N2824

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 274 of 2003

THE STATE

-v-

JACK OSTEKAL METZ

Madang: Manuhu, AJ
2005: February 22 & 24.

SENTENCE

Criminal law – Particular offence – Obtaining goods and credit by false pretence –False representation to guest house – Systematically obtain goods, services and credit valued at K70,445.36 for eight months - Guilty plea – Sentence of three and a half years appropriate.

Cases cited in the judgment:
The State v Paul Takesi [1997] PNGLR 507. 
The State v. John Kil (2000) N1974 (Unreported). 
Wellington Belawa v. The State [1988-89] PNGLR 496.

Counsel:
Mr. M. Ruarri, for the State.
Ms. A. Turi, for the Prisoner.

24 February 2005.

MANUHU, AJ: The Prisoner, Jack Ostekal Metz, pleaded guilty to one count of obtaining goods or credit by false pretence, which carries a maximum penalty of five years.

On 3rd December 2001, the Prisoner falsely represented to the manager of Dalcrest Guest House in Madang that he was expecting payment in millions of Kina from the sale of Treasury Bills. The payment, he represented, would be made by Bank of Papua New Guinea directly into his then PNGBC account. Believing this, the manager permitted the Prisoner to obtain cash, was accommodated, had meals and drinks, took cigarettes, and had extra guests at Dalcrest Guest House from 3rd December 2001 to 31st July 2002. During this period, the Prisoner incurred a bill of K70,445.36, which he was not able to settle when he checked out.

The Prisoner, a mature man of thirty six years, is a first offender who pleaded guilty, co-operated with police, and expressed remorse in his allocatus. I cannot, however, think of anything else that will further mitigate the Prisoner’s wrongdoing.

The amount is substantial. From the victim’s point of view, no amount of remorse and apology can restore such substantial amount. The guest house would want restitution but the Prisoner has not made any payments and is in no position to make any restitution. In addition, this was not a one-off offence. The crime was pre-meditated and was carried out systematically and fearlessly, and with the assistance of others, over a period of eight months. While the Prisoner is a first offender, what he did seems to be the work of an expert. 

In all the circumstances, a custodial sentence is warranted. The factors of mitigation are outweighed by the circumstances of aggravation. 

Sentencing trends are difficult to determine. False pretence cases are not often reported. In the case of The State v Paul Takesi [1997] PNGLR 507, a sentence of two years was imposed on a lawyer who obtained K7,000 from his client by false pretence. In the case of The State v. John Kil (2000) N1974 (Unreported), the prisoner was sentenced to eight months suspended sentence for obtaining K1,470 by false pretence. It may also be appropriate to consider the sentencing guidelines in Wellington Belawa v. The State [1988-89] PNGLR 496, where, in relation to amounts between K40,000 to K150,000, a sentence of three to five years is considered to be appropriate.

In this case, K70,000 is a lot of money but the maximum penalty is only five years. I bear in mind that sentences of four and five years should be reserved for worst types of false pretence cases. In this day and age, especially when pyramid schemes are being attempted, we probably have not seen the worst types of false pretence. 

In the circumstances, I will impose a sentence of three and half years in hard labour. The Prisoner’s custody period will be deducted from this sentence.

Sentenced accordingly. 
_________________________________________________________________
Lawyer for the State				:		Public Prosecutor
Lawyer for the Prisoner 			:		Public Solicitor