State v Begada [2015] PGNC 266; N6171 (17 December 2015)

N6171

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 22 OF 2015

THE STATE

V

HUBERT BEGADA

Waigani: Liosi AJ
2015: 24th, 25th November
17th December

CRIMINAL LAW - Plea - Sentence - Obtaining goods by false pretence - Real property - First offender - No genuine reason for committing offence - securing property from himself - Prevalence of offence - Some degree of preplanning - Aggravating factors - Wholly suspended sentence inappropriate - 2 years imprisonment imposed - 1 year suspended - Return of the property to the complainant ordered - Criminal Code, Ch 262 - Sections 19, 404 (1) (a) and Sections 623 A

Facts

On the 24th November 2015 the State presented an Indictment charging the prisoner with 1 count of obtaining property by false preference contrary to s404 (1) (a) of the Criminal Code (chp.262). He pleaded guilty to the charge. He lived next to the complainant Charlie Taeva a Pastor with the United Church who was the sitting tenant over the property described as section 240, Allotment No 22, Gerehu NCD, the subject of the charge. Whilst the complainant was away on Pastoral Duties in the Gulf Province the National Housing Corporation (NHC) introduced a Give Away Scheme. The Scheme was designed and offered to Tenants occupying low cost Housing for the sitting Tenants to pay up arrears and to subsequently own the respective property. The prisoner presented to the NHC a forged Statutory Declaration advising that the complainant had transferred the property to him. Consequently the NHC allowed the prisoner to pay the arrears and he took ownership over the property. To this day the prisoner had kept title and ownership of the said property. The complainant had never signed the Statutory Declaration form. The complainant discovered the transfer of title to the prisoner's name and reported it to the Police for which he was subsequently arrested and charged.

Held

1. Under section 404 (1) (a) of the Criminal Code, Ch 262, the offence of obtaining goods by false pretence carries a prescribed maximum penalty of term of 5 years imprisonment.

2. No genuine reason for committing offence and securing the property for himself.

3. Although there was some degree of preplanning and taking into account all the mitigating factors this was not the worst case of the offence. The maximum penalty term of five years imprisonment was not appropriate.

4. Given the aggravating factors a wholly suspended sentence of 2 years was inappropriate.

5. Return of the property to the complainant ordered.

Cases cited

Goli Golu-v-The State [1979] PNGLR 653
Public Prosecutor-v-Don Hale (1998) SC564
Wellington Belawa-v-The State [1988-89] PNGLR496

Counsel

Mr Sopane, for the State
Mr Ninkama, for the Prisoner

17th December, 2015

1. LIOSI AJ: This is a decision on sentence of the prisoner after he pleaded guilty to a charge of obtaining goods by false pretence contrary to s404(1)(a) of the Criminal Code Act. In his Allocatus he said he was an in-law to the complainant. In 1978 the complainant committed murder with his brother John at the Gerehu Sport Centre. He went to the village after that without advising his father John Taeva Harofere. In 1984 the complainant was employed as a carpenter with PNGDF. He found it hard to pay the rentals and consequently arranged with PNGDF to deduct K18 from his wages. He was retrenched as a carpenter from PNGDF in 1991.

2. When he got married into the complainant's family he said he became his first son and he helped him a lot. In 2000 the National Housing Corporation (NHC) gave 15 days notice to vacate the property. A second notice to vacate the property was given in 2001. The complainant asked his children to pay the arrears but they never did. At that time he was working at Theodist and so he helped him pay the arrears as they were unemployed. The father of the complainant Iru Harofere sent messages for the complainant to come back but he never did. The complainant's father then asked the prisoner to pay the arrears which he did.

3. In his allocatus he said he was very sorry and will not do it again. After being informed of the transfer of the title to the prisoner the complainant came to Port Moresby and reported the matter to the police to evict him. However the prisoner advised the Police that he had title to the property and that he will wait for the court to make a decision. Once again he said he was very sorry.

Mitigation

4. In mitigation his counsel submitted the following:

That he was 51 years old, two children to support, first time offender, expressed remorse, member of global mission society, Grade 10 education at Popondetta Secondary School, pre-trial custody of one day and had pleaded guilty. In relation to special Mitigation Factors, his counsel submitted that he was related to the complainant as an in-law, he continued to support the complainant's immediate family members in the subject property and that the property was still maintained within the family. His counsel also submitted that the following notable circumstances should be noted, that the prisoner, was a beneficiary to the property being transferred after the complainant's father signed the Statutory Declaration form, the Prisoner's actions although wrong in law had prevented the forfeiture of the subject property due to the non payment of outstanding rentals owed by the complainant, and that the complainant contributed in his actions to the present situation as well as the NHC.

5. His Lawyer submitted that his case was not the worst case of obtaining goods by false Pretence so the maximum penalty of 5 years is not applicable. The State Prosecutor concedes this although he says the appropriate penalty is 3 years Imprisonment in hard labour. The Law is that the maximum penalty is reserved for the worst cases: Goli Golu v The State (1979) PNGLR 653. However, the court has a wide discretion under S.19 of the Criminal Code Chapter 262 to impose a lesser sentence. I agree a lesser sentence is appropriate in the prisoner's case. What then is the appropriate sentence?

6. Mr Ninkama submits on behalf of the prisoner that a term of two years imprisonment suspended wholly on the condition that he enters into a good behaviour bond on his own recognizance is an appropriate penalty. He has advanced a number of arguments to support his contention as outlined in paragraph 33 and 34 of his filed written submissions. By way of comparison Mr Ninkama also referred to the case of the State v Trister Solien (2012) N4665. In that case the prisoner was convicted of obtaining goods by false pretence - real property after she pleaded guilty to the offence. She was sentenced to two years which was wholly suspended. Mr Sopane submits that the fact in Trister Solien's case is quite different. In that case the prisoner had a relationship with the deceased and the offender had an interest in the property. In the current case the offender Hubert Begada had no interest in the property. I agree with Mr Sopane's submission that the facts in Trister Solien's case differ quite significantly in this regard. Mr Sopane on the other hand submits a custodial sentence of three years in hard labour is appropriate. He points out a number of aggravating factors saying that a wholly suspended sentence is inappropriate in this case.

7. The Case of Wellington Belawa v The State [1988-89] PNGLR496 is a useful guide on sentence in dishonesty cases. It will therefore be used as a guide to determine an appropriate sentence in this case. Some of the matters that may apply in such cases are the value of property taken, degree of trust, pre planning, use of property and effect on the victim.

8. In response to the defence submission on mitigation the state has urged the court to consider the circumstances under which the offence was committed. Mr Sopane submits that there was some degree of preplanning and intent to defraud by the prisoner. This was evidenced by the following factors; the prisoners was well aware of the Give Away scheme, this scheme was offered to tenants who occupied low cost housing and it was for the sitting tenants like the complainant to pay up the arrears to become subsequent owners of the respective properties, the prisoner became aware of the letter demanding payment of the Arrears, consequently he schemed to transfer the property to himself, he forged the Statutory declaration form and induced the NHC officers and successfully had the title transferred to his name, even though a family member assisted, the complainant who was the sitting tenant was never informed of what the prisoner intended to do and subsequently what he did, the State contends this is contrary to what the prisoner said that he intended to assist the family, the prisoner has kept the property since 2007 to date and family members are not allowed into the property except the sister of the complainant who is his wife, when the conduct was discovered the complainant wanted to mediate but the prisoner was very uncooperative and refused to mediate, the prisoner told the police that he had title to the property so he would rather wait for the court to make a decision.

9. The State submitted that the value of the property should be considered at between K100, 000 and K200, 000. There was no valuation done at the time of the transfer of the title to the prisoner's name. Further there is nothing in the depositions to suggest what may have been the value of the property. The prisoner was given the benefit of the doubt since he pleaded guilty to the charge.

10. The State further submitted that in addition to the head sentence the court should also order the return of the property to the complainant. Mr Sopane has quoted Section 563 A of the Criminal Code as the provision empowering the court to grant such an order. Section 563 A is apparently the wrong section which deals with Entry of Plea of Not Guilty. The right provision is section 623 A of the Criminal Code Act which reads:

"When a person is prosecuted on the complaint of the owner of property or any person on whom the right to property has devolved by operation of law on a charge or indictable offence of which the unlawful acquisition of the property by him is an element, and is convicted on indictment, the court may order the property to be restored to the owner".

Having read the section, I am satisfied that the section does empower and gives the court discretion to order the return of the property to the owner.

11. The offence the prisoner committed is prevalent in our country. In the interest of Justice, public interest demands that people who commit this offence must be punished severely. By doing so it will send a strong message to others that they should not even attempt it because if they do and are caught, they will face the same consequences.

12. Equally important is the manner in which the prisoner committed the offence. I accept Mr Sopane's submission that there was some degree of preplanning and intent to defraud by the prisoner. This is evidenced by the following factors. The prisoner was well aware of the NHC's give away scheme offered to sitting tenant of the low cost housing, It was for the sitting tenants to pay up the arrears and to become subsequent owners of the houses, he was aware of the letter demanding payment of arrears, consequently he devised the scheme to transfer the property to himself under the disguise of assisting to pay off the arrears, consequently he forged a statutory declaration form and induced the NHC officers to successfully transfer the title to his name, he did so with the assistance of a family member, the complainant who was the sitting tenant was never informed of his actions, he found out by himself later on, he has exclusively kept and used the property up to date for his own convenience and family members were not allowed into the property except his wife who is the sister of the complainant, finally when his conduct was discovered the complainant tried on several occasions to mediate settlement with him but he has been very uncooperative, he even told the Police that he has title to the property so he would rather wait for the court to make a decision. I consider this to be very arrogant and amounts to serious aggravating circumstances.

13. Furthermore he breached the trust that was placed on him as an In-law. In the circumstances it is my view that the relatives expected him to assist by paying the arrears and asked him to help. Unfortunately he took advantage of the trust and breached it well knowing the consequences of his actions. That was that he intended to obtain the property through fraudulent means as he knew he was only going to pay for the arrears and to obtain title to the property under his name. He did not have any good reasons for doing what he did to reduce the seriousness of his culpability. The prisoner saying sorry on his allocatus and through his lawyer to me meant little or nothing given the attitude he has displayed.

Pre sentence report

14. Usually when a request for a suspended sentence is made the court will require a pre sentence report to assist whether a person is a suitable candidate for a suspended sentence: Public Prosecutor v Don Hale (1998) SC 564. In this case there was no Pre sentence report presented to support his request for a wholly suspended sentence. However based on the aggravating factors in your case I am satisfied a wholly suspended sentence is inappropriate in this case.

15. In the end it is the judgement of the court that he is sentenced to 2 years Imprisonment with hard labour. Because of his plea of guilty and other mitigating factors alluded to above, 12 months is suspended from his head Sentence. He is therefore to serve 1 year imprisonment with hard labour. As indicated earlier I make a further order that pursuant to S623 A of the Criminal Code (Chapter 262) the property the subject of the charge described as Section 240 Allotment 22 Gerehu be returned forthwith to the complainant. Cash bail of K1, 000 is to be refunded.

Offender Sentenced Accordingly
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Public Prosecutor: Lawyers for the State
Adam Ninkama Lawyers: Lawyers for the Prisoner