DC1010

PAPUA NEW GUINEA
In the Grade V Court of Criminal Jurisdiction

Case Number GFC 36 of 2008

BETWEEN:

KEKE GURE
(Informant)

AND:

REX HAGA
(Defendant)

MADANG: M SELEFKARIU, PM
2008: 14 August- 15 December
2009: 9 January

CRIMINAL: Offence of false pretence-Sentence- Obtained K850.00 with intent to defraud owner when he misappropriated the money- Plea of guilty- Defence submits the Wellington Belawa sentencing guidelines be applied and ask for suspended sentence- Court ordered means assessment report with the hope of restitution and report recommends offender suitable for probationary supervision and his willingness to settle the amount owing upon instalment payments- 12 months suspended sentence imposed with terms- Criminal Code Act, s. 404 (1) & s. 19.

CASES CITED:

Wellington Belawa v The State [1988-1989] PNGLR 496
The State v Eric Emmanuel (unreported) (24/ 07/ 02) N2252
The State v Louise Paraka (unreported) (24/01/02) N2317 

Counsel

Sergeant N Pitu of Police Prosecution for State 
Mr. D Joseph for Defendant 

JUDGMENT ON SENTENCE

9 January 2009

SELEFKARIU, PM: You have pleaded guilty to your charge for obtaining K850.00 using false pretence with intent to defraud the owner of the property in the money for which you used them for your own use.

Through your counsel you submitted a plea of guilty and including the prosecution have addressed the court on sentence.

According to the facts you obtained the money from the owner or victim when you advertised for some business accounting course you offered for the public to enrol. You knew then that you used that to trick persons like the victim for which you successfully benefited. You went into hiding for two months until police arrested you on 2 April 2008. You have been in custody since your arrest and you have not repaid the money to the victim. 

In your submissions and through your counsel you asked for the court to use the Belawa sentencing principle to determine your sentence.

I have mentioned in my earlier judgements of similar cases that as an inferior court I am bound to follow the precedents set by the superior court. 

The Belawa principle in Wellington Belawa v The State (supra) stands on the proposition that like cases for misappropriation this type of offence for obtaining property by false pretence and cheating have common factors as to sentence. The case provides guidelines to guide the courts to determine sentence subject to the various factors enunciated therein.

I will discuss the facts of your case as against the factors in the Belawa principle.

In your case you received a total of K850.00 from two instalment payments from the victim.

Your deceitful means paid off when that induced the victim to part with his money a factor which shows your criminal mind and indeed quite aggravating.

That places some concern for public safety especially the vulnerable and less fortunate ones. If anything and subject to the background of the victim, where, should he comes from an area with little services like schools, hospitals, roads and transport etc your action would be quite detrimental on the victim. 

You pleaded guilty which is considered an act of contrition and remorse but had you made restitution immediately after the detection of your trick that would be viewed as genuine remorse.

On record you have no prior conviction and that places you as a first offender.

In your special case you spent considerable time in custody till today. 

In Belawa the court produced a scale of sentences as submitted in your submissions. The purpose of which is to be used as guide and I can adjust your sentence upwards or downwards subject to the various factors of your case.

You obtained K850.00 and used the money for your own personal use. 

Using the scale of sentences in Belawa the amount you received and misappropriated falls within the first category which attracts a sentence for one year imprisonment.

You also submitted that you spent more than 9 months in custody awaiting trial.

You also relied on a number of case laws eg. The State v. Eric Emmanuel (supra) and The State v. Louise Paraka (supra). 

These cases represent the trend in which the courts have decided to impose sentences for terms of imprisonment and wholly suspended them for similar offences.

In summary the prosecution submits that such an offence for which you stand charge deserves a custodial sentence because of its prevalent and the effect it has on the victim and the community. They submitted that the sentence must have a deterrent effect on you and the public. 

In consideration of your submissions and the principles of law I accept the position that offences of this nature are quite prevalent and deserve stronger punishment in order to deter the offender and the community at large.

Recent reforms in our laws promulgate the need for restorative justice in order to give the victim some consideration and prominence in our criminal justice system.

Incarceration of offenders has been the aged old form of punishment restraining the offender from the community for sometime but paid no attention to the victim. 

Orders like restitutions are viewed to be very appropriate in order to try and restore the victim to his original position before the commission of the offence.

Having considered both the aggravating and mitigating factors, I am satisfied that your case deserve custodial sentence.

However you have spent some considerable time in custody and to continue to hold you there do not afford you the opportunity to find money that you owe to the victim and to make a restitution which means the victim remains worst still even though you have been punished.

It is therefore appropriate that your sentence be suspended so that you can with the help of your family and relatives put together the amount of money you owe to the victim and make the restitution. 

Accordingly I am empowered under section 19 of Criminal Code Act to suspend your sentence which I have decided that your case warrants such an action.

I consider your case to be similar to the case of Andrew Tukiki; one of my recent judgements except for the amount owing for which yours is lesser and in Tukiki’s case the transaction was a normal act of commerce in which the defendant took advantage of.

In that case Tukiki received a cheque for the purchase of a 2000 litres fibre glass water tank but did not deliver the tank as promised. Upon police intervention he repaid a portion of the money in the cheque which he had cashed and used them for his own use. He was sentenced to 18 months suspended with terms and as one of the conditions of his order for probation is to repay the money owing upon instalments.

In my view if I sentence you to a term of imprisonment will act as deterrence to you and others as the trend for this type of offence is unacceptable and distasteful to say the least. In doing so will restore some sense of safety in the public mind and confidence that the law is here to protect them especially the vulnerable ones. However in consideration of the factors in your mitigation including your special circumstance for spending time in custody your final sentence has been considered on that basis. 

Accordingly I convict you and sentence you to 12 months imprisonment but suspend the whole of its execution on condition that you enter into recognition for two years probation with the following conditions:

1.	That you shall keep peace and be a good behaviour for the whole of your probation period.

2.	That you shall pay as restitution to the victim in the sum of K850.00 which shall be paid upon instalment at the rate of K150.00 per fortnight commencing 6 February 2009 and shall continue thereafter until the final balance is settled. A payment schedule shall be kept by the Probation Service Office in Madang and shall be put before court upon demand.

3.	That you shall not leave Madang Town until you comply with condition (2) of this order.

4.	That should you breach any of the above conditions you shall be committed to serve the full term of your suspended sentence minus the time spent in custody.

__________________________
Police Prosecution for State
Lawyers for Defendant: Paul Paraka Lawyers