State v Waik [2018] PGNC 69; N7131 (15 February 2018)

N7131

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 243 OF 2017

BETWEEN
THE STATE

AND:
GABRIEL WAIK

Waigani: Salika DCJ
2017: 16 November; 8 December
2018: 15 February

CRIMINAL LAW – Practice and Procedure – Charge of False Pretence – what is honesty – Sentence – 3 years imprisonment

Counsel:

Ms T Aihi, for the State
Mr E Sasingian, for the Prisoner

15^th February, 2018

1. SALIKA DCJ: INTRODUCTION: The prisoner pleaded guilty to one count of obtaining goods by false pretence, a charged laid under s.404(1) (a) of the Criminal Code Act.
   

Facts

2. Between 16 August 2016 and 6 October 2016, Gabriel Waik called Gibbi Piakon to tell him that there was a wrecked Toyota Landcruiser going on sale and that if he wanted it he (Gabriel Waik) could get it for him for K15,000. Gibbi Piakon agreed to get the Toyota wreck and gave K15,000 cash to Gabriel Waik to purchase the wrecked vehicle for him. Gabriel Waik did not buy the vehicle. Gibbi Piakon followed up with him for the vehicle but the prisoner gave so many excuses and promises that it became apparent to Gibbi Piakon that he was not going to get the wrecked Toyota Landcruiser or his money of K15,000. Gibbi Piakon reported the matter to the police and had Gabriel Waik charged for obtaining the K15,000 by false pretence and false promise.
   

Issue:

3. The prisoner pleaded guilty to the charge and the issue now for the court is to decide what sentence to impose on the prisoner.
   

The Law

4. Section 404(1)(a) of the Criminal Code Act says:
   

“404. Obtaining goods or credit by false pretence or wilfully false promise.

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

(a) obtains from any other person any chattel, money or valuable security; or
Penalty: Imprisonment for a term not exceeding 5 years.”

The above quoted law says the maximum term the court can impose on the prisoner for committing the offence is 5 years imprisonment. However, the same law, s.19 of the Criminal Code allows for the court to exercise its discretion to impose a sentence lesser than the maximum prescribed by law.

5. The court also gets assistance from case precedents. Some cases cited by Counsel are:
   
   1. The State v Tom Nadia CR(FC) 128 of 2016 Unreported decision of the National Court.
      

The prisoner in that matter pleaded guilty to one count of obtaining goods by false pretence by saying he made arrangements to get a vehicle for the complainant and asked the complainant to give him K15,000 to buy the vehicle. The complainant believed him and gave K15,000 to the prisoner. The prisoner never gave him the vehicle and never returned the money and so was charged by police. He was sentenced to 3 years. The prisoner’s 3 months in custody was said to be enough and the rest of the sentence was suspended.

2. The State v Yandex Kimuti CR(FC) 09 of 2017 Unreported National Court decision.

The prisoner pleaded guilty to one count of obtaining goods by false pretence. He promised the complainant that he would secure a second hand landcruiser at a cheap price of K17,000. The complainant gave him the K17,000 but prisoner never delivered the secured landcruiser and never returned the K17,000.00. He got charged and pleaded guilty to the charge. He was sentenced to 3 year imprisonment but suspended with orders for restitution within 4 months.

100. The State v Kaina Muri – Unreported National Court decision – December 2017
     

The prisoner falsely pretended to the complainant that the National Identification Program needed a vehicle to hire. The complainant got his sister’s vehicle and hired it to the project. The representation by the prisoner was false and the prisoner was charged for obtaining the motor vehicle by false pretence and sentenced to 3 years imprisonment.

Personal Particulars of Offender

6. The prisoner’s personal particulars are:
   
   • - 53 years old
   • - From Londol in Kompiam/Ambun District, Enga Province.
   • - Married with 3 children and has one other child from a previous marriage.
   • - He was educated to Grade 10 level.
   • - He is self employed and runs a Car Wreckers business at 5 Mile on Section 116 Allotment 93 which is a bona fide residential area and the State Lease he has is for a bona fide residential purpose, but he runs a car wreckers business there – that kind of business should be in an industrial area and not in a residential area.
   • - The prisoner’s means assessment report says he has only K50.00 in his bank account and he has not shown his cash flow from his business.
     

Mitigating Factors

7. The following are the mitigating factors:
   
   1. He is a first time offender.
   2. He pleaded guilty to the charge.
      

Aggravating Factors

8. The following are aggravating factors.
   
   1. K15,000 is a lot of money he falsely obtained.
   2. The prisoner is known to the victim and the false promises to repay have not materialised.
   100. The victim’s business suffered from the loss.
   4. 1 year 4 months have passed without the prisoner making repayments and the prisoner continues to make false promises.

Sentence

9. This is another dishonesty case. One thing most of us have in common is that we do not like dishonesty. We especially do not like it when we see it manifested in others. It’s not easy, to see it in ourselves; and when we do, we tend to rationalise our actions, to justify them, to down play the significance and say:- “Oh, it’s only a small thing, it’s not bad, not really important”. We might fool ourselves even, most of the time, but we can never fool God and others perhaps. I dare say that dishonesty is practiced all through our ranks, and this is the cause of our lukewarmness on the part of many who profess to be Christians. If honesty is an essential part of human character and value, then why is it that we should tell lies or practice falsehood at the workplace, in the Courts and elsewhere.
   
10. What then is honesty? In the case of The State v Gabriel Ramoi (1993) PNGLR 390 this court said:-
    

“The word ‘dishonesty’ in s.383A of the Criminal Code relates only to the state of the mind of the person who does the act which amounts to misappropriation. The state of mind when a person applies property is a question of fact for the trial judge to determine on all of the facts presented before him. And when the judge considers the facts on how the property was applied, he uses the ‘ordinary standards of reasonable and honest people test to determine whether or not the property so applied was dishonestly applied. ... ‘Dishonest’ is defined in the Oxford Advanced Learners Dictionary of Current English as ‘intended to cheat, deceive or mislead.” “

I want to expand on what I said in the Ramoi case by saying that we tell our children not to tell lies because that is not honest. Honesty means a lot more than not lying. It means an honest person does not do things that are morally wrong. Honesty is about speaking and acting truthfully. Being honest means one acts in a way that he knows is the right thing to do.

11. One is not being honest with himself or herself if he or she is trying to convince himself or herself that he did not really do anything wrong, or it was not that bad, even though he or she did it. In this case you may still be trying to convince yourself that you did not really do anything wrong and that it was alright to do what you did. Let me bring you back to your senses that what you did was wrong. You got by false pretence K15,000 from Gibbi Piakon and you were meant to deliver the wrecked Toyota landcruiser to him but you did not and to date you have not. Gibbi Piakon wants the wrecked Toyota Landcruiser and his K15,000 that you got from him. You have obviously used the K15,000 and cannot return it to him. You appear not to have a conscience at all. A conscience is that voice in your head, and that feeling in your heart that tells you if something is right or wrong even when no one is looking. In your case you do not have that voice and that feeling. You are dead to those.

12. Taking into account the circumstances of the offence and taking into account the mitigating factors and the aggravating factors and to deter others like you, I sentence you to 3 years imprisonment in hard labour. All will be suspended if you return the K15,000 to Gibbi Piakon, when ever that occurs.

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