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State v Sindol [2020] PGNC 127; N8355 (12 June 2020)

N8355

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1140 OF 2019

THE STATE

v

DAVID SINDOL

Lorengau: Kirriwom J
2020: 2^nd & 10^th June

CRIMINAL LAW – Sentence – Stealing by false pretence – Sum of K1500 borrowed with intention of repaying – Promise not fulfilled - Plea of guilty –Dishonesty offence – Wellington Belawa principle applied - One year imprisonment –Already spent one year and one week in pretrial custody – Sentenced to the rising of the court - Criminal Code, s. 404
Cases Cited:

Wellington Belawa [1988/89] PNGLR 496

Counsel:

P Kaluwin, for the State
K Pokiton, for the prisoner

REASONS FOR SENTENCE

12^th June, 2020

1. KIRRIWOM J: The prisoner pleaded guilty to one count of stealing money by false pretence contrary to section 404 of the Criminal Code. The State case is that in need of money urgently, on 8^th August 2018, the prisoner approached one Linda Sokul, a private loan shark or lender of quick cash who provided private lending services outside normal financial systems to individuals desperately in need of quick cash at exorbitant interest rates. The prisoner was then employed with Kingfisher Hire Cars here in Manus and convinced the lender that he had the capacity to repay the money by depositing with her his bank card with which the lender can withdraw directly from his account through the ATM machine.

2. Accepting his word Linda Sokul lent the prisoner K1500. Since then Linda Sokul has been unsuccessful in accessing any funds in the prisoner’s account as the card failed to respond or pay any money. The money has since not been repaid, hence resulting in this charge.

3. The prisoner does not deny borrowing the money and not having repaid the money. He explains that he borrowed the money with the belief that someone else will provide the money in exchange for beche-de-mer or sea cucumber but that never materialized when that person failed to come good with the promise. Since then despite numerous requests from Linda Sokol, he has been unable to repay the money.

4. Following his plea of guilty and address by his counsel in mitigation of penalty, I requested for Pre Sentence Report (PSR) which has been provided. I note from that report that he presently remains unemployed, his father is remarried and he and the prisoner’s step-mother reside in Vanimo. His step-mother whom was interviewed by CBC officer over the phone has indicated some help of few hundred kina fortnightly from her pay. No such commitment was made by the father. The prisoner is married with a young child and living here in Manus but there is no evidence that he has made any effort to find money by whatever means to repay the amount he borrowed from the lender.

5. The lender Linda Sokol wants the money repaid with interest totaling up to K6000. If the court can order restitution as punishment, I cannot accede to the lender’s request because this is a criminal charge of obtaining property namely cash by false pretence and that is the only amount that matters for the purposes of this crime. Any interest accruing from this amount is another matter that the lender can pursue by way of civil claim for unpaid debt with interest. It is based on breach of promise under the law of contract and it is not for this court to order payment of the interest accrued in this criminal proceeding.

6. The prisoner is a young man aged 30 years old, comes from Rambutso island Manus, married with a young child, breast-feeding and only three months old. He has been educated to Grade 12 and resides in ward 1 although his parents live in Vanimo. In mitigation his lawyers submitted, I take into account his plea of guilty, prior good record, cooperated with police during record of interview and admitted the offence thereby saving court time and expense to the State. I am also told that the prisoner had spent one year and two days in pre-trial custody before appearing in court for this case.

7. An offence under section 404 of the Code of obtaining money by false pretence that carries a maximum penalty of five years is one of those dishonesty offences covered by the sentencing guidelines in Wellington Belawa [1988/89] PNGLR 496. These guidelines can apply as guide in determining what maybe an appropriate penalty. The principle enunciated in Belawa case is that in dishonesty offences any amount between K1 to K1000, a jail sentence should rarely be imposed and any amount between K1000 and K10,000 a sentence of up to two years is appropriate. Sentencing is very much a matter of discretion of the court.

8. The prisoner has asked to be given opportunity to repay the money and requests 3-6 months to do so. I have considered his request and take note of the time he has so far spent in custody since being arrested and detained and denied bail. I think the time spent in custody serve as learning experience for him and ought to be the impetus for him to make every effort to find ways to repay the money. The sentence I impose now does not absolve him from his contractual obligation to Linda Sokol for the promise he made with her which unfortunately turned into a criminal case. I am surprised that a normal contractual relation between two people turned into a criminal offence when one did not fulfill his part of the bargain. Life is full of gamble. People gamble their lives away when they engage in hazardous sports or activities. Similarly, enterprising people gamble their monies when they make critical decisions on how they invest and where they invest their money. Where gambling is part of the game, there are elements of risks involved that the investor must weigh the pros and cons carefully before taking the risk. In this case the lender took the risk, the risk that became costly to her. The prisoner here could have denied criminal intent to defraud the victim by pleading not guilty but he chose to plead guilty.

9. Having said that I will not impose any additional term of imprisonment to the time he had already spent in custody which is one year and one week awaiting his case. For the amount of money stolen, I would not have imposed anything more than a year if he had been on bail but suspended with conditions for repayment within specified time. However, since he had spent a year and a week in pre-trial custody, he has fully served the terms I would have imposed so this is where it ends.

10. I therefore sentence the prisoner to the rising of the court.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence