State v Touna [2024] PGNC 272; N10939 (6 August 2024)

N10939

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 439 OF 2023

STATE

V

PETER TOUNA

Waigani: Wawun-Kuvi J
2024: 12th June, 10th July & 6th August

CRIMINAL LAW–SENTENCE –OBTAINING GOODS BY FALSE PRETENCE- section 404(1)(a) of the Criminal Code – Guilty plea –Offender falsely pretended to sell land-Obtained K6,000.00 – Offender Elderly-Sentenced to time spent in custody

Cases Cited
Lawrence Simbe v The State [1994] PNGLR 38
Lialu v The State [1990] PNGLR 487
Belawa v The State [1988-89] PNGLR 496
Goli Golu v The State [1979] PNGLR 653
State v Kum Kar Weap (2024) unreported National Court decision delivered on 28 June 2024
State v Liligu [2016] PGNC 428; N6919
State v Boski [2014] PGNC 161; N5814

Legislation
Criminal Code Act 1974
Counsel
J Batil, for the State
D Kayok, for the offender

DECISION ON SENTENCE

6th August 2024

1. WAWUN-KUVI J: Peter Touna (offender), who did not have a permanent home in the city, formed a connection with a woman whose mother owned land in Bomana. The woman's mother had relocated to Lae and had requested her daughter to look after the property. However, the woman could not fulfil this responsibility due to work commitments. Upon learning about the offender's hardships, she felt pity for him and offered him the opportunity to be the caretaker of her mother's property. This arrangement was mutually beneficial as the woman could not oversee the property due to her job, while the offender needed a place to stay. Unfortunately, the offender abused her generosity by selling off portions of the property. The offender sold a portion to the victim, a retired corrections officer. The offender convinced him that he was the owner of the property. Acting on that pretence, the victim agreed to give the offender K12,000.00, and on two separate occasions, he gave the offender K6000 in instalments. However, the victim had to vacate the land when the owner returned from Lae and discovered the offender's fraudulent activities.
   
2. The offender has pleaded guilty to these facts. I must now decide the appropriate penalty.

Purpose of Sentencing

3. Sentencing serves many purposes, including, but not limited to, offender punishment, rehabilitation, specific and general deterrence, communicating clearly that the community and society do not condone the offender’s behaviour, and community protection in cases of violent and grave offences.

Maximum Penalty

4. The maximum penalty for this offence is five years of imprisonment. It is settled law that the sentencing court reserves the maximum penalty for the most serious cases; see Goli Golu v The State [1979] PNGLR 653. The circumstances of this case do not warrant the imposition of the maximum.

Personal Antecedents

5. The offender is 61 years old. He is from Dombada Villge, Ijivitari, Northern Province. He has been married for 33 years. His wife is from Mekeo Village in Central Province. He and his wife have four sons and three daughters. All his children are married and live independent lives.
   
6. His wife is employed as a counsellor with City Mission at the Meri Safe House at Ela Beach. She has worked with the organization for 9 years. She has faced threats from the owner of the land. They have destroyed her property. She remains on the land having informed the owner that her husband is in custody over the sale of the land to the victim. She volunteered to make repayments with the assistance of her children to the victim.
   
7. The offender has received some form of training to become a plumber. This has allowed him to earn money periodically when people request his service. He is otherwise unemployed and dependent on his wife.
   
8. The offender is an active member of his community and is well known. He is a referee in community games.

Allocutus

9. The offender expressed remorse for his actions and apologised to the victim. He stated that he has been in custody for about 10 months. He feels sympathy towards his family who have faced hardship while he has been in custody. He pleads with the Court for leniency.
   
10. I accept that he is genuine in his remorse because he pleaded guilty a month after he was committed to stand trial in the National Court.
    

Appropriate range

11. Sentencing guidelines provide parity in sentencing but do not curtail sentencing discretion. It is the peculiar circumstance of the case that is relevant: see Lialu v The State [1990] PNGLR 487 and Lawrence Simbe v The State [1994] PNGLR 38.
    
12. Counsel agree that the sentence of 2 years imprisonment is appropriate given the circumstances of the case. The defence submit for a non-custodial sentence.

Comparable cases

13. Counsel submitted the following comparable cases.
    
14. State v Kum Kar Weap (2024) unreported National Court decision delivered on 28 June 2024, Wawun-Kuvi J: The offender was convicted following a trial. She had previously sold her house to another person but had deceived the victim into believing that she still owned the house. She obtained K20, 000.00 as a deposit. The victim later discovered that someone else had already bought the house and was living in it. The offender was 62 years old. She was sentenced to 2 years imprisonment wholly suspended with conditions of restitution. The offender had complied and made full restitution a week after sentence was pronounced.
    
15. State v Liligu [2016] PGNC 428; N6919, Polume-Kiele J: The offender pleaded guilty. He promised to sell a piece of land to the victim. He took two payments totaling K6,800.00 and failed to deliver. The court sentenced him to 2 years in prison.
    
16. State v Boski [2014] PGNC 161; N5814, David J: The offender pleaded guilty to obtaining K12,000.00 from a victim by false pretence. As a Senior Rental Sales Representative, the prisoner promised to sell a vehicle to the victim at a staff price but failed to deliver despite receiving a deposit of K16,000.00. After leaving her job, the prisoner repaid K4,000.00. She promised to pay the balance but did not. She was sentenced to 3 years imprisonment. Pre-trial custody was deduced, and the balance was suspended.
    
17. Other than State v Liligu, the cases submitted by counsel involve higher amounts of money. State v Liligu while having a similar amount, has distinct aggravating features that are not present in this case. This case would appear to be on the lower range. A sentence less than 2 years would appear appropriate.

Culpability

18. It was abundantly clear to the offender that he did not have the authority to sell the land as he was merely a caretaker. He continued to receive payments from the victim and did not reconsider his actions. There factors demonstrate a high degree of dishonesty.
    

The Effect on the Victim

19. The State did not provide a victim impact statement for the offender's sentencing. The probation officer made reasonable attempts to obtain the victim's views but was unable to locate him. I can only infer that the offence affected him, as he was retired; K6000 would be a significant amount of money for him.

Mitigating and Aggravating Factors

20. I have carefully considered the submissions and accept in mitigation that the offender is a first-time offender who pleaded guilty at the earliest opportunity. He has also shown remorse for his actions. However, aggravating factors include the amount of money taken, lack of restitution, and the prevalence of the offence.
    

Other relevant factors

21. I have directed my mind to the principles in Belawa v The State [1988-89] PNGLR 496. Where I have not mentioned them already in this judgement, I also consider the following:
    
    1. I make no findings about a relationship of trust because the prosecution did not allege one. Additionally, the victim was not the landlord but the purchaser.
    2. The offender was homeless before moving onto the property. His wife stated that the landowner has threatened her and damaged her property. From the tone of her letter, it appears that the offender may become homeless following his release. This is a direct consequence of his own bad decisions.
    3. The offender is elderly and appears frail in court. While there is a difference in the age in the police information and the age given in the pre-sentence report, the age of 61 in the report appears consistent with the offender’s appearance. I also accept the age of 61 because the prosecution did not object, which I take as acquiescence.

Consideration

22. This type of offence is becoming prevalent. Only last month, I have had to deal with two similar cases where people obtained money from victims on the pretext of owning property. It appears that there are many unscrupulous people like the offender who people’s need for land and housing.
    
23. I have also given thought to the peculiar circumstances of this case and the relevant sentencing factors. I have directed my find to all the factors discussed in this decision as well as considered the State and offender’s submissions on sentence. I thank the probation officer Ms. Tessy Teine for her comprehensive report which has been of assistance.
    
24. To my mind, restitution is not possible because there has been no communication with the victim and the offender has no means to restitute. While I can infer that its’ loss may have had a significant impact on the victim, that is the limit to which I can draw an inference. Without the victim’s views, I can only make a general finding that compared to other similar cases, the amount is not as significant. Relevant matters for consideration are rehabilitation and hardship to the offender since he has otherwise been a contributing member of society and his age which prolonged imprisonment would cause excessive hardship on him. The offence is not a violent and the period in custody is sufficient to act as both a specific and general deterrent for likeminded individuals.
    
25. For the foregoing reasons, the offender is sentenced to time spent in custody.
    

Orders

26. The Orders are as follows:
    1. The Offender is sentenced to time spent in custody, being, 11 months and 2 days.

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