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State v Solien [2012] PGNC 26; N4665 (11 May 2012)

N4665

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 291 OF 2011

THE STATE

V

TRISTER SOLIEN

Waigani: Makail, J
2012: 09th & 11th May

CRIMINAL LAW - Plea - Sentence - Obtaining goods by false pretence - Real property - First offender - Remorseful - Genuine reason for committing offence - Securing property for accommodation for herself and children following death of de facto husband - Prevalence of offence - Some degree of pre-planning - Not a worse case - Wholly suspended sentence appropriate - Wholly suspended sentence of 2 years imprisonment imposed - Offender entered into own recognizance with surety and placed on good behaviour bond - Cash bail converted to surety - Criminal Code, Ch 262 - Sections 19 & 404(1)(a).

Facts

The offender pleaded guilty to a charge of obtaining goods by false pretence under section 404(1)(a) of the Criminal Code, Ch 262. She lived with her de facto husband on a property at Korobosea in Port Moresby. Following his death, she falsified a contract of sale and had the title of the property transferred to her son who was at all material times a minor of 12 years. In mitigation, it was submitted among other grounds that, she did that because she was worried about her and her three children's plight associated with the risk of being left homeless after her de facto husband died.

Held:

1. Under section 404(1)(a) of the Criminal Code, Ch 262, the offence of obtaining goods by false pretence carries a prescribed maximum penalty of a term of 5 years imprisonment.

2. The plight of the offender and her three children associated with the risk of being left homeless following the death of the offender's de facto husband is a strong mitigating factor and significantly reduces the seriousness of the offender's culpability.

3. Taking into account that there is a dispute over the property and other matters operating in favour of the offender, this was not a worse case of obtaining goods by false pretence and the maximum penalty of a term of 5 years imprisonment was not appropriate.

4. A wholly suspended sentence of 2 years imprisonment was imposed and offender was ordered to enter into her own recognizance and be of good behaviour for that period with surety to the equivalent sum as her cash bail. Her cash bail was converted to surety.

Cases cited:

Goli Golu -v- The State [1979] PNGLR 653
Wellington Belawa -v- The State [1988-89] PNGLR 496
Public Prosecutor -v- Don Hale (1998) SC564
The State -v- Geko Kekao & Alex Niviha: (Unnumbered & Unreported Judgment of 14th April 2011)

Counsel:
Mr D Kuvi, for the State
Ms R Endemongo, for the Offender

SENTENCE

11th May, 2012

1. MAKAIL, J: Trister Solien, you pleaded guilty to a charge of obtaining goods by false pretence under section 404(1)(a) of the Criminal Code, Ch 262. This offence carries a prescribed maximum penalty of a term of 5 years imprisonment.

2. You were formerly in a de facto relationship with one Francis Douglas Solien. You came to live with him and his younger brother John William Ford between 1987 and 1988. John was also Francis' adopted son. You all lived on a property known as section 72, allotment 8, Kuku place, Korobosea in the National Capital District. In 1998, Francis had a heart attack and died. Sometimes after his death, you approached the National Housing Corporation ("NHC") and entered into a contract of sale for the property and had it transferred to your son Franzuer William Solien.

3. The property was sold at a lesser price because there was no valuation done prior to its sale and that you used your son Franzuer as the purchaser and represented to the NHC that he was a public servant when at all material times, he was a minor of 12 years. John discovered the transfer of title to Franzuer when he made inquiries at the NHC. He reported it to the police and you were subsequently arrested and charged with this offence.

4. Your lawyer Ms Endemongo submitted your case is not a worse case of obtaining goods by false pretence. Thus, you should not be given the maximum penalty of 5 years imprisonment. The State prosecutor Mr Kuvi concedes this point in submissions. The law is that the maximum penalty is reserved for the worst cases: Goli Golu -v- The State [1979] PNGLR 653. The Court has discretion under section 19 of the Criminal Code, Ch 262 to impose a lesser sentence and in the exercise of this discretion, I accept a lesser sentence is appropriate in your case. The question is, what would be the appropriate sentence?

5. Ms Endemongo submitted a wholly suspended sentence of 2 and a half years imprisonment is appropriate and advanced a number of grounds to support this submission. Mr Kuvi does not oppose a term of 2 years imprisonment but points out that a number of aggravating matters are apparent in your case such that a wholly suspended sentence is not appropriate.

6. The case of Wellington Belawa -v- The State [1988-89] PNGLR 496 is a useful guide on sentence in dishonesty cases. The offence you have committed involves dishonesty and so, I will use that case as a guide to determine an appropriate sentence in your case. Some of the matters that may apply in your case are the amount taken or value of property taken, degree of trust, pre-planning, use of property and effect on the victim.

7. It is true and I accept Mr Kuvi's submission that the offence you have committed is prevalent in our country and in the interests of justice, public interest demands that people who commit this offence must be punished severely. By so doing, it will send a strong message to others that they should not even attempt it because if they do and are caught, they will face the same consequence.

8. Equally important is the manner in which you committed the offence. I accept Mr Kuvi's submission that there was some degree of pre-planning. You knew the NHC was the registered proprietor of the property. According to the contract of sale, the property was being purchased by Francis through the Government Concession Home Ownership Scheme and when he died, there is no suggestion that you informed the NHC of this. What you did was, you represented to the NHC that Franzuer was a public servant and was interested in buying the property.

9. You proposed to purchase it at a price of K8,060.00. NHC accepted the proposal and transferred the title to Franzuer. At all material times, Franzuer was a minor of 12 years. That deal took a while to complete because the contract of sale was signed on 13th February 2002 and the transfer of title to Franzuer was registered by the Deputy Registrar of Titles on 11th October 2003, some 1 year and 8 months later. To my mind, these events demonstrate that you manipulated the system to get the property.

10. There is dispute in relation to the value of the property. Your lawyer submitted it was K8,060.00. This amount was the purchase price and the Court should accept it as the value of the property. Mr Kuvi submitted it was more than that because there is no valuation report to verify that amount as being the true value of the property at the time it was sold. I must give you the benefit of doubt since you have pleaded guilty to the charge where the only information available is the purchase price of K8,060.00. I accept that as the value of the property.

11. Using the scale of sentences set out in Wellington Belawa's (supra), as the value of the property is K8,060.00, your case would fall into the second category of such cases because the value of the property falls between K1,000.00 and K10,000.00. The term of sentence in such cases is 2 years imprisonment. This period of time is what your lawyer and Mr Kuvi had suggested should be the length of time you should serve in prison. I am satisfied a head sentence of 2 years imprisonment is appropriate.

12. You had a reason for committing the offence. It was the plight of your children after their father Francis died in 1998. You were worried that they would not have a house to live in and you did everything within your means to secure the property for them. In his submissions, Mr Kuvi concedes that the prejudice to your children's welfare, in particular shelter is a consideration that significantly reduces the seriousness of your culpability. It is apparent you did not want John to inherit the property following the death of Francis. He also wanted the property and that is why he reported you to the police when he found out that the title had been transferred to Franzuer.

13. Out of the relationship with Francis, you have three children. They are Franzuer, Tamara and Fraser. Franzuer is the eldest and is now 21, Tamara is now 18 and Fraser is 16. You had good intentions. All you wanted was to secure a home for your children. These days, living in the city of Port Moresby is tough, especially if one does not have a house. It is common knowledge, many of our people living in Port Moresby live in settlements or with relatives who have houses because they are unable to either afford rent or buy one. Rental costs and property prices have sky rocketed in recent times. High costs of housing make living in Port Moresby very tough. If people are doing it tough out there, I can imagine for a single parent like you, it must be even tougher. I am satisfied you had a genuine reason for doing what you did. In my view, your plight and that of your three children associated with the risk of being left homeless following the death of your de facto husband is a strong mitigating factor and significantly reduces the seriousness of your culpability.

14. In addition, you have pleaded guilty to the offence. This has reduced the time and costs of having you tried if you had denied it. You also apologised. To me, when you apologised, it was an outward expression of remorse for what you did. I accept your apology. You are also a first offender. The antecedent report presented by the State confirms this. There is no suggestion that you are a habitual criminal or you will reoffend in future. Similarly, your personal background as recited briefly by your lawyer in submissions demonstrates that you had a solid upbringing and lived a flawless life until you committed this offence. In other words, you are not a bad person. These matters are important because they support your lawyer's request for a wholly suspended sentence. Usually, when a request for a suspended sentence is made, the Court will require a pre-sentence report to assist it to determine whether an offender is a suitable candidate for a suspended sentence: Public Prosecutor -v- Don Hale (1998) SC564.

15. In your case, there is no pre-sentence report presented to support your request for a wholly suspended sentence but based on the matters I have mentioned above, I am satisfied a suspended sentence is appropriate. In addition, there is no serious breach of trust. While you are a sister in law to John such that there is a relationship of trust between you and him, both of you were equally entitled to the property in as much as your children. You lived with Francis in a de facto relationship from 1988 until 1998 when he died. For these years, you would have attended to the household chores including raising the children. I would have thought the property would have been given to you and your children without much fuss. Sadly though, it appears there is a disagreement. So you ended manipulating the system to get it.

16. I reject Mr Kuvi's submission that you solely benefited from Francis' estate by collecting his final service entitlement from his employer after he died. I also reject his submission that you have moved out of the property and put it up for rent and are collecting rent from your brother in-law who is currently occupying it. These submissions were advanced to show that the victim in the whole controversy is John. I reject these submissions because there is no evidence supporting them. On the other hand, it is not disputed Francis died interstate. That means, he died without leaving a "Will". A Will is a document which contains a person's wish on how his personal and real property should be distributed or who should benefit from them and who should be responsible for distributing them when he dies. The person responsible for distributing them is referred to as an "executor".

17. If there is no Will, an application must be made to the National Court to appoint a person to take charge and distribute them. This person is referred to as an "administrator". It is also not disputed following Francis' death, no-one was appointed administrator of his estate. If one had been appointed, by law, this property would have been given to the administrator to determine who should receive it. This was not done and whether it was deliberate or out of ignorance, this has resulted in you committing this offence. Taking into account that there is a dispute over the property between you and John and those matters operating in your favour, I wholly suspend the head sentence of 2 years imprisonment. In suspending the sentence, I should remind you that this is not an act of leniency. On the other hand, I am sure you will have by now understood the enormity of your action and will not repeat it in future.

18. Mr Kuvi further submitted in addition to the head sentence that the Court will impose on you, it should order the return of the property to the NHC. He relied on a decision of the National Court in The State -v- Geko Kekao & Alex Niviha: (Unnumbered & Unreported Judgment of 14th April 2011) to support this proposition. He was unable to provide a copy of that decision for the Court's consideration.

19. However, based on what he submitted in that case, the two offenders were convicted after a trial for among others, uttering of documents. They were found guilty of altering meeting minutes of Goroka Rural Local-level Government. The altered meeting minutes stated that Goroka Rural Local-level Government had resolved to sell portions of land within Goroka Town market to a third party. Based on that, the titles of the portions of land were transferred to the third party. In addition to imposing a head sentence of below 5 years imprisonment on the two offenders, the Court ordered the return of the portions of land to Goroka Rural Local-level Government.

20. In your case, the registered proprietor of the property is Franzuer. Apart from referring the Court to that case, Mr Kuvi has not referred to the Court's power to order the return of the property to the NHC. In the absence of that and that the property is now registered in Franzuer's name, I am not satisfied I should order the return of the property to the NHC.

21. In the end, it is the judgment of the Court that you are sentenced to a term of 2 years imprisonment in hard labour. That sentence is wholly suspended and you shall enter into your own recognizance and be of good behaviour for that period and give surety to the equivalent sum as your cash bail. Your cash bail shall be converted to surety.

Offender sentenced accordingly.
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Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Offender