State v Kupe [2021] PGNC 353; N9174 (13 September 2021)

N9174

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 316 OF 2019

BETWEEN:
THE STATE

AND:
DIANNA ONIKE KUPE

Vanimo: Rei, AJ
2021: 18^th, 26^th, 27^th, 29^th July & 13^th September

CRIMINAL LAW – PRACTICE & PROCEDURE – plea of guilty – fraudulent transaction – sentence suspended – S.19 of CCA – restitution.

Held:
Plea of guilty
Suspended Sentence

Cases Cited:
The State -v- Folly Rocky (2016) N6918
The State -v- James Mariko (2015) N6086

Legislations Cited:

Section 319 of the Criminal Code Act

Counsels:

Mr. T. Aihi, for the State
Mr. P. Moses, for the Defendant

30^th July, 2021

1. REI AJ: FACTS: The brief facts of the case are that on the 1^st September 2017 and 30^th December 2017 the prisoner sold a motor vehicle to the complainant at the price of K16, 000. The prisoner received cash and handed the motor vehicle registration BEY 661 to the complainant. Sometimes later the prisoner went and saw the complainant and asked him to return the vehicle to her under the pretext that some repair and maintenance needed to be done. She however went ahead and resold the vehicle to a third party for an undisclosed price. When the complainant became aware of this, he requested for the repayment of the sum of K16,000. When the prisoner failed to repay, the matter was reported to the Police.

ARRAIGNMENT

2. Upon the State presenting the Indictment on the matter the accused person was arraigned.

3. The contents of the Indictment were read to the prisoner as well as the brief facts of the case when the prisoner was asked to plead to the offence of obtaining goods by false pretense as laid under Section 404(1)(a) of the CCA.

4. A provisional guilty plea was entered whereupon Mr. Masket submitted that the plea of guilty was consistent with his instructions.

5. A perusal of the committal file by myself showed that the plea of guilty was consistent with the evidence contained in the said file.

6. Mr. Masket asked that a Pre-Sentence Report (“PSR”) be provided. This has since been provided.

ALLOCUTUS

7. The Prisoner addressed the Court in which she said she was sorry for what she did and that she is willing to repay the sum of the money paid to her by the complainant within a given time.

8. She said she repaid K1,250 and the balance of K15,650 remains outstanding which she acknowledged.

9. She is married and has children.

10. This is her first encounter with the law and has no previous criminal record.

MITIGATING FACTORS

11. The mitigating factors are that the prisoner:

(i) is a married woman;
(ii) is a first time offender;
(iii) has shown genuine remorse;
(iv) repaid K1,250; and
(v) pleaded guilty to the charge saving costs and time.

AGGRAVATING FACTORS

12. The aggravating factors are:

(i) lying to the complainant
(ii) the prisoner used the proceeds of the resale of the vehicle

without the knowledge of the complainant

(iii) prevalence of the offence
(iv) the complainant did not benefit from either the use of the

vehicle or resale

MEANS ASSESSMENT REPORT

13. A Means Assessment Report compiled by Ben Kasanda of the Community Based & Rehabilitation Services (“CB & RS”) speaks favourably for the prisoner which recommends that the prisoner has financial resources to settle the sum of K15,650 within 63 fortnights or 2 years 6 months in equal fortnightly instalments of K250.00 per fortnight or K500 per month. The Means Assessment Report says she has the financial ability to settle the matter.

SENTENCE

14. This case involves the question of honesty and transparency in commercial activities.

15. An offer for the sale of a motor vehicle was made to the complainant by the prisoner which offer was accepted by the complainant who then paid the sum of K16,900 to the prisoner in good faith.

16. The prisoner became dishonest in her dealings with the complainant by recovering the vehicle from the complainant in a deceitful manner and selling it to a third party without the knowledge and approval of the complainant who performed his part of the bargain faithfully.

17. The prisoner became dishonest, not only to the complainant but to herself in knowing very well that the vehicle had been sold to the complainant that she became dishonest by selling it to another person. When she received payment from the third party, she did not honestly account for the money paid to her by the complainant.

18. In considering appropriate sentence in this matter, I had the opportunity of relying on several cases with similar complaints.

19. In the case of The State -v- Folly (2016) N6918:

This was a guilty plea to the charge of obtaining goods by false pretense.

The offender told the complainant that he was an information technology specialist and obtained from the complainant his laptop to fix. The complainant trusted the offender and gave his laptop to him. The offender assured the complainant that he would fix the laptop for him and return it to him in the afternoon.

The complainant never got his laptop back. The offender obtained the laptop with intent to defraud.

He was sentenced to 2 years less time (1 year, 11 months and 10 days) spent in custody.

The balance of 1 month was wholly suspended with conditions that he compensates the complainant the sum of K1,000 for loss of the laptop that was stolen within one month effective as of the date of the orders.

20. In the case of The State -v- James Mariko (2015) N6086:

This was a guilty plea to the charge of obtaining goods by false pretense.

The offender presented himself to the complainant and his wife that he will buy a car from another person on their behalf and asked them to pay K8,500 in cash as payment for the purchase of the used car which unfortunately was never delivered to them.

The complainant later found out from this other person that he never received the K8,500 from the offender. The offender became aware of his misdeeds and went into hiding.

The offender was sentenced to 3 years imprisonment term less time (11 months and 2 days) spent in custody.

1 year was suspended with conditions that he repays to the complainant the total sum of K8,500 within 6 months. In the event of failure to repay the complainant was to serve the impose head sentence of three years.

SENTENCE IN THIS CASE

21. The prisoner in this case was absolutely dishonest in her actions and a determent sentence is on offer.

22. But given the fact that she has stood alone in this matter as her husband has not supported her and the fact that she has given an undertaking to repay the balance of K15,690 and she is a first time offender, in the exercise of my discretion under S.19 of the CCA, I impose, a sentence of 3 years 6 months less any term of remand.

23. I however suspend the whole of the sentence upon the following conditions:

(a) the prisoner shall enter into probation for 3 years 6 months on the following conditions;

(i) the prisoner shall within 48 hours report to the Probation Officer;

(ii) shall be resident at East Tower in Vanimo at all times in the course of the probation period;

(iii) shall not leave East Tower Vanimo without the leave of this court during the course of the probation period;

(iv) shall keep the peace and be of good behaviour at all times;

(v) shall not take liquor or any form of intoxicating substance or drugs during the period of probation;

(vi) shall attend church every Sabbath for service and worship whilst on probation;

(vii) shall within the suspended term as of the date of this order make restitution to the complainant in the sum of K15,690.00 at equal monthly instalments of K500 per month until settlement or within 2 years 6 months;

(viii) those monies be paid to the CB & RS per Ben Kasanda;

(ix) the Probation Officer shall file a report on the responses and progress of the probationer every three months and at any other time or interval as the National Court of Justice may order upon application;

(x) bail monies of K3,000.00 be refunded which shall be applied to offset the principal sum of K15,690.00 leaving the balance of K12,690.00 to be paid.

24. If the prisoner fails in any of the conditions stipulated herein, she shall be brought to this Court and be sentenced to serve the term of 3 years 6 months.
______________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant