N7736

PAPUA NEW GUINEA
[IN THE LAE NATIONAL COURT]

CR(FC) 23 OF 2017

THE STATE

V

PAULINE SAM

Lae: Pitpit, J
2019: 21st  February

CRIMINAL LAW – Charge with two counts- Conspiring to defraud – Pursuant to section 407 (1) (b)–Obtaining goods by false pretence pursuant to section 404(1) (a) of the Criminal Code, Act 1974- not  guilty plea –following trial, the prisoner–intention to defraud-most serious case of dishonesty- did not shown or expressed any form of remorse to the Complainant and her family- a deliberate decision to be involved in the commission of these offences knowing very well that it was a scam- money you took from the complainant was a substantial amount.

Case Cited

John Peng v The State PNGLR [331] SC233
Paulus Pawa v The State PNGLR [498]
The State v Tom Morris PNGLR [493] N228 

Counsel

Ms.P.Matana, for the State
Mr.J. Huekwhain, for the Offender

DECISION ON SENTENCE

21st February, 2019

1.    PITPIT J: BACKGROUND: Pauline Sam you were charged with two charges: Conspiring to defraud and obtaining goods by false pretence. You had pleaded not guilty and your case had gone to trial. Following trial, the Court had found you guilty and convicted you of the two charges.

On the First Count:

2.   The State had alleged that you between the months of June 2015 and November , 2015 at the Lae International Hotel here in Lae, Morobe Province, Papua New Guinea, you had conspired with one David Sila Kaiyak with intend to defraud and that you did in fact defrauded one Annette Poka by fraudulently stealing from the said Annette Poka , a total of Forty-Six Thousand, Five Hundred and Twenty Five Kina , monies given to you for the purchase of the vehicles through Silima Holdings Limited from Bank South Pacific Capital Limited and whereas the said Annette Poka had and has never received any vehicles from all the said monies taken from her unto this day.         

3.  The State says that during the above period in questioned, you were an employee of the Lae International Hotel. 

4.   The Complainant Annette Poka, had heard some information about a certain lady that works at the Lae International Hotel who, it was said is involved in the purchasing of the vehicles, under a collaborative arrangements between Silima Investments Limited, Ela Motors and Bank of South Pacific Capital Limited. 

5.  In June, 2015, the Complainant and her son, Abel Poka have gone to Lae International Hotel where they had then met up with you. You had then confirmed to them that you have been assisting interested people who wish to purchase vehicles from the BSP Capital Limited so the Complainant had handed over to you K30, 000. 00 in cash money.

6.   Furthermore, the State says that the agreement was that you would collect the monies from interested buyers and then pass these monies to the said David Kayak who owns and operated Silima Investments Limited. The monies would then be deposited to BSP Capital Limited account and the vehicles would be released to the interested buyers.

7.   In July of 2015, you had once again called the Complainant Annette Poka and advised her of the requirement of a security fee of K175 for a vehicle unit. Since the Complainant had wanted to purchase 3 vehicles units she had paid you through her son Able Poka an additional K525.00. Upon the payment of this security fees, you had then promised the said Abel Poka that the vehicles would be released by September 2015. This however, has not eventuated and is yet to be fulfilled unto this present day.

8.   In November 2015, you had once again contacted the said Annette Poka and told her that you have some vehicles left to sell and that they are selling fast, so the complaint acting on your advice had decided to purchase another two units of vehicle. She had then sent K16,000.00 through her son Abel Poka who had once again called in to see you at the Lae International Hotel and handed over to you another K16,000. 00. This had then brought the total sum of money that you had received from the Complainant Annette Poka and her family a sum of K46, 525.00. 

9.  The State says that all these advises, promises that you were giving to the complainant and her children were all false and you knew them to have been false but you had used these to induce them with the intention to defraud them. Your conduct and actions the State says were in contravention of section 407 (1) (b) of the Criminal Code Act 1974.

The Law:

Section 407 Conspiracy to defraud.
(1). A person who conspires with another person –
     (a). ............; or
     (b)  to defraud the public or any person ( whether or not a particular person ); or
   (c) ...............
Is guilty of a crime .

             Penalty: Imprisonment of not exceeding seven years.

On the second count:

10.  The State had alleged that between the month of June 2015 and November 2015 at the Lae International Hotel here in Lae, you Pauline Sam, had stolen from one Annette Poka a total of K46, 525. 00 the property of the said Annette Poka and her family.

11.   That you were at the time an employee of the said Lae International Hotel.

12.   That during the alleged period of time, you had taken from the complainant a total of K46, 525.00 for the purchase of vehicles through Silima Holdings Limited.  You told the complainant that one David Sila Kaiyak was the owner and operated Silima Holdings Limited and together with the BSP Capital, they were selling vehicles at a very cheap price. 

13. Furthermore, you had informed the complainant that for each vehicle purchased there, is a security fee of K175.00 that was required to be paid and that since the complainant Annette Poka was purchasing 3 vehicles, she had paid to you a sum of K525.00 as security fees.

14.   In November 2015, you had once again contacted the complainant Annette Poka that there were still some vehicles left to be sold, by Silima Holdings Limited through BSP Capital. That the buying and selling of the vehicles was being done in a collaborative arrangement between the Silima Holdings Limited, BSP Capital Limited and Ela Motors.Furthermore, you have stated that the vehicle are being sold out fast.  It was following your advice that the complainant through her son Abel Poka then paid another additional amount of K16, 000.00, bringing the total amount paid by the complainant to you to K46, 525. 00 

15.  That ever since the complainant had made these various payments to you.  You Pauline Sam, David Sila Kaiyak, the BSP Capital Limited or Ela Motors Limited have failed to deliver a vehicle to the complainant until, this day.

The Law:

16.   The State says that your conduct and actions are in contravention of Section 404 (1) (b) of the Criminal Code Act, 1974 is as follows:. 
                 
  Section 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 intend to defraud-

(a)	Obtains from any other person any chattel, money or valuable security..
Is guilty of a crime.  
Penalty: Imprisonment for a term not exceeding five years 

ISSUE

17.  The main issue at this stage is, what is the appropriate punishment to be imposed upon you for your part in the commission of these two offences. To assist the court in its deliberation, the court would need to examine the circumstances of the offences itself. To do this, the court has noted and summarised in brief a number of significant salient features of each of the counts. These are as follows:

1.	At the material time, which is between dates 1st June 2015 to 30th September 2015, you were being employed as the pay officer of the Lae International Hotel. You have been employed with Lae International Hotel for 15 years.
2.	Prior to the above dates, in the year 2006, your husband Felix Sam had paid K6500. 00 to one David Sila Kaiyak for the purchase of a motor vehicle. 
3.	In the year 2010, you recalled an occasion you and your husband Felix Sam had met this said David Sila Kaiyak at the Food Mart Super Market Car Park here in Lae and your husband had confronted the said David Sila Kaiyak about the delivery of his vehicle and David Sila Kaiyak had told the two of you that you would soon be getting your vehicle.
4.	At the material time, from June 2015, your husband had still not receive his vehicle. That would have been a period of 9 years altogether since he had paid K6, 500. to the date of the offences you have been charged with.
5.	At the material date time also; That is, 1st of June 2015 to 30th of September 2015, the court had inferred that you would have known by then, that the scheme had not work for your husband and that it was in actual fact, a scam and that what David Sila Kaiyak and his people were offering to the public was actually lies calculated to defraud the public or whoever falls for the scheme.
6.	The court also found that at the time when you had accepted the offer by the said David Sila Kaiyak for you to become his collection agent, you had known that the scheme was a fraudulent scheme and that when you agreed to accept David Sila Kaiyak offer to becoming his collection agent, you were infact conspiring with the said David Sila Yaiyak to defraud the Public or any person(whether or not a particular person).
7.	On the 1st of June 2015 to the 30th of September 2015 when the Complaint Annette Poka and her son Abel Poka met with you at the Lae International Hotel you knew that the scheme was actually a scam and yet, you deliberately went ahead and accepted the offer to become the collection Agent of Silima Investments Limited. 

18.  The scheme employed in committing these two offences appears to be sophisticated, well thought out, planned and well executed. As explained by yourself in your answers in your record of interview and your interview with the Probation Officer, in the PSR Report, the scheme was a collaborative arrangement between the BSP Capital Limited; Ela Motors Limited and Silima Investments Limited whereby, customers wishing to buy cheap motor vehicle would come to you at the Lae International Hotel where you would then obtain their orders, receive the payments and  you claimed to have passed these to David Sila Kaiyak the Managing Director of Silima Investment Limited who would then deposit this in the account of the BSP Capital Limited who would then organised with Ela Motors Limited and have the vehicle released to the Customers. The main features of this scheme is that it offered very cheap or affordable price and the assurance of immediate delivery upon payment. 

19.   You had claimed that your role was basically to receive customers’ orders and cash payments. However, this was not quite true, as evidence would show, you appeared to be doing more than that you took the customers’ orders, you had also done some degree of promotion and sales. When you continually contacted the complainant Annette Poka to inform her that you still have some more vehicles remaining but they are selling fast so if she wanted any more she should hurry as stocks are selling out fast. 

20.   You have in your reply to the question of what did you do with the monies that you have taken from the complainant and other and you claimed to have given these to David Sila Kaiyak. However, there is no record of where the money had gone to. In such cases, the court is at liberty to draw inferences that the money was kept by the person who had received the money. And that happened to be you.

21.   These kind of dishonest offences intending to defraud another person is very prevalent in the society and the country as a whole. It is a very serious offence that must warrant strong deterrence at all costs to send message to not only the people involved but to members of the public generally. To deter other likeminded person from taking advantage of another.        

22.   In your case, you were not naive or ignorant of the fraudulent intent to defraud other persons or the unsuspecting members of the public. You have had first- hand experience from your husband’s case from 2006 to 2015 that the scheme was a scam. Having this knowledge and experience you then made a deliberate decision to becoming involved in these so called collaborative arrangements to defraud others. When you did so, you and David Sila Kaiyak committed the crime of conspiracy to defraud. Furthermore, with your knowledge and experience (in your husband’s case) you had falsely pretended and lied to those customers who came to you to assists them purchase their vehicles including the complainant Annette Poka. You knew, that you people were lying that you will never deliver on your words but you claim that it was going to be done. You did this with the intention to defraud those who had come to you to purchase vehicle.
23.   In my opinion, your case is one of the most serious types of these offences of dishonesty that deserves to be given the maximum or near maximum penalty prescribed by law.

24.   The next matter that I had considered in your case was the Mitigating Factors. Are there any mitigating factors that ought to be considered in your favour. I find in your case that there is hardly any factor that could be considered in your favour except:

1.	The fact that you have no prior record against you  
2.	Your willingness to reimburse the Complainant if your given a non-custodial punishment and sufficient time to make repayments as expressed by yourself to the Probation Officer.

25.  In so far as the aggravating factors are concern, I had considered the following:

1.	That you had pleaded not guilty and the matter had gone to trial.
2.	That you have not made any refund of the monies taken from the Complainant in your case
3.	That you have not shown or expressed any form of remorse to the Complainant and her family.
4.	That you had made a deliberate decision to be involved in the commission of these offences knowing very well that it was a scam.
5.	The money you took from the complainant was a substantial amount, raised by the complainant from the sweat of her brow in trying to make ends meet for her family and only to be taken away by you without a drop of sweat 

  Personal Particulars 

26.   I have taken into account your personal particulars that you are 60 years old, married and mother of two children who are now adults and live their own lives,
you are now unemployed, your husband is also unemployed and  that you would be struggling to survived in a city such as Lae. It is clear from your statement of means that you do not have any means at all to reimburse the complainant. I have also noted that there was suggestions that there was going to be a rolled- over and that from this you would get your share and be able to repay what you took. But I am also informed that there were some fake receipt purportedly from BSP Capital Limited showing the accounts of both you and your husband showing substantial balance but on further verification these were found to be incorrect.

27.  In the end, I have decided to adopt the range of sentence suggested by Bredmeyer J in the case referred to above and taking everything into account I have decided that For the Conspiring to defraud, I am of the view that a sentence of 4 years imprisonment is appropriate. In the case of Wellington Belawa v The State [1988-89] PNGLR 496, Bredmeyer J (as he then was) had suggested the following scale of sentences –

1.	Where the amount misappropriated is between k1 and K1000. A goal term should rarely be imposed;
2.	Where the amount misappropriated is between K1000 and K10,000 a goal term of up to two years is appropriate  
3.	Where the amount misappropriated is between K10,000 and K40, 000. Two to three years imprisonment is appropriate
4.	Where the amount misappropriated is between K40,000 and K 150, 000. Three to five years imprisonment is appropriate          

28.   And with regard to the second count of Obtaining goods by false pretence, I have decided that a period of 4 years imprisonment for this count is appropriate punishment. As the two offences arose out of the same transaction, I will order that the 4 years sentence on the second count is to be served concurrently with the sentence on the first count in hard Labour.

29.   I will further order that should the prisoner repay the amount of K46, 525. 00 to the Complainant Annette Poka before Prisoner complete his sentence, the remaining portion of his sentence is to be suspended on condition that she be of good behaviour for a period of 2 years commencing on the date of her full and complete reimbursement of the sum taken. Using my discretion, I have decided not to deduct the time she has spent in custody awaiting her trial.

Formal Orders;

1.	The Prisoner is sentence to 4 years imprisonment after she was found guilty and convicted on the first count of Conspiracy to Defraud contravening s.407 (1) (b) of the Criminal Code Act.
2.	The Prisoner is sentence to  4 years imprisonment after she was found guilty and convicted on the second count of Obtaining Goods By False Pretence contravening s.404 (1) (a) of the Criminal Code Act.
3.	Second Count is to be served concurrently with the First Count.
4.	Should the Prisoner repay the full amount of K46, 525.00 to the Complainant Annette Poka the balance of her sentence is to be fully suspended on condition that she is to be of good behaviour for a period of 2 years commencing on the date of her full and complete reimbursement of the sum of K46, 525.00. 
5.	Further, in the exercise of its discretion, the Court will not deduct the period spent in CS custody at Buimo awaiting her trial.
6.	The Prisoner’s National Court cash bail of K4000.00 is to be refunded forthwith.
7.	The Prisoner’s two guarantors Mr. Titus Kilamu of Lot 17, Section 98 Robin Street, 7th Street P.O Box 2078 Lae, Morobe Province and Mr Eddie Bagu of Lot 3, Section 98 of 7th Street, Lae Morobe Province cash surety payment of K500.00 each is to be refunded and both are to be discharged from any conditions that were imposed forthwith.

That is the sentence of the court.
_____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner