N8027
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 122 of 2019

THE STATE

V

MOSES PERAKI

Waigani: Berrigan J
2019: 12 August, 6 and 20 September

CRIMINAL LAW – Practice and procedure – Sentence –S. 404(1)(a) of the Criminal Code – Obtaining by false pretence with intent to defraud.

Cases Cited:

Goli Golu v The State [1975] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
SaperusYalibakut v The State (2006) SC890
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
The State v Jack Osteka Metz (2005) N2824
The State v Niso (No 2) (2005) N2930
The State v Nancy Leah Uviri (2009) N5468
The State v Tiensten (2014) N5536
The State v Moses Mariko [2015] N6086
Tanabo v The State (2016) 61
The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, 23 June 2017
The State v Ethel Kila, CR (FC) 25 of 2018, unreported, 5 September 2018
The State v Rebecca Kunti, unreported, 2018
The State v Dorothy Heni (2019) N7846
Wellington Belawa v The State [1988-1989] PNGLR 496

References cited

Section404(1)(a),of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Mr. J. Gubon, for the State
Mrs. V. Mauta, for the Offender

DECISION ON SENTENCE

20 September, 2019

1.	BERRIGAN J: The offender pleaded guilty to one count of obtaining money by false pretence with intent to defraud, contrary to s. 404(1)(a) of the Criminal Code (Ch.226) (the Criminal Code).

Facts

2.	The offender told the complainant that gold buying and selling was a lucrative business and that together they would make a profit.  He also told the complainant that he had been in business for some time and that given his wealth of experience nothing would go wrong.  The offender asked the complainant to give him K10,000 and assured him he would generate a profit.

3.	On the basis of the false pretence about his experience in the gold business and his ability to make a profit, the complainant gave the offender K10,000on 11 March 2011.

4.	No monies were ever paid to the complainant by the offender. The offender was finally apprehended in August 2018.

5.	The issue to be determined today is an appropriate sentence. 

Sentencing Considerations and Comparative Cases

6.	In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including: 

(a)	the amount taken; 
(b)	the quality and degree of trust reposed in the offender; 
(c)	the period over which the offence was perpetrated; 
(d)	the impact of the offence on the public and public confidence; 
(e)	the use to which the money was put; 
(f)	the effect upon the victim; 
(g)	whether any restitution has been made; 
(h)	remorse; 
(i)	the nature of the plea; 
(j)	any prior record; 
(k)	the effect on the offender; and 
(l)	any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.

7.	In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:

(a)	K1 and K1000, a gaol term should rarely be imposed;
(b)	K1000 and K10,000 a gaol term of up to two years is appropriate;
(c)	K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
(d)	K40,000 and K150,000, three to five years’ imprisonment is appropriate.

8.	In general terms, this case falls within the third category of Wellington Belawa. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; and The State v Tiensten(2014) N5563.

9.	The State submitted that a sentence in the “range” of about three years of imprisonment was appropriate. In support of its submissions it referred to the following cases:

(a)	The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, 23 June 2017, Salika DCJ (as he then was), in which the prisoner was sentenced to 4 years’ imprisonment in hard labour following a trial. He presented a false cheque written out to himself in the sum of K4 million and told his victims he needed money to clear the cheque. On that basis he obtained K11,000 from four victims at different times; and 

(b)	The State v Moses Mariko(2015) N6086, Polume-Kiele J, in which the prisoner pleaded guilty to obtaining K8,500 by falsely pretending to the complainant and his wife that he would buy a vehicle on their behalf. The vehicle was never delivered and the offender went into hiding until he was apprehended by the police. He was sentenced to 3 years’ imprisonment less time spent in pre-trial custody of 11 months and 4 days. One year of the sentence was suspended on conditions, including restitution; and

(c)	The State v Nancy Leah Uviri(2009) N5468, in which Cannings J suggested that the sentencing trend in Wellington Belawa should be revised such that a sentence of between 4 and 6 years’ imprisonment would be appropriate where a sum of between K10,000 and K40,000 is involved.

10.	Defence counsel submitted that an appropriate head sentence lies in the range of 2 to 3 years.

11.	I have also had regard to the following cases which may provide guidance in determining sentence:

(a)	The State v Jack Osteka Metz, (2005) N2824, Manuhu AJ (as he then was), in which the prisoner pleaded guilty to one count of obtaining property by false pretence. Over an 8-month period the prisoner obtained cash, accommodation, meals and other services to the value of K70,455.36 on the false pretence that he was expecting millions of kina from the sale of Treasury Bills. He was sentenced to 3 and a half years’ imprisonment;

(b)	The State v Ethel Kila, CR (FC) 25 of 2018, unreported, 5 September 2018, Salika DCJ (as he then was), in which the prisoner was found guilty following trial of one count of false pretence. She obtained K22,000 from a husband and wife moneylending business by falsely pretending that she would repay K56,000 once she had started her own catering company, for which she produced documents in support, when in fact she intended to travel overseas. She was sentenced to 3 years’ imprisonment which would have been suspended but for the fact that the offender absconded following trial; 

(c)	The State v Rebecca Kunti, unreported, 2018, Salika DCJ (as he then was), in which the prisoner was sentenced to 4 years’ imprisonment after pleading guilty to two counts of obtaining money by false pretences. On the first count she obtained a total of K65,000 over a number of instalments on the false basis that she would use it to purchase a vehicle on behalf of the victim. Using the same approach, she obtained a further K30, 500 from a second victim; and

(d)	The State v Dorothy Heni (2019) N7846, the offender pleaded guilty before me to seven counts of obtaining K13,600 by false pretence, with intent to defraud. She falsely pretended to 6 people that she had won a catering contract worth K250,000 for the 2018 APEC meeting.  She asked them to lend her money and a vehicle on the basis that she required start-up capital to secure the contract, and undertook to repay the borrowed monies with 100% interest. That did not eventuate and she went into hiding. The matter was eventually reported to the police and the offender was apprehended. She was sentenced to 2 years’ imprisonment, less the time spent in remand awaiting trial.

12.	The sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.  

Nature and Circumstances of the Offence, including Matters of Aggravation 

13.	Applying the considerations set out in Wellington Belawa, the following matters have been taken into consideration in determining a sentence. 

14.	It is well settled that with respect to offences concerning dishonesty, in general terms, the greater the amount of money involved the more serious the offence. K10,000 is a substantial amount of money. The offence involved a single incident and it has not been alleged that it involved pre-planning.

15.	There is no evidence as to the use to which the monies were put. In his record of interview the offender states that he used the monies to purchase gold but at a loss. If he wished to have this considered on the plea it needed to be agreed with the State, or proved by evidence on the sentence proceedings.  In any event it is not in dispute that the monies were obtained by false pretence and that the impact on the victim has been significant in terms of financial loss.

16.	It has been submitted by the State that the offence involved a breach of trust.  In my view there was no special relationship of trust in the strict sense. There was no formal fiduciary relationship.  The offender received the monies on the false pretence that he was very experienced in the gold business, and with a view to making a profit.  Nor does it appear that there is any close familial relationship between the offender and the complainant.  At most the complainant trusted the offender as a fellow Christian and a person from the same tribe or area. The matter was not in the agreed facts to which the offender pleaded guilty and accordingly the offender is given the benefit of a reasonable doubt in that regard: Saperus Yalibakut v The State (2006) SC890; Tanabo v The State (2016) 61.

17.	Given its nature, it is not suggested that the offence will have any significant impact on the public or public confidence.

Personal Circumstances and Matters in Mitigation

18.	The offender is a 29 year old male from Enga Province.  He is married with a 6 month old child.  The offender graduated from the Institute of Business Studies University, Enga Branch, with a Diploma in Accounting in 2017.He had previously worked for Frabelle in Lae before moving to Port Moresby. A letter from the National Statistical Office confirms that he has recently been recruited as an IT Support Officer, on a casual basis. He is yet to be placed on the payroll. He and his wife currently operate a trade store at Gerehu Stage 2B.

19.	In mitigation this is the offender’s first offence.   He is previously of good character according to both his pastor and a community representative.  He is an active member of the City Reformation Center and according to the pre-sentence report is regarded by the community as a polite, hardworking and religious person who actively participates in church activities.

20.	In addition, the offender pleaded guilty at an early opportunity before this Court and saved the State the cost and inconvenience of a trial.  

21.	I also take this into account as indicative of his remorse, which he expressed on allocutus, and which I accept as genuine.  He apologised to the court and to the victim and his family. He also apologised to his own family for the shame and embarrassment caused as a result of his actions. He asked the Court for a suspended sentence so that he can care for his young family and make restitution to the victim.

22.	There is some suggestion on the pre-sentence report that the offender has attempted restitution in the past.  Whilst defence counsel also submitted in mitigation that there were attempts to restitute the loss suffered by the victim in some form, it is not in dispute that there has been no restitution to the complainant of cash in the sum obtained by the offender.  

23.	I accept that the offence has had a serious impact on the offender, causing both he and his family shame and a loss of standing in the community.  I also accept that the offence may have an impact on his employment prospects in the future.  Any custodial term will have a significant impact on his dependents, including his wife and young child for whom he is the sole breadwinner.

24.	There are no matters of mitigation special to the offender.  

Sentence

25.	The offender has been convicted of one count of obtaining money by false pretence with intent to defraud, contrary to s. 404(1)(a) of the Criminal Code, the maximum penalty for which is a sentence not exceeding 5 years of imprisonment. 

26.	Section 19 of the Criminal Code provides the Court with a broad discretion on sentencing and it is well established that the maximum penalty is normally reserved for the most serious instances of the offence: Goli Golu v The State [1975] PNGLR 653.  Whilst this case does not fall within that category, it remains serious. The aggravating factors outweigh those in mitigation.  I have also taken into account that there has been some attempt at restitution and the impact of the offence on the offender and his family.  Nevertheless, the prevalence of the offence calls for both general and specific deterrence.  Having regard to all of the above matters I sentence the offender to 2 years’ imprisonment in hard labour.

27.	The offender has pleaded for his sentence to be suspended so that he may continue to support his family and make restitution.  This call is supported by the complainant.

28.	In The State v Tardrew [1986] PNGLR 91, the Supreme Court set out three broad, but not exhaustive categories where it would be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause excessive degree of suffering to the particular offender, for example because of bad physical or mental health.

29.	I am satisfied that suspension of the sentence would promote the rehabilitation of the offender into the community and the restitution of the complainant’s monies. The pre-sentence and means assessment reports confirm that he is suitable for probation and has the means to make restitution within a reasonable period.  In cases like this one, suspension is not an act of leniency but an order made in the community interest: The State v Frank Kagai [1987] PNGLR 320.

30.	In the circumstances I make the following orders.  The offender is sentenced to two years of imprisonment in hard labour, wholly suspended on the following conditions:

(a)	the sum of K10,000 is to be restituted to the complainant, Pes Peter within 12 months from today;

(b)	the offender shall perform appropriately designed community work under the supervision of Probation Services;

(c)	the work and supervision regime is to be undertaken for the balance of his sentence, on weekends; 

(d)	Probation Services is to supervise the payment of restitution and provide 3 monthly reports; and

(e)	on completion of restitution, the offender shall immediately enter into his own recognisance to keep the peace and be of good behaviour for the period of his sentence.

31.	Any bail monies are to be immediately refunded. 

Orders accordingly.
_______________________________________________________________
Public Prosecutor:   			Lawyer for the State		
Legal Training Institute:   	Lawyer for the Prisoner