State v Bob [2013] PGNC 243; N5382 (23 April 2013)

N5382

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR. 983 of 2010

THE STATE

V

IVAN BOB

Wewak: Geita AJ
2013: 16, 19, 20, 22, 23 April

CRIMINAL LAW – Sentence – Criminal Code, Subdivision VI.1.F (obtaining property by false pretences and misappropriation) – Section 404(1) (obtaining goods or credit by false pretence or wilfully false promise) – sentence on plea of guilty – obtaining K5025.00,00 cash by false pretence and misappropriation

CRIMINAL LAW – The maximum penalty for an offence under Section 404(1) is five years imprisonment - A sentence of two years imprisonment was imposed- sentence wholly suspended with conditions - Prisoner placed on Probation for 12 months

Cases cited:

The State v Dominic Kurai (2008) N3435
The State v Wellington Belawa [1988-1989] PNGLR

Counsel:

Mr. Kupmain, for the State
Mr. Fingu, for the accused

DECISION ON SENTENCE

23 April, 2013

1. GEITA AJ: You Ivan Bob pleaded guilty to obtaining money by false promise with intent to defraud and have been convicted of that offence under Section 404(1)(a) of the Criminal Code. You are now before the court to be sentenced.

Brief Facts

2. The facts reveal that between 4 August 2009 and 25 September 2009 you approached the victim and told him that you were doing some maintenance work for National Housing Commission and the house you were repairing would be sold to the victim for K19,000.00. You asked the victim for K5000 as part-payment and was given to you believing that the money would go towards the house. Instead you deposited the money into your construction company account and used the money. During the same period you asked the victim for K525.00 for maintenance work to be done on the promised house before they could occupy it. That you falsely pretended to the victim and further misrepresented to the victim who paid you a total of K5025.00 which was never repaid to them until the day you appeared in court for your trial.

Antecedents

3. No prior convictions were recorded against you by the State.

Allocatus

4. When you were invited to tell the court on matters you wanted the court to take into account in your favour you said you were sorry for giving the victim a hard time and that you have now paid the full amount of K5550 to the victim at the police station. You told court that it was first time and you asked for leniency and to be placed on probation.

5. You have pleaded guilty and expect the court to give you leniency and accept that as part of your remorse however the court thinks otherwise. You waited for more than two years (2) and repaid all the monies given to you by the victim during the eve of your trial. Your construction company's cash flow problems at the time are of no concern to the victim. His concern is the repayment of his monies. That in my view falls short of a genuine remorse and restitution. The victim has suffered unnecessarily all these years due to your dishonesty. I find no mitigating factors in your behaviour.

Pre-Sentence Report

6. You a 33 years old and married with two children of your own and adopted two other children from your elder brother. You come from Kamuk village, Angoram in East Sepik Province. Three of your children are in school and one is staying at home. You have recently completed your grade twelve education through CODE but I see no proof of this in your report. You are self employed and run a building construction company based in Wewak.

Submissions by Defence Counsel

7. Your Lawyer Mr Fingu highlighted the guilty plea and admitted that it came a little late because your construction company was having cash flow problems and could not repay the victim's monies. This resulted in the victim taking out enforcement proceedings at the Wewak District Court. Mr Fingu submitted that you finally repaid the victim's monies on 24 January this year after receiving K9,000 for work done with National Housing Corporation. Furthermore, on- going discussions resulting from a civil suit taken out by the victim was also advanced as another reason for the delayed settlement. A wholly suspended sentence with a starting point of 8 months was submitted to be appropriate sentence by the prisoner's counsel.

Submissions by the State

8. Mr Kupmain raised no serious objections, save to tell the court that the offence was a serious one in that the prisoner lied to the victim and obtained those monies. He urged court to consider an exemplary sentence of deterrence to the prisoner and others who may be contemplating on committing similar offences. Mr Kupmain submitted that the prisoner's plea in mitigation for the welfare of his family should not be given weight. After all, the prisoner should have thought about his family's welfare first before committing the offence, hence he has himself to blame.

Decision making process

9. The maximum penalty under Section 404(1) (a) is five years imprisonment.

10. I consider the middle range to be the appropriate starting point and that is two and a half years imprisonment.

11. In our jurisdiction the case of Wellington Balewa v The State [1988-1989] PNGLR 496, although somewhat dated over time is often referred to by court as a benchmark case in determining sentences of this kind. A goal term of up to two years is considered appropriate where amounts of monies misappropriated range between K1,000 and K10,000.

12. In the case of The State v Dominic Kurai (2008) N3435 the offender pleaded guilty to an offence under the same provision that applies in the present case: Section 404(1)(a). He obtained goods from a store worth K728.86 by false pretence. He used the order book of his former employer without authority. He was sentenced to 12 months imprisonment, which was suspended on various conditions (Per Cannings J)

13. The mitigating factors are:

1. it was a one-off transaction;
2. you pleaded guilty

100. you are a first time offender.
     

14. The aggravating factors are:

(a) waited two years to make restitution;
(b) lied with intent to defraud
(c) victim suffered greatly as a result of your lies.
(d) Money you took from the victim is a big amount as far as the victim is concerned.

15. After weighing all these factors and comparing this case with other similar cases I impose a head sentence of two years imprisonment.

16. The victim has expressed the desire to see you go as a free man after you repaid his monies together with an additional K432. The States submission for an exemplary sentence of deterrence has been noted and will be included in the conditions. I have therefore decided to suspend the whole of the sentence with conditions.

Sentence

17. Ivan Bob Kami, having been convicted of one count of obtaining money by false pretence with an intention to defraud and misrepresentation, contrary to Section 404(1)(a) of the Criminal Code, you are sentenced as follows with the following conditions:

1. Length of sentence imposed - 2 years
   
2. Amount of sentence suspended - 2 years
   
3. You will be placed under the supervision of Probation Office Wewak over a 12 months period. Such office to furnish quarterly reports to the National Court Registry.
   
4. You are ordered to refrain from fraudulent activities
   
5. You are ordered to attend church service every Sundays at a Christian Church of your choice and renew your faith.
   
6. Probation Office to report any breaches and non compliance with conditions of suspended sentence.
   

Sentence accordingly.
____________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused