N11218
PAPUA NEW GUINEA 
[NATIONAL COURT OF JUSTICE]

CR (FC). NO. 91 OF 2021

STATE

V

JORDAN VINES
Prisoner

LAE/BUIMO: POLUME-KIELE J
1, 30 JULY, 1 SEPTEMBER, 1 OCTOBER, 1 NOVEMBER, 1 DECEMBER 2021; 1 MARCH, 9 MAY, 3, 16 OCTOBER 2022; 7 FEBRUARY, 8 MARCH, 11 APRIL, 5 JUNE, 17 JULY, 5 & 22 SEPTEMBER, 6 OCTOBER, 7 NOVEMBER 2023;7 FEBRUARY, 19 MARCH, 4 JUNE, 2 JULY, 9 AUGUST, 4 SEPTEMBER 2024; 7 JANUARY 2025

CRIMINAL LAW – Guilty Plea –Criminal Code Act, Section 404 (1) (a), Obtaining goods or credit by false pretence or wilfully false promise, and Section 463, Uttering.

CRIMINAL LAW- Sentence – Early guilty plea – No prior convictions – Criminal Code, s 19 (1) (d) Suspension of sentence considered. Sentence of 3 years imprisonment imposed Criminal Code, Section 404 (1)(a); and s 463- less period of pre-trial custody – (s 3(2) – Criminal Justice (Sentence) Act - -Suspension considered - balance of sentence to be serve in custody 

Brief facts

On 10 December 2020, the prisoner went to the BSP SME Business Centre, Brian Bell Plaza, Lae, Morobe on false pretense, pretended to be the Managing Director of Pasanimbo Electrical Contractor where he signed a BSP withdrawal form for a sum of K10,100.00. He then presented the withdrawal form at the BSP Bank counter and withdrew a sum of K10,100.00 from the bank account No. 7012239518 in the name of Pasanimbo Electrical Contractor. Upon receiving the cash sum of K10,100.00, he then deposited this sum of K10,100.00 into his personal account No.7012239518 the said withdrawal was done without the consent of the sole owner, and Managing Director of Pasanimbo Electrical Contractor, Mr. Tuongama who is the sole signatory to the company’s bank account.

On 14 December 2020, a second withdrawal was also made for a sum of K4,550.00 and this time the prisoner transferred the sum of K4,550.00 to the BSP Bank Account No. 7012239518 of an Associate, namely Naiken Sailas. This transaction was also without the consent of the owner and managing director of the company, Mr. Tuongama. 

These fraudulent transactions were discovered by the complainant when he checked his business banking transactions on 14 December 2020. This was after the second transaction had already been transacted. Upon conducting a reconciliation of his business transaction, the complainant realized that a total sum of K14,650.00 has been withdrawn from the company account without his consent and approval. 

The complainant then immediately notified the bank and the second transaction of K4,550.00 was recovered. 
A complaint was made by the complainant to the police and the offender was charged and was subsequently charged for one count of obtaining goods or credit by false pretence or wilful false promise, under section 404 (1) (a) of the Criminal Code and one count of uttering under section 463 of the Criminal Code accordingly. 

Held:
1.	The accused by his own admission has admitted guilt to obtaining goods or credit by false pretence or wilful false promise contrary to s 404 (1) (a), and uttering contrary to s 463 of the Criminal Code Act, a sum of K14,550.00, the property of Pasanimbo Electrical Contractor.

2.	In the exercise of discretion under 19 of the Criminal Code, 1 year of the sentence is suspended.

3.	The accused is to serve the balance of 8 months 23 days sentence in custody at the CIS, Bihute. 

Cases cited
Goli Golu v The State [1979] PNGLR 653 
The State v Alfred Terep [2022] N2022 
Golu –v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
The State v Larry Dickson CR (FC) 886 of 2013, unreported, 12 August 2013, David J, 
The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, 23 June 2017 Salika DCJ 
The State v Wesley Kopman CR (FC) 53 of 2017, unreported, 25 August 2017 
The State v Terence Wilford Tabogani CR (FC) 305 of 2017
State v Robin Kusa Irapo (2022) Unreported National Court Judgment, Cr (FC) 176 of 2021
The State v Alfred Terep [2022] N9526 
The State v Max Karapen [2019] N7840 
The State v Simon Duguno [2023] N10113 
Public Prosecutor –v- Done Hale (1998) SC564
Public Prosecutor –v- Tardrew [1986] PNGLR 91
Thress Kumbamong v The State (2008) SC1017
Acting Public Prosecutor v Auna & Ors [1980] PNGLR 510
Saperus Yalibakut v The State (2006) SC890
The State v Pati [2018] N7186 where his Honour Kaumi A.J 
Kali Mari v Independent State of Papua New Guinea [1980] SC175
Doreen Lipirin v The Independent State of Papua New Guinea [2004] SC673
The Independent State of Papua New Guinea v George Steven CR (FC) 184/14 Re Salika DCJ.
The Independent State of Papua New Guinea v Roland Tom, Kaleu Kopen CR No 774/2005
The Independent State of Papua New Guinea v Fred Luke CR 98/2017
The Independent State of Papua New Guinea v Benson [2006] PGNC 68
The Independent State of Papua New Guinea v Lengade [2012] PGNC 76 (28/05/12)
The Independent State of Papua New Guinea v Lawrence [2014] PGNC 252; N5695 (22 July 2014) 
The Independent State of Papua New Guinea Public v Jimmy Kendi N3129
The Independent State of Papua New Guinea v Dominic Kurai N3435
The Independent State of Papua New Guinea v Jack Ostekol Metz (2005) N2824
Wellington Belawa v The State [1988-89] PNGLR 496
Paulus Mandatitip and Anor v The State [1978] PNGLR 128
Kuri Willie v The State [1987] PNGLR 298
State v Taulaola Pakai (2010) N4125

Counsel
Mr. J Panpan & Ms S Joseph for the State
Mr. J John  for the prisoner

SENTENCE

1.	POLUME-KIELE J. On 22 September 2023, the prisoner pleaded guilty to one count of obtaining goods or credit by false pretence or wilfully false promise, a charge laid pursuant to s.404 (1) (a) of the Criminal Code Act (Ch No 262) and one count of uttering contrary to s 463 of the Criminal Code Act.

2.	On 4 September 2024, Counsel addressed the Court on sentence. I reserved my decision which I now deliver. 

3.	Essentially, Section 404	Subsection (1) (a) states:

“404. 	Obtaining goods or credit by false pretence or wilfully false promise.
(1) 	A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud- 
(a) obtains from any other person any chattel, money or valuable security; or 

…

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding five years."

4.	On the second charge of one count of uttering contrary to s 463 of the Criminal Code Act, Section 463 states:

“463. UTTERING FALSE DOCUMENTS AND COUNTERFEIT SEALS. 

(1)	In this section, “fraudulently” means with an intention– (a) that the thing in question shall be used or acted on as genuine, whether in Papua New Guinea or elsewhere, to the prejudice of some person, whether a particular person or not; or (b) that some person, whether a particular person or not, will, in the belief that the thing in question is genuine, be induced to do or refrain from doing some act, whether in Papua New Guinea or elsewhere.

(2)	A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.

(3)	It is immaterial whether the false document or writing, or counterfeit seal, was made in Papua New Guinea or elsewhere.

Committal Court Disposition
5.	Upon entering a plea of guilty, the State presented into evidence, the Lae District Court deposition and upon reading the Record of Interview (ROI) dated 21 January 2021 particularly Question and Answers Nos: 15 to 29 and 31 of the ROI, and being satisfied with the admissions contained therein, the accused was convicted on the charge of one count of obtaining goods by false pretence under s 404(1) (a) and one count of uttering contrary to s 463 of the Criminal Code, Ch 262 respectively. 

6.	The offence of obtaining goods by false pretence carries a prescribed maximum penalty of a term of 5 years imprisonment. 

Antecedent Report

7.	Also tendered into evidence is the Antecedent Reported presented on the prisoner. The report states that the prisoner is 30 years old and married with no children. He lives with his family at Uni Block, Lae, Morobe Province. Prior to his remand, he was employed by his brother-in-law, the complainant in this matter. The accused has no prior convictions.

Pre-detention period

8.	The prisoner has been in custody since 25 September 2023.

Allocutus
9.	In the administration of the allocutus, the accused admitted to the charge of obtaining goods or credit by false pretence or wilfully false promise under s 404 (1) (a) and uttering under s 463 of the Criminal Code. He said that he was sorry for what he did. He apologised to the court and for what he had done. In his allocutus, the prisoner said words to the following effect, " To be honest before this incident I have not been to a Court... after 6 months in Buimo, 2 years and 6 months outside affected me greatly. I have never done anything wrong since coming out...this was a family (business). I say sorry to take up the court's time.
10.	He has repaid the money back to the complainant. In addition, he asked for leniency and vowed not to reoffend.

11.	Given his allocutus, Mr. Boku requested that this Court issue directions to the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report to be furnished for and on behalf of the accused to assist the Court determine penalty. The Probations Officer, (Lae) was directed to compile and submit a Pre-Sentence Report on the prisoner, such report to be filed prior to the 30 September 2023 for consideration. This Reports were promptly filed on 2 October 2023 and this court has perused the contents of the PSR and will exercise discretion in the determination of the severity of sentence. 

Mitigating Factors
12.	The following are the mitigating factors in favour of the accused:

(i)	First time offender
(ii)	Pleaded guilty; and
(iii)	Expressed remorse 

Aggravating Factors
13.	The aggravating factors against the prisoner are:

(i)	Substantial amount of money was taken, that is K14, 650
(ii)	High degree of trust was reposed on the offender, as he is the brother in-law of the complainant
(iii)	The offender betrayed the trust of his brother in —law
(iv)	The offender used the money to consume alcohol
(v)	The offender committed the offence twice

Pre-sentence Report
14.	Essentially, the prisoner's pre-sentence report is favourable in that the complainant and his wife have requested that the matter be withdrawn and sorted outside of court. The complainant has stated that the money stolen from his business has been fully refunded by the BSP Bank. 

15.	The prisoner is married without child. He has a Diploma in Civil Engineering. The writer of the Report has recommended that the accused be given non-custodial sentence and be put on probation.

16.	The Pre-Sentence Report is favourable to the prisoner. I also note that the complainant has written a letter seeking to withdraw the complainant. Overall, this is a family situation where there has been some breach of trust.  However, this matter has gone beyond the withdrawal of the complaint, and I leave it there.

17.	I also note that the accused repaid the money back to the complainant. He has expressed remorse for what he did and asked that the court to be lenient when in terms of sentence. He has vowed not to reoffend.  Furthermore, the community is of the view that the accused is not a potential danger to the community he was living in and blames himself and takes responsibility for the offending and has apologised to his brother-in-law. 

18.	Overall, the recommendation is that the prisoner is a suitable candidate for probationary orders to be imposed with terms such as performing 300 hours of unpaid community work and not to leave Lae whilst out on probationary supervision.

19.	Whilst this court is grateful for the preparation of the Pre-Sentence Report and its promptness in the completion of such report; I am of the view that the demeanour of the accused does not favour him. The overall demeanor of the accused over this period is that he has repaid the sum of money taken under false pretense and uttering contrary to s 404 (1) (a) and s 463 of the Criminal Code. Further, the complainant has already written to withdraw the complaint therefore, this matter should not progress any further in this Court. I find this demeanour disrespectful for purposes of the good administration of justice and the court process.  This sort of behaviour does not indicate any remorsefulness in what he did wrong.  

20.	Furthermore, whilst the community speaks well of the accused and has shown their willingness to assist the accused rehabilitate into the community, including his request to this court to give him an opportunity to make amends is superficial.  I make this finding for the reason that when interviewed about his attitude towards the crime, he owned up to the crime and blamed himself for it and said that he got drunk with the boys and when he went back the second time, to withdraw K4,550, again, he was arrested. His demeanour here to me speaks volume. 

Mitigating Factors
21.	The court took into consideration factors relevant to this case such as the accused’s early guilty plea, which greatly assisted this court in achieving this early outcome. In addition, the accused is a first-time offender, his co-operation with the police and his explanation as to how he committed the offence in the Record of Interview are factors which favour him.
Aggravating Factors
22.	The aggravating factors against the accused are however that he obtained a substantial amount of money (sum of K14,550.00) was taken. That is goods or credit by false pretence or wilfully false promise and uttering. There is a high degree of placed on the offender as he is the brother-in-law of the complainant. The offender in this case, breach that trust. The money taken was used to consume alcohol. Further, the offence was committed, twice.

Submission on sentence

23.	Ms Joseph for the State spoke to the written submission filed on 6 October 2023 and submitted that this Court has wide discretion to impose a term of sentence lower the prescribed maximum penalty of life imprisonment under s 19 of the Criminal Code Act. Likewise, in Goli Golu v The State [1979] PNGLR 653 states that the maximum penalty is reserved for the worst type of offence. Furthermore, sentencing involves many considerations, and these considerations are not limited to punishment of the offender. Sentencing involves factors such as separation, rehabilitation, deterrence, protection of the community as echoed in the case of The State v Alfred Terep [2022] N2022 where the offender was convicted after trial. He was charged with one count of under false pretense and uttering contrary to s 404 (1) (a) and s 463 of the Criminal Code.
24.	The offence of false pretense and uttering contrary to s 404 (1) (a) and s 463 of the Criminal Code carries a maximum penalty of 5 years imprisonment. It is, however, well established that the maximum penalty for any offence is always reserved for the worst instances of that offence. (Golu –v The State [1979] PNGLR (653).  It is also well settled that each case must be treated on its own merits and its own set of facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. 

Comparable Case Laws
25.	Counsel for the State referred the Court to several case laws for consideration in determining appropriate sentence. More so in relation to the charge of:

(i)	Obtaining Money by False Pretence under s 404 (1) (a) 

26.	Firstly, in the case of 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 K700, and cash and property in excess of Kl 000 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 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 and half years imprisonment.

27.	In 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 Kl 1 , 000 from four victims at different times.

28.	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 KIO, 000 for every KIOOO borrowed upon the sale of some gold.

29.	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 purposes 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.

(b)	Uttering false documents & Counterfeit Seals

28.	Here the State also referred to several case law . In the case of State v Robin Kusa Irapo (2022) Unreported National Court Judgment, Cr (FC) 176 of 2021 — the accused pleaded not guilty, and the matter went to trial, he was convicted after trial. The offender was the first cousin of the victim. He wrote a letter and delivered it to a PNG Legal Service, a law firm and tried to receive entitlements without the knowledge of the victim. He did not benefit from the offence. He was sentenced to 6 months for forgery and 6 months for uttering. The sentences were made concurrent and suspended on conditions.
29.	In The State v Alfred Terep [2022] N9526 — The offender was convicted after trial. The victim was his cousin. He created a meeting minute and signed a signature under the victim's name. He then presented it to the Registrar of companies. He was sentenced to 12 months. The sentence was wholly suspended, and he was placed on a Good Behaviour Bond. He was also ordered to pay a fine.
30.	In The State v Max Karapen [20191 N7840 — The offender was convicted aner a trial on three counts of forgery and one count of uttering. The offender lodged forms 13, 15 and 16 containing false information at the Investment Promotion Authority. He was sentenced to 7 years imprisonment on each counts of forgery and 2 years for uttering. The sentences were made cumulative.
31.	In The State v Simon Duguno [2023 N10113 — The offender presented false documents to Motor Vehicle Insurance Limited (MVIL) for the purpose of claiming third party insurance. He was sentenced to 2 years imprisonment minus time spent in custody.
Submission
32.	Mr. Panpan for the State submits that in criminal cases the Court has wide discretion to impose a term lower than the prescribed maximum penalty of life imprisonment. This authority comes from Section 19 of the Criminal Code. The Supreme Court in Goli Golu v The State [1979] PNGLR 653 also held that the maximum penalty be reserved for the worst type of offence under consideration. Mr. Panpan submitted further that sentencing involves many considerations and is not limited to punishment of the offender. Sentencing involves factors such as rehabilitation, deterrence, and protection of the community in cases of serious and violent offences. This sentiment was expressed in the case of Independent State of Papua New Guinea v Alfred Terep (supra).
33.	In the present case, the State submits that the offender and complainant are in-laws. The offender is the youngest brother of the complainant's wife. He assists the complainant in running the company. Hence, what the offender did was a breach of trust. The State further submits that the offence is prevalent in our society and warrants a custodial sentence. However, the State also submits that the complainant as per his letter dated 25/05/2023 indicated that he wants the matter to be sorted out of court as it was family matter and out of frustration that it was registered. Accordingly, taking into consideration the favourable pre-sentence report and also the aggravating factors including the prevalence of the offence, the State humbly submits that the offender be sent
34.	However, Counsel for the State contended that the offence is aggravated by the fact that a substantial amount of money was taken, a sum of K14,550.00 and that you used the money to consume alcohol. Further, there was a high degree of trust placed in you as you are the brother-in-law of the complainant, and you betrayed that trust. Besides, you committed the offence not once but twice. 
35.	Whilst conceding that this is your first offence, and you are sorry for your action and the PSR is favourable. I find that the PSR is not of any assistance to you and therefore it is difficult to assess how to determine the appropriateness of penalty.

Consideration of penalty

36.	Nonetheless it is the task of this Court to determine an appropriate sentence to be imposed on you, in that; considerations must also be taken into account in relation to whether or not this case deserves the imposition of the maximum penalty of 5 years imprisonment and also to consider whether if the maximum penalty is to be imposed, should consideration be given in terms of suspending wholly or partly a sentence once imposed. Deciding what is an appropriate sentence is not an easy task for this court or a judge as there is no formula or mechanism through which a sentence is rated. The Court in all circumstances is guided by the particularities of a given case, circumstances, and antecedents of the offender and the interest of the State or society generally, including accepted objectives and purposes for sentencing. Plus, sentencing guidelines that have been established by case law and tariffs (in limited areas) enacted by legislation. But in all this, the court has very wide discretionary powers under Section 19 of the Code to suspend wholly or partly a sentence once imposed depending on the circumstances of a case. Furthermore, for purposes of consistency and parity, this Court is also guided by principles already established by case law in relevant facts and circumstances.

37.	For your case, the offence you pleaded guilty to, is very prevalent. A number of these cases have come through the courts; some of these cases (reported and unreported) have been cited by both your Defence Counsel and the Lawyer for the State. References to these cases where relevant will be used to assist this court determine an appropriate sentence.

38.	Nonetheless it is the task of this Court to determine an appropriate sentence to be imposed on you, in that; considerations must also be taken into account in relation to whether or not this case deserves the imposition of the maximum penalty of 7 years imprisonment and also to consider whether if the maximum penalty is to be imposed, should consideration be given in terms of suspending wholly or partly a sentence once imposed. Deciding what is an appropriate sentence is not an easy task for this court or a judge as there is no formula or mechanism through which a sentence is rated. The Court in all circumstances is guided by the particularities of a given case, circumstances, and antecedents of the offender and the interest of the State or society generally, including accepted objectives and purposes for sentencing. Plus, sentencing guidelines that have been established by case law and tariffs (in limited areas) enacted by legislation. But in all this, the court has very wide discretionary powers under Section 19 of the Code to suspend wholly or partly a sentence once imposed depending on the circumstances of a case. Furthermore, for purposes of consistency and parity, this Court is also guided by principles already established by case law in relevant facts and circumstances.

39.	For your case, the offence you pleaded guilty to the offence of obtaining money by false pretence and uttering is very prevalent. A number of these cases have come through the courts; some of these cases (reported and unreported) have been cited by both your Defence Counsel and the Lawyer for the State. References to these cases where relevant will be used to assist this court determine an appropriate sentence.

40.	With regard to the case against you, this Court noted that there are a number of mitigating factors in your favour. These are that you pleaded guilty to the charge, have no prior convictions, and co-operated with the police and that there was no pre-planning. In addition, you also express remorse. However, this Court also noted that you attacked the victim with a grass knife, an offence which is a very prevalent one in community and in your case, you have inflicted injury on a vulnerable part of the body of the victim, such injury means that the victim now suffers permanent disability in the use of his left forearm. Furthermore, the victim was unarmed or innocent. These are matters taken as aggravating factors against you. It should be pointed out that this type of offence is very prevalent and thus a sentence must be seen as a deterrent so that offenders are discouraged from re-offending and that others are discouraged from committing crimes of this nature and or taking the law into their own hands. It is also noted that there is no attempt made at making compensation or reconciliation.

41.	This then leads me to the question as to what the starting point in relation to sentence in your case should be. In order to deter such behaviour, it is proper that a sentence of appropriate proportion be imposed on you and for this, I sentence you to a term of 3 years imprisonment, however, I also noted that you have already been in detention for 2 years 10 month 2 days and thus deduct the period of 2 years 10 months 2 days from the term of your sentence under s 3 (2) Criminal Justice (Sentences) Act. This then leaves the balance of 1 months 28 days of the sentence to be served.

42.	The next issue is to consider whether the balance of your sentence be suspended. Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report (Public Prosecutor v Done Hale (1998) SC564). Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships. (Public Prosecutor v Tardrew [1986] PNGLR 91). For your case, the PSR does not recommend suspend of the sentence. There was no feedback from the community on this aspect of consultation from community views overall.

43.	In your defence, Mr. John submitted that the maximum sentence of 15 years imprisonment, subject to s 19 is not applicable in this case because of a number of reasons and outlined these reasons to be as follows: Firstly, the facts of the case are peculiar and different thus this court should consider imposing sentence on a case-by-case basis. Hence, the maximum penalty should be reserved for only the very worst-case type of producing and distributing pornography citing the principles established in this Court to the General Sentencing Principles as established in the case of Goli Golu v. The State (1979) PNGLR 653, where the Court stated that sentencing with the maximum penalty is only reserved for the worst category offences under consideration; and the case of Thress Kumbamong v The State (2008) SC1017, where it established that the Courts have unfettered sentencing discretion. Courts are not necessarily bound by the Supreme tariffs when considering sentences. In addition, the Court was also referred to the case of The Acting Public Prosecutor v Auna & Ors (1980) PNGLR 510, where the Court stated that there are four purposes in a criminal justice serves include deterrence, separation, rehabilitation, and retribution for offenders. Furthermore, in the case of Saperus Yalibakut v The State (2006) SC890, where the Court stated that the offender must be given the benefit of any reasonable doubt and if there are contentious facts in which there is no agreement the Court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused".
44.	Mr. John submits that the offence does not fall under the worst category. He submits that a sentence of three years is appropriate for both offences to be served currently. In addition, Mr John also referred  this Court to several case laws relating to the offences for consideration by the Court more so the case of The State v Pati [2018] N7186 where his Honour Kaumi A.J (then) discussed several case laws which he considered in his deliberations on sentence relating to s 404 (1) (a) offence of obtaining goods by false pretence and s 263 offence of Uttering false documents. These cases are referred to below:

Kali Mari v Independent State of Papua New Guinea [1980] SC175	Appeal against sentence of 18 months for uttering by fraudulent alteration, by K1,000.00, of the credit balance shown in a bank passbook –appeal upheld- trial judge erred by giving too much weight to what was regarded as an intelligent, pre-mediated cunning plan- the offender’s plan was better categorised as naive.	1 year imposed	
Public Prosecutor v Tardew [1980]
PNGLR 91	Appeal by the Public Prosecutor against suspension of 54 months of five-year concurrent sentence for eight offences re forging and uttering four cheques worth a total of K82,202.73 - the offender was operations manager of the National Computer Centre, which printed government cheques for the Department of Finance – sentence confirmed – appeal against suspension upheld – offender committed to custody.	5 years imposed	
Doreen Lipirin v The Independent State of Papua New Guinea [2004] SC 673	Review of conviction and sentence for forging, uttering and misappropriating re K6,000.00 – the offender was a bank teller and misappropriated the money from her employer – the National Court sentenced her to 1 year for forging, 1 year for uttering and 3 years for misappropriating , all to be served concurrently, and suspended execution of sentence for two months to allow money to allow money to be repaid – money not repaid and offender committed to custody – Supreme Court review of conviction unanimously dismissed; review of sentence granted 2:1 (Kapi DCJ dissenting): nine months in custody sufficient, offender given two years to repay money and community service ordered.	2 years and 9 months	
The Independent State of Papua New Guinea v Fred Luke CR 98/2017	Prisoner pleaded guilty to one count of forgery of a false document purporting to be a Bank of South Pacific deposit slip.	Maximum of 3 years imposed.	
The Independent State of Papua New Guinea v Benson [2006] PGNC 68	Prisoner pleaded guilty to two counts of forgery and two counts of uttering.	18 months imposed. 17 months, 3 weeks and 3 days suspended conditionally.	
The Independent State of Papua New Guinea v Lengade [2012] PGNC 76 (28/05/12)		1 year imposed. 3 months suspended.	

Table 2. NATIONAL COURT SENTENCES FOR FALSE PRETENCE, 2002-2013

Case	Details	Sentence	
The Independent State of Papua New Guinea v Lawrence [2014] PGNC 252; N5695 (22 July 2014) (Salika DCJ)	Prisoner found guilty of one count of false promise with intent to defraud and one count of forgery.	5 years imposed	
The Independent State of Papua New Guinea Public v Jimmy Kendi N3129	Prisoner found guilty after a trial on two counts of False Pretence and one count of misappropriation of K4,298,037.33	4 years imposed	
The Independent State of Papua New Guinea v Dominic Kurai N3435	Prisoner pleaded guilty to one count of False Pretence. He obtained goods by false pretence form a trade store worth K7	12 months imposed. Suspended with conditions	
The Independent State of Papua New Guinea v John Kil	Bill Kure advanced to prisoner K1,470.00 after prisoner falsely promised him that he would repay Kure upon him getting his termination entitlements. Prisoner a former police man.	18 months imposed. Suspended conditionally. Repaid.	
The Independent State of Papua New Guinea v Jack Ostekol Metz (2005) N2824	Prisoner falsely represented to Guest House in Madang that he was expecting millions of Kina from Sale of Treasury Bills. He convinced the Manager of the Guest House to accommodate him and that he would pay from the sale of the Treasury Bills. Prisoner was accommodated for 8 months at the guest house and incurred a bill of K70,445.36 which he could not pay.	3 years and 6 months imposed. Person incurred at a Guesthouse an amount of K70,445.36 which he couldn’t repay.	

45.	Overall, the above cases demonstrates that the Supreme and National Court view the offences of Forgery, Uttering and False Pretence seriously.

Sentencing Principles and Comparative Cases

46.	In Wellington Belawa v The State [1988-1989] PNGLR 496 listed a number of factors to be taken into account on sentence for an offence of dishonesty which included the following:

(i)	the amount taken.
(ii)	the quality and degree of trust reposed in the offender.
(iii)	the period over which the offence was perpetrated.
(iv)	the impact of the offence on the public and public confidence.
(v)	the use to which the money was put.
(vi)	the effect upon the victim.
(vii)	whether any restitution has been made.
(viii)	remorse.
(ix)	the nature of the plea.
(x)	any prior record.
(xi)	the effect on the offender; and
(xii)	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.

47.	Further and in addition, the Supreme Court also suggested that the several scale of sentences to be used as a useful base, which can be adjusted upwards or downwards according to the factors identified above, which also included the consideration of the range of the amount of money misappropriated between:

(i)	K1 and K1000, a gaol term should rarely be imposed.
(ii)	K1000 and K10,000 a gaol term of up to two years is appropriate.
(iii)	K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
(iv)	K40,000 and K150,000, three to five years’ imprisonment is appropriate.

48.	Given the above principles, I must point out that the penalty provisions for the offence of obtaining by false pretence (s 404) for which a maximum penalty of 5 years applies. The above sentences are in cases of misappropriation for which the maximum for equivalent amounts is 10 years.

49.	In your case, your lawyer submitted that a sentence in the range of two to three years of imprisonment would be appropriate (See Wellington Belawa v State (supra). The State on the other hand 6 to 18 months is appropriate.

50.	This is a crime for which the accused must be penalized. Thus, the issue before the court is what would be an appropriate penalty to impose. Here the Code prescribes a penalty of imprisonment for a term not exceeding five years, thus in compliance with such requirements, consideration will be given to the relevant mitigating factors cited above to determine penalty. The accused in this case has said he is sorry to the victims and also to his family members for what he had done. He has brought shame, humiliation and disgrace to the victim’s family and also his own family. He also asked to be placed on probation with conditions.

51.	However, whilst the court acknowledged such gesture, it is minded to also do justice where appropriate. In this case, the victims would have suffered the loss of their well-earned cash in the sum of K14, 550.00 if it was not discovered promptly.  The offence is serious in nature, in that the accused abused the trust that the complainant placed in him as a brother-in-law when it employed him, but he failed him miserably. 

52.	The accused took advantage of these people and dishonestly applied to his own use; the money stolen. Whilst there appears to be some indication that the accused has willingly repaid the money stolen, it would be more convincing if evidence of such repayment were adduced during trial before the court and the matter being concluded. As evidence stand, it is inferred that it was the Bank of South Pacific, Lae which reimbursed the complainant of his money. The prisoner did not willingly repay the money stolen as suggested by counsel in his submission on sentence.

53.	With regard to the prisoner’s pleas for leniency and being a first time offender in court, this case can be distinguished from the case of Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128 where youth was considered as a mitigating factor or the case of Kuri Willie v The State (1987) PNGLR 298 Hinchliffe, J (as he was then) discussed the need for courts to investigate alternatives to imprisonment when dealing with youthful first time offenders and the need to consider alternative mode of punishment to imprisonment. However although this prisoner is a first time offender and young man, the crime of false pretence and uttering which is committed with such impunity must carry with it some serious penalties as a deterrent factor and I therefore adopt the principle applied by Hartshorn J in the State v Taulaola Pakai (2010) N4125, where he stated that “Court’s should not lose sight of its duty to impose what is a just and fair punishment on an offender." A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered."

54.	In these circumstances, this court considered that incarceration is an appropriate penalty and sentence you to 3 years imprisonment with hard labour for each of the offence. The sentence is to be served concurrently. A period of 1-year 3 months 7 days being the period that the prisoner has been held in custody is deducted pursuant to s 3(2) of the Criminal Justice (Sentences) Act. 

55.	I now consider whether the balance of the term of sentence of 1 years 8 months 23 days is wholly suspended? In view of the early plea of guilty and the consideration for leniency, a period of 1 year is suspended. The balance of period of 8 months 23 days is to be served in custody in CIS, Buimo.

Order of the Court

56.	Having been convicted Jordan Vines of one count of false pretence under s404 (1) (a) and one of uttering contrary to s 463 of the Criminal Code Act, you are sentenced as follows:

Length of sentence imposed: 			3 years imprisonment
Pre-sentence period deducted: 			1 year 3 month 7 days
Balance of term of sentence to be served: 	1 year 8 months 23 days
Amount of sentence suspended: 		1 year
Time to be served in custody: 			8 months 23 days

Orders accordingly
__________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the accused: Public Solicitor