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State v Howa [2024] PGNC 273; N10940 (6 August 2024)

N10940

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 105 OF 2024

STATE

V

JOHN HOWA

Waigani: Wawun-Kuvi J
2024: 12th June, 10th July & 6th August

CRIMINAL LAW–SENTENCE –OBTAINING GOODS BY FALSE PRETENCE- section 404(1)(b) of the Criminal Code – Guilty plea –Offender induced payment of a loan to another person- The pretence was that there was a a property which could be used as collateral -Obtained K5, 000.00 but benefitted K2000 -No restitution- No community views-Sentenced to 18 months imprisonment

Cases Cited
Saperus Yalibakut v The State (2006) SC890
Lawrence Simbe v The State [1994] PNGLR 38
Lialu v The State [1990] PNGLR 487
Belawa v The State [1988-89] PNGLR 496
State v Anthony [2024] PGNC 71; N10725
State v Ostakel [2021] PGNC 87; N8787
State v Moripi [2017] PGNC 202; N6867
State v Kuala [2017] PGNC 96; N6736
State v Liligu [2016] PGNC 428; N6919
State v Mariko [2015] PGNC 189; N6086
State v Boski [2014] PGNC 161; N5814
State v Bob [2013] PGNC 243; N5382

Legislation
Criminal Code Ch 262
Criminal Justice (Sentences) Act 1986

Counsel
G Goina, for the State
D Kayok, for the offender

DECISION ON SENTENCE

6th August 2024

1. WAWUN-KUVI J: John Howa (offender) was a middleman. The victim owned a small company known as Convenience Petty Cashier. Andrew Waliman required a loan of K5000. The offender convinced the victim that Andrew Waliman owned a property worth K500, 000 which would secure the loan. The accused knew that Andrew Waliman did not own the property. Andrew Waliman presented the victim with a false title. Based on this pretence, the victim loaned K5000 to Andrew Waliman. Andrew Waliman had no intention of honoring the loan.
   
2. The offender has pleaded guilty to these facts. I must now decide the appropriate penalty.
   

Maximum Penalty

3. The maximum penalty for this offence is five years of imprisonment. The maximum is reserved for the worst case; see Goli Golu v The State [1979] PNGLR 653. The circumstances of this case do not warrant the imposition of the maximum.

Personal Antecedents

4. The offender is 53 years old. He is from Kikita Village, Tari Pori, Hela Province. He is a widower and resides at Hohola. He has three children who are presently cared for by their aunt, the offender’s cousin. The offender has no formal education, no formal employment and no savings.

Allocutus

5. The offender apologised to the Court, to the victim and to his family. He pleads for mercy and seeks a non-custodial sentence.

Appropriate range

6. I accept that the guidelines provide parity but do not curtail my discretion. That the relevant consideration is the peculiar circumstance of the case: see Lialu v The State [1990] PGSC 16; [1990] PNGLR 487 and Lawrence Simbe v The State [1994] PNGLR 38.
   
7. Counsel agreed that a sentence range between 1- and 2-years imprisonment is appropriate given the circumstances of the case.
   

Comparable cases

8. Counsel submitted the following comparable cases.
   
9. State v Anthony [2024] PGNC 71; N10725, Berrigan J: The offender was convicted following a trial for obtaining K514, 896.23. He was a police officer. He made false claims of being authorized to sell a property and worked in collaboration with another individual to deceive the victim into signing a contract and issuing a cheque. The victim was unable to take possession of the property and reported the incident to the police. The offender was sentenced to 4 years imprisonment.
   
10. State v Ostakel [2021] PGNC 87; N8787, Berrigan J: The offender pleaded guilty. He made false representations to the victim that he had a substantial sum of money in his bank account and would pay the complainant K1 million for the victim's political campaign. As part of the pretence, the offender informed the victim that the victim had to pay fees to the offender's personal bank account to enable the release of the K1 million. The victim deposited at least K305,800 into the offender's bank account. The offender was sentenced to 4 years imprisonment.
    
11. State v Moripi [2017] PGNC 202; N6867, Salika DCJ (as he then was): The defendant pleaded guilty to the charges of false pretence and conspiracy. She conspired with another employee to submit false invoices to her employer. Based on the false invoices she and her co-conspirator were paid. She received K207,000.00 through her deception. The court sentenced her to 4 years imprisonment for false pretence and two years for conspiracy. The sentences were concurrent. The court ordered that the sentence of 4 years would be suspended on the condition that the offender repaid the money.
    
12. State v Kuala [2017] PGNC 96; N6736, Auka AJ (as he then was): The offender pleaded guilty to false pretence. The victim owned the property. The offender falsely claimed to be the owner and collected rent, totaling almost K282,200.00. The rentals belonged to the victim and her children. The offender was sentenced to 4 years imprisonment which was wholly suspended on conditions.
    
13. State v Liligu [2016] PGNC 428; N6919, Polume-Kiele J: The offender pleaded guilty. He promised to sell a piece of land to the victim. He took two payments totaling K6,800.00 and failed to deliver. The court sentenced him to 2 years in prison.
    
14. State v Frank [2016] PGNC 154; N6343, Auka AJ (as he then was): The offender approached the victim to borrow K10, 000 for her to start a gold-buying business in Porgera. She entered into a verbal agreement with the victim that when she makes enough money, she will repay the principal with interest. Based on the pretence, the victim gave K10,000 to the offender. The offender used the money for her use and did not purchase gold as claimed. The offender was sentenced to 3 years imprisonment. Time spent in custody was deducted and the balance was suspended with conditions for restitution.
    
15. State v Mariko [2015] PGNC 189; N6086, Polume-Kiele J: The offender pleaded guilty. He informed the victims that he would buy a used car from the Director of SIL on their behalf and he asked them to make part payment for a used car on their behalf to the Director of SIL. Acting upon this representation, the victims, a total of K8, 500.00 in cash as payment for the used car which unfortunately was not delivered to them. The offender was sentenced to 3 years imprisonment. Time spent in custody was deducted and the balance was suspended with conditions for restitution.
    
16. State v Boski [2014] PGNC 161; N5814, David J: The offender pleaded guilty to obtaining K12,000.00 from a victim by false pretence. As a Senior Rental Sales Representative, the prisoner promised to sell a vehicle to the victim at a staff price but failed to deliver despite receiving a deposit of K16,000.00. After leaving her job, the prisoner repaid K4,000.00. She promised to pay the balance but did not. She was sentenced to 3 years imprisonment. Pre-trial custody was deduced, and the balance was suspended.
17. State v Bob [2013] PGNC 243; N5382, Geita AJ (as he then was): The offender pleaded guilty. He approached the victim and told him that he was doing maintenance work for the National Housing Commission and the house he was repairing would be sold to the victim for K19,000.00. He asked the victim for K5000 as part-payment which was given to him. Instead, he deposited the money into his construction company account and used the money. During the same period, he asked the victim for K525.00 for maintenance work to be done on the promised house. The offender was sentenced to 2 years imprisonment which was wholly suspended on conditions.
    
18. The cases submitted by counsel involve higher amounts, whereas in the present case, the offender induced the victim to give K5000 to Andrew Waliman, from which he benefited K2000. A sentence between 1- and 2-years imprisonment is appropriate.

Culpability

19. The offender was aware that Andrew Waliman did not own the property and conspired with him to obtain K5000 from the victim. For his part, the offender benefited K2000. He was not a mere observer. He knew the victim and knew that Andrew Waliman was not genuine and went ahead to convince the victim to give Andrew Waliman the money.

The Effect on the Victim

20. The State did not provide a victim impact statement for the offender's sentencing. The probation officer made reasonable attempts to obtain the victim's views but could not locate him.

Mitigating and Aggravating Factors

21. I have carefully considered the submissions and accept in mitigation that the offender is a first-time offender who pleaded guilty at the earliest opportunity. He has cooperated with the police by making admissions. He has also shown remorse for his actions. However, aggravating factors include the amount of money taken, lack of restitution, and the prevalence of the offence.
    
22. Regarding the amount taken, the State has charged that the money was given to Andrew Waliman. The offender in his police interview and the interview with the Probation Officer stated that Andrew Waliman gave him K2000. The State has not taken objection to this and so I take it as accepted that the offender only benefited K2000: see Saperus Yalibakut v The State (2006) SC890 on benefits to offenders where factors favorable to offender are present.
    

Other relevant factors

23. Today, I am also sentencing two other individuals who have deceived innocent people and taken their hard-earned money. It is crucial to send a clear message because this offence is becoming prevalent.
    
24. I have given thought to the submissions, the matters discussed in this decision, and the peculiar circumstances of this case and find that while the amount is not as significant as in other similar cases, the fraud was sophisticated and involved another person; the offender's role was crucial in securing the release of the money. These matters demonstrate that a short and firm custodial sentence is warranted to serve as both a specific deterrent to the offender and a general deterrent to like-minded individuals.
    
25. The offender is sentenced to 18 months imprisonment.
    
26. The offender was arrested on 22 July 2021. He was granted police bail and released on 26 July 2021. The committal court issued a warrant of arrest after the offender failed to appear. He was apprehended on 4 December 2023 and detained since. From these dates, the offender has been in custody for seven (7) months, three (3) weeks, and four (4) days. Pursuant to s 3(2) of the Criminal Justice (Sentences) Act 1986, I deduct the period spent in custody before sentence. The offender will serve the balance of then (10) months and three (3) days.
    
27. I find that suspension is not appropriate in this case. Ms Tessy Teine, from Probation Services, could not obtain the community's view because she could not locate the offender's residence. The arresting officer apprehended the offender on a warrant after he evaded police for nearly two years. These circumstances demonstrate the significant difficulty in effectively supervising the offender on a non-custodial sentence. The offender has no means to meet restitution, and there are no community views to support a non-custodial sentence.
    
28. The offender will serve the balance of the sentence of 10 months and 3 days at the Bomana Correctional Institution.

Orders

29. The Orders are as follows:
    
    1. The Offender is sentenced to 18 months imprisonment.
    2. Pursuant to section 3(2) Criminal Justice (Sentences) Act 1986 the pre-sentence custody period of 7 months, 3 weeks and 4 days is deducted.
    3. The offender shall serve the balance of 10 months and 3 days at Bomana Correctional Institution in light labour.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender