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State v Hibura [2017] PGNC 290; N6993 (18 August 2017)

N6993

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 131 of 2017
BETWEEN:
THE STATE

AND:
MAX HIBURA

Waigani: Salika, DCJ
2017: 29 May; 21 June; 25, 31 July; 18 August

PRACTICE AND PROCEDURE – Criminal law – Charge of Obtaining Goods by False Pretence – s.404(i)(a) of the Criminal Code – what is the appropriate sentence – plea of guilty – K11,000.00 obtained by false pretence – sentenced to 3 years imprisonment.

Cases cited:
The State v Joyce Moripi (2017) N6867
The State v Nancy Uviri (2008) N5468
The State v Glenda Nugai Unreported National Court decision dated 6 February 2017.

Counsel:

Mr R Galama, for the State
Mr F Kirriwom, for the Defence

SENTENCE

18 August, 2017

1. SALIKA DCJ: INTRODUCTION: The prisoner is charged with three counts of obtaining goods by false pretence under s.404 (1)(a) of the Criminal Code Act. He pleaded guilty to the 3 counts and the matter is now for sentence.
   

Facts

2. The prisoner was a teacher and in 2013 was teaching at Guala Primary School in Tari, Hela Province. He became good friends with Paul Nele Tege, a fellow teacher teaching at the same school and they lived together in the same house because they were single teachers.
   
3. In mid 2013, the prisoner left the school and came to Port Moresby. While here in Port Moresby, he obtained three loans from two different financial institutions – two from Moni Plus Limited and one loan from Nambawan Finance.
   
4. From Moniplus, the first loan was K5,000.00 and the second loan was K5,100.00. The loan from Nambawan Finance was K1,000.00.
   
5. The prisoner obtained all loans using Paul Nele Tege’s name and personal information and pretended to be Mr Paul Nele.
   
6. The prisoner also opened a BSP account under Paul Nele Tege’s name. When the loans were approved the monies were deposited into that particular account and later withdrawn by the prisoner.
   
7. Paul Nele Tege realised that he had a lot of deductions on his payslips and was earning little. And so he came to Port Moresby to try and sort that out. He found out that the deductions were to Moni Plus and Nambawan Finance and that it was done by his friend Max Hibura.
   
8. The State alleged that the prisoner’s actions contravened section 404(1)(a) of the Criminal Code Act.
   
9. On arraignment the prisoner pleaded guilty to all the 3 counts and after reading the depositions the guilty plea were confirmed.
   

Issue

10. The issue for the court to determine is the appropriate sentences to impose on the prisoner.
    

The Law

11. Section 404(1) (a) of the Criminal Code says:
    

S404. 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

false pretence or wilfully false promise.

12. Section 19 of the Criminal Code Act gives the court a wide discretion to impose lesser sentences. It says:
    

“19. Construction of provisions of Code as to punishments.

1. In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided—

(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term; and

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(b) a person liable to imprisonment may be sentenced to pay a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment; and

100. a person sentenced on conviction on indictment to pay a fine may be sentenced—

(i) to be imprisoned until the fine is paid, in addition to any other punishment to which he is sentenced; and

(ii) instead of being sentenced to be imprisoned until the fine is paid—to be imprisoned for a term (not exceeding the term provided for in Subparagraph (i)) if the fine is not paid within a specified period (which period may be extended as the court thinks fit); and

(d) a person convicted on indictment of an offence not punishable with death may—

(i) instead of, or in addition to, any punishment to which he is liable—be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) comply with such other conditions as the court may, in its discretion, impose; and

(e) a person convicted of any offence on summary conviction may, instead of being sentenced to any punishment to which he is liable, be discharged on his entering into his own recognizances, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a term not exceeding one year; and

(f) when a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that—

(i) he shall appear and receive judgement at some future sittings of the court or when called on within a period specified by the court; and

(ii) if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposes.

(2) Imprisonment in accordance with Subsection (1)(c)(i), for non-payment of the fine—

(a) shall not extend for a term longer than two years; and

(b) shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

(3) In a case to which Subsection (1)(c) applies, the court may give such directions as it thinks proper as to the enforcement of the sentence of imprisonment, including a direction that the person sentenced appear at some future sittings of the court or when called on, by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period or any extension of that period.

(4) If under Subsection (3) a person directed to appear, or called on by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period, or any extension of that period, does not appear at the required time and place, a Judge may issue a warrant to arrest him and to bring him before a Judge.

(5) Imprisonment under Subsection (1)(d) for not entering into a recognizance—

(a) shall not extend for a term longer than one year; and

(b) shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

(6) When a court sentences any person convicted under Subsection (1)(d) to a term of imprisonment, it may further order that—

(a) the offender be imprisoned for such portion of that term as it thinks proper; and

(b) the execution of the sentence for the remaining portion of the sentence be suspended on his entering into a recognizance, with sureties if so directed, in accordance with Subsection (1)(d) but further conditioned that, if called on, he shall appear and receive judgement in respect of his service of the portion of the sentence.

(7) A Judge may, on being satisfied that the offender has committed a breach of any of the conditions of a recognizance under Subsection (6), forfeit the recognizance and commit him to prison to undergo the suspended portion of his sentence or any part of it.

(8) . . .

(9) Notwithstanding that restriction of movement is not specified as a punishment for an offence, a court may, in addition to any other punishment or punishments imposed, also impose restriction of movement in accordance with Section 600.

(10) When a court is considering the punishment or punishments to be imposed in any case it shall also consider whether, in the circumstances of the case, restriction of movement is an appropriate punishment.”

Personal Particulars

13. The prisoner is 33 years old and now lives at Konedobu in the National Capital District. He is originally from Teria Village, Koroba in the Hela Province. He is married with two children. He was a teacher at the Benaria Community School. He got his Diploma in Primary School Teaching at the Dauli Teachers College in 2009. He is currently living with his Aunt Kome at Konedobu.
    
14. His mother is alive and living in Tari while the father has passed on. He comes from a family of 4 and is the second eldest in the family. He taught for only 2 years before deciding to come to Port Moresby.
    

Mitigating Factors

15. The prisoner pleaded guilty to all the 3 counts of obtaining goods by false pretence. He has cooperated with police as well and in the court.

He is a first time offender and expressed remorse.

Aggravating Factors

16. The person’s aggravating factors are;
    
    1. He is a teacher of children and is meant to be a role model to his students but by committing this offence he is not a role model to his students.
    2. The amount of K11, 100.00 stolen is a lot of money for a teacher to loose
    3. Used the name of a fellow teacher to steal
    4. The offence is prevalent
       

Allocatus Statement

17. The prisoner apologised to the court and to the State for breaking the law. He then apologised to Paul Nele Toge, Moniplus and Norman Finance Ltd for causing them loss and damage. He apologised to his family members, his wife and two children for his wrong doing. He said he was a first time offender and asked the court for leniency and asked to repay the money.
    

The Belawa Considerations

(a) How much did the offenders take?
(b) What was the level of trust held by the offenders?
(c) The period of time over which the fraud was perpetrated.
(d) How was the money used?
(e) What effect did the crimes have on victims?
(f) What impact did the offences have on the public confidence?
(g) What effect has the conviction for the crime had on the offenders?
(h) Has restitution been made?

Amount taken

In this case the person took a total of K11, 100.00

The degree of trust held by the person

The prisoner was a teacher but left his job as a teacher. However, he was a friend of the teacher he impersonated and stole from. He is expected at all times to be honest and not to be deceitful.

The period over which the offence was committed

The prisoner committed the first offence on 8 November 2013, the next one on 24 March 2014 and the 3^rd one on 9 August 2014. He therefore committed the offence over a period of 6 months.

The use to which the money was put to

There is no evidence as to what he used the money for, but it appears it was to support himself in the city and to send some home to his wife and children.

The effect on the victim

The first victim Paul Nele Tege was made to spend money to come to Port Moresby to find out why his pay had too many deductions. Paul Tege was made to spend money and waste teaching time to attend to a problem caused by the prisoner. Paul Tege has been repaid in full his K11, 100. The other victims, Moni Plus and Norman Finance Ltd made financial losses in the sum of K11, 100 plus interest. Those two companies requested the prisoner to repay but he has not repaid..

The effect on the offender himself

The offender is a man faced with the likelihood of being sent to jail. While remorseful for his actions he has done nothing to restitute the victims.

Whether restitution has been made

To date, no restitution has been made.

Case Precedents

18. Before the Court imposes a sentence in this matter, it must first consider other cases involving obtaining goods by false pretence. What sentences were imposed in those other cases involving obtaining goods by false pretence? The following cases came to mind;
    
    1. The State v Joyce Moripi (2017) N6867.
       

The prisoner then was a manageress of a real estate company and raised false invoices to the real estate company for work which was never done. K207, 000 was obtained as a result of the scheme. She was sentenced to 8 years imprisonment, to be suspended if all of it was repaid.

2. The State v Nancy Uviri (2008) N5468.
   

The prisoner engineered a scheme of presenting bogus invoices and obtained cash. She received K300, 000 through that false scheme. She pleaded guilty and was sentenced to 7 years imprisonment with no period suspended.

3. The State v Glenda Nugai. Unreported decision of the National Court dated 6 February 2017.

The prisoner in this matter transferred electronic top up credits totalling K232, 000 to a regular conspiring customer in the pretence that he was paying for the top up credits. She obtained the top up credits by false pretence. She was charged and convicted for misappropriation. She was sentenced to 4 years imprisonment but to be suspended if the entire K232, 000 is repaid and so is serving her 4 year sentence.

The Pre-Sentence and Means Assessment Report

19. The probation service is asked to prepare a pre-sentence report and a means assessment report which was duly done. The probation services recommended a non-custodial sentence on the following basis;
    
    • He is a first time offender
    • Moni Plus wants him to pay restitution
    • He plays a key role in securing funds for his landowner company at the end of this year.
    • He has a young family to look after.
    • He is an educationist and his skills and knowledge is needed in Hela Province to develop the human resource in the province.
      
20. The factors that the Probation Service identified as the basis to place the offender on probation are with respect flawed. Firstly the prisoner has no means to pay restitution. Secondly, he cannot pay Moni Plus because he has no regular fortnightly income. Thirdly he is not the only person the landowner company can rely on and finally he is no longer teaching. He voluntarily left the teaching profession. His integrity as a teacher is gone. He is a fraudster and no longer a fit and proper person to go back to the teaching profession. Not only that, but the likelihood of the prisoner going back to the teaching profession is probably zero.
    
21. In relation to the offender’s ability to repay the victims, the assessment is nil. He has no means to repay. He has K5, 000 with Nambawan Finance. He has not made any attempt to get the K5, 000.00 from Nambawan Finance. If he is serious about repaying, he must start first with the K5, 000.00 and then he can think about how he is to pay the remaining K6,100. He is not talking about getting the K5,000 out from where it is to repay. The probation Service officer says that the offender has the “potential to repay the money within 6 months, though he is not formally employed.....” I do not follow the logic of the Probation Officer. He says that, the offender committed the offences in 2013 and 2014 and since then he has not made any effort to repay the money. From 2014 to now 3 years have lapsed without any restitution. Now the Probation Service asks for one more year is beyond any logic. The Probation Service needs to analyse the facts properly and logically before making its recommendations.
    

Sentence

22. The prisoner was a teacher. He left his teaching job voluntarily, perhaps to look for greener pastures. He decided that he will use his fellow teachers name to obtain loans and have his fellow teacher repay his loans. This did not work out as he planned because the teacher he impersonated came to check why his salary was being deducted and he found out it was his teacher friend who did this evil on him. Thus the prisoner is here.
    
23. The crimes the prisoner committed are very serious crimes. The case shows all the hallmarks of what is commonly called corruption. There was dishonesty, cheating, false pretence, deceit, intention to defraud and the preparedness to go through all the processes to commit the offences. In the end after fulfilling the processes he succeeded in getting what he wanted.
    
24. Such serious criminal and corrupt conduct must be deterred at all cost and the best way to do that is to impose prison sentence on the offenders. I take into account all the mitigating factors and the aggravating factors. He is a first time offender and has expressed remorse. He was however on the road to becoming a serial fraudster but for his teacher friend, the real Paul Nele Tege who intervened and stopped the scheme.
    
25. Considering all the circumstances of the case, the mitigating factors and the aggravating factors and the case precedents, I impose a sentence of 3 years imprisonment with hard labour. All of that will be suspended, if he and all his relatives pay up the K11, 100.00 to Moni Plus and Norman Finance Ltd. If all is paid, he comes out, if not he remains there until the entire amount is paid.
    
26. I note he has been in custody for 10 months. Those are taken off. He will serve a balance of 2 years 2 months. If his relatives can put up the money he will be released forthwith.

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