State v Pukali [2014] PGNC 252; N5695 (22 July 2014)

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CRIMINAL LAW – Practice and Procedure – Charges of Wilful false promise and forgery – Sections 404(1)(a) and 462(3)(b) of Criminal Code – What is the appropriate sentence – Prisoner is a lawyer.

Cases cited:
State v Jimmy Kendi N3129
State v Dominic Kurai N3435
State v John Kil [2000] PNGLR 253
State v Ostekal Metz (2005) N2824
State v Louise Paraka (2002) N2317
Doreen Liprin v State [2001] PNGLR 6
Belawa v The State (1988-89) PNGLR 496
State v Toua (1997) N1522
Counsel:

1. SALIKA DCJ: Introduction: On 28 March 2014 the Court found Lawrence Pukali guilty to one count of willful false promise to one Chris Wang Bubsep that he would pay K405,600.00 in exchange for 2,535 grams of gold nuggets with the intent to defraud; and one count of forging a Bank South Pacific Cheque purporting it to be a genuine valuable cheque for the amount of K170,000.00, that it will be used or acted upon as genuine.

2. The willful false promise charge was brought under s.404(1)(a) of Criminal Code Act while the forgery charge was brought under s.462(3)(b) of the Criminal Code Act. After having convicted the prisoner the court must now consider the appropriate penalty to impose on the prisoner.
Issue:
3. The issue for the court to determine is what sentence the court should impose on the prisoner. The respective maximum penalties for the offence are 5 years imprisonment and 14 years imprisonment.

4. The respective imprisonment terms is an indication of the seriousness of the offences.
Facts
5. The brief summary of facts are that the prisoner received 2,535 grams of gold from Chris Bubsep for an agreed price of K405,600. Chris Bubsep was told the money would be deposited into his account but the money was never deposited. Upon insistence by Chris Bubsep for the payment the prisoner wrote a BSP cheque as part payment of K170,000.00 but that cheque was dishonored upon presentation at the bank. In the end Chris Bubsep ended up giving away 2.353 kilograms of gold with no payment. Up to date no payment has been made.

6. Even after conviction the prisoner insists, he was a middleman for a Wichal Pacharama of Thailand who he said the gold was given to. If that person does exist, the prisoner should get that person to pay the K405,600 to Chris Bubsep and get himself out of this mess. As it is, this Wichal Pacharama still remains a mystery man.

7. Counsel have usefully cited similar National Court cases of false pretence and the sentences that were imposed in those cases which I list below.

Case	Facts	Sentence
State v Jimmy Kendi	Prisoner found guilty after a trial on 2 counts of False Pretence and one count of misappropriation of K4,298,037.33	4 years imprisonment for false pretence and 9 years for misappropriation.
State v Dominic Kurai	Prisoner pleaded guilty to 1 count of false pretence. He obtained goods by false pretence from a trade store worth K7.	12 months but suspended on condition.
State v John Kil	Bill Kure advanced to prisoner K1,470 after prisoner falsely promised him that he would repay Kure upon him getting his termination entitlements. Prisoner a former policeman.	18 months imprisonment but suspended on conditions that he repay the K1,470 and other conditions.
State v Jack Ostekal Metz	Prisoner falsely represented to Guest House in Madang that he was expecting millions of Kina from sale of Treasury Bills. He convinced the Manager of the Guest House to accommodate him and that he would pay from the sale of t he Treasury Bills. Prisoner was accommodated for 8 months at the guest house and incurred a bill of K70,445.36 which he could not pay.	3 years 6 months imprisonment.

Case	Facts	Sentence
State v Louise Paraka	Prisoner pleaded guilty to 2 counts of forgery and 2 counts of uttering.	3 years of imprisonment but wholly suspended.
Doreen Liprin v The State	Prisoner convicted of 3 counts of forgery and uttering and a count of misappropriation of K6,000.00	1 year imprisonment for the 3 counts of forgery and 3 years for misappropriation. After an appeal the Supreme Court reduced sentence to 18 months imprisonment.

8. The case precedents shown above are just a few of many such cases which give an indication of the seriousness of the offences.

9. The prisoner is a first time offender. He has a medical condition in that he is a diabetic and has been ill with that disease for some time and is a regular patient at the hospital and clinics in Port Moresby. He is on medication on a daily basis. I take those factors into account.

10. The prisoner 53 years now lives at Hohola. He rents a low cost house there and lives with 8 others in the house. He is a lawyer by profession having graduated from the University of Papua New Guinea in 1984. He has held senior management position with Air Niugini Limited and Eda Ranu.

11. He is married with 5 children from a previous marriage and one child from his current marriage. His first wife died in 2009 of diabetes and needed someone to look after him so he remarried.

12. The prisoner runs his own consultancy company consulting on Business Management and legal matters. There is nothing in the presentence report as to whether he has a practicing certificate to practice as a lawyer.

13. In paragraph 12.4 (page 6 of the PSR) the prisoner is said to have admitted the offence and that he is prepared to pay back the money to the complainant and has promised not to reoffend in future.

14. The amount which was promised to the complainant is K405,600.00 and is still outstanding. The case authority of BELAWA v THE STATE (1988-89) PNGLR 496 supports the proposition that the higher the amount misappropriated the higher the sentence.

15. The prisoner is a lawyer and as such was in a position of trust and authority. His conduct in this whole case smacks of dishonestly and was unlawyer like. His conduct simply put was dishonest. To deliberately write a valueless cheque with the hope of getting rid of him and continue to tell him "come back tomorrow or come back next week" is a sign of a person who is not truthful, and an illness of the mind.

16. The prisoner has made no attempt to put right what he has created. He has not paid for the gold that he got from the complainant. If he says that a person called Pacharama got the gold, he should get that Pacharama to pay for the gold. There is no suggestion from the prisoner that he has made or attempted to make contact with the mystery man Pacharama. The lack of this information does not assist the prisoner, in that anyone in his or her proper frame of mind would go out of his or her way to put right what has been wronged. The prisoner has made no attempts to make any payments to the complainant for the gold or get the gold back. This event is likened to daylight robbery at its worst.

17. In such cases families are inevitably affected and this case is no exception. The prisoner's family members will be adversely affected if their father was to be sentenced to a custodial term. The court has on many other occasion been told of this dilemma but the courts have in my respectful view properly addressed that issue by saying that a prisoner before embarking on any such criminal enterprise should consider the welfare of his or her family members (see State v Toua (1997) PGNC 27; N1522.

18. Considering the circumstances of the case and more pertinently the fact that the consideration for the gold is still outstanding and that no attempts have been made to pay for the gold and or to return the gold, the situation is not likely to change in the near future or in the long run.

19. The prisoners standing as a lawyer is called into question. His integrity as a fit and proper person to remain and practice as a lawyer and his right to such practice as a lawyer will be adversely affected by this single conviction. I am also mindful that the prisoner has brought this all to himself by his conduct although I am mindful that he is a first time offender.

20. In the circumstances, I sentence him to 2 years imprisonment for false pretence on the first count. In relation to the second count, I sentence him to 5 years imprisonment. Both sentences will be served concurrently. The total sentence the prisoner will serve is 5 years imprisonment and because he is suffering from diabetes I order that he will do light labour as opposed to hard labour.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defense

National Court of Papua New Guinea

State v Pukali [2014] PGNC 252; N5695 (22 July 2014)