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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR (FC) NO. 126 OF 2015
THE STATE
V
TRACEY AUMORA
Kokopo: Anis AJ
2016: 23 March, 5 & 7 April and 21 June
CRIMINAL LAW – prisoner charged with two counts of false pretence with intention to defraud under section 404(1)(a) of the Criminal Code Act Chapter No. 262 - prisoner pleaded guilty - sentencing - mitigation and aggravating factors considered - money stolen was substantial - Pre-sentence Report recommended probation based on restitution - prisoner's ability to repay considered - no means for repayment disclosed - speculative schedule for repayment - offence against faith or against one's Christian principles regarded as serious - custodial sentence warranted under the circumstances
Cases Cited
Saperus Yalibakut v The State (2006) SC890
State v. Angela Tokonai (2010) N4679
State v. Angela Tokonai (2014) N5736
State v. Jack Ostekal Metz (2005) N2824
State v. James Mariko (2015) N6086
State v. Martha Agua (2011) N4499
Wellington Belawa v the State [1988 – 89] PNGLR 496
Counsel:
Ms T. Aihi, for the State
Ms J. Ainui, for the Accused
DECISION ON SENTENCE
21 June, 2016
1. ANIS AJ: You have pleaded guilty to two counts of false pretence with intentions to defraud under section 404(1) (a) of the Criminal Code Act Chapter No 262 (Criminal Code). This Court indicted and arraigned you on 23 March 2016. Counsel presented submissions on your sentence on 7 April 2016. The Court reserved its decision on sentence to a date to be advised.
2. This is my ruling.
BRIEF FACTS
3. The State (prosecution) alleged that between 31 March 2015 and 30 November 2015, you falsely pretended to be two different persons you were not. Firstly, you held yourself out as a Seventh Day Adventist (SDA) Pastor, and secondly, you held yourself out as an SDA Minister Shangai Mara. You knew Mr Mara earlier when he was with the Malaguna SDA Church at Rabaul in 2006. You also knew that Mr Mara and the complainant Annie Famane (complainant) had an earlier relationship with each other; they were friends and co-workers in 2011.
4. I set out the brief facts supporting the two (2) counts herein:
Count 1: Between 31 March 2015 and 30 November 2015, you falsely pretended to be a SDA Pastor. Under the said disguise, you would text your mother and request her to show the text messages to the complainant. In these text messages, you would request monies to cover church run activities and expenses. The complainant without suspecting, and believing that it was God's work would withdraw various sums of monies from her Bank South Pacific Account number 1000454564. The complainant would pass on the monies to your mother who would then pass them over to you.
Count 2: Between 31 October 2015 and 30 November 2015, you falsely pretended to be one SDA church Minister namely Shangai Mara. Under this disguise, you text the complainant and left messages through your mother. You pretended to be Mr Mara and falsely promised the complainant that you planned to marry her. You would use your mother as the third party to collect money and goods from the complainant. Your mother would receive the monies and goods from the complainant and pass them over to you. At one time, upon your request, the complainant paid for and passed onto you books that were worth K936 and K1, 600 in cash. You continued with these false pretences and received cash on various occasions from the complainant through your mother.
5. Your actions contravened section 404(1)(a) of the Criminal Code which is that you falsely pretended to be persons you were not, with intentions to defraud and consequently you obtained monies that belonged to the complainant totalling K37,950.
PLEA
6. On 23 March 2016, you pleaded guilty to the two counts for the offence of false pretence with intention to defraud contrary to section 404(1)(a) of the Criminal Code.
7. This Court convicted you on the same day.
PENALTY
8. The offence of obtaining goods by false pretence with intention to defraud carries a maximum imprisonment term of five (5) years.
ANTECEDENT REPORT
9. You have no prior convictions. This appears to be your first recorded offence.
10. You are 26 years old. You come from Baluan village in Lorengau, Manus Province. You reside at Bay Road Street in Rabaul, East New Britain Province. The place of your residency at the time of your arrest was Vuvumadiring, Tavui No. 1, Nonga-Rabaul, East New Britain Province.
11. You are married and you have two (2) children aged three (3) years and two (2) years old. But based on evidence presented to this Court, you say you have separated from your husband and now you reside with your mother together with your two (2) children.
ALLOCATUS
12. This is what you told the Court on 7 April 2016 during administration of allocatus:
(i) you apologised to the Court for what you have done.
(ii) you apologised to the family of the complainant for the inconvenience you have caused them.
(iii) you apologised to your family.
(iv) you apologised to the Seventh Day Adventist Church for committing the offence.
(v) you said whatever you did has opened up your mind.
(vi) you made promise to the Court that you will not repeat what you have done.
(vii) you said you are a mother and have two young children to look after.
(viii) you said you have a medical condition which is that you are asthmatic.
OTHER MATTERS OF FACT
13. Since you have pleaded guilty, you are entitled to the benefit of the doubt. By that I refer to the mitigating factors which I have summarised below herein, the allocutus and matters raised by your lawyer that are not contested by the prosecution (see the case of Saperus Yalibakut v The State (2006) SC890).
14. I note that you have co-operated with the police since your arrest and you have admitted to committing the offence in your record of interview.
MITIGATING & AGRAVATING FACTORS
15. After considering submissions from both counsel, I set out a summary of the mitigating factors herein:
16. After considering submissions from both counsel, I set out a summary of the aggravating factors herein:
SUBMISSIONS
17. The defence submits the Court should impose a suspended sentence upon you, that is, the defence submits the Court should impose a sentence of four (4) years upon you and have these wholly suspended with strict orders for restitution regarding moneys you took from the complainant. The defence referred to the Pre-Sentence Report and to the proposed schedule of repayment set out therein. The defence submits the Court should use the report and proposals therein as an aid and make conditional orders to you at the time of sentence.
18. The prosecution submits the offence committed was a very serious offence. It submits the offence involved careful or pre-planning. The prosecution submits there had been a clear intention to defraud the complainant. The prosecution submits you executed the plan and under false pretence, you obtained moneys from the complainant over a lengthy period and the complainant suffered as a result by the loss of her money or life savings.
19. In support, the prosecution cites two cases namely State v. James Mariko (2015) N6086 and State v. Angela Tokonai (2010) N4679, and submits the Court should sentence you to four (4) years imprisonment. The prosecution however notes that in the present case and based on the Pre Sentence Report, the complainant did not request for a custodial sentence to be imposed on you.
COMPARATIVE SENTENCES
20. I will look at the case law and consider few cases that may be comparable or relevant, to assist me arrive at an appropriate sentence for you.
21. The first case I refer to is the case of State v. Angela Tokonai (2010) N4679. I note that the prosecution also relied on this case. The prisoner therein pleaded guilty to the obtaining goods by false pretence under section 404(1) (a) of the Criminal Code. The prisoner drew a cheque for K15, 865.50 made payable to the victim for the supply of 132.5kg of sea cucumbers. The sea cucumbers were delivered but the cheque bounced and the victim reported the matter to police who then charged the prisoner. The prisoner pleaded guilty. She was sentenced to 3 years imprisonment. The Court fully suspended the sentence and imposed conditions essentially for the prisoner to pay what she owed. I must add that this case was later recalled back to the same Court because the prisoner had failed to fulfil her imposed conditions. The prisoner was sentenced to serve the balance of her prison term, which was 2 years 1 month. The latter case is State v. Angela Tokonai (2014) N5736.
22. The second case is State v. Jack Ostekal Metz (2005) N2824. The prisoner pleaded guilty to the offence of false pretence. The prisoner checked into a guesthouse in Madang. He notified the owners that he was expecting millions to be paid into his personal bank account from sales from treasury bills. In return, the guesthouse accommodated and provided the prisoner with cash advances and he lived in the guesthouse for more than 8 months. When the prisoner checked out, he incurred a total bill of K70, 445.36. He was charged and he pleaded guilty to the offence of false pretence. He was sentenced to imprisonment for three and a half years.
23. The third case is the case of State v. James Mariko (2015) N6086 which was also relied upon by the prosecution. The prisoner pleaded guilty to the offence of false pretence. The prisoner informed a couple that he would buy them a used-car from a third party. The couple over a period of three (3) months gave him a total of K8, 500. The prisoner never delivered the vehicle. The prisoner was sentenced to 3 years imprisonment. One year was suspended with imposed conditions. The Court also deducted the prisoner's term in custody. The prisoner's sentenced was reduced to 1 year 28 days.
24. The next case I wish to refer to is the case of Wellington Belawa v the State [1988 – 89] PNGLR 496. I am referring to this case purposely to consider the scale of sentences applied therein by the Supreme
Court. Let me summarise them herein:
25. In the present case, I note that you have obtained through false pretence a total sum of K37, 950. The applicable prison term following the scale in the case of Wellington Belawa v the State (supra) would be between 2 to 3 years.
EVIDENCE
26. Firstly, I find the aggravating factors against you outweighing the mitigating factors.
27. I will regard your case as serious. I note that you have carefully planned your actions. Over a period of nine (9) months and with the assistance of your mother, you were able to defraud the complainant of her monies to a total sum of K37, 950. This is a substantial amount. In doing so, I note that you capitalised on the faith of the complainant. The complainant and yourself come from the same denomination which is SDA. She put her faith and trust in you because you two including your mother all belonged to the same church and it was primarily on that basis that the complainant was able to follow your instructions. You later went further, that is, by using the name of another SDA church Minister whom you knew had befriended the complainant earlier in 2011, to falsely pretend and represent to the complainant that you were Mr Mara and you planned to marry the complainant. Of course that was a lie but at those material times, the complainant believed you and again based on faith and trust and the fact that you all go to the same church, she gave you cash and goods.
28. Let me say this: The very fabric of society not only in Papua New Guinea but also throughout the world is based upon belief and faith. In this country, its belief is stated and enshrined in the Constitution. For example, the third line at the start of the Constitution reads WE, THE PEOPLE, do now establish this sovereign nation and declare ourselves, under the guiding hand of God, to be the Independent State of Papua New Guinea. Christianity is practised in the country through various Christian denominations or churches and has an immense influence on the lives of the people herein. Based on law and of course the Constitution, Courts have a duty to protect the beliefs and faith of the people of course provided the beliefs and faith are consistent with the laws of this Country as provided for under section 9 of the Constitution. On that note and addressing the present case, to use someone's faith to deceive or commit the offence of false pretence is serious and must be regarded as something not to be taken lightly by this Court. Your actions in my opinion, firstly shows that you have a complete lack of morality or faith within yourself. Secondly, it shows that you would go at any lengths to cheat or destroy someone else's faith and take something that is not yours.
29. I reject your claim in the Pre-Sentence Report (Report) that you committed the crime to try to please your husband. You also said in the same Report that you had abandoned your relationship with your husband in 2015 because you wanted to live a carefree life like other women; that you wanted to avoid domestic and extra-marital affairs of your husband, which you said you had had to deal with over the years. But I note that the offences were also committed in 2015 so in my opinion your story does not add up but rather appears suspicious.
30. Now the Report contains a proposed repayment schedule. Surprisingly, the schedule was drawn up or suggested by your mother. Your mother suggested that you pay K6, 402 per annum for five (5) years payable at K2, 134 quarterly or every four (4) months. She did not state whether she has any savings to assist you. The only thing or possible guarantee she gave was simply her word which was that she would endeavour to repay following the proposed repayment schedule by sewing.
30. I note that your mother was implicated in the offences committed by you herein. I can only wonder why she was not also arrested and charged together with you. Based on the facts of this case, your mother had played a key role in the commission of the offence with you. As it appears, she is now fighting for your release on probation. This is evident in the Report itself.
31. As for you, the Report reveals that you have no savings of any sort. The Report also reveals that you have never worked before in any formal employment and that you have always been dependent on your mother for financial support and basic needs even during the time of your marriage with your former husband. You state in the Report that your mother is an expert in sewing and you believe that your mother would sew and payback the money in full if you assist her upon your release on probation.
32. Unfortunately, I find all these very hard to accept. In fact, the idea is highly speculative. I note that I asked both counsel at the hearing to inform the Court whether the proposed repayment schedule was realistically achievable. The defence tend to concede that perhaps it was not but submitted that their assessment was based on the Report. I note that there are many cases which state that an order for restitution would be appropriate if there is evidence of payment or financial capacity to repay (see for example the case of State v. Martha Agua (2011) N4499). This Court can have regard to restitution if there are clear indications shown on your path. For example evidence of payments or deposits already made by yourself to the complainant. I note that you have been in custody for more than 9 months now. Since then, you have not provided evidence of attempts by yourself or your mother to repay the complainant. If you are serious about restitution then what are you waiting for? You have also not provided evidence of financial capacity or source of funding to come from third parties who are willing to assist you repay the money or goods taken. I note that the Report states that your elder sister has expressed interest to assist. However, the Report does not state her name, or what she does for a living and whether she has savings in her account to prove that she is capable of assisting. That in my opinion is simply a worthless consideration.
33. The complainant states in the Report that if restitution is to be looked at by the Court, she prefers that the prisoner should make a deposit of a sum between K5, 000 to K10, 000 as upfront payment. Given the financial incapacities disclosed by you and your mother in the Report, I am of the opinion that you are incapable of meeting the upfront payment if the Court were to issue orders to that effect.
SENTENCE
34. I find that, without credible evidence showing that you are capable of repaying the monies taken, you must face the full punishment
to be imposed by this Court. You have committed a serious offence under section 404(1) (a) of the Criminal Code on two counts.
It is my opinion that a custodial sentence would be fitting under the circumstances. Also and in my opinion, you need to be taught
a lesson that if you decide to do nothing better in life but instead prey on other people's faith or belief and take away from them
what is theirs, you will be sent away to prison. An imprisonment term is also necessary, in my opinion, as a deterrent measure to
the community at large to take heed of and refrain from committing such an offence.
35. I impose a head sentence of 4 years imprisonment on you on each count for the offence of false pretence with intention to defraud under section 404(1) (a) of the Criminal Code. In total, that would be 8 years imprisonment, that is, 4 years for count 1 and 4 years for count 2.
36. I order that you shall serve the prison terms concurrently.
37. I will suspend two (2) years off from count 1 and 2 years off from count 2. I do so for two reasons. Firstly, I note that you pleaded guilty to the offence. You co-operated with the police in their investigation from the start and you admitted to the offence when police first interviewed you. Secondly, I take into account your unstable marriage life. I think the conduct of your former husband has contributed in some way to your actions as you have explained in the Report. You were left with two children to look after yourself whilst your former husband continued to live in what may be described as a 'Casanova' type life-style. You were unemployed and you and your two children had to be looked after by your mother at her place.
SUMMARY
38. You shall therefore serve a total of two (2) years imprisonment. I will allow time you spent in custody to be deducted from your sentence. You were in custody from 23 September 2015 to 20 June 2016 with the latter being the day before the day of your sentence, which in total adds to 8 months 28 days.
39. I will deduct the 8 months 28 days from your concurrent 2 years jail terms.
40. You shall therefore serve 1 year 3 months and 2 days in prison.
ORDERS OF THE COURT
Sentence: Prison term of 1 year 3months and 2 days imposed.
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused
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