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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 951-952 OF 2009
STATE
V
Lae: Toliken AJ
2012: 20th, 28th July
: 21st December
CRIMINAL LAW – Sentence – False pretence – Elaborate frauds involving others and degree of pre-planning – Fraud involved amounts of K10010 and K7410 – Victims, individual and company – Use of Provincial Government receipts as cloak of legitimacy – Forgery of cancelled Provincial Government cheque book to obtain medical supplies – Criminal Code Ch. 262, s 401(1)(a).
CRIMINAL LAW – Sentence – Plea – First time offender – No restitution – No verifiable means to make restitution – Use of government cheque book to effect public confidence in government, government processes and public servants – No existence of trust or breach there of – Head sentences of 1 year and 2 years respectively less period in custody – Offences separate in time, victims and modus of operation – Sentences to be served consecutively – No suspension.
Cases Cited
The Prosecutor v. William Bruce Tardew [1986] PNGLR 91
Wellington Belawa v. The State [1988-89] PNGLR 496
Gimble v. The State [1988-89] PNGLR 241
The State v. John Takesi [1997] PNGLR 507
The State v. John Kil [2000)] PNGLR 253
The state v. Gurua & ors (2002) N2312
The State v. Wesley Nobudi & Ors (2002) N2510
The State v Metz (2005) N2824
The State v Thomas Wakai & Ors (2006) N3360
The State v Jimmy Kendi (No. 2) (2007) N3131 (17th April 2007)
The State v. Gaibole Dickson Larry (2011) N4455 (22nd November 2011)
Counsel:
L. Kleinig and C. Sopa, for the State
V. Agusave, for the Defendant
JUDGMENT ON SENTENCE
21st December, 2012
Count 1: That between the dates in question you pretended to Pastor Thomas Pati and his brother Richard that you in your capacity as an employee of the so-called "National Rural Family & Community Service" was able to secure a business loan funding for the brothers to the value of hundreds of thousands of Kina. You took the money, a total of K10010.00 from them, supposedly in connection with necessary steps to be taken to secure the loan. In return you supplied them with official-looking documentation which included altered Morobe Provincial Government receipts. You were never in a position to secure such funding for the complainants but lied about that to persuade them to hand over money for the purpose of processing their application.(sic)
Count 2: Sometime in 2008, you gained access to the cheque book to a closed Morobe Provincial Government Account. You forged a cheque for the sum of K7410.00.
Then on 21st August 2008, your accomplice Tukari Zozingao presented the cheque to a Michael Drua, a salesman for Niugini Drug Wholesales, a company in the Chemcare Group. Zozingao then obtained drugs and supplies from the company. He sold some of them for K1300.00 and shared the profit the profits with you. You, however, denied sharing the proceeds with you accomplice.
ALLOCUTUS
ANTECEDENTS
SUBMISSIONS FOR THE DEFENDANT
SUBMISSIONS FOR THE STATE
18. Ms. Kleinig for the State on the other hand acknowledged your early guilty plea. She took the Court firstly to the second count particularly to the statement of your accomplice Tukari Zozingao who had admitted that he did receive the largest share of the proceeds but that he gave you K350.00. She urged the Court to believe his version of the facts rather than your denial in your allocutus.
19. Counsel agreed that the leading case of Belawa v. State (supra) provides sentencing guidelines for offences of dishonesty such as yours. She conceded that the first count sits between categories 1 & 2 of Belawa whilst the second count sits in category two.
20. She submitted that each instance of offending must attract separate penalties. Hence, the appropriate sentences should be 1 ½ and 2 ½ years respectively. And whilst the second offence involved a smaller amount of loss to the victim it is nevertheless a second offence that called for personal deterrence.
21. Counsel conceded that others were involved in the commission of these offences but that should not be taken as a mitigating factor. In the first instance she submitted that your reference to your two accomplices as employees shows a joint enterprise between the three of you. You cloaked the illegitimacy of your scheme by issuing what purported to be Morobe Provincial Government receipts.
22. Counsel further submitted that the second offence was also a joint enterprise. You had access to the closed Provincial Government Cheque Account, wrote out the cheque and gave it to Zozingao who in turn obtained the medical supplies in question. She therefore submitted that there is nothing in your involvement when compared with your accomplices that should mitigate your crime.
23. As to whether sentences ought to be served cumulatively or concurrently counsel submitted that your offences were quite separate from one another in time, victim and modus operandi or mode of execution or operation. Hence, the normal rule should apply here i.e. the sentences should be cumulative providing that the total sentence is not crushing on you.
24. And on the question of suspension of sentence counsel referred me to The Prosecutor v. William Bruce Tardew [1986] PNGLR 91. There the Supreme Court postulated three broad categories under which sentence partly suspended.
25. As regard your willingness to make restitution, counsel drew the Court's attention to the fact that you were out on bail up to and including the time you absconded on 06th June 2011. Hence you have had ample time to set matters straight with the victims. She therefore asked the Court to be cautious about your willingness to make restitution and expression of remorse.
PRE-SENTENCE & MEANS ASSESSMENT REPORTS
26. A Pre- Sentence Report and Means Assessment Report were filed by the Community Corrections Officer Peter Paine. However, both reports do not favour you. They do not make any recommendations in your favour.
SENTENCING ISSUES
27. The sentencing issues are what would be an appropriate sentence for you and, whether any of that should be suspended.
THE LAW
28. The offence of false pretence carries a maximum penalty of 5 years imprisonment. Section 404(1)(a) provides:-
404. OBTAINING GOODS OR CREDIT BY FALSE PRETENCE OR WILFULLY FALSE PROMISE.
(1) A person who by a 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) ...
is guilty of a crime.
Penalty: Imprisonment for a term not exceeding five years.
(2) ...
(3) ...
OBJECTIVE CONSIDERATIONS AND SENTENCING TREND
29. So how have the courts treated offences of dishonesty but more particularly false pretence?
30. The leading case in cognate offences of dishonesty is still Wellington Belawa v. The State (supra). As I have already alluded to above, it was held there that in these types of offences which include false pretence the court should take the following factors into account. These are:
31. Belawa also provided a useful sentencing scale as shown below:
| Amount misappropriated/fraudulently obtained | Appropriate term of imprisonment |
| Imprisonment should rarely be imposed |
| Up to two (2) years |
| Two (2) to three (3) years |
| Three (3) to five (5) years |
32. These guidelines continue to guide the courts when sentencing offenders for offences of dishonesty such as your offences.
33. It must be noted, however, that guideline sentences merely provide a useful guide for a sentencing court. They should not prescribe specific sentences and are not meant to remove the courts discretion to impose appropriate sentences. Nor are they meant to be mechanically applied. What they are meant to do is to guide the courts towards maintaining parity in sentences so that like offenders are met with like or similar sentences or sentences within a certain range. Each case must to be treated on its own circumstances and an appropriate sentence accordingly imposed.
34. The Belawa guidelines cover an array of factors which are not exhaustive I should think but which may mitigate or aggravate each particular offence. They also provide a useful scale of options for the sentencing court.
35. So what has been the sentencing trend by the National Court over the years from Belawa onwards?
36. In Belawa itself the appellant was sentenced by the National Court to two years imprisonment for obtaining goods – a fibre-glass dinghy and a 15 horsepower motor – valued at K1979 by false pretences. He appealed against the severity of sentence. His appeal was, however, roundly dismissed by the Supreme Court which then laid down the principles discussed above.
37. In State v. Takesi(supra), decided in 1996, 7 years after Belawa, the accused – a lawyer who acted for certain workers compensation claimants and obtained K7000 from the payout after falsely representing himself to an employee of the Office of the Commissioner for Workers Compensation that he had the claimants' authority to collect the payments - was sentenced to 2 years imprisonment. The accused had submitted in his allocutus, among other things, that he was a first offender, that his offence had brought shame upon himself and his family, that he be given every opportunity to make restitution, that he was a law abiding citizen and therefore posed no danger to the community. He further asked the court to consider the sentencing guidelines set out in Belawa (supra).
38. On the prisoner's plea for leniency and the application of the Belawa principles to his case, His Honour Sevua J. did not think that this was a case for a non-custodial sentence. He reasoned that the amount involved was substantial, that there was greater culpability because of the higher degree of trust reposed in the accused in his capacity as lawyer and that whilst the fraud was executed within a very short period of two days, the impact on the public and public confidence and of course the victims were things that he could he could not easily overlook.
39. On the plea for an opportunity to make restitution His Honour noted that even after two and half years after the offence was committed the accused had not made any genuine attempts to set things right with his victims. Furthermore the accused had not shown any real remorse and the shame and disgrace that has befallen him and his family were outweighed by the abuse of the high position that he held.
40. In conclusion His Honour held that a custodial sentence was appropriate and sentenced the accused to 2 years.
41. In State v. John Kil (supra) on the other hand, the prisoner had borrowed K1740 from the victim through the victim's friend after falsely promising to repay the money. He took the money and disappeared for two years. His Honour Kirriwom J. was of the view that the prisoner was genuinely sorry for his offence, was willing to repay the money, that the victim's prime concern was to have his money back and that at that time this type of stealing was not prevalent at that time. His Honour held that in false pretence cases of monies borrowed and not repaid, restitution must be the primary objective of the sentencing authority and every avenue must be exhausted for a non-custodial punishment option. Imprisonment must be the very last resort. He imposed a suspended sentence of eight months.
42. In The State v Metz (2005) N2824, the prisoner made false representations to the manager of guest house that millions of Kina from the sale of Treasury Bills were soon to be paid directly into his bank account. Believing this to be true, the manager permitted the prisoner to obtain cash, accommodation, meals, drinks and cigarettes. He even took in extra guests. The fraud was perpetrated over a period of seven and half months within which time the prisoner had ran up a bill of K70,445.36. He was not able to settle the amount when he finally checked out.
43. On a plea of guilty, Manuhu J., guided largely by the principles in Belawa but at the same time considering Takesi (supra) and Kil (supra) imposed a sentence of three and a half years. His Honour noted also that sentencing trends were hard to determine at that time as false pretence cases were seldom reported.
44. In The State v Thomas Wakai & Ors (2006) N3360, the prisoners were convicted of two counts of false pretences after trial. The court found that they had falsely pretended to be police officers (only one was) and removed horse racing machines from two separate residences in Port Moresby allegedly under a court order. They were clad in police uniforms. Sevua J. imposed concurrent sentences of 3 ½ and 2 ½ years respectively.
45. In The State v Jimmy Kendi (No. 2) (2007) N3131 (17th April 2007) the prisoner was convicted after trial on one count of obtaining monies by false pretence and one count of misappropriation contrary to ss 404 and 383A (1) (a) of the Criminal Code respectively. The amount involved was four million, two hundred and ninety eight thousand, thirty seven kina and thirty three toea (K4, 298, 037.33), the property of the State.
46. Lenalia J., considered Belawa (supra.) and Metz (supra) amongst a long list of cases mostly involving misappropriation. On the question of trust His Honour said at paragraph 71 of his judgment:
"The point that has been stressed in all the above cases is that, the greater the degree of trust is, the higher the culpability
is placed on those people who are in high positions. In the case before me, although the prisoner was not in the category of cases
which I have cited, he was not on the position of trust, but as an experienced businessman in his own right, had a duty to conduct
his business activities with honesty and dignity. Without such dignity and honesty, he can loose the trust and confidence not only
on his own business but it may affect the business community and the government as well ..."(sic.)
47. His honour then applied the principles in Belawa and considering the seriousness of the fraud and the amount involved sentenced
the prisoner on the count of false pretence to 4 years imprisonment.
48. In The State v Dominic Kurai (2008) N3435 the prisoner pleaded guilty to obtaining goods to the value of K728.86 from a store by false pretence using an order book of his
former employer without the latter's authority. He was sentenced to 12 months which was suspended with conditions.
49. And finally in The State v. Gaibole Dickson Larry (2011) N4455 (22nd November 2011), the prisoner pleaded guilty to obtaining K500.00 from a friend by falsely promising that he will repay the
money but did not. Here Cannings J. referred to The state v. Dominic Kurai (supra) and three other cases (unreported) of forgery
and uttering which he thought provided useful benchmarks because of similar facts even though they were different in nature to the
charge before him. (The State v. Eddie Apuai, CR 1018/2005; The State v. Aaron Wai, CR 926/2005; The State v. Benson Raka, CR 447-450/2006).
50. Cannings J. fixed a head sentence of 2 years imprisonment of which 5 months were deducted for pre-trial custody. The balance was
then fully suspended with conditions.
51. Therefore as we have seen from the cases reviewed above actual sentences imposed by the Court have ranged from eight months to
four years imprisonment depending on subjective circumstances of each case and the application of principles in Belawa.
52. As we have seen the higher the degree of trust reposed in the prisoner and the higher the amount or value of the property involved
the higher the sentence.
53. But what is perhaps worthy of comment is the disparity in the sentences imposed in Kil (supra) and Gaibole Dickson Larry (supra)
– 8 months and 2 years respectively. The amounts involved there were K1740 and K500 respectively which were borrowed but not
repaid. Both prisoners had pleaded guilty to the charges, had no priors and offered restitution. Similarly all that their respective
victims wanted was for their monies to be repaid. Furthermore Cannings J. made no reference at all to Belawa.
YOUR OFFENCE – SUBJECTIVE CONSIDERATIONS
54. I now turn to the subjective considerations of your cases.
55. Firstly I take into account your mitigating factors.
56. The aggravating factors against you are:
57. For procedural fairness I shall consider the circumstances of each count separately.
Count 1
58. The brief facts show that you gained the confidence of the complainant and his brother. You represented yourself as an employee of the so-called "National Rural Family & Community Service" and falsely represented yourself as being able to secure a business loan for the brothers to the value of hundreds of thousands of Kina. You took their money, a total of K10010.00, on separate occasions, supposedly in connection with necessary steps to secure the loan. In return you supplied them with official-looking documentation which included altered Morobe Provincial Government receipts. You were never in a position to secure such funding for the complainants but lied about that to persuade them to hand over money for the purpose of processing their application.
59. The statements and documentary exhibits in the committal file reveal an elaborate fraud that involved several people including yourself. Official looking Morobe Provinsal Gavman receipts were issued for monies that were received from Pastor Thomas Pati and his brother Michael Nimb on the 26/02/2007 and 27/02/2007 purportedly as equity and processing fees. You admitted to signing these receipts in the Record of Interview. For completeness I tabulate the details below:
| Date | Receipt No. | Amount | Received From |
| 26/02/2007 | A140610 | K100 | Thomas Nimb Fam/Grp |
| 27/02/ | A140609 | K390 | Pr. Pati Family Grp |
| 27/02/2007 | A140611 | K2440 | Pr. Thomas Pati Family Group |
| 27/02/2007 | A140612 | K5080 | Richard Nimb Family Group |
60. What followed were a series of letters under the hand of an associate of yours, one Tissh Yaneng who held himself out as the Finance Manager, Momase Region. The first of these were letters dated 05/03/007 that were separately addressed to Mr. Nimb and Pastor Pati advising them of the status of their K750000 loan application. The next letter from Tissh Yaneng to Pastor Pati was dated 16th April 2007. It basically advised Pastor Pati that his loan of K1.2 million had been approved and was awaiting the preparation of the loan documentations.
61. If that were not enough, on 13/04/007 a Mr. Kinsley delivered a valueless ANZ cheque for the sum of K134,000.00 to Pastor Thomas Pati. For that, Kinsley collected K300 purportedly as clearance fee for the cheque. A further K2032 for various things such as insurance, lunch, mobile phone cards, plane tickets, snapshots and bus fares were paid by Pastor Pati to you and your associates.
62. This fraud was perpetrated over period of about three months, by which time both Mr. Nimb and his brother Pastor Pati were left some K10000 poorer.
63. What stands out in this first count is that the fraud seems clearly to have been well planned and orchestrated with a cloak of legitimacy. The purported company had a letter head under which all correspondences were conducted and there is suggestion that it even was registered with the Investment Promotion Authority. Sadly it was merely a veil and vessel for fraudulent activities.
64. Let me now transpose the circumstances of this case against the considerations in Belawa.
| Factors taken into account | Personal Circumstances |
| Amount taken | K10010.00 |
| Quality and degree of trust | Neutral |
| Period fraud was perpetrated | 3 months |
| How was the money used? | Not apparent from the committal statements |
| Effect on the victim | Lost substantially |
| Effect on public & public confidence | Neutral |
| Effect on offender | Obviously lost face in family, community and business circles |
| Offenders history | Self employed but had been previously employed by the Morobe Provincial Administration. Married with two wives, has 5 children. |
| Restitution | No meaningful attempt to make restitution though had opportunity to do so. No means to make restitution according to MAR. |
| Matters of mitigation | Guilty plea, first time offender, no evidence of being under any kind of pressure to force you into committing the fraud though pressure
of maintaining 2 wives and 5 children may have been a contributing factor. |
65. Let me now consider the second count.
Count 2
66. In regard to the second count the facts show that you colluded with Tukari Zozingao to obtain medical supplies from Niugini Wholesale Drugs using a forged Morobe Provincial Government cheque book to a closed account.
67. Despite your statement in your allocutus that your only involvement in the matter was giving Zozingao the cheque, which seems to me to be suggesting that the actual fraudulent representation and obtaining of the goods was done by Zozingao to Michael Drua of Niugini Wholesale Drugs, there is very little doubt that you played a very important role in facilitating the fraud.
68. It was you who set the train of events into motion and, it may very well have been you who cooked up the whole enterprise. You had access to the government cheque book for the closed Morobe Provincial Government account and knew about the status of this account.
69. You were the one who wrote the check knowing full well that it was virtually valueless and knowing full well that the supplier would be acting on the good will of the Provincial Administration as a major purchaser of its (supplier) goods and services.
70. You may have not been present physically when Zozingao presented the cheque and took delivery of medical supplies but that to me is immaterial because this was a joint enterprise where your accomplice was only playing his part.
71. You therefore played a very important role in the commission of this offence and that will be appropriately reflected in your sentence.
72. I have also tabulated the relevant factors as laid down in Belawa and transposed them against your personal circumstances for this second count.
| Factors taken into account | Personal Circumstances |
| Amount taken | K7410 |
| Quality and degree of trust | Neutral |
| Period fraud was perpetrated | Less than a month probably a weeks |
| How money was used | Not known |
| Effect on the victim | Loss of business and profit. |
| Effect on public & public confidence | Loss of trust in government, its processes and servants |
| Effect on offender | Not loss of face in family, and community. |
| Offenders history | Self employed but had been previously employed by the Morobe Provincial Administration. Married with two wives, has 5 children. |
| Restitution | Nil - No meaningful attempt to make restitution though had opportunity to do so. No means to make restitution according to MAR. |
| Matters of mitigation | Guilty plea, first time offender, no evidence of being under any kind of pressure to force you into committing the fraud though pressure
of maintaining 2 wives and 5 children may have been a contributing factor. |
AN APPROPRIATE SENTENCE
73. So what would be an appropriate sentence for each of the two counts against you?
74. Both your lawyer and the lawyer for the State concede that your offences sit between Categories 1 & 2 of the Belawa tariffs – attracting sentences of between 2 – 3 years.
75. You lawyer submitted that your sentences should be between 1 -2 years while the State asks for a sentence of 1 ½ years for the first count and 2 ½ years for the second count.
76. Now the cases reviewed above have carried sentences from as low as 8 months to 4 years.
77. I have already commented above about two of these cases – John Kil and Gaibole Dickson Larry (supra) which attracted sentences
of 8 months and 2 years respectively. The amounts involved there were K1740 and K500 respectively which were borrowed but not repaid.
Both prisoners had pleaded guilty to the charges, had no priors and offered restitution. Similarly all that their respective victims
wanted was for their monies to be repaid.
78. The case involving the largest amount of monies – Jimmy Kendi (supra) – on the other hand attracted 4 years and involved
a lot more pre-planning, a lot more people, false accounting and was perpetrated over a longer period of time.
79. In the circumstances of your cases I set starting points of 1 ½ years for the first count and 2 years for the second. I agree
with Ms. Kleinig that whilst the second count involved a lesser amount it was nonetheless a second offence and must attract a slightly
higher sentence for deterrence.
80. So taking into account your mitigating factors and those that aggravated your offences and the fact that these offences did not
involve a breach of trust reposed in you by any law or reposed in you by any fiduciary duty, I impose a head sentence of 1 year for
count 1 and 2 years for count 2. Your total sentence is therefore three (3) years.
81. These sentences are separate in time, victim and modus operandi and therefore must run consecutively. I have taken into account
the totality principle and I am of the view that the total sentence is not crushing on you.
82. I deduct 1 year and 17 days for the period you have spent in custody awaiting sentence. This should leave a resultant sentence
of 1 year 11 months and 13 days.
83. None of this is to be suspended as it is obvious from the Pre-Sentence Report and Means Assessment Report that you have no verifiable
means of income to make restitution to your victims.(Tardew v The State (supra) considered but not applied)
84. Now in sentencing you I note that your accomplice Tukari Zozingao was convicted for his part and was given a suspended sentence
of one year on condition that he makes restitution. I take that into account and the principle in Gimble v The State (supra) but
I feel that you should get a slightly higher sentence for the reasons advanced above.
85. Finally offences of dishonesty such as false pretence, stealing and misappropriation have increased markedly over the years. The
modus operandi has also taken on new levels of sophistication with the advent of the computer age and information technology. And
ultimately perpetrators of dishonest enterprises have often left a train of extremely distraught people with deep holes in their
pockets and with some victims ending up completely financially ruined.
86. Therefore these offences must be met with appropriate sentences, if anything, for personal and public deterrence.
87. My orders are there as follows:
| Head sentence for count 1 | 1 year |
| Head sentence for count 2 | 2 years |
| 3 years to be served consecutively | |
| Period deducted for pre-sentence custody | 1 year and 17 days |
| Resultant sentence | 1 year 11 months and 13 days to served at Buimo Corrective Institution |
| Period suspended | Nil |
________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner
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