N7226

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 255 of 2017

THE STATE

V

KOSINTO ETORA

Waigani:  Salika, DCJ
2018:   14th May

Practice and Procedure – Criminal Law – Sentence – charge of obtaining goods by false pretence – s. 404 (1) of the Criminal Code Act – policeman in position of  trust – appropriate sentence – 4 years imprisonment.

Cases Cited

 Wellington Belawa v The State (1988-89) PNGLR 496
 The State v Gabriel Ramoi (1993) PNGLR 390
 The State v Francis Laumadava (1994) PNGLR 291
 The State v Eddie Eiwana Kekea CR (FC) 68 of 2017
 The State v Wesley Kopman CR (FC) 53/17
 The State v Larry Dishan CR (FC) 886/13

Counsel

C Sambua, for the State
E Sasingan, for the Defence

14th May, 2018 

1.	SALIKA DCJ:  INTRODUCTION: The prisoner pleaded not guilty to one count of obtaining goods by False Pretence, a charge laid under s. 404 (1) (2) of the Criminal Code Act but was found guilty by this Court.

Facts

2.	The prisoner Kosinto Etora is a policeman based in Hohola Police Station.  Stanley Korekami borrowed K8,500 from Janet Nelson.

3.	It was agreed that Stanley Korekami would repay Janet Nelson K17,000.00.

4.	He did not repay the money as agreed so Janet took the matter to the Police and reported to Kosinto Etora at the Hohola Police Station.

5.	Stanley Korekami and Janet Nelson then signed an agreement in the presence of Kosinto Etora and witnessed by him.

6.	The agreement stated that Stanley Korekami would repay the sum of K17,000 to Janet Nelson.

7.	The State alleged that on 09th September 2016, Stanley Korekami gave K7,000 to the prisoner to pass on to Janet Nelson as per their agreement.

8.	However, the prisoner did not pass the money to Janet Nelson.  He lied to Janet Nelson that Stanley Korekami had not repaid his debt.

9.	Then on 14 October 2016 the prisoner finally confessed to receiving K7,000 and passing it on to someone else.

10.	The State further alleged that by taking K7,000 from Stanley Korekami with the promise of passing it to Janet Nelson and by failing to give the money to her, the prisoner had obtained by false pretence K7,000 from Stanley Korekami and thus contravened s.404 (1) and (2) of the Criminal Code Act.

Issue

11.	The prisoner was found guilty of the charge and the issue is what would be the appropriate sentence to impose on the prisoner.

The Law

12.	Section 404 (1) (a) of the Criminal Code Act provides:-

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

(b)	induces any other person to deliver to any person any chattel, money or valuable security,

is guilty of a crime.

Penalty:  Imprisonment for a term not exceeding five years.

(2)	It is immaterial that the thing is obtained or its delivery is induced through the medium of a contract induced by the false pretence or the wilfully false promise, or partly by the false pretence and partly by the wilfully false promise, as the case may be.

(3)	A person incurring a debt or liability who obtains credit by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, or by any other fraud, is guilty of a misdemeanour.

Penalty:   Imprisonment for a term not exceeding one year.

13.	The maximum term the court can impose on the prisoner for committing this offence is 5 years imprisonment.
	
14.	However, s. 19 of the Code also allows the court to exercise its discretion to impose a lesser penalty other than the maximum prescribed by law.

Case Precedents

15.	The Court also looks to case precedents to help it arrive at an appropriate sentence.  In that regard, I refer to the following cases:

(a)	In The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, the prisoner was sentenced to 4 years IHL.  He presented a false cheque written out to him for K4 million and he told the victims that he needed the money to clear the cheque. His 4 victims gave him K11,000 at different times. The K4 million cheque was a fraudulent cheque.

(b)	In The State v Wesley Kopman CR (FC) 53/17, Liosi J sentenced the prisoner to 4 years imprisonment IHL after he pleaded guilty to 1 count of false pretence under s.404 (1) of the CCA.  He on numerous occasions received money from the victims on the pretext that he would sell gold and give K40,000. The victim loaned him K4,000. That works on to be K10,000 profit for every K1,000 given. The victim gave K63,000 for no return.

(c)	In the matter of The State v Larry Dishan CR (FC) 886/13 – unreported decision by David J, the prisoner told 3 victims that he needed money to facilitate the transfer of investments worth millions of kina from overseas to PNG which his father made. He got K15,962 from the first victim, cash and property valued at K700 from the second victim and K1000 worth of property and cash from the third victim. The investments made overseas never saw PNG and never made it into PNG.   He was sentenced to 4 and a half years imprisonment in hard labour.

Sentencing Principles

16.	The sentencing principles in dishonest cases is that the courts have accepted is that higher the amount falsely obtained, stolen or misappropriated, the higher the sentence.  Similarly, the higher the degree of trust placed in the offender including his rank, the higher the position of trust the greater the culpability, the greater the punishment.  In other words, “from whom much is given, much is expected”.  See Wellington Belawa v The State (1988-89) PNGLR 496.

Personal Particulars

17.	The prisoner’s personal particulars are:

•	he is 35 years old;
•	from Keafu village, Eastern Highlands Province;
•	lives at Red Sea Police Barracks, Bomana, NCD;
•	married;
•	2 children both girls but the younger one died and he has got an adopted daughter;
•	he is educated to Grade 12 in 2002 at Tairora Secondary School;
•	he was a policeman for 8 years;
•	he is now dismissed from the police force.

Mitigating Factors

18.	The following is a mitigating factor:

•	He is a first time offender.

Aggravating Factors

19.	The following are aggravating factors:

•	the prisoner is a policeman;
•	he was in a position of trust but he breached that trust;
•	this is a prevalent offence.

Sentence

20.	You were given the K7,000 by Stanley Korekami to give the money to Janet Nelson.  You did not give the money to Janet Nelson.  You gave the money instead to Dii Andrew Moro.  You lied to Janet Nelson that Stanley Korekami had not repaid his debt when in fact he had given K7,000 to you to pass on to Janet Nelson.

21.	Dishonesty relates to the state of mind of the accused persons.  See The State v Gabriel Ramoi (1993) PNGLR 390 and The State v Francis Laumadava (1994) PNGLR 291.  What is an honest heart and how is it revealed?  Contemporary culture often views honesty as some vague, relativistic ethic; most people are dishonest occasionally but consider it acceptable as long as the infringement is not too great.  For instance, many people today think it is alright to lie sometimes as long as the lie is small and does not cause a lot of harm.  Some people even believe that at special times and places that lying is the right thing to do.  Truth and honesty cannot be separated.  We are not born with the desire to be honest, but we must learn to tell the truth and learn to be honest.  Honesty must be an important part of our lives.  Often during difficult times, we feel the pressure to be dishonest and it is very easy at times to be dishonest.

22.	Good things happen when we are honest and we need not worry about being caught in a lie or having to cover up a lie.  Honesty therefore must be an important part of our lives.  How will you feel if someone lies to you.  You obviously will not like it.  It is hard for us to see this problem of lying in ourselves.  When we see it, we seem to excuse our lies or give reasons for telling lies to make our lying not seem bad.  We might fool ourselves and say – “Oh the lie I told is not that bad or it’s only a small lie and it won’t hurt”.  Many members of our Community say they are honest but they are not honest in what they do and say.  We must practice what we say.

23.	I note the character references attached to the pre-sentence report.  I also note the letter from Raphael Huafolo, Deputy Commissioner of Police and the attachments to his letter dated 22 August 2017, concerning the disciplinary charges and the penalty.  I note you have been dismissed from the Royal PNG Constabulary effective from 13 September 2017.  This is a sad end to your police career but you must accept total responsibility for that. 

24.	The Probation Officer recommended for a non custodial sentence for the following reasons:

•	You are a first time offender;
•	You are prepared to pay restitution from your Police Savings Account and Nambawan Super contributions.
•	You are the only bread winner for the family.
•	You have been penalised already by your dismissal from the Police Force.

I note the recommendation of the Probation Officer.

25.	You were dismissed from the Police for the following reasons:

1.	The nature and the seriousness of the offence that is a member of the police force taking money from members of the public mishandling them whereby money went missing whilst under your care.

2.	The conduct of the accused fails under paragraph 14 of the RPNG Constabulary where “Any member who has being found guilty of an offence involving dishonesty” is subjected to be dismissed from the Force.

3.	Being a police officer and making false affidavit before the court amount to Perjury and you should be arrested for the offence is a conduct which is discredit to the Force.

4.	The deterrent effect it will have on other member of the Constabulary.

5.	If this type of behaviour is allowed to continue, the discipline of the Force will severely impact upon.

26.	Your conduct has the capacity to bring disrepute to the Royal Papua New Guinea Constabulary.  The offence for which you have been convicted of is a serious offence.  What you did has no place in the Constabulary and only tarnishes the already diminishing reputation and image of the Constabulary.  You were a policeman for 8 years and you were relatively better educated than a lot of other policemen with lesser educational qualifications.  You ought to have known better and be of real service to the community members who looked upon as someone whom they could turn to for help and who they trusted to help them.  You committed the offence in the course of your duty as a policeman.

27.	The range of sentence the Courts impose at this time is between 2 to 4 years imprisonment.  The case precedents alluded to earlier are examples of such sentences being imposed.  To render consistency and fairness, you are sentenced to 4 years imprisonment with hard labour.  The maximum sentence the Court can impose on you is 5 years imprisonment but I will impose 4 years imprisonment.  That will be suspended upon full payment of K6,500 to Janet Nelson.  You will start serving the 4 years forthwith and your agents and lawyer can organise the repayment of the K6,500.00 from your police savings and Nambawan Super.
________________________________________________________________
Public Prosecutor:  Lawyer for the State
Public Solicitor:  Lawyer for the Prisoner