State v Tech [2018] PGNC 361; N7440 (31 August 2018)

N7440

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 119 OF 2018

THE STATE

V

GEORGE TECH

Waigani: Miviri AJ
2018: 19^th July
30^th August

CRIMINAL LAW – Practice and Procedure – s404(1)(a) False Pretence CCA – Plea– hire of complainants vehicle –promise to pay K700 per day – cash of K10 Billion cheque – sale of Gold bars– 62 days incurring K43,000.00– complainant led to believe– false representation – no payment – serious offence– punitive & deterrent sentence.

Facts
The accused falsely represented and hired the complainant’s vehicle at K700 per day incurring K43, 400.00 promising to pay upon cashing his company’s K10 billion cheque but did not.

Held
Plea
Serious breach of trust
First offender
PSR & MAR not favourable
Deterrent & punitive sentence

Cases:

Tardrew, Public Prosecutor, [1986] PNGLR 91
The State v Wellington Balewa [1988-89] PNGLR 496.
The State v Thomas Jim Nori [2016] N6467
State v Eric Emmanuel Vele [2002] PGNC 93; N2252
Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC 564
The State v Zuvani [2004] PGNC 127; N2641
The State v Duk [2009] PGNC 247; N3924
The State v Lawrence Simbe [1994] PNGLR 38
The State v Kumbamong [2008] PGCS 51; SC1017

Counsel:

R. Galama, for the State
I. Pailaea, for the Defence

SENTENCE

31st August, 2018

1. MIVIRI AJ: This is the Sentence of the Prisoner convicted after pleading guilty to falsely pretending to the complainant that upon hiring his vehicle he would be paid and not paying for it even up to eve of sentence.
   

Background

2. Prisoner had the Complainant Tama Wamo believe that between the 21^st day of July and the 20^th day of September, 2017 at Gerehu, National Capital District he would receive K10 billion proceeds of cashing a cheque made out to his company on the sale of Gold bars by the Central Bank. To help in that he hired the Complainant's Car Toyota Mark II registered number BCF 686 for 62 days at K700 per day incurring K 43, 400.00 which was never paid at all.
   

Charges

3. The conviction was sustained of obtaining goods or credit by false pretence or wilful false promise. Section 404 of the Code reads;-
   

“(1) A person who by false pretence or wilful false promise, or partly by a false pretence and partly by a wilfully false promise, with intent to defraud—

(a) Obtains from any other person any chattel, money or valuable security; or
(b) Induces any other person to deliver to any person any chattel, money or valuable security,

is guilty of a crime

Penalty: Imprisonment for a term not exceeding five years.

(2) It is immaterial that the thing obtained or its delivery is induced through the medium of a contract induced by the false pretence or the wilfully false promise, or partly by the false pretence and partly by the wilfully false promise, as the case may be.

(3) A person incurring a debt or liability who obtains credit by false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, or by any other fraud, is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding one year.

(4).........

4. Five (5) years imprisonment is the maximum for the offence here against the prisoner. He has used the car of the victim to a sum of K43, 400 for the 62 days he was using it at K700 each day. This is a lot of money for the victim and is a loss to the business and its earnings. Naturally victim would want to be compensated by being repaid back that money so that he would carry on his living in that business. But this urge to recover will not dwell on a man who has no evidence before the court of having the means to pay that money back. In this regard any suspension of a head sentence on condition of repayment is defeated when this is underlying. But it remains that the complainant victim is not ceased of the quilt of Justice and would be so where a suspended sentence is given.
   
5. The presentence and means assessment reports do not show any substantial and real means upon which the victim will realize his moneys. The attachments to it are without any real material basis that indeed those moneys will be forth coming into the accounts of the prisoner. It would be concrete if the earnings of the company are disclosed from its accounts by an officer of that company so that there is real and tangible existence of means from which prisoner will draw from to make good the loss to the victim of K43, 400.00. In other words tangible basis for an order other than incarceration. PNG Cultural Resources incorporated Limited is indeed an incorporated entity merely on paper without the means to settle. There is no evidence of liquid funds of the prisoners holding. There is no substantial basis to consider a sentence other than what is due on the material before me here. Since the 21^st July, 2017 to the 31st August 2018 a period of a year and a month the prisoner has not lifted a toea into the account of Tama Wamo in satisfaction of the money owing.
   
6. To further extend on a vacuum without any substance on the basis of which moneys will be forth coming will be reverting to the course that has already being seen up to now. It would serve no utility to suspend sentence where there are no real means to recoup what has been lost. Given all set out above I adjudge that the principles set out in Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91 (2 April 1986) are applicable here where it said, "suspension of sentence pursuant to section 19 (6) of the criminal code is, or maybe appropriate in three broad categories. The categories are not exhaustive (1) where suspension will promote the personal deterrence, reformation, or rehabilitation of the offender; (2) Where suspension will promote the repayment or restitution of the Stolen money or goods; (3) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or health."
   
7. In any case the presentence report has views, "the writer does not warrant him as suitable candidate for Probation supervision on suspended sentence". The means assessment report likewise confirms the same that the offender has no means to pay a fine or compensation if court orders.
   
8. There are no extenuating circumstances as depicted in including any serious health condition on the part of the prisoner by proper material in accordance with law before the court to consider otherwise.
   

Allocutus

9. Prisoner pleaded to be accorded mercy on the basis of his family background that he was married had a wife and children who depended on him for their up keep. He asked to be accorded a chance to repay the moneys owing to the victim.
   
10. In the same way the Complainant had a life to live depended on this money that he made from the hire of that vehicle now unpaid up to the date of this sentence.
    

Mitigation

11. Prisoner has pleaded guilty and is a first offender aged 49 years old from Bukawa Nawaeb, Morobe Province. He is married with four children. He is educated but unemployed with no steady income to sustain. He was looking for transport for his movement in the city to conduct his business of conducting various people and so engaged the victim. Businesses do not operate on charity and clearly he had no means as evidenced by far in the proceedings.
    

12. In State v Thomas Jim Nori [2016] N6467 sentence of 2 years IHL suspended on payment of a fine of K10, 000.00 was imposed. That is not the same here because prisoner does not demonstrate any credibility with substance here for repayment. In the State v Eric Emmanuel Vele [2002] PGNC 93; N2252 Prisoner there took the initiative to make repayment of K 11,091.23 even before the formal orders of court and had a balance remaining of K4, 008.77 to settle the money stolen from the Port Moresby Westpac Bank Limited where he was employed as Supervisor international Bank centre. And the presentence report recommended probation with community supervision which the court acceded to in view of that being so in the light of Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC 564 (27 August 1998) that criminal sentencing is a community responsibility. The sentence there was 2 and a half years suspended on very strict conditions of Probation. The circumstances here do not fit that and it would not be the same to here to follow suit.

13. In State v Zuvani [2004] PGNC 127; N2641 (25 August 2004) prisoner pleaded guilty to transferring paperless K22, 685.43 over a period of time property of her employer Bank of South Pacific Limited into a relatives account where she used the save card withdraw and used the money. She had almost made complete and full restitution of that money back to the bank. The court considered and imposed 4 years wholly suspended on seven conditions on probation attaching. There is no repayment at all here nor any means to so repay.

14. Which was the same in State v Duk [2009] PGNC 247; N3924 (15 July 2009)where the prisoner was an accountant of Wau Microbank. He dishonestly obtained and used K32, 800 in customer’s deposits that he applied to his own use contrary to section 383A of the Code. He never paid back any amount of that money. The court considered and imposed 4 years IHL none of which was suspended given that he had not repaid nor was there any facts to impose otherwise. He was a graduate from the Divine Word University with a Bachelor of Business Studies degree. The amount there is lower than the present.

Aggravation

15. You do not have any good reason for committing the crime. You used the vehicle personally for almost two months and the victim is still without that money owing up to now. I adopt and apply the principles of sentencing in Wellington Balewa [1988-89] PNGLR 496 in determining an appropriate sentence in your case. K43, 400.00 has not been recovered by the victim in the hire of his vehicle to you. He trusted you and you did not return that trust. It was a year and a month since 21^st July 2017 when you first used that vehicle up to now. You personally benefitted to the detriment of the complainant. Victim wants that money but you do not have the means to repay meaning he has lost out in it. There is no tangible means for restitution evident. And K40 000 to K150 000 is 3 to 5 years imprisonment. That is a guide the penalty provision prescribes 5 years imprisonment as maximum. And that is for the worst case of which isn't the case here in view of all the matters considered and the light of which an appropriate sentence would be determined by reference to its own set of facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38 (2 March 1994) which views are also set out in Kumbamong v The State [2008] PGCS 51; SC1017 (29 September 2008) a trial Judge's discretion to impose appropriate sentence is not restricted by the guidelines as that would amount to legislating and restriction of it.

16. And so in view of all the facts and circumstances set out and the law the appropriate sentence is adjudged 3 years imprisonment and I so impose that upon you. I make no order for suspension as there are no materials to sway other than a custodial term which is appropriate given all the facts and circumstances here.

17. The sentence of the court is 3 years IHL. Any time in custody before grant of bail is deducted forthwith. Bail is refunded forthwith.

Orders accordingly.

___________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for Defence