State v Kapika [2022] PGNC 269; N9740 (17 June 2022)

N9740

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 5 OF 2021

BETWEEN:
THE STATE

AND:
SAMSON KAPIKA

Maprik: Rei, AJ
2022: 14^th, 15^th & 17^th June

CRIMINAL LAW - Practice and Procedure – plea of guilty – intention to defraud – false pretense - custodial sentence considered – not appropriate – serious case of fraud – non-custodial of 3 years sentence imposed with conditions – restitution within 12 months.

Cases Cited:
Doreen Liprin -v- The State [2001] SC673
The State -v- Dorcas Boski [2014] PGNC 161; N5814
The State v John Bolkun [2012] N4689
The State -v- Anegela Tokonai [2012] N4679
The State -v- John Kil [2000] PNGLR 253
The State v. Ivan Bob (2013) N5382
The State -v- Joyce Pora Frank [2016] N6343
The State -v- Eric Vele [2002] N2252
The State -v- Richard Yopo CR (FC) 158 of 2020 (31^st December 2021)
The State -v- Gabriel Ramoi [1993] PNGLR 390
The State -v- Waik [2018] PGNC 69; N7131
Wellington Belawa -v- The State [1988-89] PNGLR 496

Legislation:

Section 19 & Section 404(1)(a) of the Criminal Code

Counsel:
Mr. Anderw Kaipu, for the State
Mr. Dan Siki, for the Defence

17^th June, 2022

DECISION ON SENTENCE

1. REI, AJ: The State presented an indictment on the 14^th of June 2022 alleging that:
   

SAMSON KAPIKA of Kuminimbis Village, Maprik District, East Sepik Province stands charged that he at Maprik Town, Maprik District, East Sepik Province in Papua New Guinea on the 26^th day of January 2018 by falsely pretending to Joab Mapat that 563.9 grams of false gold was real gold and obtained K53,570.50 in payment for the false gold with intent to defraud contrary to Section 404 (1) (a) of the Criminal Code.

2. The brief facts are that the accused approached Joab Mapat on 26^th January 2018 at his family gold buying shop called Jokuma Trading and offered to sell gold weighing 563.9 grams at the rate of K95.00 per gram. The product was sold whereupon the accused was, paid K53,570.50.

2. The complainant’s wife Esther Mapat took the gold and went to Vanimo for sampling when it was found that the specimen sold to her husband by the accused was not gold.
   

4. Upon her return from Vanimo Esther Mapat and her husband approached the accused and told him to repay the money by which time he had spent it all. He only refunded the sum of K8,050.00 and the remaining balance of K45,520.00 has to date not been repaid.

5. The complainant made persistent demands of the accused but the accused has not complied with those demands although he promised on numerous occasions to repay.

6. Section 404(1)(a) of the Criminal Code provides that:

“(1) A person who by false pretense or wilfully false promise, or partly by a false pretense and partly by a wiful false promise, and with intent to defraud –

“(a) obtains from any other person any chattel, money or valuable security ...is guilty of a crime.

“Penalty: Imprisonment for a term not exceeding five years.”

ARRAIGNMENT

7. The accused was arraigned on the 14^th of June 2022 during which he entered a plea of guilty which was consistent with his instructions to his Counsel Mr. Siki.

8. The plea was confirmed because the accused admitted in his record of interview. He was found guilty as charged and consistent.

ANTECEDENTS

9. No prior convictions.

ALLOCUTUS

10. The prisoner said sorry to the Court and to Joab and Esther Mapat for what he did.

11. He said he is willing to repay the outstanding balance if placed on probation.

MITIGATING FACTORS

12. The mitigating factors are:
    
    1. The prisoner entered an early Guilty Plea which saved the Court and the State its resources to run the entire trial.
    2. After almost 50, this is the prisoner’s first offence. The prisoner has no prior convictions.
    3. He was very remorseful and apologized to God, the State, the Court and the victim and his family as per the office which he committed.
    4. Prisoner is willing to repay the money
    5. Prisoner caused no further trouble.
    6. K8,050.00 was given back to the complaint.
    7. Pre-sentence report – Complainant wants the prisoner to be out on probation to pay and to repay the money.
       

AGGRAVATING FACTORS

13. The aggravating factors are:

1. a substantial amount was taken;
2. there was a serious breach of trust;
3. the prisoner applied the money dishonestly taken to his own use;
4. the victims ran a small business, who had accumulated the money over a period of time has endured or suffered stress, anxiety and inconvenience over the loss;
5. trust and confidence in alluvial gold sellers is seriously eroded;
6. the prisoner actually took K53,570.00 from the victim and only repaid K8,050.00 and the balance of K45,520.00 has not been repaid;
7. the prisoner is an experienced alluvial gold miner able to tell what was real from false gold;
8. the offence was prevalent; and
9. the prisoner did not attend the call-over and was issued with the bench warrant but upon his appearance the next day in Court, his bench warrant was revoked.
   

DECISION

14. Section 404(1)(a) of the Criminal Code provides that:

“(1) A person who by false pretense or wilfully false promise, or partly by a false pretense and partly by a wiful false promise, and with intent to defraud –

“(a) obtains from any other person any chattel, money or valuable security ...is guilty of a crime.

“Penalty: Imprisonment for a term not exceeding five years.”

15. Sentencing guidelines are set out in the case of Wellington Belawa -v- The State [1988-89] PNGLR 496. Although the sentencing guidelines here are somewhat outdated and they are useful to determining sentences.

16. In the case of The State -v- Dorcas Boski [2014] PGNC 161; N5814, His Honour David J. imposed a sentence of 2 years 10 months, where the prisoner entered a plea of guilty on one count of false pretense and ordered that the sum of K12,000.00 be repaid within 6 months at K2,000.00 per month.

17. In the case of The State -v- John Bolku [2012] N4689, the prisoner was convicted of one count of false pretense in obtaining the sum of K160,000, a sentence of 3 years was imposed which was suspended on conditions with an order for restitution to be effected within 6 months.

18. Similar instances of obtaining money or goods by false pretence were referred to me by Mr. Siki which included:

No.	Name of Case	Ref.	Amount	Head Sentence	Terms of Remand	Term of Sentence
i.	State -v- Anegela Tokonai	N4679	K15,865.50	3 years	4 months 2 weeks	2 years 7 months 2 weeks
ii.	State -v- John Kil	PNGLR 253	K 1,470.00	8 months	NIL	8 months
iii.	State -v- Ivan Bob	N5382	K 5,025.00	2 years	NIL	2 years
iv.	State -v- Joyce P. Frank	N6343	K10,000.00	E years	2 months	2 years 10 months

19. In The State v. Eric Vele [2002] N2252, Kandakasi J (as he then was) carefully assessed the policy considerations the Court must take into account in deciding on sentence. His Honour noted the significance of the decision in Doreen Liprin v. The State [2001] SC673 (Supreme Court, Amet CJ, Kapi DCJ, Los J.) where he examined the conflicting interests which have to be balanced whenever a person is punished for a crime of non-physical violence such as misappropriation. The Supreme Court said that Judge should, for the purposes of imposing an effective punishment that will rehabilitate the offender, explore all options before taking what might be regarded as the drastic step of imposing a prison sentence.
20. The sentencing trend in these cases is that the prisoners be given an opportunity to repay failing which the prisoner be brought back to Court to explain why they should not be incarcerated and further orders made.

21. This case involves the sum of K53,570.50 and attracts a sentence of up to 5 years imprisonment. It is similar to the case of The State -v- John Bolken (Supra) where the prisoner obtained money in the sum of K160,000 by false pretense.

22. The prisoner in this instant was dishonest to himself in the first instance.

23. He is an experience alluvial gold panner who has spent most his life panning for gold deposits and knows how gold looks.

24. In this case he knew that the product he was selling to the victim was pebbles he gathered from the river-bed and were not gold but he falsely represented to Joab Mapat and his wife Esther Mapat they were gold and sold them at a exorbitant and explosive price of K95.00 per gram and dishonestly received the amount of K53,570.50.

25. Secondly, he was dishonest and deceitful to Joab and Esther Mapat about the product he sold.

26. Thirdly he was dishonest to wife and children that the money he bought food and other things for the family was from the sale of gold when in fact he sold pebbles; his family thinking and believing that the money was earned from his honest labour when in fact it was not.

27. His children will grow up with the scar in their minds that their father was dishonest in his dealings with people selling products which are not real in life and they were fended for with dishonest earnings. They will bear the stigma of shame brought onto them by their father.

28. Even when the prisoner was immediately informed that, upon further consultation, the product he sold was not gold and was told to return or refund the money which he deceitfully received from the victims, he did not and went on a spending spree as if the money was earned by him through (his) honest labour.

29. As was said by Salika CJ in the recently decided case of The State -v- Richard Yopo (2021) N9634 that in which he cited and relied on The State -v- Gabriel Ramoi [1993] PNGLR 390 and The State -v- Waik [2018] PGNC 69; N7131:

“Honesty means a lot more than lying. It means an honest person does not do things that are morally wrong. Honesty is about speaking and acting faithfully. Being honest means one acts in a way that he knows is the right thing to do.”

Those cases clearly explain the meaning of dishonest, dishonesty and dishonestly.

30. In this case the prisoner, being an experienced gold panner knew exactly that what he was selling to the victim was not real gold but convinced himself that it was gold and sold it for K95.00 per gram thereby deceitfully and dishonestly amassing for himself a massively exorbitant sum of K53,750.50.

31. This is a very serious case of false pretence and dishonesty in which the prisoner knew he was deceiving the victims and that the victims did tell him that, upon further consultations, the product was unreal, he still insisted it was real gold. He was even kindly asked to repay the money forthwith on the day he was paid that amount. He did not and instead he went on a spending spree as if he earned the money from honest labour.

32. In my view, he should be given a custodial sentence of up to 3 years according to the principles expressed in Wellington Belawa -v- The State (Supra). But I am mindful of the decision of his Honour Kandakasi J. (as he then was) in The State -v- Eric Vele (Supra) where he said that “... a Judge should explore all options before taking what infact be regarded as the drastic step of imposing a prison term ...”.

33. As such I note that the prisoner is willing to settle and the victim Joab Mapat has expressed in the Pre-Sentence Report dated 14^th June 2022 that he wants the prisoner to be placed on probation and be given time to repay the money. He pleaded guilty thus saving time for the Court and expressed genuine remorse.

34. The prisoner is therefore sentenced to 3 years IHL.

35. In the exercise of my discretion under Section 19 of the Criminal Code, the whole of the 3 year sentence is suspended on the following conditions:

1. an order for restitution is made whereby the prisoner shall within 2 years after the date of sentence pay to the victim the total sum of K45,520.00;
2. bail monies of K2,500 be refunded to the prisoner and be paid to Joab Mapat;
3. restitution shall be by monthly instalments of K2,000.00 and the first instalment must be paid by or before 17^th July 2022 and the rest monthly thereafter;
4. the prisoner shall enter into his own recognizance without surety to keep the peace and be of good behaviour during the period of suspension;
5. the prisoner shall contact the Marek Provincial Probation Officer within seventy hours after the passing of this sentence and thereafter as and when required by him or her;
6. the prisoner shall not change his residential address at the Maprik, East Sepik Province unless he has given the Maprik Provincial Probation Officer reasonable notice of his intention to do so and the reason for the proposed change which residential address be forthwith given to the Probation and Parole Officer;
7. the prisoner shall not leave Maprik, East Sepik Province without the leave of this Court during the period of suspension;
8. the prisoner shall, for the purpose of the Probation Act, allow a Probation Officer to enter his home during reasonable hours to monitor his compliance of these terms and to make such recommendations as the Probation Officer considers appropriate either for a variation or an implementation of these terms; and the Probation Service shall produce and furnish to the Court a report every three months until completion of the suspended sentence;
9. the prisoner shall not consume alcohol or drugs;
10. if the prisoner breaches any one or more of these conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the remaining term.

__________________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendants