State v Bolkun [2012] PGNC 75; N4689 (28 May 2012)

N4689

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1391 OF 2010

THE STATE

V

JOHN BOLKUN

Waigani: Makail, J
2012: 16th, 22nd & 28th May

CRIMINAL LAW: Plea - Sentence - Obtaining good by false pretence - Money - K165,000.00 - Mitigating and aggravating factors considered - Non-custodial sentence appropriate - Restitution appropriate - Criminal Code, Ch 262 - Sections 19 & 404(1)(a).

Cases cited:

Nil

Counsel:
Mr D Kuvi, for the State
Ms L Dawa, for the Prisoner

SENTENCE

28th May, 2012

1. MAKAIL, J: The accused is indicted with one count of obtaining goods by false pretence under section 404(1) (a) of the Criminal Code, Ch 262. The prescribed maximum penalty for this offence is a term of 5 years imprisonment. He obtained K165,000.00 from the State through the Department of Works.

2. He pleaded guilty to the charge and was convicted on the following facts that were put to him on arraignment; between 2005 and 2008, the Department of Works carried out road maintenance works along the Highlands Highway under a program known as Highlands Highway Rehabilitation Program ("HHRP"). This exercise involved the widening of the highway and meant structures within a certain length of the highway's corridor would be demolished to make way for the widening of the highway. Among the sections of the highway, maintenance work was carried out along the Giwimuglo section of the Chimbu Province.

3. Between 2006 and 2008, the prisoner began writing to the Department of Works falsely claiming that he built and owned a permanent dwelling house with an adjoining canteen and a snooker table along Giwimuglo section of the highway and that property was destroyed by Shorncliffe Limited, a construction company engaged by the Department of Works in the HHRP exercise. He claimed that he built the house through the POSF Housing Advance Scheme in 2001. On 18th September 2008, he produced to the Secretary for Department of Works the following false documents of the purported house:

(a) Structural Improvement showing a 2 bed-room permanent house with an adjourning canteen and snooker table;

(b) Letter dated 22nd January 2007 addressed to the then Secretary for Department of Works Alphonse Niggins by the prisoner claiming to own a house, adjoining canteen and snooker table;

(c) Letter dated 08th February 2007 purportedly drafted by the then Administrator for Chimbu Province Joe Bal to Department of Works;

(d) Letter by Department of Works to the accused dated 27th February 2007;

(e) Purported letter from Shorncliffe Limited to Chimbu Provincial Administrator dated 16th October 2006 claiming property of accused was destroyed; and

(f) Letter by accused to Department of Works following up payment.

4. He falsely represented to the Department of Works that the property was worth K165,000.00 without producing a report from the Valuer General's Office to verify the value. As a result, the Department of Works raised a cheque in favour of him and deposited it into his account with BSP Bank on 26th September 2008. Following a verification exercise, it was discovered that the claim by the accused was false because there was no valuation done to support the claim and that the local people confirmed that the accused did not own a property of that description.

5. I note the following matters he raised on allocutus:

(a) He is sorry for what he did;

(b) His parents owned a semi-permanent of similar description. When payments were made by Department of Works, they and in particular her mother missed out. When a supplementary list of claims were provided to Department of Works, the claim was included but the value of K165,000.00 was mistakenly put on the property. He did not bother to inform the Department of Works. Instead, he followed up and received K165,000.00;

(c) He used some of the money to buy a 25 seater Toyota Coaster bus. He drove it for 5 months when police impounded it at the time they arrested and charged him. It was subsequently released to him and is presently at his house; and

(d) He is prepared to repay the money. One source is the bus. He could sell it and the proceeds could be returned to the State. The other source is his 3 bed room house and finally, his fortnight pay.

6. Pursuant to his counsel's application, an order was made for a pre-sentence report and a means assessment report to be provided. Both reports have been provided. According to the pre-sentence report, he is married and has 2 children who are aged 9 and 7 respectively. He lives with them and his younger sister at his wife's village at Korobosea. His wife is shocked that he has committed an offence as she did not know about it until they started attending this Court proceeding. He is educated up to Grade 12. He has also completed Lahara and Awareness course at the University of Papua New Guinea and obtained a Certificate of Completion. He is currently employed as Acting CACC Coordinator with the Department of Prime Minister and earns K472.35 net pay per fortnight. Finally, he is a first offender and remorseful.

7. The means assessment report reaffirmed his willingness to repay the money. The valuation by Carpenters Motors dated 17th May 2012 states K45,000.00 as the value of the bus. He has no savings in his bank account as his fortnight pay is spent on supporting his family but is willing to use some of it to repay the money. The 3 bed room house is located at June Valley and can be put on rent. There is a proposed tenant ready to rent it at K2,500.00 per month starting next month.

8. His counsel submitted this is not a worst case of obtaining goods by false pretence and the State prosecutor submitted it is. I accept the amount taken is substantial. It is K165,000.00. There is some degree of pre planning because the prisoner knew that the value of K165,000.00 was wrong and yet went ahead and pursued the claim with the Department of Works. He did that by submitting the above stated documents to the Department of Works and followed up until he received payment. This took about 2 years.

9. He used false documents and carefully orchestrated and the fraud was not detected until after payment was made and money was received by the prisoner. It was well orchestrated because he is well educated and used his knowledge and experience as a public servant to get the necessary approvals from the Provincial Administrator of Chimbu Province and the Department of Works for the release of the money. When he received the money, he used it himself. He bought the bus and house. He made no restitution to date and the offence is prevalent. These are the aggravating features of the case.

10. Against them are; the prisoner's early guilty plea which has saved time and money to conduct a trial if it was otherwise, cooperated with the police during the investigations, remorseful, first offender and no position of trust. The pre-sentence report recommended that he is a suitable candidate for a non custodial sentence with restitution.

11. Weighing the mitigating and aggravating factors up, I am of the view that a non custodial sentence with restitution is appropriate. In holding this view, I warn the prisoner not to be misled and think that he can walk free. He must be reminded that what he did was in fact stealing from the State because the State has allocated money through the Department of Works to compensate people living along the Highlands Highway for damage done to their properties as a result of the rehabilitation exercise. His actions had deprived other genuine claimants from receiving what they were legitimately entitled.

12. Because of this, he must repay the money to the State. I am satisfied he has the capacity and means to repay the money. He may sell the bus and use the proceeds to repay it. He may also use rental monies from his house to repay it and also his fortnight pay to repay it. I will not fix a sum from his pay but leave that to his discretion so long as he is able to repay the full amount within the time frame I will fix shortly.

13. For these reasons and in the exercise of my discretion under section 19 of the Criminal Code, Ch 262, I impose a wholly suspended sentence of 3 years imprisonment and order him to be of good behaviour for that period and give surety to the equivalent sum as his cash bail. His cash bail shall be converted to surety. Further, I order that he repay K165,000.00 to the Department of Works within one year from the date of this order. Failing that will result in him serving the sentence from the date of breach.

Sentenced accordingly.

____________________________________
Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Prisoner