State v Heni [2019] PGNC 125; N7846 (26 April 2019)

N7846

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 46 of 2019

THE STATE

V

DOROTHY HENI

Waigani: Berrigan, J
2019: 13 March; and 11, 26 April

CRIMINAL LAW – Sentence – Section 404 (1) (a) of the Criminal Code – Obtaining by false pretence with intent to defraud - Plea of guilty

Cases Cited

Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Mase v The State [1991] PNGLR 88
The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, 23 June 2017
The State v Ethel Kila, CR (FC) 25 of 2018, unreported, 5 September 2018
The State v Frank Kagai [1987] PNGLR 320
The State v Jack Ostekal Metz (2005) N2824
The State v John Kil (2000) N1974
The State v Larry Dickson CR (FC) 886 of 2013, unreported, 12 August 2013
The State v Niso (No 2) (2005) N2930
The State v Rebecca Kunti, CR (FC) 22 of 2018, unreported
The State v Tiensten (2014) N5563
The State v Tardrew [1986] PNGLR 91
Tremellan v The Queen [1973] PNGLR 116
The State v Wesley Kopman CR (FC) 53 of 2017, unreported, 26^th March 2018
Wellington Belawa v The State [1988-1989] PNGLR 496

Counsel

Ms L. Jack and Ms. S Joseph, for the State
Mr E. Sasingian, for the Accused

DECISION ON SENTENCE

26 April, 2019

1. BERRIGAN J: The offender pleaded guilty to seven counts of obtaining by false pretence, with intent to defraud, contrary to section 404 (1) (a) of the Criminal Code (Ch. 226) (the Criminal Code).
   
2. The offender was the friend and tenant of one Rose Komi. At the offender’s request, Komi found friends and family to lend money to the offender and a vehicle to hire. Between 12 June 2018 and 30 June 2018 the offender obtained the following monies from 6 people by falsely pretending that she had won a catering contract worth K250,000 for the upcoming APEC meeting but required start-up capital to secure the contract, and would repay the borrowed monies with 100% interest. On that basis she obtained the following monies with intent to defraud:
   
   1. On Count 1: K800 from Veronica Gombara;
   2. On Count 2: K1000 from Pitu Nis;
   100. On Count 3: K1000 from Saki Peong;
   4. On Count 5: K200 from Cathy James;
   5. On Count 6: K1,500 from Edna Matiabe; and
   6. On Count 7: K1,500 from Alice Mandawi.
      
3. Similarly, with respect to Count 4, the offender obtained with intent to defraud the use of Saki Peong’s property, namely a vehicle, on the false pretence that she would pay him K200 per day when the payment of her catering contract was received.
   
4. The complainants waited for several weeks before seeking their monies from the offender. In some cases, she continued to pretend that she would repay the monies upon receipt of her contract monies. In others, she failed to respond at all. She moved out of Komi’s home without warning. The matters were eventually reported to police, who were able to secure the return of Saki Peong’s vehicle after 38 days, or a total hire value of K7600.
   

Sentencing Considerations

5. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:
   
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
       
6. In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:
   
   1. K1 and K1000, a gaol term should rarely be imposed;
   2. K1000 and K10,000 a gaol term of up to two years is appropriate;
   100. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
   4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
      
7. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; and The State v Tiensten (2014) N5563.
   
8. Both counsel referred me to cases in support of their respective submissions. The defence cited the decision of The State v Lesi (2018) N7543, in which the accused pleaded guilty before me to four counts of obtaining a total of K39,000 by false pretence with intent to defraud. In each case she falsely pretended, to four different people, that she was expecting a rebate from the Internal Revenue Commission and would repay the monies with interest once the rebate was received. She was sentenced to a total of 3 years’ imprisonment in hard labour applying the totality principle. Two years of her sentence was suspended on conditions.
   
9. The State also referred me to a number of decisions, including:
   
   1. The State v John Kil (2000) N1974, Kirriwom J, in which the prisoner pleaded guilty to obtaining K1,470 by false pretence with intent to defraud on the basis that he would repay a friend as soon as he received a lump sum termination payment owing to him. He was sentenced to 8 months’ IHL but the sentence was wholly suspended on conditions including restitution of the money obtained, and compensation in the form of a pig and garden food;
      
   2. The State v Larry Dickson CR (FC) 886 of 2013, unreported, 12 August 2013, David J, in which the prisoner obtained cash in the sum of K15,962, cash and property to the value of K700, and cash and property in excess of K1000 from three victims, respectively, over a period of 4 months by falsely pretending that he would repay 100% interest on the money borrowed and on the basis that he needed money to facilitate the transfer of investments made by his late father. A sentence of three years was imposed on the first count and one year each on the remaining two counts. Applying the totality principle, the accused was sentenced to 3 ½ years’ imprisonment;
      
   100. The State v Wesley Kopman CR (FC) 53 of 2017, unreported, 25 August 2017 where Liosi AJ (as he then was) sentenced the prisoner to 4 years’ imprisonment IHL after he pleaded guilty to 1 count of obtaining K63,000 by false pretence, namely that he would repay K10,000 for every K1000 borrowed upon the sale of some gold; and
        
   4. The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, 23 June 2017, Salika DCJ (as he then was), in which the prisoner was sentenced to 4 years’ imprisonment in hard labour. He presented a false cheque written out to himself in the sum of K4 million and told his victims he needed money to clear the cheque. On that basis he obtained K11,000 from four victims at different times.
      
10. I have also had regard to the following which may provide guidance in determining sentence:
    
    1. The State v Jack Osteka Metz, (2005) N2824, Manuhu AJ (as he then was) in which the prisoner pleaded guilty to one count of obtaining goods or credit by false pretence. Over an 8-month period the prisoner obtained cash, accommodation, meals and other services to the value of K70, 455.36 on the pretence that he was expecting payment in millions of kina from the sale of Treasury Bills. He was sentenced to 3 and a half years’ imprisonment;
       
    2. The State v Ethel Kila, CR(FC) 25 of 2018, unreported, 5 September 2018, Salika DCJ (as he then was) in which the prisoner was found guilty following trial of one count of false pretence. She obtained K22,000 from a husband and wife money lending business by falsely pretending that she would repay K56,000 once she had started her own catering company, for which she produced documents in support, when in fact she intended to travel overseas. She was sentenced to 3 years’ imprisonment which would have been suspended but for the fact that the offender absconded following trial; and
       
    100. The State v Rebecca Kunti, unreported, 2018, Salika DCJ (as he then was) in which the prisoner was sentenced to 4 years’ imprisonment after pleading guilty to two counts of obtaining money by false pretences. On the first count she obtained a total of K65,000 over a number of instalments on the false basis that she would use it to purchase a vehicle on behalf of the victim. Using the same approach she obtained a further K30, 500 from a second victim.
         
11. The sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Nature and Circumstances of the Offence, including Matters of Aggravation

12. It is well established with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. The offences in this case concern cash and property to the total value of K13, 600. The offences were committed over a period of about 18 days during the month of June 2018, involving a number of different victims, indicative of planning and ongoing dishonesty. There is no evidence of the use to which the money was put and there has been no restitution to date.
    
13. The offender took advantage of her relationship with her friend, Rose Komi, and of Komi’s relationships with her relatives and friends to commit the offence, most of whom might be described as relatively unsophisticated. According to the Pre-Sentence Report, the other complainants now blame Komi for the loss of their monies and she is slowly reimbursing them herself. As a result, she has had to withdraw some of her children from school.
    
14. The impact on the other victims in this case has also been great. Family relationships have been strained and it appears that a number of children of other complainants have also withdrawn from school as a result of the offences. Saki Peong not only lost much needed cash but incurred significant further costs to search for and secure the return of his vehicle whilst being unable to use it for his work.
    

Personal Circumstances and Matters in Mitigation

15. The offender is 40 years of age from Iokea Village in the Gulf Province but has been living with relatives in Port Moresby for some time. She has four adult children from a previous marriage, who reside overseas.
    
16. The offender graduated with a Bachelor of Medicine and Surgery (MBBS) from the University of Papua New Guinea (UPNG) in 1994 before obtaining a Masters in Gynaecology from UPNG. She worked at the Port Moresby General Hospital before going into private practice. She gave up her medical career to concentrate on her catering company.
    
17. In mitigation this is the offender’s first offence. She pleaded guilty and expressed remorse on allocutus, which I accept as genuine. She apologised to the Court and those she had wronged. She pleaded guilty at a very early stage following committal, which I have also taken into account on the separate utilitarian ground that it has saved the State the cost of running a trial, and the witnesses the inconvenience of attending and giving evidence^[1].
    
18. It appears that the offender was reluctant to involve her family, friends or past colleagues in these sentencing proceedings. Nor was it possible for Probation Services to speak to anyone from her community. Nevertheless, I accept that the impact of the offences on the offender will be grave and that she will suffer humiliation and a significant loss of standing with her family, friends and community as a result of her conviction. Any term of imprisonment will also impact her children who she has been supporting to some extent whilst overseas.
    
19. The offender reported to Probation Services that she is currently receiving medication following a kidney transplant some years ago. No reports were available to confirm her condition, nor has the matter been reported to Correctional Services, where she is currently remanded. The matter was not pursued by counsel on submission and there is no suggestion that her condition is a matter of special mitigation or would cause an excessive degree of suffering in prison.
    

Sentence

20. The offender has been convicted of seven counts of false pretence with intent to defraud, contrary to s. 404(1)(a) of the Criminal Code, the maximum penalty for which is 5 years’ imprisonment. It is well established that the maximum penalty should normally be reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Whilst not within that category, this case is nevertheless serious and the aggravating factors involved clearly outweigh those in mitigation. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.
    
21. The prisoner has no means to restitute and has not sought suspension of the sentence, for which on the materials before me there are no grounds.
    
22. Taking account of all of the matters outlined above, I impose the following sentences of imprisonment in light labour:
    
    1. On Count 1, 3 months;
    2. On Count 2, 6 months;
    100. On Count 3, 6 months;
    4. On Count 4, 2 years;
    5. On Count 5, 2 months;
    6. On Count 6, 18 months; and
    7. On Count 7, 18 months.
       
23. I have considered the principles regarding whether a sentence should be made concurrent or cumulative, and the principles of totality: see Mase v The State [1991] PNGLR 88 at 92 and Tremellan v The Queen [1973] PNGLR 116. Having regard to the principles of totality, the sentences will be served concurrently.
    
24. In summary, the offender is sentenced to 2 years’ imprisonment in light labour. Having regard to the 10 months already spent in remand pending trial, she will serve the balance of 14 months’ in custody.
    
25. The Court orders accordingly.

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

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^[1] The State v Solomon Junt Warur (N7545)