State v Siune [2019] PGNC 126; N7847 (9 May 2019)

N7847

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 62 of 2019

THE STATE

V

JOYCELYN YALI SIUNE

Waigani: Berrigan, J
2019; 8 March; 26 April and 9 May

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

Cases Cited

Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
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 Lesi (2018) N7543
The State v Niso (No 2) (2005) N2930
The State v Tardrew [1986] PNGLR 91
The State v Terence Wilford Tabogani CR (FC) 305 of 2017, unreported, 26 March 2018
The State v Tiensten (2014) N5563
The State v Rebecca Kunti, unreported, 2018
The State v Wesley Kopman CR (FC) 53 of 2017, unreported, 25 August 2017
Wellington Belawa v The State [1988-1989] PNGLR 496

Counsel

Ms L. Jack and Mr A. Dus, for the State
Mr E. Sasingian, for the Accused

DECISION ON SENTENCE

9^th May, 2019

1. BERRIGAN J: The offender pleaded guilty to one count of obtaining money by false pretence with intent to defraud, contrary to s. 404(1)(a) of the Criminal Code (Ch.226) (the Criminal Code).
   
2. On 7 occasions between 23 March 2016 and 17 April 2016 the offender and her late husband, Matthew Siune, obtained a total sum of K60,000 from the complainant, Gajanan P. Barve, with intent to defraud by falsely pretending that they would repay all monies at 40% interest. In each case the offender signed a statutory declaration and/or promissory note confirming that the monies would be repaid with interest within a specified period.
   
3. The offender failed to repay any of the monies as promised. She failed to respond to the complainants’ numerous phone calls and went into hiding. The matter was eventually reported to police.
   

Sentencing Considerations and Comparable Cases

4. 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.
       
5. 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.
      
6. Whilst the principles identified 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; The State v Tiensten (2014) N5563.
   
7. 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 the 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 having regard to her very good prospects of rehabilitation into the community, in particular that it would enable her to resume her business and support herself and her family than otherwise would be the case.
   
8. The State also referred me to a number of decisions, including:
   
   1. 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;
      
   2. 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;
      
   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 Terence Wilford Tabogani CR (FC) 305 of 2017, unreported, 26 March 2018, Salika DCJ (as he then was), in which the prisoner offered to assist his uncle who was running for elections. The offender obtained a total of K12,500 on the false pretence that he required monies for the purpose of the election campaign. The monies were not used for their intended purpose but for his own use. The prisoner was sentenced to 4 years’ imprisonment on a plea of guilty.
      
9. 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 property 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 false pretence that he was expecting 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 moneylending 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.
        
10. 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

11. It is well established with respect to offences concerning dishonesty that, in general terms, the greater the amount involved the more serious the offence. The offence in this case concerns a substantial amount of money, totalling K60,000, obtained on 7 different occasions over a period of less than a month, indicative of some planning and ongoing dishonesty during that period.
    
12. As conceded by the State in its submissions^[1] and confirmed by the Pre-Sentence Report, there was no special relationship of trust existing between the offender and the complainant at the time of the offending. The complainant relied upon the false representations in providing the funds as part of his normal moneylending business. Whilst still serious, the impact on the victim is confined to loss in that context.
    
13. It appears from the pre-sentence report that the monies were used to meet the offender’s husband’s medical expenses. The offender’s husband died recently, on 23 March 2019, whilst she was on remand. There has been no restitution to date.
    

Personal Circumstances and Matters in Mitigation

14. The offender is 48 years of age from Teremanda Village in the Enga Province and has been a long-time resident at her father’s house at Korobosea in Port Moresby. She completed Grade 12 in 1985, her highest level of education. She is currently unemployed and has not engaged in formal employment to date.
    
15. As above, she recently became a widow. She has four adult children all of whom are employed, including one who works in Australia.
    
16. In mitigation this is the offender’s first offence. Her brother described the offence as out of character. Probation Services were unable to obtain views from other members of the offender’s family or community.
    
17. The offender pleaded guilty at a very early stage following committal and expressed remorse on allocutus, which I accept as genuine. She apologised to the Court and asked to serve her term outside of prison whilst raising funds for restitution. I have also taken her early plea 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^[2].
    
18. Whilst it does not excuse the offending, I accept that it did take place in circumstances of mitigation special to the accused in the form of pressure to meet her late husband’s medical expenses. It is also clear in this regard that she has been largely dependent on him for much, if not all, of her adult life.
    
19. Furthermore, I am satisfied that the offence has, and will continue to have, a profound impact on the offender. The offender lost her husband whilst in custody. Given her limited education and lack of prior formal employment, I am sure it will be even more difficult for the offender to obtain employment in the future in light of her conviction, which will inevitably also cause embarrassment and a lack of standing with her friends, family and community.
    
20. The offender also suffers from an ongoing medical condition. I have taken this into account and it is discussed further below.
    

Sentence

21. The offender has been convicted of one count of obtaining monies by 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.
    
22. 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.
    
23. Taking into account all the matters outlined above, I impose a sentence of 3 years’ imprisonment in light labour, less the 10 months, 12 days spent in custody awaiting trial since 28 June 2018.
    
24. On allocutus the offender sought to have the sentence suspended to enable restitution but the submission was withdrawn by defence counsel for the reasons discussed below.
    
25. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
    
26. The Means Assessment Report makes clear that the offender has no means to restitute. As above, she is unemployed. Whilst there is some evidence that monies have in the past been paid to a prominent politician, there is nothing to establish that the monies are available for restitution. Similarly, whilst there is some suggestion that the offender owned real estate with her late husband, there is no evidence to substantiate the claim. An adjournment and orders were granted to allow the defence the opportunity to investigate the availability of funds purportedly held, through or in a company account, with the Bank of South Pacific but defence counsel subsequently indicated that the enquiries were ultimately unsuccessful.
    
27. A medical report from the Port Moresby General Hospital confirms that the offender suffers from hypertension for which she is receiving ongoing treatment. Whilst the report states that prison is not an “ideal” place for the management of her health condition, it was not suggested by counsel, and I am not of the view, that her condition would cause exceptional hardship warranting suspension. It is clear from the medical report that Correctional Services is actively managing her health condition, for which she is receiving treatment whilst being held in custody.
    
28. Nor is this a case warranting suspension on other grounds in my view.
    
29. Having regard to the above, the offender will serve the balance of 25 months’ and 18 days in custody.
    
30. The Court orders accordingly.
    

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

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^[1] Para. 12(b) of the State’s Submissions on Sentence, filed 4 April 2019.

^[2] The State v Solomon Junt Warur (N7545)