State v Bill Baru [1997] PGNC 21; N1546 (6 March 1997)

Unreported National Court Decisions

N1546

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 732 OF 1997
THE STATE
v
BILL BARU

Waigani

Batari AJ
6 March 1997

CRIMINAL LAW - Sentence - Stealing - Breach of Trust - Salesman falsely pretended to sell vehicles to victims and retained value of deposits - K9,790.00.

CRIMINAL LAW - Sentence - Plea - Delayed plea of Guilty - Observations on - Mitigating factors - Aggravating factors - Considerations of.

CRIMINAL LAW - Sentence - Effect of sentence on health of accused - Accused to show cause why imprisonment is not justified - Onus not discharged.

No Cases Cited.

Sentence

On a plea of guilty to three counts of stealing, total amount of K9,790.00 the following judgment was delivered on sentence.

Counsel:

L Maru for the State

M Apie’e for the Accused

6 March 1997

BATARI AJ: The prisoner Bill Baru has pleaded guilty to stealing a total of K9,790.00 charged on three different counts upon his indictment.

FACTS

The facts which formed the basis of the charges were that, between August and November, 1995 the prisoner worked as a Sales Representative with Meridian Motors Pty Ltd. On 11 of August first vict victim Tamalai Uroki requested from him a quotation to support his application to the Rural Development Bank for a loan to purchase a maxi loader truck from Meridian Motors Pty Ltd. The prisoner prepared the quotation and advised his customer to make down payment for the vehicle. Tamalai Uroki paid him K.0060.00 in cash.&#160assured the customer, he would take the quotation to the Rural Development Bank and negotiagotiate the loan on his behalf. Thisnot eate.& The prhe prhe prisoner retained the money and used ited it for his own benefit. On the second which involinvolved the suK3,430.00 the the prisoner obtained that amount from the victim customer under similar circ circumstances as the first count. Time hr, the accused told told the victim to pay K400.00 but0 but he instead received deposit payment of K450.00 from the victim custo#160; Upon his follow-up, the victim was told the first quotation was invalid and that he w he was to make further down payment of K3,000.00 on a revised price. The victim paid that amount but waited in vain for his loan or vehicle because the prisoner did not account for the money as promised. The offence was commitetwebetween 1st and 8 November, 1995. On the third cothe victimocustomer paid K3id K3,300.00 from a Rural Development Bank loan, to the prisoner as purchase price for a maxi loader truck by Man Motors Pty Ltdy Ltd. The pri failed to deliver iver the vehicle. He also faio failed to pay the money into the company account and had since failed to account for that money.

THE OFFENCE

The offence with which the prisoner is chararries a maximum penalty of 7 years imprisonment under s.37 s.372(1) and (10) of the Criminal Code. He is liable to be imprisoned up to that maximum term subject to the application of s.19 of the Criminal Code which give the Court discretion to impose impment for any shorter term with or without conditions. This necely means the Cour Cour Court ought to have before it all relevant facts for and against the prisoner to arrive at what may be considered as the appropriate penalty in all the circumstances of ase.

CONSIDERATIORATIONS ON SENTENCE

I am satisfied that, you had falsely pretended to the victim customers in order to steal, from them. is a classic case of fraudfraudulent stealing by persons commonly known as “conmen” and instances of such cases are quite prevalent here. Your offeas perpetrated oved over a period of time and it would seem that had the victims not complained early, more potential customers of Meridian Motors Pty Ltd would have fallen victims of your tri. I do however have rave regard to the fact that the offences did not involve any great deal of sophistication or planning.

The effect of your conduct on the other hand would have had devastating effect on the income and lives of the victims who were simple village subsistence farmers. You were a professional lehicle sales representative in whom those simple village farmers placed their trust and hope that through your assistance they would achieve their goal. They ed your position and and psional advice because that that was what you were paid to do. You brd that trust. 160; Besides, youe is seri serious becat involved a substantial amount of money.

You have pave pleaded guilty to each count and have expressed remorse. Althougis yoght tt the Sthe Sthe State’s case on a trial, it woul would have been to your greater benefit had you pleaded guilty early becan the face of the Court depositions tendered, one would have considered that to be the appr appropriate course instead of causing your case to be set down as a trial some 6 months ago. What teans is that, if youf you had pleaded guilty initially, you would have been dealt with and by now, all or a substantial part of your penalty would have been served. Nevertheless, you aretled to a discount of sentesentence upon your plea of guilty and I will deduct sometime for that.

I also take into account yousonal and family background.

You have stressed through your lawyer that you have a me a medical condition which require future treatment. A letter from edical RegisRegistrar, Dr David Linge, states that you have a condition of limb weakness and would require specific therapy treatment and regular doses of sodium bicarbonate.

Your lawyer did not however, say this treatment is not available or would not be obtained through prison authority if you are imprisoned. There is also no evidence as to what effect imprisonment is likely to have on your medical condition. I am not able to assume imat imprisonment is not gor your health because that is not supported by medical proof. What Iimply sayingaying isng is this, I must consider sending youail as the law says subject to medical proof of the likely kely effect of imprisonment on your health and welfare together with othervant considerations. 160; Your al discharge sume summary and Dr Linge’s letter contain a description of your ailment and future treatment, but say nothing about the effect of imprisonment on your health. In any case,ou were ordererdered imprisonment, CIS authorities would no doubt provide facilities or means to enable continuation of your medical treatment.

I have ald regard to the fact that your offence appear inexplanable.able. I do not know whether you committed the offences under some form of pressure as for instance through financial hardship. On ther hand, it was submisubmitted that you have two vehicles you could sell to repay the moneys taken. I am incliinclined to thiuk you committed the offences through plain foolishness andidity as you appeared to beto be a man of means. Your offer of restin comescomes somewhat late. Fro time of the offeou hadu had over 18 months to reto repay the victim’s their money, but you did nothing while your victims continue to experience thess.I consider that that imprisonment is appropriate in all thll the circumstances of your case. Ir that you be imprisoned oned as follows:

Count 1 &ـ < < 12 monthsCoupt 2 &160; &҈ 12 months

C

Count 3 ـ 18 monthsonths

I further order that:

(i)҈&ـ the sentenc Counnd servederved cumulatively.

(ii) the the sentesentence once once on Coun Count 3 be served concurrently with Counts 1 sentences.

(iii) the sentenentences be served in light labour.

(iv) &##160; Each sentencetence is susdended wholly if the prisoner repays to each victim, the total amount taken and enters into a recognition to be of good behaviour for a period of two yearsn fultitution of the sthe sum of K9,790.00.

(iv) &##160;ent ment is to be mabe made through the Registrar of theNational Court at Waigani.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor