N9468

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 133 OF 2021

THE STATE

V

DANIEL KAWA

Kokopo:  Tusais AJ
2021: 8th November
2022: 14th February, 4th March

CRIMINAL LAW – Particular offence – Obtaining goods and credit by false pretence –False representation to intending car buyer –obtained K40,000 cash - Guilty plea – Sentence of three and a half years appropriate

Cases Cited

Wellington Balawa -v- The State [1988-1989] PNGLR 496
Avia Aihi vs the State (No 3) [1982] PNGLR 92, 
Goli Golu v the State [1979] PNGLR 653
Supreme Court Reference No 1 of 1984 [1984] PNGLR 418
State v Mary Tengdui [2014] N5827
State v Metz (2005) N2824
The State -v- James Mariko (2015) N6086
The State v. Joyce Pora Frank (2016) N6343
The State v. Dorcas Boski (2014) N5814
Saperus Yalibakut v The State (2006) SC890
Public Prosecutor v Tardrew [1986] PNGLR 91
Doreen Lipirin v State (2001) SC673
State v Dianne Max (2022) CR(FC) 168 & 169 of 2021

Counsel

Mr L Rangan, for the State
Ms C. Pulapula, for the Accused

SENTENCE

04th March, 2022

1.	TUSAIS AJ:  The prisoner pleaded guilty to one count of obtaining goods by false pretenses contrary to sections 404 (1)(a) of the Criminal Code (the Code). Having read the depositions, the court confirmed the guilty plea. This is the court’s decision on sentence. 

Facts

2.	On 30th October, 2020, the complainant Leo Kehali from Buka Island, communicated with a man named George ToBata who lived in East New Britain. He informed Mr Tobata that he wanted to buy a 5th Element Toyota Hilux and asked him if he knew anyone wishing to sell such a motor vehicle. On the 2nd November, 2020, George ToBata sent the same message about Leo Kehali’s request, to all his contacts. 

3.	 Daniel Kawa (prisoner) responded and informed George ToBata that his uncle had a 5th element-vehicle. George ToBata then referred the prisoner to Leo Kehali. The prisoner sent a text message to Leo Kehali telling him that he had a 7 month old Toyota Hilux 5th Element going on sale for K40,000. Prisoner advised that the car was already loaded onto a ship bound for Lihir Island for delivery to a customer who would pay K55,000. However, if Leo Kehali deposited K40,000 quickly he would have the car shipped to him instead.

4.	On 6th November 2020, Leo Kehali deposited K40,000 at the Buka BSP bank, into the Kokopo BSP account number 1014808255 belonging to Catherine Nicky. The prisoner had lied to Leo Kehali that Catherine was his wife, and the vehicle was registered under her name. The prisoner told Leo Kehali that he would send the vehicle to Buka on 9th November 2020. He never did do so. Leo Kehali rang and sent numerous text messages to the prisoner asking him to deliver the vehicle but the prisoner had switched his phone off after the money was deposited. He never replied to the text messages.

5.	The state alleged that the prisoner purposely told lies to Leo Kehali, in order for Leo Kehali to send him K40 000, knowing very well that he never had a white 5th-element vehicle. It was later discovered that all the money deposited had been used up already a few days after it was deposited. A complaint was laid at the Kokopo Police Station and the Police arrested and charged the prisoner.

6.	The issue for the court to decide is the penalty to impose on the prisoner. The punishment prescribed under section 404 (1) is a term of imprisonment not exceeding 5 years. 

7.	Maximum sentence for any offence is usually reserved for those crimes described as the worst of its kind. I refer to the cases of Avia Aihi vs the State (No 3) [1982] PNGLR 92, Goli Golu v the State (1979) PNGLR 653 and Supreme Court Reference No 1 of 1984 [1984] PNGLR 418, Kidu CJ said in SCR NO 1 of 1984 that: “ It is not a rule of law that the maximum sentence for an offence should be reserved for the worst case, but a practice which has been accepted through the exercise of common sense in order to do justice.”

Antecedents

8.	The following are the personal particulars of the prisoner as submitted by defence counsel and from the pre-sentence report. The offender is 38 years old and comes from Henegaru village in Okapa District, Eastern Highlands Province. His mother is from Malakur village, Pomio District of East New Britain Province but she deserted the family when the prisoner was still very young. He was raised by his stepmother from Bitapaka area of Kokopo. His lawyer said he is Catholic by faith, but the PSR report stated that he is a Seventh Day Adventist. I will note for the time being that he is a Christian by religion. The offender is the first-born child in a family of three brothers. Both of his birth parents are deceased. He is married to a woman from New Ireland Province and has three children.

9.	 The prisoner went to Kabaleo Primary School from 1991 to 1999 and completed high school education at the Kokopo High School from 2000 to 2002. He is a teacher by profession and had graduated from the Kabaleo Divine Word University, Rabaul Campus. He was previously employed as a Teacher at the Scared Heart international Primary School. He undertook studies from 2010 to 2018 at the University of Queensland in Australia and graduated in 2018 with a Master’s degree.

10.	Defence lawyer asked the court to take note of the following mitigating factors.

a)	He pleaded guilty and saved the courts time and states resources.
b)	He readily made admissions in the interview. 
c)	He is willing to make restitution of the monies he used
d)	He was remorseful. In allocutus the prisoner said the following
“Firstly I would like to apologise to the court and to the victim for what has happened. I only have one thing to ask the court and that is to serve my time outside. The first reason is that I have sufficient account that I can use to repay. Iam a single parent. I have three children who are with my stepmother. One of them is my daughter who is an asthmatic patient. I need to be close to my children. Again Iam very sorry for what I have done. If court can allow me to serve time outside I can repay. I believe this is the right thing to do.”

11.	Defence acknowledged that this was a serious offense because a large amount of money was stolen. Counsel submitted that this was not the worst case and should not attract the maximum penalty. Several cases were referred to and counsel suggested that the court impose a term of 3 years imprisonment and left it to the courts discretion to consider suspension of sentence.

12.	Mr Rangan for the state submitted that this case was aggravated by the following factors.

a)	A very big amount of money was stolen from the victim.
b)	 A very highly educated person preyed on one not as highly-educated as him, using a well-planned trick to misappropriate K40 000 within a short space of time. 
c)	 The prisoner breached the trust accorded to him by the victim.
d)	no restitution has been made since the time of arrest. 

13.	State lawyer referred to the case of Wellington Belawa v State [1988-1989] PNGLR 496 and submitted that dishonesty offences were becoming very prevalent throughout the country and a strong deterrence punishment is called for. Mr Rangan submitted that the range of sentence suggested by Belawa’s case for stealing amounts between K40,000 and K50,000 was imprisonment for terms between 3 to 5 years. Counsel submitted that the court suspend part of the sentence only on condition that the offender repay the monies within one year.

14.	Counsels referred the court to several cases with similar facts to the current case. I thank both lawyers for their assistance.

15.	In the case of State -v- Mary Tengdui (2014) N5827 the Prisoner pleaded guilty to fifteen counts of obtaining a total of K46,650.00 by false pretence. She had obtained K3,110.00 each from the 15 victims and promised to assist them with travel arrangements, purchase of airline tickets, passports, visas, etc. to travel to Australia. She had already repaid K23,500.00 to the victims. She was sentenced to three years in hard labour for each count to be served concurrently, wholly suspended on the condition that the outstanding K21,350.00 plus K1,000.00 compensation shall be paid to the victims within 12 months

16.	In the State v Metz (2005) N2824 the Prisoner made false representations to the manager of a Guest House that millions of Kina from the sale of Treasury Bills were soon to be paid directly into his bank account. Believing this to be true, the manager permitted the prisoner to obtain cash, accommodation, meals, drinks and cigarettes and allowed the offender to bring in extra guests. The prisoner incurred a bill of K70,445.36. He was not able to settle the amount when he checked out seven months later. He pleaded guilty and was sentenced to three and a half years IHL less the time in custody. None of the sentence was suspended. In sentencing him, Justice Manuhu said this:

“The amount is substantial. From the victim’s point of view, no amount of remorse and apology can restore such a substantial amount. The guest house would want restitution but the Prisoner has not made any payments and is in no position to make any restitution……... While the Prisoner is a first offender, what he did seems to be the work of an expert. In all the circumstances, a custodial sentence is warranted. The factors of mitigation are outweighed by the circumstances of aggravation.”

17.	The State -v- James Mariko (2015) N6086, the Prisoner pleaded guilty to the offence of false pretence. Prisoner tricked a couple that he would buy a used car for them from the Director of SIL in Ukarumpa, Eastern Highlands. The couple over a period of 3 months gave the Prisoner a total of K8,500.00. The offender went into hiding after receiving K8,500. The victims after waiting in vain, checked with the SIL Director who told them that he had not put any used car for sale. The Court sentenced the Prisoner to 3 years imprisonment and 1 year was suspended on condition he repaid the full amount of K8,500 within 6 months.

18.	In the case of The State v. Dorcas Boski (2014) N5814, the offender pleaded guilty to obtaining K12, 000.00  by False Pretence. The offender was a Rental Sales Representative with Avis Rent A Car in Mt. Hagen. The victim approached the offender to purchase a Motor Vehicle that her employer was selling and she promised to organise its sale to him on staff price. The victim deposited K16, 000. 00 into the offenders account but after a long while and despite several follow ups, the motor vehicle was never delivered to him. The victim then involved a debit Collection Agency to pursue the matter with the offender. She managed to repay K4, 000 to the victim and undertook to pay the balance later but failed to do so. Justice David sentenced the offender to 3 years, suspended on condition she repay K12,000 within 6 months.

19.	In State v. Joyce Pora Frank (2016) N6343 the prisoner pleaded guilty for obtaining K10,000.00 from the victim by false pretence and was sentenced to 3 years imprisonment wholly suspended on condition she repaid K10,000 within 5 months as well as compensation of K700 for pain and suffering. The offender obtained K10,000 from the victim purportedly to start a gold buying business in Porgera. She promised to repay the amount with profit. The victim believed her and gave her K10,000. The prisoner used the money for her own personal use and never repaid anything. 

20.	Should the court suspend the whole or part of the sentence as suggested by both counsel? In Public Prosecutor v Tardrew [1986] PNGLR 91 the Supreme Court held that suspension of part of a sentence under s 19(6) of the Criminal Code may be appropriate in three broad categories. The categories are not exhaustive. First is where suspension will promote the personal deterrence, reformation or rehabilitation of the offender. Second reason is if suspension of sentence will encourage or lead to repayment or restitution of stolen money or goods. Finally suspended sentence is to avoid excessive degree of suffering to the particular offender, for example because of his bad physical or mental health. 

21.	Suspension of sentence in this case would be to encourage repayment of the money stolen. The prisoner told the Probation officer that he had savings with Nambawan Supa Limited, the Superannuation body for government workers previously known as Public Officers Superannuation Fund or POSF. The offender said that he would repay K28,000 first from his savings with Nambawan Supa. Then he would repay the remaining K12,000 within 10 months by paying K1000 every month till the full amount was paid off. 

22.	In the Means Assessment Report the writer said that the offender did not provide any statement to prove that he had those savings with Nambawan Supa. The report also stated that the offender had no savings at all. The offender did not say how exactly he would be able to find and pay K1000 every month when he did not have a job or operating business. Nor did anyone stand up and offer assistance to pay off the huge amount of K40,000.

23.	In guilty plea matters it is the accepted practice that courts must act on the facts as stated by the offender, Saperus Yalibakut v The State (2006) SC890. However, those facts must not be beyond the bounds of common sense and credibility. I find it very difficult to believe the offender’s promise to repay the money in the amounts stated and in the timeframe suggested. This is because he has had enough time since November 2020 to repay and has not done so yet.

24.	During his police Interview the prisoner told the arresting officer that he would repay the money. At Q/A 44 he was asked for his final comments, and he told the arresting officer this:

“No more comment. But Iam very sorry for that and Iam prepared to repay back if court grant me bail. In two weeks time my money will be coming plus my brother in Port Moresby will assist me.”

25.	The sentence for this type of cases are between 3 years to 5 years. I find that the aggravating factors outweigh the mitigating factors in this case. I treat this particular offence as more serious and will impose a term close to the maximum sentence. It is serious because the amount is quite big. The offence is becoming very prevalent and a deterrent sentence is warranted. The monies were also not put to any good use. The offender spent K3500 of the money to hire a vehicle from Hertz rent a car.  In a space of 3 days between 6th to 9th November 2020, the entire amount was wiped out. 

26.	The offence of false pretense, stealing and dishonesty generally is serious and very prevalent now in East New Britain. In February this year I handed down sentence in three separate cases involving serious breach of trust and deception practiced by offenders. In the case of State v Dianne Max (2022) CR(FC) 168 & 169 of 2021, I sentenced the offender to two years for false pretense and obtaining K10,000 from an old woman by tricking her that she would help her raise funds to build a house in the village. 

27.	I note that the offender does not have any prior convictions. I accept the submissions made by his lawyer and do take into account those mitigating factors that were submitted. I also take into account the Probation report. The PSR is favourable to the offender and does recommend that he is a suitable candidate for probation. However, the Means Assessment Report is neutral and does not express any confidence that the offender will pay the amount of K40,000 back.

28.	In this case I find that the amount is quite substantial. The prisoner has not made any repayment and is in no position to do so. The offender has not made any effort to repay and I am of the view that this is because he does not have any savings including retirement benefits that he can access. 

29.	 The Supreme Court in Doreen Lipirin v State (2001) SC 673 stated that for misappropriation cases the sentencing court should consider non-custodial sentence first in order for the offender to make restitution. That is not feasible in this case despite the offenders promises. It will be fruitless to make orders for repayment when the offender will not be able to comply, giving more false hope and expectations to the victim. I will follow the case of State v Mertz (supra) and impose a custodial sentence. 

Sentence

30.   The offender is sentenced as follows:

1.	3 1/2 years IHL
2.	Less 11 months 18 days in remand
3.	Prisoner to serve 2 years 6 months 12 days IHL at Kerevat jail.

________________________________________________________________
Office of the Public Prosecutor:		Lawyer for the State
Office of the Public Solicitor:		Lawyer for the Accused