N11077

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 402 OF 2022

STATE

v

ANDREW WALIMAN

Waigani:    Salika CJ
2024:    5th, 16th, 17th, 18th & 24th April

Criminal Law – Practice and Procedure – Charges on two counts of false pretense – s. 404 of the Criminal Code – Sentencing considerations – Principles in sentencing – Need for deterrence – Appropriate sentence.

Cases Cited:
Lawrence Simke v The State [1994] PNGLR 38
The State v Tonai Kuse (2011) N4304
The State v. Michael Rende (2013) N5220
The State v Abel Airi (2000) N2007  
The State v Nickson Pari (No. 2) (2001) N2003

Counsel:
Mr T Kokents, for the State
Mr A Donigi, for the Prisoner

24th April 2024 

1.	SALIKA CJ: INTRODUCTION: Andrew Waliman pleaded guilty to two counts of false pretense namely:

1.	That between the 1st day of December 2020 and 31st day of March 2021, at Port Moresby in Papua New Guinea, by falsely pretending to Margaret Ugl that he had a copy of the true and genuine title to the property namely, Section 79 Lot 16 Boroko Port Moresby, obtained from Margaret Ugl monies in the sum of Three Hundred and Thirty Five Thousand Three Hundred Kina (K335,300.00) with intent to defraud, contrary to section 404(1)(a) of the Criminal Code.

2.	That between the 1st day of April 2021 and the 30th day of April 2021, at Port Moresby in Papua New Guinea, by falsely pretending to Daniel Goro that he had a copy of the true and genuine title to the property namely; Section 79 Lot 16 Boroko Port Moresby, obtained from Convenience Petty Cashier monies in the sum of Eleven Thousand Five Hundred Kina (K11,500.00) with intent to defraud, contrary to section 404(1)(a) of the Criminal Code.

FACTS

2.	The facts he was arraigned on and to which he pleaded guilty were:

Count One Facts:

1.	The State alleges that the property Section 79 Lot 16, Boroko, Port Moresby formerly belonged to the accused, Andrew Waliman.  It was sold by him to a company called Fountainhead Dwellings Limited for 1.2 million kina in the year 2020.  The title to the property transferred to Fountainhead Dwellings Ltd on 19 June 2020.

2.	The State alleges that after the Title had been registered under Fountainhead Dwellings Ltd, the accused presented a false Title for the abovementioned property to the complainant, one Margaret Ugl which showed that the property was mortgaged by the accused to Westpac Bank.  The accused verbally stated to Margaret that the bank had already discharged the mortgage and that he owned the property.  The accused did not inform Margaret that the property had been sold and registered in the name of Fountainhead Dwellings Ltd.

3.	The accused lied to Margaret about the true position of the property and she offered to pay 1 million kina for the property.  This agreement was reduced into writing and signed by both the complainant and the accused.

4.	The State alleges that between 16 December 2020 and 5 March 2021, the complainant paid the accused a total of K335,300.  A sum of K198,100.00 of this K335,300 sum was paid directly into the accused’s BSP bank account number 7011428062.

5.	After the complainant paid the accused a total of K335,300 she discovered that the title was registered in the name of Fountainhead Dwellings Ltd.

6.	The State therefore alleged that when the accused presented the Title of the property to Margaret Ugl on the pretext that it was a copy of the true and genuine Title to the subject property and still under his ownership, he had falsely pretended and obtained K335,300 from the complainant with intent to defraud and thereby contravened section 404 (1) (a) of the Criminal Code.

Count Two Facts:

1.	Convenience Petty Cashier (CPC) is a registered company that gives loans to eligible clients on a fortnightly basis at different interest rates.

2.	The property located at Section 79, Lot 16, Boroko, formerly belonged to the accused. The accused sold the property to a company called Fountainhead Dwellings Limited by the accused for 1.2 million kina in the year 2020.

3.	The State alleged that on 2 April 2021, the accused, Andrew Waliman, was introduced to Daniel Goro, the operations manager for CPC by one John Howa.  They went to Korobosea and Daniel Goro explained all the procedures and requirements for CPC loans and the accused understood and agreed.  He was told to provide security for the loan and in the loan agreement or Request form he nominated the property namely, section 79 Lot 16 Boroko as security for the loan.

4.	The accused gave a copy of a false document which purported to be a copy of the true and genuine title for the property.  Believing that the document was genuine, Daniel Goro facilitated the loan.  A loan of K5,000 was given to the accused by CPC.

5.	There were two other occasions from the first occasion where the accused had applied for additional loans from CPC, being the 4th April 2021 for an additional K5,000 and on the 8th of April 2021 for a loan of K1,500.  On all occasions he pledged the property namely, section 79 Lot 16, Boroko, as security for the loans.

6.	A total of K11,500 was loaned to the accused by CPC.  After receiving the monies the accused made no attempt to repay the loan and has not repaid the loan to date.

7.	When asked to repay the loans, he gave excuses and produced an invoice in the sum of K60,000 owed to him for payment for services rendered pursuant to the invoice.  He also said he was waiting for funds from overseas.

8.	After waiting for some time Daniel Goro reported the matter to the police on behalf of CPC and it was then that he discovered that the purported Title given by the accused to CPC as security was a false document in that he no longer owed the property he relied on as security for the loan.

9.	The State therefore alleges that when the accused falsely pretended to Daniel Goro that he had a copy of the true and genuine Title to the property namely, Section 79 Lot 16 Boroko, Port Moresby, and obtained from Convenience Petty Cashier monies in the sum of Eleven Thousand Five Hundred Kina (K11,500.00) with intent to defraud, he contravened section 404 (1) (a) of the Criminal Code.

ISSUES

3.	Having pleaded guilty to the charges, the Court’s duty now is to consider what punishment to impose on the prisoner.

THE LAW

4.	Section 404 (1) (a) creates the offence and the maximum penalty under the provision is 5 years imprisonment.  The prisoner pleaded guilty to the two counts of false pretence.  Each of the count carries a maximum penalty of 5 years.  The Court will consider whether the penalties should be served concurrently or cumulatively.

5.	The Court has a discretion to impose a sentence lower than the maximum prescribed pursuant to s. 19 of the Criminal Code and to determine whether the sentences should be served concurrently or cumulatively.

SENTENCING CONSIDERATIONS

Education Background

6.	The prisoner is educated to Masters level in Business Administration from the Australian National University (ANU) majoring in privatization and corporatization.   His first degree is a Bachelors Degree from the University of Papua New Guinea.

Family Background

7.	The prisoner continues to live at Section 79 Allotment 16,  Merrie England Street, Port Moresby.  He is originally from Torembi village in Wosera Gawi District, East Sepik Province.   His parents are both deceased and he is the eldest in his family of two brothers and a sister who has since passed on.  His younger brother lives in the village.

8.	His wife passed on leaving him with  5 children.  He remarried and has one child from that second marriage.  All his children are grown up, the eldest being 50 years old and the youngest being 24 years.  Some of his children live with him while others live their own lives.

Financial Status

9.	The prisoner now is in no position to make restitution if ordered to make restitution.  His children and relatives and friends are not able to help him and will not help him.

Views of complainant MARGARET UGL

10.	The prisoner showed one Margaret Ugl, a fake title of a property and she acted on that false title, believing the title to be genuine.  The property by then had been sold to Fountainhead Dwelling.  She made payments of K338,300.00 to the prisoner.  Margaret did a search on the property and found the property had been sold.  She demanded her money back from the prisoner without any success, thus the first count.  The complainant in the second count was not interviewed.

PRISONER’S PARTICULARS

11.	The prisoner is a 75 years old former senior Public Servant.  He served in senior management positions as Managing Director of Post PNG and Telikom and Managing Director of Small Business Development Corporation.  In his capacity as the Managing Director of those corporations, he was one of few government advisors who provided economic advice to the Governments of PNG.  He played a key role in pushing for privatization and corporatization of State entities like Air Niugini, Telikom PNG, PNG Power, B Mobile, Nicta, National Development Bank and Water PNG and the selling of the Papua New Guinea Banking Corporation (PNGBC).

12.	At present he does odd consultancy services when his services are needed and he is hired.  There are no proper records of those services and the payments he receives.

13.	The property he is currently residing in was purchased by Fountainhead Dwelling.  He entered into a buyback arrangement with the new owner and the new owner agreed and that he will buy back the property from Fountainhead Dwelling.  The new owner bought the property for K1.2 million and he previously owned, he will buy back and the property for K4.2 million.  One thing I am sure he is doing is that he is using the arrangements to make more money from a property he no longer owns.  He is being dishonest in his dealings.  He is in a scheme which he is using to rob unsuspecting people.  How he will repay them is a scam.  He will never repay them.  His purported overseas investment is in the same category as the Musingku money rain scheme and maybe a scam. 

14.	The Probation Officer did not get any views and information from Fountainhead Dwelling Limited in relation to the subject property.    I have read the depositions especially the statement of the Managing Director of Fountainhead Dwellings Limited Gajanan P. Barve.  I have decided to reproduce his statement regarding the subject property.  His statement reads:

“The said property was purchased from Mr Andrew Waliman last year for 1.2 million Kina (K1,200,000.00).  Since the purchase of the property, Mr Andrew Waliman have been requesting to stay at same property on rental basis until he finds a new accommodation to shift his belongings.  I have allowed this on humanitarian basis however, he failed to pay rent to date.  Later he came up with request that due to his nostalgic issues with property, now he would like to buy back and will buy at 4.5 million Kina (4,500,000.00) which he was unable to pay until today, in spite of some claims of he and his associates (Anthony Donigi and Mr Emmanuel) are expecting very large sum of money (to the tune of 1 Billion Kina) out of which it will be paid.

To date, this remains unpaid, however in the month of December, mid – December 2020, he again requested to allow him to stay till Christmas but then to my surprise, he handed in a Court Order (ex-parte) to allow him the time till 28 January 2021 to pay me 4.5 Million Kina (K4,500,000.00) and to let him stay in the property till then.  And after that, I have challenged this order (through Goiye Gileng Lawyers) which was (illegally/wrongly obtained without my knowledge and hearing) to stay in property which doesn’t even belong to him.  Unfortunately, there were some changes at Court with judges and later due to covid-19 issue, the dates were postponed till today.

In between, now I note that Mr Andrew Waliman did attempt to sell my property illegally to someone during this period and received monies, which is a matter of grave concern for me and also it amounts to criminal fraud.  I have no arrangement in place whatsoever with Mr Andrew Waliman to give him the property nor he has paid me a penny, in fact he owes me rental monies and now the legal cost and the compensation for the mental trauma caused.

Finally, this is to reiterate that Mr Andrew Waliman is overstaying in my said property illegally and for which we re now trying to take court action.  Please also note that the court order gave him until 20th January 2021 to remain in the property but he is still residing on it without my consent and continues to stay”.

15.	The prisoner talks of some off-shore investment he has made and says he is waiting for the return on that investment.  There is nothing in document form as proof of that investment.  Is this a scam?  I believe it is, unless he can show documents of the overseas investment and names of persons and companies he is dealing with.  He is in a dreamworld of his own, in my conclusion with respect.

Mitigating Factors

16.	The only mitigating factors I find in his favour are:

(i)	He is a first time offender;
(ii)	He pleaded guilty to both charges.

Aggravating Factors

17.	The aggravating factors against the prisoner are:

(i)	Very highly educated man.
(ii)	Using his experience and skills to defraud the complainant.
(iii)	He appears to be talking about an offshore investment facility which he is forever waiting for to arrive on PNG shores.
(iv)	He is talking about a buy back arrangement with Fountainhead Dwelling Limited but Fountainhead Dwellings Limited is not making any money from the prisoner by way of rentals.

SENTENCE

18.	The sentence to be imposed is dependent on the particular and peculiar circumstances of the case.  (See Lawrence Simbe v The State (1994) PNGLR 38).

19.	In that regard I take into account the factual circumstances of this case.  The prisoner is a retired former senior public servant.  He thinks he has a buy-back arrangement with Fountainhead Dwelling Limited that he will buy back the subject property for K4.5 million.  Where he will get that K4.5 million is not exactly known.  He has been waiting for his overseas investment funds for a long time.  It sounds like a money rain scheme.

20.	In any case Fountainhead Dwelling do not like what the prisoner is up to.  The prisoner tried to sell their property to Margaret Ugl unlawfully.  He put up the house as security, as if he was still, its owner to secure small loans from unsuspecting loaners of money, in this case Convenience Petty Cashier.

21.	It seems to me, with respect, that the more he continues to live in the subject house the more mischief he will get himself into.  

22.	The prisoner is now 75 years old and he is still living in the property he has already sold.  He, however is of the belief that he will buy it back from the vendor.  That belief in my opinion is not founded on a solid ground.  The arrangement he has with the vendor is that he will continue to live there and pay rentals to the vendor.  He has not paid any rent for living in the property since he sold the property thus adding and increasing his debt.  To me with respect he is unnecessarily holding onto the property.  He sold the house for K1.2 million in June of 2020.  K1.2 million is a lot of money, what did he do with it so quickly?    This is because in December 2020, he offered the house to Margaret Ugl to buy.  She fell for his sweet talk and paid K335,300.00 to the prisoner.  Again, what did he do with that money?  He says in his record of interview with police Questions 35, 36, 37, 38, 39 and 40 that he invested in commodity trade in high yield money market from which he is expecting a return.  He started investing in that trade in 2018 and said he traded in Gold and Pearl Diamond.

23.	In my own mind I do not know if I can believe him on his assertions in the Record of Interview about the foreign investments.  The police officer did not probe more into this for him to produce documents of such investments.  There is no way this Court can verify his claim of a commodity investment.  However he could be waiting for ever and ever.  This is because there is nothing from the overseas source when the dividend will be paid.  At the same time he is getting older.  How much longer is he going to wait and is prepared to wait.  Till when?

24.	Margaret Ugl paid him a lot of her money to purchase the property only to find out later that she had been defrauded.   

25.	The prisoner although well educated does not appear with respect, to appreciate the fact that he has taken K335,300.00 of Margaret Ugl’s money by fraud and that he used it and now cannot pay it back.  He has done the same to Convenience Petty Cashier and fraudulently taken their K11,500.00 which he now cannot repay. To me with respect, the way the prisoner is using his former property to defraud unsuspecting people of their money is a serious concern.  He cannot continue to live that kind of lifestyle.  The Court must put a stop to this evil.

26.	Margaret Ugl wants her K335,300.00 back but how can she get it back?  The prisoner is in no position to restitute.  Convenience Petty Cashier needs its K11,500.00 back, but how can they get it back?  The Court is mindful of the need for restorative justice but the prisoner is incapable of restoring the money to the victims.  The Court is also mindful of the need for retribution, but if it was to send the prisoner to prison, how will it help for the victims to be restored to their original positions unless they take out a civil suit against him.  The victims need justice, most of all to get all their money back.  The prisoner is in no position to restore their money and time is getting shorter and desperate for the victims.  The prisoner is not young and is unemployed.

27.	There is also a need to incapacitate the prisoner from doing what he has been unlawfully doing over a long period of time and to deter him from causing further harm to other unsuspecting members of the society.  Sentencing is not an easy thing.  It is a tedious task.

28.	I am mindful of the need for the prisoner to be prevented from doing further unlawful acts.  In that regard, the prisoner must be punished for his wrongful actions to deter him and deter others from committing such crimes.  The victims in this case deserve justice.

29.	I take into account the prisoner’s mitigating factors and take into account all the aggravating factors in considering the appropriate sentence.  No extenuating circumstances exist in the matter.  No allocutus statement and his lawyers submission in mitigation.  I also take account the pre-sentence report and the means assessment report.

30.	Considering all the factual circumstances of the case, I sentence the prisoner to five years imprisonment in light labour in relation to the first count.  In relation to the second count I sentence him to two years imprisonment in light labour.

31.	The next question is should the sentences be served concurrently or cumulatively?  Again, at the outset, the prisoner is 75 years old.  By PNG standards he is old.  Age can be a mitigating factor.  See The State v Tonai Kuse (2011) N4304 and The State v. Michael Rende (2013) N5220.  However, old age argument will only come into play where the prisoner’s conduct relating moral culpability is reduced by reason of old age or the prisoner’s judgment was impaired by reasons of old age or senility.  This is because the basis of the criminal justice system and any penalty to be imposed is most often depended on the prisoner’s culpability.  See The State v Abel Airi (2000) N2007.  In this case, the prisoner is the only person solely and personally responsible for his actions which he must be held accountable for.  See The State v Nickson Pari (No. 2) (2001) N2003.   It will take him a long time to make restitution.  Each of the offence is a separate event.  Even after he committed the first offence, he was prepared to keep living a life of fraud and deceit.  The long arm of the law has finally caught up with him.

32.	A long cumulative sentence will crush him in my respectful view.  The five years for the first count and the two years for the second count will be served together.  No part of the imprisonment will be suspended.

33.	The prisoner will end up serving five years altogether in total unless he can somehow make full restitution to both set of victims.  If he makes full restitution from his overseas investment, the entire sentence of five years will be suspended.

34.	In light of factual circumstances, other matters I have said by way of the sentencing principles like to deter him from further re-offending and to put a stop to his propensity to use the property in the way he has been doing, I make the following orders:

1.	The prisoner is sentenced to five years imprisonment for the first count.

2.	The prisoner is sentenced to two years for the second count.

3.	The sentence of five years imprisonment for the first count and the sentence of two years imprisonment for the second count are to be served concurrently.

4.	The prisoner will serve 5 years imprisonment.

5.	The entire 5 years imprisonment will be suspended upon payment of restitution to the victims Margaret Ugl and Convenience Petty Cashier.

6.	The prisoner, in the circumstances, upon imprisonment will vacate the property, Section 79 Lot 6, Boroko or Korobosea, permanently as the subject property no longer belongs to him.  Any of the prisoner’s family members residing with him in the subject property are ordered to vacate the said property for Fountain Head Dwelling Ltd to have vacant possession of the property.

7.	Fountainhead Dwellings Ltd which now has title to the property is to take vacant possession of its property without any hinderance forthwith.

8.	The prisoner, his servants or agents are restrained from taking out any restraining orders against Fountainhead Dwellings Ltd in the process of taking vacant possession of its property.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Donigi Lawyers: Lawyers for the Prisoner