State v Frank [2016] PGNC 154; N6343 (16 June 2016)

N6343

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) N0. 252 OF 2015

THE STATE

V

JOYCE PORA FRANK

Porgera: Auka, AJ

2016: 21^st March & 16^th June

CRIMINAL LAW – Sentence – Obtaining goods or credit by false pretence or wilfully false promise – Plea of guilty – Obtained Ten Thousand Kina cash - Promised to repay full amount with profit – Failed to repay – Sentence of 3 years – Suspend sentence – Criminal Code S. 404 (1) (a) and S.19

Case Cited:
Avia Aihi v. The State (No.3) [1982] PNGLR 92
Doreen Lipiri v. The State (2001) SC 637
Goli Golu v. The State [1979] PNGLR 92
Lawrence Simbe v. The State [1994] PNGLR 38
Public Prosecutor v. William Bruce Tardew [1986] PNGLR 91
The State v. Angela Tokonai, Unreported Judgement dated 17^th May, 2012
The State v. Dorcas Boski (2014) N5814
The State v. Roselyn Waiembi (2008) N3708
The State v. Steven Luva (2010) N3909
The State v. John Kil (2000) PNGLR 253
The State v. John Gaibole Dickson Larry (2011) N4455
The State v. Morris Yepin (2005) N2875
The State v. Ivan Bob (2013) N5382
Wellington Belawa v. The State (1988-89) PNGLR 496

Counsel:
Mr. Joe Waine, for the State

Mr. Robert Bellie, for the Accused

SENTENCE

16^the June, 2016
1. AUKA AJ: The accused pleaded guilty to a Count of Obtaining goods or Credit by false Pretence under Section 404 (1) (a) of the Criminal Code Chapter No. 262.

2. The brief facts of the case were that, between the months of October and November, 2015 the accused approached the victim Evelyn Opa to borrow Ten thousand Kina for her to start off a gold buying business in Porgera. She entered into a verbal agreement with the victim that when she makes enough money she will repay the Ten Thousand Kina with profit in cash. And as it happened on 19^th November, 2015 the victim went to the bank and withdrew Ten Thousand Kina in cash and gave it to the accused on the agreement that accused will repay her the money with profit. Accused took the Ten Thousand Kina in cash and instead of using the money in the proposed gold buying business she used the money for her own personal use. The victim after a long wait and despite several follow-ups with the accused to repay her the money with profit it turned out that accused did not have the money and as such failed to repay the Ten Thousand Kina with profit to the victim. The victim reported the matter to Police and accused was arrested and charged and detained.

3. On her statement on allocatus the accused said that she can pay back the money within 8 months from the little income she makes. She asked the court to have mercy on her.

4. Mr. Bellie in his submission on Sentence, submitted that accused is aged 28 years old from Poporal village, Mount Hagen in Western Highlands Province. She is married with four (4) children. Her father and month are alive. She has three brothers and six sisters. She is the first born in the family of ten children. She only completed grade 9 at Mount Hagen Park Secondary School. She is self employed in small scale business activities like buying vegetables and second hand clothes and selling them and earns about one thousand to one thousand five hundred kina per month.

5. She was arrested for the offence on 13^th May, 2013 and was in custody until 27^th July, 2013. She was in custody for 2 months 14 days before released on K500. 00 cash bail.

6. Mr. Bellie asked the Court to consider in accused favour the following matters:
1. That accused pleaded guilty
2. That she is first time offender
3. That she has raised her intention to repay the money within 8 months
4. That she acted alone
5. That this is not a case that affected the Public interest.

7. Mr. Bellie submitted that guided by the sentencing guidelines in the often cited case of Wellington Belawa v. The State [1988-89] PNGLR 496, the Supreme Court said that where the amount is between K10, 000. 00 and K40, 000.00 a gaol term of 2 to 3 years is appropriate.

8. Mr. Bellie referred the Court to the following National Court cases. Firstly The State v. Angela Tokonai, unreported Judgement dated 17^th May, 2012. The accused pleaded guilty to the charge of obtaining goods by False Pretence and His Honour Cannings J sentenced her to 3 years reduced by 4 months 2 weeks for pre-trial custody term. The remaining term was wholly suspended. This was a case where the accused falsely pretended to the victim that she had sufficient funds in her bank account and drew a cheque for K15, 865.50 to pay him for Sea Cucumber. Few days later victim presented the cheque but it was dishonoured and the accused failed to make good the debt.

9. In the case of The State v. Dorcas Boski (2014) N5814 the accused pleaded guilty to one Count of obtaining K12, 000.00 from a male victim by False Pretence. The accused was a Rental Sales Representative with Avis Rent A Car in Mt. Hagen. The victim approached the accused for purchase of a Motor Vehicle that her employer was selling and she promised to organise its sale and purchase to him on staff price. The victim deposited with the accused K16, 000. 00, but after a long while and despite several follow ups, the motor vehicle was never delivered to him. The victim then involved a debit Collection Agency to pursue the matter with the accused. The accused managed to repay K4, 000. 00 to the victim and undertook to pay the balance later, but failed. His Honour David J sentenced the accused to 3 years, reduced by 2 months for pre-trial custodial term and the remaining term suspended on terms.

10. Mr. Waine of Counsel for the State did not make submission on Sentence.

11. The maximum penalty for the offence of obtaining goods or credit by False Pretences or by wilful false promise under Section 404 (1) of the Criminal Code is imprisonment for a term not exceeding 5 years.

12. The Court has a general discretion to impose lower sentence with or without other forms of punishment enumerated in S.19 of the Criminal Code.

13. It is an established principle that the maximum penalty should be reserved for the worst type case, Goli Golu v. The State [1959] PNGLR 653, Avia Aihi v. The State (No. 3) [1982] PNGLR 92. In my view the accused’s case is not the worst type.

14. It is also an established principle that each case should be considered on its own facts and circumstances, Lawrence Simbe v. The State [1994] PNGLR 38.

15. The Supreme Court decision of Wellington Belawa (Supra) is the leading case authority in this jurisdiction for the offence of Misappropriation and it sets out the Sentencing guidelines for that offence inclusive of the factors that are to be considered and the tariff to apply. There appears to be concurrence by the Court’s with general consistency that apart from misappropriation cases, the sentencing guidelines in Wellington Belawa should also apply to all cases involving an element of dishonestly such as those concerning forgery, obtaining goods by false pretences, fraud, stealing and the like in the absence of appropriate sentencing guidelines for those particular offences; eg, The State v. Roselyn Waiembi (2008) N3708, The State v. Steven Luva (2010) N3909.

16. In the same case of Wellington Belawa (Supra), the Supreme Court recommended that the following factors should be taken into account when determining what penalty to impose on an offender and these are:
1. the amount taken;
2. the quality and degree of trust reposed in the offender;
3. the period over which the offence was perpetrated;
4. the use to which money or property dishonestly taken was put;
5. the effect upon the victim;
6. the impact of the offence on the public and public confidence;
7. the effect on fellow employees or partners;
8. the effect upon the offender himself or herself;
9. the offenders own history;
10. whether restitution was made to the victim;
11. matters of mitigation special to the offender himself or herself, such as ill health, young or old age, effect of excessive nervous strain, co-operation with the police.

17. The Supreme Court in the same case of Wellington Belawa (Supra) also recommended a tariff of sentences to be adjusted upward or downward depending on the various factors mentioned above. The Supreme Court said that where the amount misappropriated is between:
1. K1.00 and K1000. 00, a gaol term should rarely be imposed;
2. K1000 and K10, 000.00, a gaol term of up to 2 years;
3. K10, 000.00 and K40, 000. 00, a gaol term of 2 years; and
4. K40, 000. 00 to K150, 000.00, a gaol term of 3 to 5 years.

18. It is generally accepted now that while the factors set out in Wellington Belawa are still relevant, the tariff recommended is outdated and therefore there is a need to impose increased sentence due to the prevalent of the offence. However, the Court still has a considerable discretion under S. 19 of the Code to impose an appropriate sentence, depending on the peculiar facts and circumstances of a particular case.

19. Applying the factors recommended in the Belawa case to the circumstances of the present case, this court finds that the following factors are relevant and applicable and can be considered either in favour or against the accused in sentence.

20. The factors which the court considers in favour of the accused are:

1. It was a one-off transaction;
2. The accused pleaded guilty;
3. The accused is a first time offender and has no prior conviction and has a previous good record;
4. The accused has offered and will continue to suffer personal, shame and disgrace because of her conviction and sentence;
5. The prisoner expressed remorse and asked the court for mercy.
6. The accused has raised her intention to repay the money within 8 months.

21. The factors which the court considered against the accused are:

1. A substantial amount was taken
2. There was a breach of trust
3. The accused applied the money to her own use
4. The victim who is an individual person endured and suffered stress, anxiety and inconvenience over the loss of the money.
5. The accused had failed to repay the full amount of K10, 000.00
6. The accused is an educated person who is able to tell what is right from wrong.
7. The Court also took into account against her the factor that this offence is a prevalent offence.

22. I am also required to weight the consequences of sending offenders to prison for ‘non violent crimes’ and those which have been categorized as ‘violent crimes’. In Doreen Liprin v. The State (2001) SC 673, the Supreme Court highlighted the need to give serious consideration to alternatives to prison sentences to non violent offences. This would serve as a punishment and at the same time, reduce the costs to the society in terms of the costs of incarceration and avoid the risk of turning an offender into a hardcore criminal. I consider this case as a non-violent one.

23. The trend of sentencing on obtaining goods or credit by False Pretence or wilfully false promise depends entirely on the facts of each case. I refer to the following cases for purposes of comparing the type of sentences imposed on this type of offences.

24. In The state v. John Kil [2000] PNGLR 253, the prisoner, a former Policeman, obtained K1, 470.00 from the victim by false pretence. The prisoner had told a former colleague that he would be receiving K21, 000. 00 from his former employer as his termination entitlement and having convinced his colleague, the latter in turn convinced the victim to lend the money to the prisoner on the belief that the prisoner would repay the debt. After receiving the money, the prisoner disappeared and did not repay the debt. The prisoner pleaded guilty and was sentence to 8 months imprisonment which was wholly suspended on various conditions.

25. In The State v. Gaibole Dickson Larry (2011) N445, the prisoner was convicted for obtaining K500. 00 cash from a friend in Madang by a wilfully false promise with an intention to defraud. The money was never repaid. A sentence of 2 years imprisonment was imposed. The pre-trial custodial term was deducted and the balance of the sentence was suspended on terms.

26. In The State v. Morris Yepin (2005) N2857, the prisoner who was a correctional officer at Vanimo Correctional Institution gave the details of his bank account to family members of two prisoner for money to be remitted to those prisoners through his bank account. He received a sum of K300.00 and K200.00 respectively from the relatives of the two prisoners, but failed to deliver the said amounts of money to them. He was charged with two counts of wilfully making false promises. A non custodial sentence of one year imprisonment was imposed on various conditions upon his pleas of guilty.

27. In The State v. Ivan Bob (2013) N5382, the prisoner was convicted for obtaining K5, 025.00 from the victim by false pretence. The victim was doing some maintenance work for National Housing Corporation and he told victim that the house he was repairing was going to be sold to him for K19, 000. 00. He then obtained from the victim K5000.00 as part payment of the house and a further K525.00 for maintenance work to be done to the house prior to being occupied. The money was never repaid. A sentence of 2 years imprisonment was imposed and the sentence was wholly suspended on conditions.

28. Taking into consideration all the particular circumstances of the present case, the trend of sentencing in some similar cases and the sentencing guidelines in Wellington Belawa’s case, I consider a sentence of 3 years imprisonment in hard labour appropriate.

29. The Pre-trial custody term which is 2 months shall be deducted in accordance with section 3 (2) of the Criminal Justice (Sentences) Act 1986. The Accused will serve the balance term of 2 years 10 months at Baisu Correctional Institution.

30. Should I suspend all or part of the remaining term? I have considered the principle of suspending sentences provided in the cases of Public Prosecutor v. William Bruce Tardew [1986] PNGLR 91 and Doreen Lipirin v. The State (2002) SC 673 and I propose to suspend the balance of the term on terms as it will promote deterrence, reformation or rehabilitation of the prisoner, promote the repayment or restriction of the money.

31. The following conditions shall apply;
1. An Order for restitution is made whereby the prisoner shall within 5 months after the date of Sentence pay to the victim the total sum of K10, 000.00 as well as an extra amount of K700.00 which will be a reasonable component of compensation to compensate the victim for the stress and inconvenience the offender caused her.

2. Restitution shall be by way 5 months instalments of K2, 000.00 and the first instalments must be paid by or before the 14^th July, 2016 and the rest monthly thereafter and which payment shall be reported to and recorded by the Registry at Wabag National Court.
3. The prisoner shall enter into her own recognisance without surety to keep the peace and be of good behaviour during the period of suspension.

4. The prisoner shall not change her residential address at Porgera unless she has given the National Court Registry at Wabag reasonable notices of her intention to do so and the reason for the proposed changes.

5. The prisoner shall not leave Porgera town without the leave of this court during the period of suspension.
6. The prisoner shall not consume alcohol or drugs

7. If the prisoner breaches one or more of these conditions, she shall be brought before the National Court to show cause why she should not be detained in custody to serve the remaining term.

A Warrant shall issue forthwith to give effect to this sentence.

Public Prosecutor : Lawyer for the State
Public Solicitor : Public Solicitor for the Prisoner