State v Nunisa [2016] PGNC 264; N6463 (30 August 2016)

N6463

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 105 OF 2014

THE STATE

V

JACK NUNISA

Popondetta: Auka, AJ
2016: 27^thJuly & 30^th August

CRIMINAL LAW – Sentence – Obtaining goods by False Pretence – Plea of guilty – Obtained K13, 500. 00 in cheque – Sentence of 2 years – Suspend Sentence – Criminal Code S.404 (1) (a) and S.19.

Case Cited:
Goli Golu v. The State [1979] PNGLR 653
Lawrence Simbe v. The State [1994] PNGLR 3F
The State v. Anegela Tokonai (2012) N4679
The State v. Ivan Bob (2013) N5382
The State v. Roselyn Waiembi (2008) N3708
The State v. Steven Luva (2010) N399
Wellington Belawa v. The State [1988-89) PNGLR 496

Counsel:
Ms Babra Gore, for the State

Mr. E Yavisa, for the Accused

DECISION ON SENTENCE

30^th August, 2016
1. AUKA AJ: The accused pleaded guilty to one count of obtaining goods by False Pretence under S.404 (1) (a) of the Criminal Code Act.

2. The brief facts of the case were that on 22^nd May, 2012 the accused Jack Nunisa presented to the former Mayor for Popondetta town, Mr Botty Robinson, a claim of K15, 000.00 for outstanding fees for unspecified scope of advisory services he provided on land and building tax rates.
The claim was processed by his wife who was the Acting Accountant of the Ijivitari District. His wife filled out the information that the payment was for Maruta Transit House. A cheque for K13, 500.00 was raised and not K15,000.00 as claimed, for reasons that the accused’s claim did not have the certificate of compliance for purpose of tax and that there was no supporting documents in the form of reports or photographs of the specified scope of works done to the land and properties and their outcome or results.
The cheque of K13, 500.00 was eventually paid to the accused via Maruta Haus. At the material time of collecting the cheque the accused did not produce any certificate of completion on work he had claimed he had done for the Popondetta town.
Therefore the state alleged that the accused by falsely pretending to former Mayor of Popondetta town, Mr. Botty Robinson that he carried out advisory services on land and building tax rates, obtained a sum of K13, 500.00 for the Popondetta District Treasury with intent to defraud.

3. On his statement on allocatus, the accused said that he is very sorry for his wrong doing and asked the court to be lenient in giving him time to repay all the monies or any part of it as the court sees fit. He said he is married with 3 children who are all in school. He said he has just been re-employed by Oro Provincial Administration and is currently in charge of a Project involving the new resident for the residential judge. He asked the court for leniency and asked for time to repay the money. He said his previous employment was with National Housing Corporation for 25 years and feels that he can contribute to the government in his new capacity as a project officer. He said if the court orders him to repay the money he has relatives who have agreed to repay the money.

4. On the formal request of Mr. Yavisa of Counsel for the accused, the Court directed the Probation Officer to furnish and file both a Pre-Sentence Report and Means Assesment Report and directed that the matter to return on 27^th July, 2016. I am now in possession of both Reports and have perused them thoroughly and consider them to be in favour of the Accused. The Pre-Sentence Report recommended him as a good candidate for Probation. The Means Assessment Report at page 5 shows that with the assistance of his relatives, he can repay the money in full within one (1) year.

5. On 27^th July, 2016 the court heard counsels on Sentence. Mr. Yavisa submitted that the accused is 51 years old and comes from Lamoa Village in Tufi area of Oro Province. He is married with 3 children, two are attending High School and one attending primary school. He completed grade 10 and matriculated and went to university of Papua New Guinea and spent 2 years. He was formerly employed by National Housing Corporation for 24 years. He was appointed as a Board Member for NBC AusAid Contract. He was also a Board member of International Education Agency (IEA). Currently he is the founder member of Oro Woman Advocacy Group and is also the chairman of the group. Currently he is employed by the Oro Provincial Administration and he is leading the project to build the Oro Residential Judge’s house.

6. Mr. Yavisa submitted and urged the court to take into account in accused favour the following factors;

1. That accused pleaded guilty and saved courts time and money;
2. That accused has apologised for his wrong doing;
3. That accused is a person of good character;
4. That is a first time offender;
5. That he served the state and its people for 24 years through his `employment with National Housing Corporation;
6. That he is formally employed and willing to repay the money within 1 year commencing 31^st July, 2016 and to end on 31^st July, 2017. He is willing to pay K1125. 00 every month as per the payment scheduled contained at page 5 of the Means Assessment Report.

7. Ms. Gore counsel for the state submitted that the accused is well educated and is a former Public Servant and knows what is right and what is wrong and yet he wrongly used the system to benefit himself. Ms. Gore submitted that the offence is prevalent. She referred the court to the National Court case of the State v. Ivan Bob (2013) N5382. In that case the accused pleaded guilty and was sentenced to 2 years but the sentence was wholly suspended with condition to repay the money. She submitted that a sentence between 2 to 3 years should be imposed on the accused.

8. The maximum penalty for the offence of obtaining goods by false Pretence under S.404 (1) of the Criminal Code is imprisonment for a term not exceeding 5 years.

9. 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.

10. It is an established principle that the maximum penalty should be reserved for the worst type case, Goli Golu v. The State [1979] PNGLR 653. In my view the accused case is not the worst type.

11. 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.

12. The Supreme Court decision of Wellington Belawa [1988] PNGLR 416 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 live 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.

13. 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 excusive nerves strain, co-operation with the police.
    

14. 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.
   

15. 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 considerable discretion under s.19 of the Code to impose an appropriate sentence, depending on the peculiar facts and circumstances of a particular case.

16. 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 in favour or against the accused on sentence.

17. The factors which the court considered in favour of the accused are;

1. The accused pleaded guilty;
2. The accused is a first time offender and has no prior conviction and has a previous good record;
3. The accused will continue to suffer personal shame and disgrace because of his conviction and sentence;
4. The prisoner expressed remorse and asked the court for mercy;
5. The accused has raised his intention to repay the money within 12 months.
   

18. The factors which the court consider against the accused are;
1. A substantial amount was taken;
2. The accused applied the money to his own use;
3. The victim who is the Popondetta town Authority suffered inconvenience over the loss of the money;
4. The accused had failed to repay the full amount of K13, 500.00;
5. The Court also took into account against him the factor that this offence is a prevalent offence.

19. Having considered the factors for and against the accused, I am also required to weigh the consequences of sending offenders to prison for “non violent crimes’ and those which have been categorised as ‘violent crimes’. In the case of Doreen Lipirin 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 the incarceration and avoid the risk of turning an offender into a hard-core criminal.
I agree with what the Supreme Court said in the above case and apply it in the present case.

20. 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.

21. In The State v. Anegela Tokonai (2012) N4679. 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.

22. 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 condition.

23. In The State v. Joyce Pora (2016) N6343, the prisoner was convicted for obtaining K10, 000.00 from the victim by false pretence. This is a case where 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 with 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. She pleaded guilty and this court sentenced her to 3 years imprisonment reduced by 2 months for pre-trial custodial term. The remaining term was wholly suspended with condition.

24. 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 K16,00.00 , 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.

25. 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.

26. 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 and promote the repayment or restriction of the money.

27. The following conditions shall apply;

1. An Order for restitution is made whereby the prisoner shall within 12 months after the date of Sentence pay to the victim the total sum of K13,500.00;
2. Restitution shall be by way of 12 months instalments of K1, 125.00 and the first instalments must be paid by or before the 31^st August, 2016 and the rest monthly thereafter and which payment shall be reported to and recorded by the Registry at Popondetta National Court;
3. The prisoner shall enter into his own recognizance without surety to keep the peace and be of good behaviour during the period of suspension;
4. The prisoner shall not change his residential address at Popondetta town unless he has given the National Court Registry at Popondetta reasonable notices of his intention to do so and the reason for the proposed changes;
5. The prisoner shall not leave Popondetta 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, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the suspended term of 3 years.
   

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

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