State v Tanef [2016] PGNC 265; N6465 (30 August 2016)

N6465

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 1071 OF 2013

THE STATE

V

WILKINSON TANEF

Popondetta: Auka, AJ
2016: 19^th & 22^nd July & 30^th August

CRIMINAL LAW – Sentence – Obtaining goods by False Pretence or Credit by wilfully false promise – Plea of guilty – Obtaining K12, 030.00 in cash – Promised to sell gold bars – failed to deliver the gold bars to victim – Sentence of 3 years – Suspended sentence – Criminal Code S.404 (1) (a) and S.19

Case Cited:
Avia Aihi v. The State (No.3) [1982] PNGLR 92
Doreen Lipirin v. The State (2011) SC673
Goli Golu v. The State [1979] PNGLR 653
Lawrence Simbe v. The State [1994] PNGLR 38
Public Prosecutor v. William Bruce Tardew [1986] PNGLR 91
The State v. Anegela Tokonai (2012) N4679
The State v. Aumora (2016) N6323
The State v. Dorcas Boski (2014) N5814
The State v. John Kil (2000) PNGLR 253
The State v. Ivan Bob (2013) N5382
The State v. Roselyn Waiembi (2008) N3708
The State v. Steven Luva (2010) N3909
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 or Credit by wilfully false promise under s.404 (1) (a) of the Criminal Code.

2. The brief facts of the case were that prior to 18^th March, 2013 the victim Ronal Saulep and the accused met and Ronald Saulep raised his intention to buy gold. The accused responded and told the victim that he had two (2) gold bars at 25 kg each and was selling each for K60, 000.00. Having heard that Ronald contacted his brother Doctor Moses Manna and told him that he had found someone selling gold bars. From 27^th March, 2013 to 9^th May, 2013 the victims Ronald and Moses made two payments of K4, 030.00 each to the accused. Those money’s were paid on instalments at accused’s request. As a result the total amount paid to the accused was K12, 030.00. After the last payment was made on 9^th May, 2013, the accused promised to deliver the gold bars at Ronald’s place but he never did. From then on when victim got in touch with accused to deliver the gold bars, he was giving excuses and that went for sometimes. The victims became frustrated and reported the matter to Police and the accused was arrested on 13^th May, 2013 and charged.

3. On his statement on allocatus, the accused said sorry for what he did and asked the court to give him time so that he can repay the money. He asked the court to have mercy on him. He said he was married and have children who are of young age and there’s no one to look after them. He said he is prepared to repay the money in full.

4. On the request of Mr. Yavisa of Counsel for the accused, the court directed the Probation Officer to compile and file a Pre-Sentence Report and a Means Assessment Report and directed the matter to return on 22^nd July, 2016. I am now in possession of those two (2) reports.

5. On 22^nd July, 2016 the court heard counsels on Submissions on Sentence. Mr. Yavisa submitted that accused is aged 51 years and comes from Hombariri Village in Oro Province. He is married with 8 children and is a subsistence farmer. He is a member of the Anglican Church. He has no formal education. He is engaged in informal business activities such as running a small fish pond of Talapia and sells Talapia to earn money.

6. Mr. Yavisa urged the Court to consider in accused’s favour the following matters;

1. Accused pleaded guilty and saved Courts time and money.
2. Accused is a first time offender
3. Accused expressed remorse in Court
4. Accused has raised his intention to repay the money within 6 months as per the Means Assessment Report
5. That Accused has spent 1 month 20 days in pre-trial custodial term.
   

7. Mr. Yavisa submitted that a non-custodial sentence with condition to repay the money is the appropriate sentence in the circumstances of the case.

8. Mr. Yavisa referred the court to the National Court case of The State v. Aumora (2016) N6323. In that case, the accused pleaded guilty to the charge of False Pretence. He was sentenced to 2 years and that sentence was reduced by 8 months 21 days. He served only 2 year and 3 months and 2 days. The custody sentence was imposed because the accused did not have any means to repay the money.

9. For this case, Mr. Yavisa submitted that both the Pre-Sentence Report and the Means Assessment Reports are in favour of the accused. His foster daughter who works with the LNG Company has raised her intention to assist in repaying the total amount within 6 months as per the Means Assessment report.

10. For the prosecution Ms. Babra Gore submitted for a sentence between 2 and 3 years and the sentence to be suspended with condition. Ms. Gore referred the court to the National Court case of The State v. Dorcas Boski (2014) N5814. In that case the accused pleaded guilty to the charge of False Pretence involving K16, 000. 00. Accused was sentenced to 3 years, reduced by 2 months for pre-trial custodial term and remaining term suspended on terms.

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 of case, Goli Golu v. The State [1979] 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; e.g., 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 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 on sentence.

20. The factors which the court considers 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 6 months.
   

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

1. A substantial amount was taken;
2. There was a breach of trust;
3. The accused applied the money to his own use;
4. The victim’s who are individual persons endured and suffered stress, anxiety and inconvenience over the loss of the money;
5. The accused had failed to repay the full amount of K12, 030.00;
6. The Court also took into account against him the factor that this offence is a prevalent offence.
   

22. 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.

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. 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.

25. 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.

26. 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.

27. 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 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. 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 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 Balawa’s case, I consider a sentence of 3 years imprisonment in hard labour appropriate.

29. The Pre-trial custody term which is 1 month 20 days shall be deducted in accordance with Section 3(2) of the Criminal Justice (Sentence) 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 and 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 6 months after the date of Sentence pay to the victim the total sum of K12, 030.00 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 them.
   
2. Restitution shall be by way of 6 months instalments of K2, 000. 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 recognisance 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 Hombariri village 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 Hombariri village 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 because why he should not be detained in custody to serve the term of the suspended sentence.
   

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

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