N6867

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR (FC) 129 OF 2017

BETWEEN:
		THE STATE 

AND:
 JOYCE MORIPI

Waigani: Salika, DCJ
2017:	 17; 31 July

CRIMINAL LAW – PRACTICE & PROCEDURE – Sentence – Charges of Conspiracy to defraud – Section 407 of Criminal Code Act – Obtaining goods by false pretence – Section 404(1) (a) of Criminal Code – Offender defrauded her employer – conspired with another – issued false invoices – obtained K207,000.00 from issue of the false invoices – sentenced to 5 years imprisonment.
Cases cited:
In The State v Glenda Nugai CR (FC) 150 of 2015
The State v Margaret Ani CR (FC) 194 of 2015
The State v Nancy Uviri (2008) N5468
Wellington Belawa v The State (1988-89) PNGLR 496

Counsel:

Ms H Roalokona, for the State
Mr Kirriwom, for the Prisoner

SENTENCE
31st July, 2017
1.	SALIKA, DCJ:	INTRODUCTION: The prisoner pleaded guilty to one count of conspiracy to defraud under s.407 of the Criminal Code Act and one count of obtaining goods by false pretence under s.404(1) a of the Criminal Code Act.
FACTS
2.	Joyce Moripi was a property manager employed by Century 21 Siule Real Estate Limited.  Between the 1st day of January and 30th day of September 2013, the prisoner conspired with one Geua Gavera to submit false invoices for upholstery work, alleged to have been done at a client’s residence.  Donnybrook, which Century 21 was managing.  A total of 19 False Invoices were submitted by Geua Gavera on different dates to the prisoner who then submitted to accounts for payment.  Brian Hull and Ore Simoi as signatories to the accounts for Century 21 Siule Real Estate then raised those payments to Geua Gavera..

3.	Payments were done on those 19 different occasions between 4 January 2013 and 10 September 2013 and each time the payments were done, Geua would split the payments as the payments were done to her name and give the prisoner her share which would be half of the invoiced sum.

4.	The prisoner received an accumulated sum of K207, 000 and these monies were obtained by false pretence with the intention to defraud as no work was ever done.

5.	The State says that the prisoner conspired or agreed with Geua Gavera to submit false invoices with the knowledge that no work was done and obtained the sum of K207, 000.  She contravened section 407 and section 404 (1) (a) of the Criminal Code Act.

ISSUE

6.	The issue for the Court is to determine the appropriate sentences to impose on the prisoner on the two charges..
THE LAW
7.	Section 407 of the Criminal Code says:-
407.	Conspiracy to defraud.
(1)	A person who conspires with another person—
(a)	by deceit or any fraudulent means to affect the market price of anything publicly sold; or
(b)	to defraud the public, or any person (whether or not a particular person); or
(c)	to extort property from any person,
is guilty of a crime.
Penalty:	Imprisonment for a term not exceeding seven years.
The maximum sentence for conspiracy to defraud is a term of imprisonment not exceeding 7 years.
8.	Section 404(1) (a) of the Criminal Code Act says:-

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.
	The maximum sentence for an offence under s.404(1)(a) is five years.
9.	Section 19 of the Criminal Code Act gives the Court a wide discretion to impose lesser sentences than the prescribed maximum depending on the peculiar circumstances of each case.  

10.	The prisoner pleaded guilty to two criminal offences and the court will also need to decide whether the sentences imposed on the two counts should be served concurrently or cumulatively.

PERSONAL PARTICULARS
11.	The prisoner is 32 years of age and is from the Gulf Province.  She was educated to Grade 12 level at the Lae Secondary School in Morobe Province.  She is a member of the Lutheran Church.  She is a single mother with 2 children, 8 and 9 years.  The two children are living with the prisoner’s parents in Lae and have been so since her arrest.

MIITGATING FACTORS
12.	The prisoner pleaded guilty, thus saving the court and the State time and expenses.  She admitted her crime right at the outset.  She therefore co-operated with the police.  She is a first time offender and has expressed remorse.  She also expressed her desire to repay the money.
AGGRAVATING FACTORS
13.	The following are the aggravating factors.

(i)	A substantial amount of money was taken or stolen from Century 21 Siule Real Estate Ltd.
(ii)	The offences were committed over a period of 10 months.
(iii)	She was entrusted by her employer, which she has now breached.
(iv)	The offence is prevalent.

ALLOCATUS STATEMENT
14.	The prisoner said she was driven to commit these offences by demands of her estranged husband.  She said her husband had threatened her and her children and abused her mentally and physically.  She said her actions were out of character.
CASE PRECEDENTS
15.	The case of Wellington Belawa v The State (1988-89) PNGLR  496 is the starting point in considering what sentence to impose in fraud, corruption, stealing and misappropriation cases.  In that case the Supreme Court laid down relevant factors that the courts should consider when considering sentences on offenders.  The factors it identified were:-

(a)	Amount of money taken.
(b)	The degree of trust held by the offender.
(c)	The period over which the offence was committed.
(d)	The use to which the money was put to.
(e)	The effect on the victim.
(f)	The effect on the offender himself or herself.
(g)	Whether restitution has been made.

(a)	Amount taken.
K207, 000 was stolen from the victim.
(b)	Degree of trust held by the prisoner
The prisoner was the Property Manager for Century 21 Siule Real Estate Ltd.  She conspired with Geua Gavera for Geua Gavera to invoice her employer higher amounts.  She breached the trust of her employer by engaging in such an enterprise or scheme.  She was bestowed with a high degree.

(c)	The period over which the offence was committed.

The offence was committed over a period of 10 months.

(d)	The use to which the money was put to.

The prisoner said she sent most of the money out to a person named as Ronald Welly.  She said he was the man who she used to go out with.  She said when she left him he threatened to report her to her bosses.  But what was she going to report her to her bosses for?  Did he know she was stealing from her employer and that she was sending him stolen money.   This part is not clear with respect.   She said she gave some of her money to Geua Gavera to pay her creditors and some she used it herself.

(e)	The effect on the victim.

Century 21 Siule lost business to fight an insurance case with an insurance company in court.  The owner of Century 21 Siule said the prisoner was a serial professional thief and should be given a custodial sentence.  The company trusted her and gave her a job and she cooked up this evil plan to steal from the hand that was feeding her.

(f)	The effect on the offender herself.

Obviously she had lost her job with Century 21 Siule Ltd.   She is now self employed.  She does Real Estate sales and marketing.  She is separated from her two children.  Her parents now take care of them,.  She is now remorseful of what she did.  What she does not say is whether this person Ronald Welly knew she was sending him stolen money so that he can be charged.

(g)	Whether restitution has been made.

As of today no restitution has been made, although an offer has been made.

16.	Similar case precedents to this case are; The State v Margaret Ani CR (FC) 194 of 2015 and The State v Nancy Uviri (2008) N5468.  In Margaret Ani’s case the prisoner was a volunteer treasurer of Port Moresby Cancer Foundation.  She was forced by her partner for money and she ended up stealing K66, 968.90 from the Cancer Foundation.  She was convicted after a trial and sentenced to 3 years imprisonment but suspended on condition that she repaid the money within 12 months.  She did not repay the money in the given time and so she is now serving 3 years.  If she repaid the full amount of money at any time now, she will be released.

17.	In the case of Nancy Uviri, she pleaded guilty to misappropriation of K536, 134.00 in cash from her employer over an 18 months period.  She engineered a scheme of presenting bogus invoices and obtaining cash.  There was clear evidence of her misappropriation of K300, 000 and she was sentenced on the basis that she misappropriated K300, 000 and not K536, 134.00.  She was sentenced to 7 years, with no part suspended.

18.	In The State v Glenda Nugai CR (FC) 150 of 2015, the prisoner devised a scheme with a regular customer whereby she transferred electronic top up credits totalling K232, 000 to a regular customer of her employer.  Out of that she received a 5% commission; she was sentenced to 4 years imprisonment.  All of the sentence would be suspended, if she paid full restitution.  She has since not paid any restitution and is still serving her 4 year sentence.

19.	In the present case, the prisoner conspired with Geua Gavera to defraud Century 21 Siule Ltd.  The total sum she was charged with conspiracy to defraud and obtaining goods by false pretence.  She got K207, 000 from her scheme over a period of 10 months.
PRE SENTENCE REPORT AND MEANS ASSESSMENT
20.	A pre-sentence and a means assessment report was prepared by the Probation Service in Port Moresby.  The pre-sentence report says that the offender was a person of good character.  She is well regarded by her family and the community she lived in Lae and in Port Moresby.  She has come up with a plan to pay restitution of K5, 000 per month over a period of two years.  She has set up a partnership of Real Estate Company with a friend or business partner to enable her to do that.  The fact is that while she talks of that she has not started any restitution.

21.	While the offender has received a favourable report from the probation service together with a favourable means assessment report , there is nothing coming on to start the restitution process.  I would have thought that restitution would have started by now but it has not, thus I am sceptical as to whether the restitution plan will work at all.

SENTENCE

22.	The prisoner was in a very comfortable job with a steady income plus bonuses or commissions for properties sold or leased.  She got herself into a position that she said her former boyfriend blackmailed her.  To what extent her boyfriend’s actions went, I cannot tell.  I do not and cannot understand how her boyfriend’s threat got her to steal so much money from her employer.  Did her boyfriend know she was obtaining money by this false scheme?  If he knew the money he was getting from the prisoner was stolen money then he should be charged for receiving stolen money.  I do not pay too much attention on this blame game because in a lot of these cases offenders tend to downplay their roles and shift blame to others for their own wrong doings.

23.	The crimes the offender committed are serious.  This case displays all attributes of what is commonly known as corruption.  There was deceit, dishonesty, cheating, false pretence, conniving with another to defraud and intent.  From what I gather from the file in her record of interview Question 27 to 28 she was the one who hatched this plan.  She put her plan to Geua Gavera and Geua Gavera agreed.  The plan worked for 10 months until she was caught.

24.	The prisoner’s parents in their statements tendered with the pre-sentence report stated that they had taught the prisoner about honesty and integrity and to work hard and live an honest life.  Unfortunately, these great habits taught by her parents fell by the wayside and greed and the urging for more got the better of her.  You cannot feed a family on dishonestly obtained money.  You have to work hard for the money and you become the best role model for your children.  You cannot be one with this type of habit.  I have said it many times, we must watch our habits because habits develop into character and its our character that people will know.  It is our character that matters.  We must therefore cultivate positive habits in order to have a positive character.

25.	Such serious criminal and corrupt conduct must be deterred and the best way to do that is to imprison offenders.  While her restitution plan appears to be good, it is unrealistic; there is nothing concrete to say how much money is coming in and how much money is going out.  There is no indication how many clients they have and the overheads they have to maintain.  Perhaps her prospective business partners and those who vouched for her in their character references could start the business and make effort to restitute.

26.	I take into account all the mitigating factors, the aggravating factors and all those matters mentioned in the presentence report.  She is a first time offender.  She pleaded guilty.   In the State v Nancy Leah Uviri N5468, the prisoner pleaded guilty to stealing K300, 000.  She was sentenced to 7 years with no part suspended.  In the State v Margaret Ani unreported National Court decision on 17 November the prisoner stole K66, 164.64.  She was also pressured by the partner to give him money to repay his debts with his creditors.  He borrowed money to gamble.  The court sentenced her to 3 years imprisonment.  That matter was a trial.  In The State v Glenda Nugai the prisoner was found guilty after a trial for stealing K233, 300 from her employer.  The court sentenced her to 4 years imprisonment.  In that case the prisoner blamed another person for making her steal.

27.	In this case the prisoner blamed her boyfriend for putting her in this position.  In the end it was her decision to get the other woman to agree to her idea.  The other woman agreed.  She was made to do corrupt things because of the prisoner.

28.	In other words Geua Gavera was converted into a corrupt person from a non corrupt person.  The defence counsel asked for a 3 year imprisonment to be imposed on both counts to be served concurrently and asked that the sentences be suspended on conditions of restitution of the money, the submission would be tenable if restitution had been made but no restitution has been made and its only now the prisoner is planning restitution which to me is too little too late, with respect.

29.	If offenders desire the benefit of suspension of sentences they must demonstrate restitution by actual upfront restitution in real terms.  Making repayments on their own initiative and not to wait for the court to order restitution is a real bonus with respect.  Real action to repay must be put in motion and not on mere plans and talk only.  The offender in that way shows real remorse and regret in my respectful opinion.   In this case with respect, that is lacking.  There was talk and plan only but no real action.  In the end result she is sentenced to 3 years imprisonment with hard labour for conspiracy to defraud and 4 years for obtaining goods by false pretence.  The two sentences will be served concurrently.  The total sentence for the 2 offences is 4 years imprisonment in hard labour. The total 4 years will be suspended if K207, 000.00 is repaid at any time.

________________________________________________________________
Public Prosecutor	: Lawyer for the State	
Public Solicitor	: Lawyer for the Accused