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State v Bill Baru [1997] PGNC 21; N1546 (6 March 1997)

Unreported National Court Decisions

N1546

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 732 OF 1997
THE STATE
v
BILL BARU

Waigani

Batari AJ
6 March 1997

CRIMINAL LAW - Sentence - Stealing - Breach of Trust - Salesman falsely pretended to sell vehicles to victims and retained value of deposits - K9,790.00.

CRIMINAL LAW - Sentence - Plea - Delayed plea of Guilty - Observations on - Mitigating factors - Aggravating factors - Considerations of.

CRIMINAL LAW - Sentence - Effect of sentence on health of accused - Accused to show cause why imprisonment is not justified - Onus not discharged.

No Cases Cited.

Sentence

On a plea of guilty to three counts of stealing, total amount of K9,790.00 the following judgment was delivered on sentence.

Counsel:

L Maru for the State

M Apie’e for the Accused

6 March 1997

BATARI AJ: The prisoner Bill Baru has pleaded guilty to stealing a total of K9,790.00 charged on three different counts upon his indictment.

FACTS

The facts which formed the basis of the charges were that, between August and November, 1995 the prisoner worked as a Sales Representative with Meridian Motors Pty Ltd. On 11 of August, the first victim Tamalai Uroki requested from him a quotation to support his application to the Rural Development Bank for a loan to purchase a maxi loader truck from Meridian Motors Pty Ltd. The prisoner prepared the quotation and advised his customer to make down payment for the vehicle. Tamalai Uroki paid him K3,060.00 in cash. He assured the customer, he would take the quotation to the Rural Development Bank and negotiate the loan on his behalf. This did not eventuate. The prisoner retained the money and used it for his own benefit. On the second count which involved the sum of K3,430.00 the the prisoner obtained that amount from the victim customer under similar circumstances as the first count. This time however, the accused told the victim to pay K400.00 but he instead received deposit payment of K450.00 from the victim customer. Upon his follow-up, the victim was told the first quotation was invalid and that he was to make further down payment of K3,000.00 on a revised price. The victim paid that amount but waited in vain for his loan or vehicle because the prisoner did not account for the money as promised. The offence was committed between 1st and 8 November, 1995. On the third count, the victim customer paid K3,300.00 from a Rural Development Bank loan, to the prisoner as purchase price for a maxi loader truck sold by Meridian Motors Pty Ltd. The prisoner failed to deliver the vehicle. He also failed to pay the money into the company account and had since failed to account for that money.

THE OFFENCE

The offence with which the prisoner is charged carries a maximum penalty of 7 years imprisonment under s.372(1) and (10) of the Criminal Code. He is liable to be imprisoned up to that maximum term subject to the application of s.19 of the Criminal Code which give the Court discretion to impose imprisonment for any shorter term with or without conditions. This necessarily means the Court ought to have before it all relevant facts for and against the prisoner to arrive at what may be considered as the appropriate penalty in all the circumstances of the case.

CONSIDERATIONS ON SENTENCE

I am satisfied that, you had falsely pretended to the victim customers in order to steal, from them. This is a classic case of fraudulent stealing by persons commonly known as “conmen” and instances of such cases are quite prevalent here. Your offence was perpetrated over a period of time and it would seem that had the victims not complained early, more potential customers of Meridian Motors Pty Ltd would have fallen victims of your trickery. I do however have regard to the fact that the offences did not involve any great deal of sophistication or planning.

The effect of your conduct on the other hand would have had devastating effect on the income and lives of the victims who were simple village subsistence farmers. You were a professional vehicle sales representative in whom those simple village farmers placed their trust and hope that through your assistance they would achieve their goal. They trusted your position and professional advice because that was what you were paid to do. You breached that trust. Besides, your case is serious because it involved a substantial amount of money.

You have pleaded guilty to each count and have expressed remorse. Although it is your right to test the State’s case on a trial, it would have been to your greater benefit had you pleaded guilty early because on the face of the Court depositions tendered, one would have considered that to be the appropriate course instead of causing your case to be set down as a trial some 6 months ago. What this means is that, if you had pleaded guilty initially, you would have been dealt with and by now, all or a substantial part of your penalty would have been served. Nevertheless, you are entitled to a discount of sentence upon your plea of guilty and I will deduct sometime for that.

I also take into account your personal and family background.

You have stressed through your lawyer that you have a medical condition which require future treatment. A letter from the Medical Registrar, Dr David Linge, states that you have a condition of limb weakness and would require specific therapy treatment and regular doses of sodium bicarbonate.

Your lawyer did not however, say this treatment is not available or would not be obtained through prison authority if you are imprisoned. There is also no evidence as to what effect imprisonment is likely to have on your medical condition. I am not able to assume that imprisonment is not good for your health because that is not supported by medical proof. What I am simply saying is this, I must consider sending you to jail as the law says subject to medical proof of the likely effect of imprisonment on your health and welfare together with other relevant considerations. Your medical discharge summary and Dr Linge’s letter contain a description of your ailment and future treatment, but say nothing about the effect of imprisonment on your health. In any case, if you were ordered imprisonment, CIS authorities would no doubt provide facilities or means to enable continuation of your medical treatment.

I have also had regard to the fact that your offence appear inexplanable. I do not know whether you committed the offences under some form of pressure as for instance through financial hardship. On the other hand, it was submitted that you have two vehicles which you could sell to repay the moneys taken. I am inclined to think you committed the offences through plain foolishness and stupidity as you appeared to be a man of means. Your offer of restitution comes somewhat late. From the time of the offence you had over 18 months to repay the victim’s their money, but you did nothing while your victims continue to experience their loss.

I consider that imprisonment is appropriate in all the circumstances of your case. I order that you be imprisoned as follows:

Count 1 12 months

Count 2 12 months

Count 3 18 months

I further order that:

(i) the sentences on Count 1 and Count 2 be served cumulatively.

(ii) the sentence on Count 3 be served concurrently with Counts 1 and 2 sentences.

(iii) the sentences be served in light labour.

(iv) Each sentence is suspended wholly if the prisoner repays to each victim, the total amount taken and enters into a recognition to be of good behaviour for a period of two years, upon full restitution of the sum of K9,790.00.

(iv) Payment is to be made through the Registrar of theNational Court at Waigani.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor