Sisimutu v Kukari [2007] PGDC 75; DC618 (5 June 2007)

DC618

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

GFCr 84 of 2006

BETWEEN

AMBROSS SISIMUTU
Informant

AND

ARO KUKARI
Defendant

Goroka: M Gauli, PM
2007: June 05

CRIMINAL- Particular offence – False pretence – Obtained goods by false pretence – Plea of guilty – First offender – Offence committed in another province – Jurisdiction of the Court.

Cases Cited
State –v- Manga Kinjip [1976] PNGLR 86
The State –v- Paulus Takesi N1468 (Unreported)
Wellington Belawa –v- The State [1988–89] PNGLR 496

References
Criminal Code Act, ss. 404 (1)
District Courts Act, s. 122 (5) (6)

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

05 June 2007

DECISION OF THE COURT

M Gauli, PM: The defendant pleaded guilty to the charge of obtaining money by false pretence. The facts to which the defendant pleaded guilty are that between 24 and 27 of April 2004 at Eriku, Klinkii Street in Lae, Morobe Province the defendant approached Mr. Charlie Hurutave of Ifiufa village in Goroka, Eastern Highlands Province, that he Aro Kukari has Eight Million Kina in the bank that came in from overseas. And that he needed money to pay the bank fees and the lawyers fees in order for the bank to release the money to him. And that when he get his money from the bank he will repay Charlie in some thousands. And so Charlies gave Aro Kukari a sum of K1, 800.00 in cash. Since then Charlie had not been reimbursed the money until Aro Kukari was arrested in Goroka on 24 October 2006, and charged under Section 404 (1) of the 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 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. Before proceeding further I should discuss the reason why this charge had been dealt with in the District Court in Goroka. The offence was committed in Lae city in Morobe Province. The defendant was arrested and charged in Goroka, Eastern Highlands province. Both the prosecutor and the defendant advised this Court earlier on the 21 December 2006 that the defendant and the victim Charlie Hurutuve are now residents in Goroka, Eastern Highlands Province. Under Section 122 (5) (6) of the District Courts Act, a Principle Magistrate may hear the indictable offences triable summarily at such place and time as determined by the Court. Since the victim and the defendant are both residents of Goroka in the Eastern Highlands Province, it is more convenient that the case be heard by the principle magistrate at the District Court in Goroka, Eastern Highlands Province. These provisions states as follows:

“(5) An indictable offence triable summarily under Section 420 of the Criminal Code shall be heard and determined in a District Court constituted by a Principle Magistrate.

(b) For the purpose of Subsection (5), the sitting of the District Court for the hearing and determination of indictable offences triable summarily may be heard at such time and place as determined by the Court”.

3. By this provision, I have the jurisdiction to hear and determined this charge in Goroka District Court instead of having it transferred to Lae District Court.

4. I now consider the defendant’s plea of guilty. He admitted that he received the money from Charlie Hurutuve. He asked Charlie for financial assistance because Paul Kamap told him that he Aro Kukari had eight million kina sitting in the bank which came in from overseas. He said the sum of K1, 800.00 he received from Charlie was the contributions from Charlie and five others. He got the money and gave it to Paul Kamap.

5. I read the depositions in the file presented to Court by the prosecutor, in particular the statement of Charlie Hurutuve and the Record of Interview. In the record of interview Aro Kukari admitted receiving the money from Charlie but he said he did not know in which bank the money from the overseas is been held. He only heard from Paul Kamap and sought financial assistances for the lawyer to have the money released to him by the bank.

6. Having considered the defendant’s plea of guilty, the statement of facts, the contents of the file presented to Court by the prosecutor and the defendant’s statement in defence, I am satisfied that the defendant made his plea in plain, unambiguous and unmistakable terms. And I find that it is safe to accept his plea of guilty – State –v- Manga Kinjip [1976] PNGLR 86, applied. When defendant sought financial assistance from Charlie or from any one for that matter, he never confirmed with the bank, whatever bank it was, that he actually had the money held in the bank that came from overseas. He only acted on Paul Kamap’s words.

7. The defendant received the money from Charlie Hurutuve in April 2004. Since that time until his arrest on 24 October 2006, he had not reimbursed Charlie. And the defendant vanished from Charlie from that day on until his arrest. Even if the defendant did have the money sent in from overseas and held in one of the banks in Papua New Guinea, he has not reimbursed Charlies money. In the record of Interview, the defendant maintains that the money is in the bank. There is no documentary evidence from the bank to prove that he has that money in the bank.

8. Based on these I accepted the defendant’s plea of guilty and I find that Aro Kukari received from Charlie Hurutuve the sum of K1, 800.00 by means of false pretence by saying that he (Aro Kukari) had millions of kina held in the bank which came in from overseas. And that he needed money to pay for the bank fees and the fees for the lawyer before the money is released to him by the bank. I find defendant guilty as charged for receiving money by false pretence.

9. In sentencing, I considered the defendant’s mitigating factors. He is married with five children and he is unemployed. He is a first time offender. He has pleaded guilty to the charge. He showed no remorse for what he did. He only asked the Court to give him time to repay Charlie’s money. He was a former Provincial member in 1993. He was educated up to grade ten. He is not a simple villager but well educated. Being a former Provincial Member, no doubt would have convinced Charlie Hurutuve that defendant had money coming into the country from overseas, and so Charlie footed in and financially assisted him, believing that he will be reimbursed.

10. The penalty for obtaining goods by false pretence under Section 404 (1) of the Criminal Code is a term of imprisonment for five years. In The State –v- Paukis Takesi N1468 (Unreported), Justice Sevua sentenced the accused to two years imprisonment for false pretence. The accused a lawyer by profession with the State Solicitor’s Office, assisted the claimants and submitted claims to Workers Compensation Office. When the cheques were ready, he collected the cheques claiming that he was authorized by the claimants to collect the cheques. He then cashed one of the cheques valued K7, 000.00 at TST Super Market Tokarara using the ID card bearing his own photo but having the name of Elos Kiki to whom the cheque was payable. In sentencing, Justice Sevua said that the accused was holding a position of trust when he committed the offence therefore he considered a more severe sentence.

11. In the present case the defendant was once a Provincial Member in 1993. Being a former Provincial Member, Charlie Hurutuve would have possibly trusted him when he mentioned of a K8, 000, 000.00 that came in from the overseas and trusted that defendant would repay him with several thousands of Kina. Charlie no doubt had that trust and confident in the defendant that he decided to financially assist him.

12. Although the defendant is the first offender and he had pleaded guilty, he had shown no remorse at all. I also consider the time factor, that is the date he committed the offence to the date he was arrested which took some two and half years. During that period he took no steps to reimburse Charlie instead he simply disappeared. Under those circumstances I consider a custodial sentence as a deterrence to future like offenders.

13. There are no sentencing tariffs for the offence of false pretence. My view is that those persons who are in a position of trust obtain good or money from another by means of false pretence should receive severe custodial sentence than the others. The amount obtained need to be considered as well. The larger the amount the heavier the sentence should be. I consider that the scale of sentence set out by Justice Bredmyer in Wellington Belawa –v- The State [1988 – 89] PNGLR 496 on misappropriation charges, should be applicable to the charges on obtaining goods by false pretence.

14. Applying the sentencing scales in Belawa –v- The State above, the appropriate sentence to be given would be within the vicinity of two years. However having considered that the defendant had pleaded guilty, being a first offender and also that the crime was not reported to police earlier until some two and half years later, I consider that a custodial sentence of twelve months as appropriate. And I convict the defendant and sentence him to twelve months imprisonment in hard labour. The bail money be refunded.

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