N4499

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1252 of 2007

THE STATE

V

MARTHA AGUA

Kundiawa: Kangwia, AJ
2011: 11 & 17 November

CRIMINAL LAW - Sentence – Conspiracy to Defraud - Sentence – False Pretence with intent to defraud- First time offender - no genuine remorse - Guidelines in The State v Wellington Bellawa discussed and adopted - Tariffs Suggested not appropriate – sentence of Four years and two years imposed to be served concurrently – suspended sentence with conditions imposed as appropriate.

Case Cited: 
The State v Wellington Bellawa [1988-89] PNGLR 496; 
Goli Golu v The State [1979] PNGLR 653;
 The State v Daniel Mapiria (2000) (Unreported Judgement dated 1 October 2004) CR.1118/2000;
 Doreen Liprin v State [2001] PNGLR 6; 
The State v Dobi Au (No.2) (2004) N2247; 
The State v Iori Veraga (2005) N2849;
 The State v Buygonnes Tuse Nae (1996) N1474; 
Yaip Joshua Avini & Onr. v The State [1997] PNGLR 212 

Counsel:

J. Kesan, for the State
T. Ohuma, for the Prisoner

17 November, 2011

1. KANGWIA AJ: The prisoner was convicted on two counts arising out of the same set of facts after a Trial. First conviction was for conspiracy to commit a crime under section 515 of the Criminal Code which carries a penalty of imprisonment for a term not exceeding seven years.

2. The second conviction was for obtaining money by false pretence with intent to defraud the State under section 404 (1)(a) of the Criminal Code which carries a penalty of imprisonment for a term not exceeding five years.

3. The charges arose out of a false claim made under the name of the prisoner for a house to obtain K76, 700.00 through the Highlands Highway Rehabilitation Project (H.H.R.P). The money was paid to the accused who deposited it into her personal account. She had already used up more than K54, 000.00 when arrested and charged. 

4. She is 33 years old now and married with 3 children. She is a Primary School Teacher. She is currently undergoing studies at University of Goroka. She has no record of any prior convictions.

ALLOCUTUS

5. On her allocatus she said; "I thank the Court for the opportunity to talk. I am married with three kids. Two are in school and one is at home. I am a primary school teacher and currently attending studies at Goroka University.

6. I spent the money repaying debts, distributing to family members, shopping and for school fees. Police confiscated K20, 950.00 from me when I was arrested. I spent the money in that way knowing the money to be rightfully mine. People were blaming me & my husband over it and a lot of burden was on me. I request to make restitution and also for time to do it as my husband is also sentenced and on probation for similar offences.

7. I gained nothing for the removal of my house at the village.

8. I have savings that I can use and the balance I propose to repay on a fortnightly basis. I have traveled back and forth for four years pending this case. I request probation to make restitution." 

SUBMISSION FOR PRISONER

9. It was submitted on her behalf that the pre-sentence report indicated her to be a suitable person for probation. The means assessment report concluded her ability to make restitution if ample time is given.

10. The following factors operated to be considered in her favor. She is a teacher of many years. She cooperated with Law enforcement agencies. She is on the payroll and has savings to make restitution. She is a first time offender. She has waited four years for this case to conclude and that should be treated as a punishment. 

11. The offence is non violent and the prisoner was unlikely to reoffend. Others were also involved but she suffered alone.

12. Factors against her were that this was a trial. The offence is prevalent and the amount involved is substantial. There was a conspiracy to commit the offences.

13. If a custodial sentence is imposed, her education will be jeopardized. The guidelines in The State v Wellington Bellawa [1988-89] PNGLR 496 were appropriate in considering a sentence.

14. Her husband was sentenced to three years but was wholly suspended with a fine, probation and restitution orders instead. 

15. It was submitted that a non custodial concurrent sentence with suspension be imposed.

SUBMISSION FOR THE STATE

16. The aggravating factors were that this was a trial where the State and the Court were put to incur time and expenses and the usual leniency to a guilty plea is not available to the prisoner. This was a serious dishonesty case involving a substantial amount of money.
17. The maximum sentences are five years for stealing by false pretence and seven years for conspiracy. Mr. Kesan concurred with Ms. Ohuma that a concurrent sentence was appropriate given the same set of facts which created the two offences.

18. It was also conceded that the guidelines in the Wellington Bellawa case were appropriate although the tariffs suggested there were out of date. It was submitted that the cases fell into the money range of K40, 000: 00 to K150, 000.00 which attracted a sentencing range of 3-5 years. 

PRE SENTENCE & MEANS ASSESSMENT REPORT

19. The pre sentence report suggested that the prisoner was a suitable person for probation. That is not odd given her status as a female teacher. It was also suggested that she was willing to make restitution through fortnightly payments after some of it is paid from her savings with POSF.

DECISION 

20. This was a serious case of conspiracy and dishonesty involving a substantial amount of public funds. Money intended for a worthy cause had been obtained fraudulently through the established system and flagrantly misapplied for personal purposes by the prisoner.

21. The maximum prescribed penalty for the offence is seven years for conspiracy to defraud and five years for obtaining by false pretence. The Court has discretion to impose sentences other than the prescribed maximum penalty through section 19 of the Criminal Code Act.

22. It is a general principle of Law that the maximum prescribed penalty must be reserved for the worst instance of the offences. In Goli Golu v The State [1979] PNGLR 653 the Supreme Court held that; 

"the maximum penalty should be reserved for the most serious instances of the offence……. the punishment to be awarded should be strictly proportionate to the gravity of the offence". 

23. The principle has been applied in most fraud and misappropriation cases and is of general application for all cases involving criminal offences.

24. Applying that principle to the present cases the maximum prescribed penalty shall not be applied as these cases do not fall into the most serious instances of the offence which is subject to various factors and guidelines.

25. Sentencing guidelines for offences where dishonesty was involved are grounded in the case of Welling Bellawa v The State (supra). In that Case the Supreme Court suggested sentencing tariffs as well but tariffs suggested there are inappropriate to the present time. 
26. The Courts have increased the sentences markedly from those suggested because of the prevalence and frequency of offences relating to money obtained dishonestly. However, the guidelines suggested in the case of Wellington Bellawa are relevant and of universal application for similar cases.

27. The Supreme Court in the Wellington Bellawa case suggested a number of factors that should be taken into consideration when determining an appropriate sentence. The factors relevant for the present cases includes, the plea entered, restitution, the amount involved, use of the money, remorse shown, public impact, the effect on the offender and any mitigating factor special to the offender.

28. These factors will be considered briefly as most of them were canvassed in the prisoner's allocatus and in submissions by counsels on sentence.

1.	Plea

29. The prisoner pleaded not guilty to both counts. The verdict was reached after a trial. The State and the Court were made to incur time and expenses unnecessarily. Although the prisoner was entitled to the full protection of the law under the presumption of innocence principle established by S. 37 of the Constitution, she ultimately had no defense or a plausible explanation with evidence to support her denials and create a reasonable doubt. Any discount one would get for a guilty plea is not available to the prisoner here.

2.	Restitution 

30. The pre sentence report shows that the prisoner is willing to make restitution. It also suggests that she is able to make restitution on a fortnightly basis until the full amount is settled. I am unable to accept that the willingness to make restitution is out of remorse or genuine feeling of indebtedness. It is an offer out of desperation to escape imprisonment. Restitution seems to be the only best thing the prisoner could offer to avoid a prison term.

31. Courts have treated restitution as an important factor to impose suspended sentences. See for example The State v Daniel Mapiria (2004) CR 1118/2000 where the Court suspended the whole sentence of 9 years and ordered restitution of one million kina from the 3.18 million kina misappropriated. The main reason was that the prisoner was diagnosed with serious illness and therefore it served the interest of the State for restitution to be made. That was a mitigating factor special to the prisoner. In the case of Doreen Liprin v The State [2001] PNGLR 6 a sentence of 6 years was suspended for restitution of K6000.00 to be made within 2 months. In The State v Dobi Au (No.2) (2002) N2247 a sentence of 3 years was wholly suspended with conditions for restitution of K16, 900.00 within 6 months.

32. Restitution in my view should not operate as a readily available option to buy freedom. It should be more aptly available in cases where the interest of the wronged party would be better served through an order for restitution and more so at the discretion of the Court. 

3.	The amount involved

33. The amount involved was K76, 700.00. Although the prisoner did not use the full amount she did use more than K50, 000.00 which is quite substantial in any man's language. This kind of money can be very useful for a lot of people. 

34. In the case of the prisoner had police not intervened she would have used up the whole amount with the way she used up K50, 000.00 within a few days. This factor operates against the prisoner.

4.	Use of the Money

35. The speed at which the K50, 000.00 was expended raises questions like what was the rush for if the prisoner was truly entitled to the money as she claims, even after a guilty verdict. According to her allocatus she used the money to pay debts, distribute to family members, shopping and school fees. Apart from the school fees the other areas of expenditure in my view seems quite extravagant for a primary school teacher to spend in a few days. I'm not convinced that money used up was put to any useful or worthwhile purpose. This factor operates greatly against her.

5.	Remorse

36. The prisoner denied she was at fault from the beginning to the end, and even in her allocatus. She continued to maintain that she was entitled to the money without any supporting evidence and then after conviction. This is an indication of defiance and borders on a display of arrogance. She has not shown any genuine remorse in her allocatus or in her offers for restitution. This type of behavior deserves a custodial sentence despite the presence of useful mitigating factors.

6.	Public Impact

37. The public lost confidence in the system entrusted to make payments for the (HHRP) program. They lost confidence in the employees tasked to perform duties on their behalf through the State. The money was a loss to the public at large apart from the prisoner. Money was intended for a public purpose through which many would have greatly benefitted had it been properly applied as intended.

38. As stated by the prisoner in her allocatus about the people on the street talking about her and her husband, it is an expression of regret and loss to them as taxpayers. This is an aggravating factor that would invite a heavy penalty.

7.	Effect on the Offender

39. The prisoner may have suffered dislike by the public to some extent. She may have faced a lot of problems (while waiting the 4 years for this case to end) like missing classes, tests, assignments or her personal problems. If she were sentenced her family will suffer, her education and employment will be jeopardized. 

40. In my view these matters are of no consequence when considering that the prisoner herself did not give an iota of consideration of the possible ramifications, when she persistently participated in a scheme to commit an unlawful act for an unlawful purpose. The Court cannot take the prisoner's place and concern itself with her problems associated with these offences. They are in my view consequences of falling out of line with the Law by a supposedly educated person. This factor cannot operate in her favor.

8. Special Mitigating factors

41. I am unable to find any mitigating factor special to the prisoner.
However, it was suggested on behalf of the prisoner that the offences were non violent offences and that should be a factor in favor of the prisoner.
 
42. I fail to see how this suggestion would be appropriate to mitigate on the penalty. I would classify this offence as equivalent to an offence of violence with elements of aggravation present. These two offences were not committed through a mistake or an oversight. The Offences were an outcome of a preplanned, deliberate and calculated series of acts involving a number of people to achieve a common outcome which they ultimately achieved to the detriment of the State. In the face of that situation, any mitigation of penalty on the grounds of the offence being non violent fades into insignificance.

43. The question that now arises is what a suitable punishment would be for the prisoner considering all the factors referred to earlier. The offences are prevalent and frequent. Despite custodial sentences imposed there seems to be no decline in the commission of these types of offences.
 
44. The maximum prescribed penalty of seven years and ten years in other category of similar offences under the Criminal Code is in my view inappropriate given the prevalence of the offences involving large sums of money. Courts are limited in imposing adequate custodial sentences for offences involving large sums of money with the current prescribed penalties. 

45. The present case falls into the monetary range of K40, 000.00 to K150, 000.00 referred to in the Wellington Bellawa case which had a suggested tariff of 3-5 years. As stated earlier the tariff suggested in that case are inappropriate for the present time.

46. Courts have imposed higher sentences for offences related to money obtained through false pretence, conspiracy or other unlawful means.

47. In The State v Iori Veraga (2004) N2849 the accused who was a Valuer was convicted after a trial on two counts of conspiracy to defraud and four counts of misappropriation. The amount involved was K144, 955.00. The accused was sentenced to 6 years.

48. In various misappropriation offences the courts have also imposed custodial sentences as in The State v Buygonnes Tuse Nae (1996) N1474 where the prisoner was sentenced to 4 years for misappropriating K103, 387.70.

49. In Yaip Joshua Avini & 1or v The State [1997] PNGLR 212 the Supreme Court affirmed a sentence of 8 years for the prisoners for misappropriating K100, 000.00 of road project money. The sentence was high because it involved the abuse of a position of trust.

50. The sentences referred in the above cases indicate the increase in sentences from those suggested in the Wellington Bellawa case.

51. The present cases fall into the serious category of conspiracy and fraud that involved K76, 700.00. The money is substantial. However actual amount used was more than K50, 000.00 which attracts a lesser sentence than those cases referred to earlier. 

52. It is not known if any of the accomplices benefited from the proceeds but it is apparent that none of them have been arrested. The others who played a part should be criminally accountable. That may not be the case now given the length of time that has lapsed since the prisoner was charged. 

53. Of the two offences the prisoner was convicted of, I consider the offence of stealing by false pretence to be more serious against the prisoner. She deliberately obtained the money by false pretence with obvious intent to defraud the State. She continued to use the money after she was detained by police. The prisoner was central to the commission of this offence. Having considered her level of culpability and taking into account the adverse factors referred to earlier, I consider a sentence of four years is appropriate.

54. On the offence of conspiracy to defraud, I consider that the prisoner played a lesser role. She was used by the others who facilitated for her and her level of culpability should be less than the others. Taking into account the factors referred to earlier, I consider a sentence of two years is appropriate.

55. Since both offences arose out of the same set of facts, the sentence of two years shall be concurrent to the 4 year sentence.

56. I consider that the offence was committed some four years ago. None of the conspirators have been charged. The prisoner has suffered alone thus far. It would serve no useful purpose to the State to impose a custodial sentence on the prisoner. Custodial sentence would only reflect the retributive and deterrent effect for the offences. The State would incur more expenses to cater for the prisoner if a custodial sentence were imposed. 

57. I am of the view that the prisoner should be given alternative punishment for her wrongs and at the same time the State be reimbursed of what she used up. It would still serve as a deterrence and a punishment for the offender, to be made to repay the State. 

58. This then calls for the exercise of the courts discretion in a situation where a custodial sentence was more inviting. In that regard I should exercise my discretion to suspend the sentence with conditions for restitution as a sentence appropriate for the prisoner. 

59. It would serve no useful purpose to allow restitution to be made on a fortnightly basis as suggested in the pre sentence report. This is because the certainty of a custodial sentence was avoided in the exercise of discretion only. Secondly it is nonsensical to allow for a fortnightly payment for restitution when the money was not obtained fortnightly in the first place. 

60. However, the timing to make restitution should reflect retribution and punishment more than a mere restitution. 

61. After saying that, it would be remiss of me to ignore the means assessment report. The report shows that the prisoner is unable to make restitution in a single payment. This position would impose upon me permission to accord ample time for restitution to be made.

62. In the exercise of discretion I suspend the whole concurrent sentence of four years on the following conditions;

1.	The prisoner shall pay a fine of K3, 000.00 within one month from the date of sentence.
2.	The prisoner shall make restitution of K50, 400.00 within two years from the date of sentence.
3.	Payments may be made in full or in installments, but shall be completed within the given time frame.
4.	All payments shall be paid into consolidated revenue through the Provincial Treasury at Kundiawa.
5.	Receipts of payments shall be filed in the National Court Registry which shall keep a tally of payments made.
6.	The prisoner shall be on probation without any special condition for two years to commence from the day the probation officer completes the process of documentation.
7.	The balance of the sentence shall be suspended upon full compliance of the conditions imposed.
8.	Bail shall be converted to meet part of the cost of the Court Fine.

Orders Accordingly
__________________________________________
Public Prosecutor: Lawyers For the State
Public Solicitor: For the Prisoner