State v Wapa [2013] PGNC 373; N9048 (25 October 2013)

N9048

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 659 OF 2013

THE STATE

V

SAMSON WAPA

Alotau: Toliken, AJ
2013: 17^th, 25^th October

CRIMINAL LAW – Sentence – Obtaining property by false pretence – Prisoner borrowed K2000 with promise to repay – Failed to repay – Guilty plea – First time offender – Promise of restitution – Appropriate sentence – 12 months less pre-sentence custody period – Appropriate case for suspension to a allow for restitution – Balance suspended with conditions – Criminal Code Act Ch. 262, s 404 (1)(a).

Cases Cited

The Public Prosecutor v Bruce W Tardrew [1986] PNGLR 91
The State v John Kil [200] PNGLR 253
The State v Sam Kayak; CR NO. 951 – 952 of 2009 (Unreported and unnumbered judgment dated 21^st December 2012)
Wellington Belawa v The State [1988-89] PNGLR 496
Goli Goli v. The State [1979] PNGLR 653
Ure Hane v The State [1984] PNGLR 105

Counsel

B. Gore, for the State
P. Palek, for the prisoner

JUDGMENT ON SENTENCE

25^th October, 2013

1. TOLIKEN, AJ: On 22^nd of October 2013, you pleaded guilty before me to one count of obtaining property by false pretence thereby contravening Section 404(1)(a) of the Criminal Code Chapter 262.

2. The charge was that on the 13^th day of March 2013 at Alotau, you falsely represented to Solomon Gawait that you had some monies held at the Bank South Pacific (BSP) Port Moresby Branch, and that you need about K2000 to pay bank fees for release of the monies. You then obtained from one Solomon Gawait the sum of K2000 cash with intent to defraud.

FACTS

3. On the 9^th and 11^th day of March 2013, you turned up at the complainant’s house and expressed your intention to buy the complainant’s tipper truck which was on sale for K50000. You told the complainant that you had about K60000 with BSP Port Moresby Branch and that you needed about K5000 to pay the necessary fees for it to be released.

4. On the 13^th day of March 2013, you turned up at the complainant house and told him that you had already borrowed K2900 and that you only need another K2000 to pay the bank fees. You said you only need to borrow K2000 from the complainant and which you will repay with another K2000 as interest when you get your monies. Hearing that, the complainant and his wife asked their church (the Christian Mission Fellowship of Alotau) to lend them K2000. The Chairman of their Congregation drew a cheque of K2000 and cashed it at the bank. He then handed the K2000 to the complainant and the complainant gave it to you.

5. You and the complainant went to the Post Office where you used mobile SMK and sent the money to a mobile number. After that, you told the complainant that his monies will be released soon. The two of you then went back to BSP and waited for your monies to be sent into your account but that never happened.

6. They waited the next day but monies were not released by the bank. From there, you got the complainant’s account number and said to repay the K2000 with interest as soon as you get your monies but that never happened up until now. The matter was reported and you were charged for false pretence pursuant to Section 404(1)(a) of the Code.

ANTECEDENTS

7. You are from Poloko village, Pangia, Southern Highlands Province. You are 36 years old and married with 2 children. You have a Grade 12 education and was previously employed by Department of Works (9 years) before resigning. You own and operate a business concern going by the name Koemachs Constructions Ltd. You are a first-time offender and you have been on pre-sentence custody for 6 months and 13 days.
   

SENTENCING ISSUES

8. The issues for me to determine are:
   
   1. Is this case a worst case that should attract the maximum penalty (5 years)?
      
      2. What is an appropriate sentence?
         
      3. Is suspension appropriate?
         

ALLOCUTUS

9. You admitted your guilt and apologised to the Court and the complainants. You said you are ashamed for breaking the laws of God and the country and for dishonouring the National Flag. You also said that this is your first offence.
   

SUBMISSIONS

10. Your lawyer Mr. Palek submitted that the circumstances of your case calls for a suspended custodial sentence of 12 months because of your mitigating factors which include – your guilty plea, you are a first-time offender, you expressed remorse and co-operated with the police and that you are willing to repay the money you took. He asked that the sentence be suspended and you be placed on good behaviour bond for 2 years with a condition that you repay the sum of K2000 to the complainant within 4 months.
    
11. Mrs. Gore in behalf of the State did not object and agreed that you make restitution within 4 months.
    

THE OFFENCE

12. The offence of false pretence under Section 404(1)(a) carries a maximum penalty of 5 years. It is, however, accepted that maximum penalty is usually reserved for worst instances of the offence and that sentences are to be guided by the peculiar circumstances of each case. (Goli Goli v. The State [1979] PNGLR 653; Ure Hane v The State [1984] PNGLR 105). But is your case a worst instance of false pretence?
    

WHETHER WORST OFFENCE

13. I agree with both counsel that it is not. If anything, it would command a rating around the mid to lower range. So, what would be an appropriate sentence for you?
    

APPROPRIATE SENTENCE

14. To assist me in arriving at an appropriate sentence for you let me consider a few relevant decided cases.
    
15. As I started of with, the principles laid down in Wellington Belawa v The State [1988-89] PNGLR 496 are still applicable today. There may be a need to increase the tariffs there because it has been 25 years since Belawa was decided and offences of dishonesty such as false pretences have taken on new proportions and sophistication in their modus operandi. However, the courts are limited by the current penalties so if anything has to be done in that regard, it must necessarily have to be through legislative action by Parliament. As it is, we (the courts) can only work within the parameters of the existing penalty provisions for offences of dishonesty such as the one under consideration. That being said, the relevant sentencing guidelines set by Belawa for the amount involved in your case are as follows:
    

- Where amount taken/involved is between

K1 – K1,000.00 – no imprisonment.

- Amount between K1,000.00 – K10,000.00

Imprisonment for up to 2 years.

16. From cases cited by defence counsel and others which includes The State v Sam Kayak CR Nos. 951 – 952 of 2009 (unreported and unnumbered judgment) that I delivered in Lae on 21^st December 2012 and The State v John Kil [2000] PNGLR 253, I find The State v John Kil very similar to your case. The prisoner there took K1740 from the victim through a friend which he promised to repay. He did not and instead disappeared for 2 years. He pleaded guilty to the charge and was found by the trial judge to be truly sorry for his offence, that he was willing to repay the money and that the victim’s prime concern too was simply for him to repay his money. His Honour Kirriwom, J. held that on cases of false pretence where money is borrowed and not repaid, restitution must be the primary objective of the sentencing court and every avenue must be exhausted for a non-custodial option. He therefore imposed a suspended term of 8 months with conditions.

YOUR CASE

Mitigating factors

17. I find the following mitigating factors in your favour:

• You pleaded guilty.
• You seemed genuinely remorseful though you did not express that much in your address to the court.
• You are a first-time offender.
• You are willing to repay the money you took.
• You were of previous good character.
• You co-operated with the police.
  

Aggravating factors

18. However, there is an aggravating factor and this is:

• You put the victims of your false pretence through a lot of stress. Solomon Gawait had to borrow the money that he later gave to you from his Church and obviously had suffered a dent in his reputation as a result as well. The depositions show that money you borrowed was meant for a Church project but had to be given to you because of the convincing story you gave to your victim.
  

Appropriate Sentence

19. As I said, this is not the worst of instance of false pretence and I agree that an appropriate sentence for you should be 12 months in hard labour less the pre-sentence custody period - 6 months 13 days. That should leave a balance of 5 months 17 days. Should the resultant sentence be suspended though?

Suspension

20. I think that this is an appropriate case for suspension as this will promote restitution by you of the money you took. (See The Public Prosecutor v Bruce W Tardrew [1986] PNGLR 91. It will serve no useful purpose to order you to serve the balance except perhaps to punish you but I believe that what the complainants want is a full refund.

ORDERS

21. The orders of the court are therefore these:

(1) You are sentenced to 12 months in hard labour less the 6 months and 13 days you had been in pre-trial custody.

(2) The balance of 5 months and 17 days is wholly suspended with conditions that:

• (a) Within 4 months from today you shall repay K2000.00 to the Christian Mission Fellowship of Alotau through the complainant Solomon Gawait.
• (b) If you breach this condition, you will be imprisoned for the suspended portion of your sentence.
  

Sentenced and ordered accordingly.

__________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner