N6919

PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO.81 of 2015  

STATE

V

KEI LILIGU
Prisoner

Goroka: Polume-Kiele J
2015: 21 October 
2016: 8, 10 November 

CRIMINAL LAW - Guilty Plea - Obtaining goods or credit by false pretence or willfully false promise - s 404 (1) (a), Criminal Code Act

CRIMINAL LAW - Sentence - Early guilty plea – No prior conviction

CRIMINAL LAW – Sentence - 2 years imprisonment - s 404 (1) (a), Criminal Code Act, Order for restitution –partial suspension considered - s 19 Criminal Code Act

Facts

The brief facts are that on or about October 2011, at Goroka, the offender promised to give possession of a piece of land known as Warizotoka to one Brian Eboty, although he had no intention of giving away the land. The land was allocated along Bihute road in the Kama area. Thinking that the offender was genuine in what he said, Brian Eboty made payment to the offender in two instalments, a sum of K3,000.00 on the 18 of October 2011 and the second payment of K3,800.00 on the 23rd of October 2011, totaling K6,800.00 for the piece of land. The offender failed to deliver as promised. Brian Eboty was never given the land and the Prisoner obtained goods or credit from Brian Eboty by false pretence. The offender was subsequently arrested and charged for one count of obtaining goods or credit by false pretence or wilful false promise, under section 404 (1) (a) of the Criminal Code.

The offender pleaded guilty to the charge. On allocutus he showed remorse and asked the Court to be given time to repay the money. He has further asked the Court to be placed on probation.

The maximum penalty under s 404 (1) of the Criminal Code is imprisonment for a term not exceeding five (5) years. It is an established sentencing principle that the maximum penalty is always reserved for the worst kind of the offence.

Held:

(1)	The offender by his own admission has admitted guilty to obtaining goods or credit by false pretence or wilful false promise, the sum of K6,800.00 the property of Brian Eboty contrary to s.404 (1)(a) of the Criminal Code Act. 

(2)	In the Record of Interview conducted on the 22nd of January 2015 at Goroka Police Station, CID office, Goroka, Eastern Highlands Province at 11.10 a.m., the offender admitted to obtaining goods or credit by false pretence or wilful false promise, a sum of K6, 800.00 being payment for a piece of land known as Warizotoka, which the offender had no intention to giving possession of to the victim, Brian Eboty.    

(3)	The offender is sentenced to 2 years imprisonment with hard labour

(4)	In the exercise of discretion under s 19 of the Criminal Code Act, the offender is ordered to make restitution in the sum of K6, 800.00 within six (6) months from today, the 10th of November 2016 to the victim, Brian Eboty or his surviving relative.

Cases cited:

Wellington Belawa -v- The State [1988-89] PNGLR 496
The State v Metz (2005) N2824
The State v John Kil (2000) N1974 
The State v Thomas Wakai & 3 Ors (2000) N3360, 
The State v Morris Yepin (2005) N3503
Public Prosecutor -v- Don Hale (1998) SC564

Counsel:

Mr Kathawa Umpake, for the State
Mr John Biki, for the Prisoner

JUDGMENT ON SENTENCE

10th November, 2016

1.	POLUME-KIELE J: The offender appeared before me on the 19th of October 2015 and upon arraignment pleaded guilty to one count of obtaining goods or credit by false pretence or wilfully false promise, a charge laid pursuant to s.404 (1) (a) of the Criminal Code Act (Ch No 262).  Section 404 (1) (a) states:

“404. Obtaining goods or credit by false pretence or wilfully false promise.
(1) A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud- 

(a) obtains from any other person any chattel, money or valuable security; or 
…
is guilty of a  crime.

Penalty: Imprisonment for a term not exceeding five years."

Committal Court Disposition

2.	Ms Barbara Gore for the State tendered the Goroka District Court Deposition into evidence by consent which comprised of the following: 

(1)	The Record of interview both the original pidgin and English Version dated November 2013, CR, (FC) 781/2014; marked as Exhibit "A" relating to the defendant Kei Liligu during which he admitted to stealing by false pretence a the sum of K6,800.00 which is the property of one, Brian Eboty, at the University of Goroka sometime in September 2014 (Question 13 and answer to Question 13) which is valued at about K3,200.00 (Question 23 and Answer)
 
(2)	The Statements of State witness namely Brian Eboty dated 15th November 2013 including that of Police (CID) Investigator Patrick Vungabu dated 20th November 2013 and Policewoman (CID) Nancy Lesera dated 19th November 2013 who was the corroborator both of Goroka Police Station during the Record of Interview. The State witnesses respectively confirmed the identity of the prisoner and the incident which led to the indictment being laid against the prisoner and his demeanour at the time of the commission of the offence. 

3.	Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the offender’s guilty plea was accepted and the offender was convicted on the charge of Obtaining goods or credit by false pretence or willfully false promise prescribed under s 404 (1) (a) of the Criminal Code.

Antecedent Report

4.	The offender is 63 years old and married with two children. He is from Mono Village, Kama, of the Eastern Highlands Province. He is unemployed and lived at Mono Village, Goroka. The offender has no prior convictions.

Pre-Trial Detention

5.	The offender is currently on bail as of the date of this decision on sentence.

Allocutus

6.	In the administration of the allocutus, when the offender was given the opportunity to speak on the issue of penalty; the offender said that it was true that he took the money. He said that he was sorry for what he did. The prisoner apologised to the court and the Lord above for what he had done. In addition, the offender asked for leniency and said he intends to repay the money.

7.	His lawyer, Mr Biki then requested that this Court direct the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report and a Means Assessment Report to be furnished for and on behalf of the offender. In order to allow for this process to be complied with, the Probations Officer, (Goroka) was directed to prepare and file a Pre-Sentence Report and Means Assessment Report on the offender and have it filed prior to the 11th of November 2015 for consideration. 

8.	These Reports were promptly provided and has been considered in the determination of sentence. 

Pre-Sentence Report

9.	According to the Pre- Sentence Report, the offender has admitted the offence. He further says sorry for his actions and also added that he will never commit such offence in the future. He stated that if the Court release and sentence him to a non-custodial sentence, he will repay the money.  Although the offender has indicated that he will pay case and say sorry to the victim, he has not asked the court for a specific period of time to make restitution. Further, the victim has since passed on.

10.	With regard to the requirement for views of the community, this Court noted that the community was consulted in relation to the offender’s overall demeanour and the view was that the offender is a law abiding citizen. With regard to the capacity of the offender to repay the sum of K6, 800.00 to the complainant, his capacity to do so is unfavourable. Another point to make here is that the accused is out on bail, yet no attempts have been made in terms of restitution to the victim.

11.	This Court also notes the Pre-Sentence and Means Assessment Reports stated that the offender is a humble person and is educated up to Grade 10 level.  The offender has a prior conviction for an assault charge and but nothing further had been detailed in the Antecedent Report and as such no more will be said with respect to that. With regard to restitution, the offender has indicated that he will repay the money. The offender has two sisters and one brother who are all married and unemployed. His parents are both deceased.

12.	The Pre-Sentence Report compiled by the Probation Officer, Ms Jocabeth Kalagune dated 11th November 2015 has recommended that the offender is a suitable candidate for a suspended sentence with the proposed conditions as follows:

(1)	The offender shall repay the amount of K6,800.00 to the victim’s mother;
(2)	That the offender shall be placed on probation for a period of 12 months
(3)	The offender shall go for counselling sessions at the Mercy Works 
(4)	That he shall not consume any form of alcohol during his term of probation period
(5)	He shall be of good behaviour during his term of probation
(6)	That the offender shall not leave his residential area during term of probation

13.	Whilst this court is grateful for the preparation of the Pre-Sentence and Means Assessment Reports and the promptness in the completion of such; the overall demeanor of the offender during the period that he is out on bail and to be able to make restitution for the wrong committed to at least repay the amount of K6, 800.00 does not favour him.. The offer has come at a time that is considered too late. The victim has since passed on.  Such behaviour does not indicate any remorsefulness for what the offender has done. Furthermore, whilst the offender has requested that this court give him an opportunity to make amends and to repay the sum of K6, 800.00, for the offence of false pretence or wilfully false promise, nothing constructive has materialised up to now and given the period that the victim had been waiting for any restitution for the wrong done to him and was still waiting until his death. 

Mitigating Factors

14.	In order to determine sentence, the court took into consideration factors relevant to this case such as the offender’s early guilty plea, which greatly assisted this court in arriving at this early outcome. In addition, his co-operation with the police and his explanation as to how he committed the offence in the Record of Interview are factors which favour him.

Aggravating Factors

15.	The aggravating factors against the offender are however that he obtained goods or credit by false pretence or wilfully false promise and for this charge, the case of Wellington Belawa -v- The State [1988-89] PNGLR 496 is relevant as a useful guide in determining the severity of sentence in dishonesty cases. Matters that are taken into account in the determination of sentence will involve the amount of money obtained, pre-planning, and degree of trust, use of the money and the effects on the victims. 
 
Submission on Sentence

16.	On the 8th of November 2016, parties presented submissions on sentence before me at Goroka National Court. Due to the absence of the previous State Prosecutor who had presented the indictment on the prisoner, Mr Kathawa Umpake presented submissions on sentence for the State, whilst Mr John Biki appeared for the offender (Defence)

Submission for the offender

17.	Mr Biki in his submission on behalf of the offender on sentence submitted that although the offender had pleaded guilty upon indictment on the charge of one count of obtaining goods by false pretence contrary to s 404 (1) (a) of the Criminal Code Act for which the maximum penalty prescribed are set out under s 404 (1) (a) of the Code is imprisonment for a term not exceeding five years; Mr Biki reiterated that the courts have wide discretion under s 19 of the Criminal Code to impose a lesser penalty.  

18.	In these circumstances, the issue before the court is whether or not the offender should be sentenced according to the penalties prescribed under s 404 (1) (a) of the Code? Mr Biki submitted that the maximum sentence of imprisonment for a term not exceeding five years is not applicable in this case. He advanced a number of reasons for this argument in favour of the offender. These reasons are outlined as follows: Firstly, the facts of the case is peculiar and different thus this court should consider imposing sentence case by case; Secondly by operation of s 19 of the Criminal Code, this exercise of powers gives this Court wide discretion in making the maximum sentence discretionary; thirdly, this case does not fall into the worst case scenario and thus does not attract the maximum sentence and lastly, the offender did not used force or used other forms of weapons and tried to threaten the victims during the commission of the offence. 

19.	Mr Biki cited a number of case authorities in support of his submission on sentence. He argued that the appropriate case authority relating to stealing and dishonesty cases is that of Wellington Belawa v the State [1988-89] PNGLR 496. This case authority sets the guidelines for sentencing for stealing and dishonesty cases under s 404 (1) of the Criminal Code.  The guidelines are as follows:

(1)	Where the amount misappropriated is between K1.00 and K1,000.00, a gaol term should rarely be imposed;
(2)	Where the amount misappropriated is between K1,000.00 and K10,000.00, a gaol term of up to two years is appropriate;
(3)	Where the amount misappropriated is between K10,000.00 and K40,000.00 two to three years imprisonment is appropriate;
(4)	Where the amount misappropriated is between K40, 000.00 and K150, 000.00, three to five years imprisonment is appropriate.

20.	Mr Biki submitted further that some 20 years have passed since the decision in the case of Belawa (supra). Recent judgments on offences for stealing and dishonesty cases have seen an increase in the imposition of sentences for such offences. This is due to its prevalence and as an effort to punish those in responsible positions who misappropriate and steal and to deter others from committing such an offence. However, having stated this, each case must be considered according to its own set of facts and circumstances. Thus the application of the guideline in Belawa (supra) to this case be consistent and within the category 2 of the guidelines. Category 2 of Belawa case, says that “where an amount misappropriated is between K1, 000.00 and K10, 000.00 a goal term of up to two years is appropriate.

21.	Having stated the above, in the State v Metz (2005) N2824, the prisoner on the 3rd of December 2001; has 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 the Bank of PNG 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 guest at Dalcrest Guest House from the 3rd of December 2001 to 31st of 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 was sentence to a term of 3 and a half years imprisonment. None was suspended. 

22.	 In the State v John Kil (2000) N1974 (Unreported), the prisoner pleaded guilty to obtaining money, the sum of K1, 470.00 by falsely pretending to one Billy Kure that he would repay him as soon as he received a lump sum pay-out owing him by his former employer as his termination entitlements with the intention to defraud the said Billy Kure. The prisoner is a former policeman. The prisoner upon receipt of the sum of money in July 1997 in Port Moresby disappeared and failed to repay the debt.  The prisoner was sentenced to 8 months suspended sentence for obtaining the sum of K1, 470.00 by false pretence.

Submission for the State

23.	Mr Umpake for the State submitted that this is a case where the offender has pleaded guilty to the charge. On allocutus he showed remorse and asked the Court to be given time to make restitution to the victim. He has further asked the Court to be placed on probation. 

24.	The maximum penalty under s 404 (1) of the Criminal Code is imprisonment for a term not exceeding five (5) years. It is an established sentencing principles that the maximum penalty is always reserved for the worst kind of the offence. In this case, the offender had obtained an amount of K6, 800.00, the property of another person, namely Brian Eboty. Mr Umpake also submitted that up to now, no amount of cash in the sum of K6, 800.00 has been paid to the victim. Whilst it is also noted that the offender has stated in the Pre-Sentence Report that he is willing to repay the amount of K6, 800.00, there is really no genuine attempt or efforts made to pay back any restitution to the victim. 

25.	With regard to sentence, Mr Umpake submitted that this Court has wide discretion under s 19 of the Criminal Code to impose an appropriate penalty and also to impose conditions as appropriate. In Wellington Belawa v The State [1988-89] PNGLR 349, the court in its decision sets out the guidelines in relation to appropriate sentences for stealing and dishonesty cases. The charge in this case is under s 404 (1) of the Criminal Code and therefore by its nature is regarded as stealing. In that respect, in applying the guidelines in Belawa (supra), the sentence in this case should be consistent within category 2 of the guidelines. Category 2 of Belawa (supra) says where an amount misappropriated is between K1,000.00 and K10,000.00 a goal term of up to two years is appropriate, 

26.	In The State v John Kil [2000] PNGLR 253, a former policeman obtain K1, 470.00 from a serving policeman with promise to repay him from his final entitlements. After taking the money he disappeared for some time. He was eventually located and charged. He pleaded guilty and was sentenced to 8 months and wholly suspended with order for restitution.

27.	In the State v Thomas Wakai & 3 Ors (2000) N3360, the prisoner by falsely pretending to be police officers removed horse racing machines as illegal gambling machines from two separate locations in Port Moresby. They were charged with two counts of false pretence. Sentences of 3 and half years and 2 & half years were imposed.

28.	In The State v Morris Yepin (2005), a CIS officer received money from relatives of prisoners into his own account with a promise to later release the funds to the prisoners. He did not. Instead, he promised to shorten jail terms for those prisoners with no intention of doing so. He was sentenced to 2 years and wholly suspended with conditions.

29.	In the instant case no restitution has been made. The offender appeared to have taken advantage of the victim knowing his medical conditions. He had no intention to give possession of the piece of land as promised. In the circumstances Mr Umpake submitted that the court exercise discretion to impose a custodial sentence for a period of 3 years imprisonment and make orders for restitution of the entire amount of money obtained from the victim by false pretence. 

Determination of sentencing criteria

30.	In applying the sentencing criteria established in Belawa (supra); the accused has admitted to obtaining the amount of K6, 800.00 by deceitful dishonest behaviour.  This amount is within the category 2 guidelines established. So the issue here is whether given the circumstances of the facts of this case, this guideline should be followed?

31.	This is a case where the offender has taken advantage of the victim and dishonestly applied to his own use, the sum of K6, 800.00.  The offender has also to this day not made any restitution to the victim and the victim has since passed on. Further, the representation the offender was offering to Mr Brian Eboty was false and a wilfully false promise under s 404 (1) (a) of the Criminal Code. This is a situation where there is an element of deliberate pre-planning and abuse in the degree of trust placed in him by the victim. The element of fraudulent behaviour of the offender after getting the amount of K6,800.00 as value for a piece of land area, is that there was no intention of giving that piece of land that was paid for to the victim is therefore is established.  

32.	Although the offender has expressed a willingness to repay the money deceitfully obtained, there is no guarantee that restitution will be made if at all. Besides, it would be more convincing if some form of restitution were made prior to the matter being brought before the courts or the conclusion of these proceedings since the offender is out on bail.

33.	Thus the issue before the court is what would be an appropriate penalty to impose. Here the Code prescribes a penalty of imprisonment for a term not exceeding five years, In compliance with such requirements; consideration will be given to the relevant mitigating factors discussed above to determine penalty. The offender has said he is sorry to the victim. He also asked that he be placed on probation with conditions which include having to make restitution in the repayment of the amount of K6, 800.00. 

34.	This court also noted that the offender has by his own admission pleaded guilty to the charge. This has reduced the time and costs of having this matter tried if he had denied it. The offender had also apologised and is a first offender which is confirmed by the antecedent report presented by the State. These matters are taken into consideration because they support the submission presented for and on behalf of the offender by his lawyer with regard to the request for a suspended sentence. The pre-sentence report presented supported the offender’s request for a suspended sentence. The Pre-Sentence Report provided by the Probation Officer has recommended that the offender is a suitable candidate for a suspended sentence in line with the principles set out in Public Prosecutor -v- Don Hale (1998) SC564).

35.	However in the light of the fact that the offender since out on bail from the 24th of March 2014, he has not made any genuine attempts to make restitution to the victim who has since died. Thus upon consideration of the above circumstances and factors, I am not satisfied that a suspended sentence is appropriate. I consider that a category 2 sentence in line with the case of Belawa (supra) guidelines is an appropriate penalty to be imposed given the circumstances of the offence.

36.	I therefore sentence the offender to 2 years imprisonment with hard labour.

37.	Further, in the exercise of discretion under s 19 of the Criminal Code, the offender is ordered to make restitution to the complainant Brian Eboty or his surviving relative the amount of K6, 800.00 within 6 months from today, 10th of November 2016.  

Orders accordingly,
______________________________________________________________________
Public Prosecutor:  Lawyer for the State
Public Solicitor:   Lawyer for the Accused