N1974

PAPUA NEW GUINEA

[In the National Court of Justice]

CR No. 432 of 2000

THE STATE

Against

JOHN KIL
Accused

KUNDIAWA: KIRRIWOM, J
2000: 13th & 15th June

Criminal Law – Sentence – Obtaining goods by false pretence or wilfully false promise – Restitution – Restitution and compensation – Appropriateness for custodial and non-custodial sentence discussed – Suspended sentence on conditions – Criminal Code, s.404, s.19

The prisoner deceived a friend and borrowed some money from another person known to his friend. He took the money and disappeared for some years without repaying as he promised. When arrested he was willing to repay but the police were not taking any more chance with him and wanted him punished although the complainant simply wanted his money back. In sentencing him on his own plea of guilty, the Court held:

1.	In false pretence cases of monies borrowed and not repaid, restitution must be the primary objective of the sentencing authority.
2.	Every avenue must be exhausted for a non-custodial punishment option, imprisonment must be the very last resort.
3.	A suspended sentence conditional upon a compensation order in addition to restitution provided it is affordable and justifiable is appropriate.

Counsel:
Mr F. Kuvi for the State
Mr M. Apie’e for the Accused

SENTENCE

15th June 2000

Kirriwom, J: The prisoner pleaded guilty to obtaining money by falsely pretending to one Billy Kure that he would repay him as soon as he received a lump sum pay-out owing to him by his former employer as his termination entitlements with the intention to defraud the said Billy Kure.

The prisoner is a former policeman. By pretending to a former colleague, one Peter Yatefawellis that he had some K21,000 owing as his finish-pay, convinced the latter to persuade the complainant, Billy Kure to advance K1,470 to the prisoner which Billy Kure did on good faith. The prisoner upon receiving the money in June 1997 in Port Moresby disappeared and failed to repay the debt.

In early 2000 the prisoner was apprehended in Kundiawa and charged with this offence. He was remanded in custody upon committal. This is a very clear case where the District Court had power to consider and impose bail but it chose not to exercise its discretion. I presume the District Court may have been influenced by the elusiveness of the accused since the so-called ‘borrowing of the money’ and the likelihood of the accused jumping bail and not being seen again. However a little more in-depth enquiry of his background and current place of residence would probably have helped to dissuade the bail authority of its fears of the accused jumping bail, considering the fact that he had so much to lose by running rather than facing the music. On the other hand, the complainant’s concern is to be paid back his money and restitution would be the sentencing authority’s prime objective given that the maximum penalty for the offence is five years. Considering all these matters I released the prisoner on OR bail upon hearing submission in mitigation and requested for a Pre-Sentence Report from the Provincial Probation Officer.

The prisoner admitted the offence although he added that originally it was his intention to borrow the money and to repay it back. But he had not repaid it and two years had lapsed and he accepted the outcome of what had transpired.

The prisoner owns a block at Aviamp outside Minj where he lives with his second wife and six children, two from first marriage and four from second marriage. He lost his last born who was 9 months old when he was taken into custody for this trouble only a month ago due to some illness. Prisoner’s parents are deceased. He comes from Kilika village, Mt Hagen and his second wife is from Sepik. They have been fairly independent since living at Aviamp and he is now depending only on his wife to raise his children.

Mr Apie’e submits that had the prisoner been allowed bail, he would have already taken steps to sell pigs that he is breeding at Aviamp towards raising money for restitution.

The offence carries a maximum of five years imprisonment under subsection (1) of section 404 where the offender obtains money or chattel and under sub-section (3) where the offender incurs a debt or obtains credit is liable to a maximum of one year imprisonment. In this case because the prisoner actually obtained the money from the complainant, he would be liable under subsection (1) which carries a maximum penalty of five years imprisonment.

Of course maximum penalty is reserved for the worst case. I do not consider this case to be falling into the worst category. The prisoner had admitted committing the offence which is in my view a genuine plea and I accept that he is truly sorry for what he did. I believe he has learnt his lesson well being a former law enforcement officer and suddenly finding himself amidst inmates in prison where all law-breakers end up, some of whom have no respect nor regard for police. The short-term exposure in prison amongst prisoners has given him sufficient lesson from which to learn and to appreciate that crime does not pay nor earn anyone respect or dignity irrespective of one’s background.

The prisoner is willing to repay the money to the owner and I think this is a crucial factor. Stealing under circumstances like this is not prevalent. In fact this case could have been easily proceeded with under civil summons for debts as monies borrowed and not repaid. I don’t think anyone should ever go to prison at first instance in cases of this nature without first attempting settlement through restitution. Prison should be reserved for the worst case and as a very last resort after all avenues of non-custodial punishment have been exhausted.

In all the circumstances of this case, the most appropriate punishment in my view is eight months imprisonment in hard labour. But I suspend the sentence on these conditions:

(a)	Prisoner enters into his own recognizance to keep peace and be of good behaviour for two (2) years.

(b)	The prisoner repays the sum of K1,470 to Billy Kure before or by 30th October 2000.

(c)	Prisoner pays compensation of 1 fully matured live pig and some garden food to the complainant for the anxiety and frustration he (the complainant) was forced to endure by the prisoner’s trickery.

NOTE:	Prisoner must liase with William Yambo, the Probation Officer at Kundiawa who must be present to witness the occasion of this reconciliation.
_____________________________________________________________
Lawyer for the State:					Public Prosecutor
Lawyer for the Accused:				Public Solicitor