – Guilty – First offender.

Cases Cited
1. The State –v- Manga Kinjip [1976] PNGLR 86

References
Criminal Code Act, ss. 404 (1) (a); 544; 19
District Courts Act, s. 132

Counsel
For the Prosecution – Sergeant Yamuje, Goroka Police Station
For the Defendant – In Person

22 May 2007

DECISION OF THE COURT

M Gauli, PM: The defendant Samuel Terrance pleaded guilty to a charge of obtaining money by false pretence, pursuant to Section 404 (1) (a) of the PNG Criminal Code Act. This provision states and I quote:

“(1) A person who by false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud -

(a) obtains from any other person any chattel, money or valuable security, or

(b) Induces any other person to deliver to any person any chattel, money or valuable security,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding five years.”

2. The facts to which defendant Terrance has pleaded guilty to are these. That on 24 March 2007 whilst employed by the Nowek Ltd Namba 1 Lotto Big Pig in Goroka, Papua New Guinea, as a security guard, he arranged with one Asemeri Toubar a computer operator on teller number seven with the same company. The arrangement was for defendant Terrance to place any bets on any draw without placing cash bets. And if he wins on the bets he will then pay for the bets and share the win with Asemeni Toubar. From this arrangement defendant Terrance placed number of bets and won a total sum of K1, 859.00. He then gave the winning tickets to one Albert David who collected the money; but defendant Terrance never paid for the bets nor shared the money with Asemeni Toubar.

3. Defendant Terrance in his plea said that the facts are true and this was his first time to have an encounter against the law during the nine (9) years of his employment with the Nowek Limited Namba 1 Lotto Big Pig. He said he is sorry and he promised never to do this again.

4. Having considered the facts and the contents of the documents in the file tendered to Court and the defendants statement I am satisfied that he made his plea in plain, unambiguous and unmistakable term. And I accept his plea of guilty – The State –v- Manga Kinjip [1976] PNGLR 86 applied.

5. The facts also established that the defendant promised to pay for the bets from the monies he will receive from his winning bets. However he failed to honour his promise. I consider that Section 544 of the PNG Criminal Code empowers this Court to convict the offender on any of those offences which has been established by the evidence or facts. This provision states and I quote:

“On an indictment charging a person with –

(a) stealing, with or without a circumstance of aggravation; or

(b) obtaining goods by false pretences; or

(c) obtaining goods by a wilfully false promise; or

(d) obtaining goods by partly a false pretence and partly by a wilfully false promise; or

(e) cheating; or

(f) misappropriation of property; or

(g) procuring any other person to commit any such offence,

he may be convicted of any other of those offences committed with respect to the same property, if that other offence is established by the evidence.”

6. Under Section 544 of the Criminal Code, I find that the offence of obtaining goods, namely the money, by a wilfully false promise is been established. The defendant in order to obtain the tickets for the bets without paying for the tickets has promised that he will pay for the tickets from his wins. This he failed to pay for the tickets even after he won from his bets. And so I find him guilty of obtaining money by a wilfully false promise.

7. The penalty for the offence under Section 404 (1) (a) of the Criminal Code is a term of imprisonment for five years. In sentencing I do consider his mitigating factors. He pleaded guilty to the charge which saves both time and costs had the case proceeded into trial. He is the first offender. And he is a family man of three children. He also takes care of his brothers and sisters and his mother since their father has deserted them. He said that he will never commit such offences again in future as he has now learnt his lesson. He asked the Court for none custodial sentence such as probation or to be released on good behaviour bond.

8. I consider Section 19 (1) of the Criminal Code. This provision provides for the Court to impose fines not exceeding K2, 000.00 where a person is liable to imprisonment, or to discharge the offender on his own recognizance with or without sureties instead of passing sentence. I have these sentencing options to consider. The Section 132 (1) of the District Courts Act also empowers the Court to either dismiss the charge or place the offender on his own recognizance instead of imposing custodial sentence.

9. I have considered the manner in which the defendant committed the offence. He being the employee in that betting house or Lotto House, he used his position as an employee in there has placed his bets without cash bets. He was trusted by his co-worker but he failed to live up to his promise when he won his bets. Such practices must be discouraged by the Courts so that it will have a deterrence effect on those like offenders in future. In the circumstances I consider that a fine would be appropriate instead of imprisonment at the first instance.

10. And I convict the defendant and sentence him to pay a fine of K500.00 in default be imprisoned to 12 months in hard labour. I would deduct seven weeks of his sentence of 12 months for time in custody. He will serve out only ten (10) months and one week in person. That the fine be paid today.

For the Prosecution - Sergeant Yamuje, of Goroka Police Station
For the Defendant - In Person