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State v Tengdui [2014] PGNC 197; N5827 (1 December 2014)

N5827


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) No.50 of 2014
CR (FC) No.51 of 2014
CR (FC) No.52 of 2014
CR (FC) No.53 of 2014
CR (FC) No.54 of 2014
CR (FC) No.55 of 2014
CR (FC) No.56 of 2014
CR (FC) No.57 of 2014
CR (FC) No.58 of 2014
CR (FC) No.59 of 2014
CR (FC) No.60 of 2014
CR (FC) No.61 of 2014
CR (FC) No.62 of 2014
CR (FC) No.63 of 2014
CR (FC) No.64 of 2014


BETWEEN:


THE STATE


AND:


MARY TENGDUI
Prisoner


Mt. Hagen: David, J
2014: 11 & 21 November & 1 December


CRIMINAL LAW – sentence – obtaining goods by false pretences or wilfully false promise – fifteen counts – pleas of guilty – Criminal Code, Section 404(1)(a).


The prisoner pleaded guilty to fifteen counts of obtaining a total of K46,650.00 from fifteen victims by false pretence. The victims were all simple villagers and relatives. The prisoner, a well educated person who was self-employed as a freelancer obtained K3,110.00 from each of the victims and undertook to assist them in making travel arrangements including the purchase of their airline tickets, passports, visas, medicals and identification documents for them to travel to Australia and work as seasonal workers and make big money. Due to a change in National Government policy as to recruitment requirements, she was unable to fulfil her undertaking. Of the total of K46,650.00 the prisoner obtained from the victims, she repaid K25,300.00 which was distributed amongst the fifteen victims, but failed to settle the balance of K21,350.00 and was apprehended and charged as a consequence.


Held:


(1) A sentence of three years imprisonment in hard labour was imposed for each count to be served concurrently.

(2) The remand period was deducted and the whole of the remaining term suspended on terms.


Cases cited:


Public Prosecutor v Tom Ake [1978] PNGLR 469
Goli Golu v The State (1979) PNGLR 653
Public Prosecutor v Thomas Vola (1981) PNGLR 41
Avia Aihi (No.3) v The State (1982) PNGLR 92
Ure Hane v The State (1984) PNGLR 105
Public Prosecutor v William Bruce Tardrew (1986) PNGLR 91
The State v Frank Kagai (1987) PNGLR 320
John Elipa Kalabus v the State (1988) PNGLR 193
Wellington Belawa v The State (1988-89) PNGLR 496
Lawrence Simbe v The State (1994) PNGLR 38
The State v Paul Takesi (1997) PNGLR 507
The State v John Kil (2000) PNGLR 253
Doreen Liprin v The State (2001) SC 673
The State v Sam Pipi (2004) PGNC 197, N2574
The State v Jack Ostekal Metz (2005) N2824
The State v Morris Yepin (2005) N3503
Saperus Yalibakut v The State (2006) SC890
The State v Dominic Kurai (2008) N3435
The State v Gaibole Dickson Larry (2011) N4455
The State v Joseph Sape (2013) PGNC36, N5096
The State v Angela Tokonai (2012) N4679
The State v John Bolkun (2012) N4689
The State v Ivan Bob (2013) N5382
The State v Larry Dickson, CR No.866 of 2013, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 12th of August 2014
The State v Dorcas Boski (2014) N5814, PGNC161
Counsel:


Mercy Tamate and Joe Kesan, for the State
Edward Sasingin, for the Prisoner


SENTENCE

1st December, 2014


1. DAVID, J: The prisoner, Mary Tengdui was indicted with fifteen counts of obtaining money totalling K46,650.00 by false pretence pursuant to Section 404(1)(a) of the Criminal Code. Upon arraignment, she pleaded guilty to all fifteen counts and was convicted accordingly.


2. I set out all the fifteen counts below.


"Count One:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to TEP KINTIP by promising to purchase and arrange official travel documents for TEP KINTIP to travel and work in Australia and obtained from him THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Two:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to LUCY ARIS by promising to purchase and arrange official travel documents for LUCY ARIS to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Three:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to CATHY MICHAEL by promising to purchase and arrange official travel documents for CATHY MICHAEL to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Four:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to NOKI PETER by promising to purchase and arrange official travel documents for NOKI PETER to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Five:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to ANGELA NICKSON by promising to purchase and arrange official travel documents for ANGELA NICKSON to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Six:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to SENT ONDA by promising to purchase and arrange official travel documents for SENT ONDA to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Seven:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to EKI MOKA by promising to purchase and arrange official travel documents for EKI MOKA to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Eight:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to MARIA BIANG by promising to purchase and arrange official travel documents for MARIA BIANG to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Nine:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to CATHY JAMES by promising to purchase and arrange official travel documents for CATHY JAMES to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Ten:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to NORMA KAR by promising to purchase and arrange official travel documents for NORMA KAR to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Eleven:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to DOROTHY JOLANGA by promising to purchase and arrange official travel documents for DOROTHY JOLANGA to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Twelve:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to KINGGI DANIEL by promising to purchase and arrange official travel documents for KINGGI DANIEL to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Thirteen:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to ROSE STEVEN by promising to purchase and arrange official travel documents for ROSE STEVEN to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Fourteen:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to JULIE KUK by promising to purchase and arrange official travel documents for JULIE KUK to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud.


Count Fifteen:


MARY TENGDUI of KALA VILLAGE, HAGEN CENTRAL, WESTERN HIGHLANDS PROVINCE stands charged that she on dates unknown between the 1st day of March 2012 and the 30th day of June 2012 at Maip village, Western Highlands Province in Papua New Guinea falsely pretended to BETTY MAWA by promising to purchase and arrange official travel documents for BETTY MAWA to travel and work in Australia and obtained from her THREE THOUSAND ONE HUNDRED AND TEN KINA (K3,110.00) in cash with intent to defraud."


  1. The prisoner was arraigned with these brief allegations. On an unknown date during the month of March 2012, the prisoner went to Maip village in the Kelua No.1 area in the Hagen Central District and announced to the villagers there that she had connections with agents in Australia who employed seasonal workers. She purposely went to Maip village to look for interested individuals whom she would assist in making travel arrangements for them to travel to Australia as seasonal workers and make big money. About fifteen villagers (the victims) were convinced by the prisoner and agreed to engage in this arrangement. The prisoner then told the victims to pay K3,000.00 each to register and that this money would be used to purchase their airline tickets, passports and visas. All the victims did as the prisoner had said and an aggregate amount of K45,000.00 was collected by the prisoner and taken to Port Moresby. However, two months later, during the month of June 2012, the prisoner returned to Maip Village and collected another K110.00 each from the victims. She told them that this additional cost was for her to fix their medical certificates and identification documents. Soon after taking this money from the victims, the prisoner fled to Port Moresby and did not make any attempt to contact the victims and advise them on the progress of their travel arrangements. The victims themselves could not make contact with the prisoner as her mobile phone was switched off when contacted.
  2. Over a year later on the 6th of September 2013, the prisoner with the help of her brother, made a payment in the sum of K25,300.00 to the victims as part-reimbursement of monies taken from them. However, the prisoner did not promise or make an undertaking to pay the balance or outstanding monies owed to the victims.

5. The prisoner has no prior convictions.


6. On her allocutus, the prisoner admitted committing the offences, but said over K25,000.00 was repaid towards the end of last year. She said prior to her apprehension, she was living and working in Port Moresby. She went on to say that she was truly sorry to the victims and their families who were her relatives and to the community leaders and the Court for what was a genuine exercise at first, but turned out the way it did because of the change in the National Government policy in relation to the recruitment of seasonal workers to work in Australia, for example, applicants must be aged 35 years or below. She said none of the victims met any of the requirements. She pleaded for mercy and requested that she be given a non-custodial sentence in order to effect restitution of the money she has not repaid.


7. After administering the allocutus, Mr. Sasingin for the prisoner requested for a pre-sentence report and a means assessment report to be compiled and filed by the Probation Service, Mt. Hagen which I granted. The Probation Service through Ms Lilly Songoa, Probation Officer has compiled and filed these reports and I commend her for the reports.


8. The prisoner's Record of Interview conducted by Senior Constable Freda Pae at the National Fraud & Anti-Corruption Office, Konedobu, Port Moresby in the National Capital District on the 13th of November 2013 and attended by Senior Sergeant Gabriel Haus as corroborator contains admissions.


9. Since the prisoner pleaded guilty, she will be given the benefit of the doubt on mitigating matters that are raised in the depositions, the allocutus or in defence submissions that the prosecution does not contest: Saperus Yalibakut v The State (2006) SC890.


10. The prisoner is originally from Kala village, Mt. Hagen in the Western Highlands Province. She was born on 25th of December 1956 at Ogolbeng, Hagen Central, Western Highlands Province. She is aged 57 years now so at the time she committed the offence, she would have been aged over 55 years. Until her arrest and detention, she was residing at Tokarara, Port Moresby in the National Capital District where she has her own three bedroom house. The house is currently rented out. For almost a year now, she has been residing with her sister and her two children at Kelua village, Hagen Central in order to see to the completion of her case. She is one of nine siblings in her family. Her father who was a missionary with the Evangelical Lutheran Church of Papua New Guinea is deceased and is survived by her mother. She is married with three children in a polygamous relationship. Out of her two older children, one is a pilot with Air Niugini and the other is an Assistant Engineer with the Department of Works. The eldest child is aged about 31 years and the youngest child is aged 17 years and currently attends school. She has been living on her own with her children for the last seventeen years. She is a baptized member of the Evangelical Lutheran Church of Papua New Guinea. The prisoner is generally physically and mentally healthy. The prisoner attended primary school at the Ogelbeng Primary School from 1964 to 1969. From 1970 to 1973, she attended secondary school at the Pausa High School. She did some short accounting courses at the Mt. Hagen Technical College thereafter. In 1977, she obtained a bachelor's degree in Accounting and Business Studies at the University of Technology in Lae, Morobe Province.


11. From 1978 to 1984, she worked with the Department of Western Highlands and was attached with the Commerce and Industry Division as a Business Development Officer. She left that employment and was employed by the National Department of Commerce and Industry in Waigani, Port Moresby until 1990 when she resigned to do freelance work. She has been self-employed as a freelancer since that time.


12. The prisoner was arrested on the 13th of November 2013 and charged with fifteen counts of obtaining goods by false pretences. She was admitted to bail on the 22nd of November 2013. She was committed to stand trial in the National Court for all fifteen counts on the 2nd of May 2014.


13. I have considered the matters contained in the pre-sentence report and the means assessment report. The reports are favourable to the prisoner and they report, amongst other things, that; the prisoner does not have a steady income nor does she have any money on hand or in a bank account, but is capable of restituting the stolen money with the assistance of her two working children and from proceeds of rental of her house and freelance assignments she will be engaged in from time to time; the victims require restitution within seven days from date of sentence; and she currently resides near Mt. Hagen so access for purposes of Probation visitation and monitoring will not be difficult. It is therefore recommended that the prisoner be given a non-custodial sentence under the supervision of the Probation Service with conditions for restitution to be made within eighteen months and monies for such purpose be deposited into the National Court Trust Account and paid out for distribution to all the victims after the total amount has been paid in full and free community work of two hours every week at the Ogelbeng Parish for the duration of her probation.


14. At the hearing of submissions on sentence, Mr. Sasingin handed up a copy of the affidavit of the prisoner dated the 24th of September 2014, her written resume or personal profile dated 1st of September 2014 and a statutory declaration of Kintpul Mel dated the 6th of November 2014 which I have considered. It was submitted that considering the extenuating circumstances under which the offences were committed and the mitigating and aggravating factors present in this case, a sentence of two years for each count to be served concurrently and suspended with an order for restitution to be made within eighteen months of sentence would be appropriate.


15. Ms. Tamate for the prosecution on the other hand submitted that the peculiar circumstances of the present case supported by Victim Impact Statements obtained from three of the victims namely, Tep Kintip, Lucy Aris and Angela Nickson which I have considered warranted a sentence of three years to be imposed for each count to be served concurrently and that any suspension of the sentence be subject to full restitution.


16. What is the appropriate sentence for the prisoner?


17. The maximum prescribed penalty for the offence of obtaining goods or credit by false pretences or by a wilfully false promise under Section 404(1)(a) of the Code is imprisonment for a term not exceeding five years.


18. I will be guided by the sentencing guidelines in Wellington Belawa v The State (1988-89) PNGLR 496 and the starting point of 2½ years suggested by Cannings, J for sentencing for an offence under Section 404(1)(a) of the Code in The State v Dominic Kurai (2008) N3435 in settling an appropriate sentence for the prisoner. I adopted this approach in The State v Joseph Sape (2013) PGNC36, N5096; The State v Larry Dickson, CR No.866 of 2013, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 12th of August 2014; and The State v Dorcas Boski (2014) N5814, PGNC161. I also bear in mind the vast difference in the penalty regimes, i.e, the prescribed maximum penalties for the offence of misappropriation and the offence under consideration. The sentence in the present case will either be increased beyond the starting point or decreased depending on the numbers of aggravating and mitigating factors and the weight commanded by each of those factors.


19. In Wellington Belawa, the Supreme Court recommended that the following factors should be taken into account when determining what penalty to impose on an offender and these are:


  1. the amount taken;
  2. the quality and degree of trust reposed in the offender;
  3. the period over which the offence was perpetrated;
  4. the use to which the money or property dishonestly taken was put;
  5. the effect upon the victim;
  6. the impact of the offence on the public and public confidence;
  7. the effect on fellow employees or partners;
  8. the effect upon the offender himself;
  9. the offender's own history;
  10. whether restitution was made to the victim;
  11. matters of mitigation special to the offender himself, such as ill health, young or old age, effect of excessive nervous strain, co-operation with the police.

20. The case of Wellington Belawa recommended a tariff of sentences to be adjusted upward or downward depending on the various factors mentioned above. The Supreme Court said that where the amount misappropriated is between:


1. K1.00 and K1,000.00, a gaol term should rarely be imposed;

2. K1,000.00 and K10,000.00, a gaol term of up to 2 years;

3. K10,000.00 and K40,000, a gaol term of 2 to 3 years; and

4. K40,000.00 to K150,000.00 a gaol term of 3 to 5 years.


21. It is generally accepted now that while the factors set out in Wellington Belawa are still relevant, the tariff recommended is outdated and therefore there is a need to impose increased sentences due to the prevalence of the offence. However, the Court still has a considerable discretion under Section 19 of the Code to impose an appropriate sentence depending on the peculiar facts or circumstances of a particular case.


22. I apply the factors set out in Wellington Belawa to the circumstances of the present case in the order set out there in the following manner:


  1. a substantial amount was taken;
  2. there was a serious breach of trust;
  3. whilst there are multiple (15) victims in the present case, it is regarded as a one-off transaction;
  4. the prisoner applied the money dishonestly taken to her own use;
  5. the victims are all simple villagers, who had accumulated the money they gave away to the prisoner over a period of time and all have endured or suffered stress, anxiety and inconvenience over their individual losses;
  6. not applicable to the circumstances of the present case;
  7. not applicable to the circumstances of the present case.
  8. the prisoner was arrested, charged and brought over from Port Moresby to Mt. Hagen to answer the charges leaving behind his children and home in Port Moresby as a consequence;
  9. the prisoner has no prior convictions and was of previous good record;
  10. the prisoner has repaid K25,300.00 of the K46,650.00 she obtained from the victims and the balance of K21,350.00 has not been repaid;
  11. the prisoner cooperated with the police by making early admissions in the Record of Interview.

23. The factors which aggravate the offence therefore are:


  1. a substantial amount was taken;
  2. there was a serious breach of trust;
  3. the prisoner applied the money dishonestly taken to her own use;
  4. the victims are simple villagers, who had accumulated the money they gave away to the prisoner over a period of time and all have endured or suffered stress, anxiety and inconvenience over their individual losses;
  5. the prisoner has repaid K25,300.00 of the K46,650.00 she got from the victims and the balance of K21,350.00 has not been repaid;
  6. the prisoner is an educated and sophisticated person able to tell what was right from wrong;
  7. one of the victims, Tep Kintip had to travel to Port Moresby to pursue the matter with the prisoner incurring substantial costs in the process;
  8. there were multiple victims;
  9. the offence was prevalent.

24. The factors which mitigate the offences therefore are:


  1. whilst there are multiple (15) victims in the present case, it is regarded as a one-off transaction;
  2. the victims were all relatives;
  3. this was an early plea of guilty;
  4. the prisoner cooperated with the police by making early admissions in the Record of Interview;
  5. the prisoner made part-restitution;
  6. the prisoner expressed genuine remorse having pleaded guilty at her trial consistent with her early admissions (Public Prosecutor v Tom Ake [1978] PNGLR 469 and John Elipa Kalabus v the State [1988] PNGLR 193);
  7. the prisoner has no prior convictions;
  8. the prisoner has suffered and will continue to suffer personal and public shame and disgrace because of her conviction and sentence;
  9. the prisoner was of previous good record.

25. I will be treat as a neutral factor the fact that the prisoner was arrested, charged and brought over from Port Moresby to Mt. Hagen to answer the charges leaving behind his children and home in Port Moresby as a consequence.


26. I have considered the following cases where offenders have been convicted on pleas of guilty for obtaining goods or credit by false pretences or wilfully false promise.


27. In The State v Paul Takesi (1997) PNGLR 507, a lawyer employed by the Office of the State Solicitor who had assisted two claimants for workers' compensation in relation to the death of a brother in the case of the male claimant and husband to the female claimant. When the three cheques for the claim totalling K11,715.26 were ready, he collected them at the Office of Worker's Compensation at Waigani representing that he had authority from the claimants to collect them when he did not have such authority. He managed to cash a cheque drawn for K7,000.00 at TST Supermarket at Tokarara, Port Moresby by presenting a false identification card which had on it his photograph, but with the name of the payee of the cheque. He then bought goods from the supermarket to the value of K1,000.00 and obtained the balance of K6,000.00 in cash which he applied to his own use. He was convicted of two counts of obtaining goods by false pretences and a custodial sentence of two years imprisonment for each count to be served concurrently was imposed.


28. In The State v John Kil (2000) PNGLR 253, the prisoner, a former policeman, obtained K1,470 from the victim by false pretences. The prisoner had told a former colleague that he would be receiving K21,000.00 from his former employer as his termination entitlement and having convinced his colleague, the latter in turn convinced the victim to lend the money to the prisoner on the belief that the prisoner would repay the debt. After receiving the money, the prisoner disappeared and did not repay the debt. A sentence of eight months imprisonment wholly suspended on various conditions was imposed.


29. In The State v Sam Pipi (2004) PGNC 197, N2574, the prisoner was convicted of two counts, one for obtaining K500.00 by false pretences and the other for misappropriation of K500.00, the property of a financial institution. The prisoner was employed at the Police Headquarters at Konedobu, Port Moresby as the Accident Research Officer at its Traffic Section. He obtained a loan of K500.00 from the financial institution by completing a loan application form in the name of a police officer and having it signed with a forged signature. He had the loan application appear as if it were genuine and authentic and had been duly authorized by an authorized officer through the use of a false identification card bearing his facial image, but with false details including a false name, number and signature of the authorizing officer which he had produced using police facilities. A false Permanent Salary Variation Advise was produced and this enabled deductions of K135.00 to be made from the victim police officer's fortnightly salaries towards repayment of the loan. The prisoner only repaid K200.00 to the victim financial institution. The Police Department was also forced to recover the money for the victim police officer. The main aggravating factors there were; the degree of sophistication involved in producing the false identification card and execution of the crime; that he was an employee of the Police Department; and he had used police facilities to facilitate and commit the crime. For the count of obtaining money by false pretences, the prisoner was sentenced to one year imprisonment in hard labour and three months was to be suspended if the outstanding K300.00 were to be paid to the victim financial institution within twenty two days of sentence. For the count of misappropriation, the prisoner was sentenced to six months in hard labour. Both sentences were to be served concurrently.


30. In The State v Jack Ostekal Metz (2005) N2824, the prisoner falsely represented to the manager of a guest house in Madang that he was expecting payment in millions of Kina from the sale of Treasury Bills and the payment would be made by the Bank of Papua New Guinea directly into his bank account. Relying on this representation, the manager allowed the prisoner to obtain cash, was accommodated, had meals and drinks, took cigarettes and had extra guests at the guest house for a period of about eight months. The prisoner incurred a bill of K70,445.36 during this period which he was unable to settle when he checked out. A custodial sentence of three and half years imprisonment was imposed.


31. In The State v Morris Yepin (2005) N3503, the prisoner who was a correctional officer at Vanimo Correctional Institution gave the details of his account to family members of two prisoners for moneys to be remitted to those prisoners through his account. He received a sum of K300.00 and K200.00 respectively from the relatives of the two prisoners, but failed to deliver the said amounts to them. He was charged with two counts of wilfully making false promises. A non-custodial sentence of one year imprisonment was imposed on various conditions.


32. In Dominic Kurai, the prisoner obtained goods from a store in Kimbe worth K728.86 by false pretences when he used the order book of his former employer without authority. He was sentenced to one year imprisonment less the remand period and the balance of the sentence was suspended on various conditions.


33. In The State v Gaibole Dickson Larry (2011) N4455, the prisoner was convicted for obtaining K500.00 cash from a friend in Madang town by a wilfully false promise with an intention to defraud. The money was never repaid. A sentence of 2 years imprisonment was imposed. The pre-sentence custody period was deducted and the balance of the sentence was suspended on terms.


34. In The State v Angela Tokonai (2012) N4679, the prisoner falsely pretended to the victim that she had sufficient funds in her bank account and drew a cheque for K15,865.50 to pay him for sea cucumber. The victim presented the cheque, but it was dishonoured. The prisoner failed to make good the debt. She was convicted for the offence of obtaining goods by false pretences. A sentence of three years was imposed and was suspended in its entirety on terms including repayment of the amount taken by instalments.


35. In The State v John Bolkun (2012) N4689, the prisoner was convicted for obtaining K165,000.00 from the State through the Department of Works. The prisoner falsely claimed that he built and owned a permanent dwelling house with an adjoining canteen and a snooker table along a section of the Highlands Highway in the Simbu Province which were destroyed by a company engaged in the rehabilitation program whilst carrying out maintenance work. A sentence of 3 years imprisonment was imposed and was suspended in its entirety on terms including an order to restitute K165,000.00 within one year of sentence.


36. In Joseph Sape, the prisoner was a pastor with the Christian Apostolic Fellowship Church of Papua New Guinea at its Hagen Tech. congregation, Mt. Hagen. He obtained an identification card bearing his facial image, but with the name of another person called Tum Eresi who was also a pastor and the National Superintendent of the Christian Apostolic Fellowship Church of Papua New Guinea. Pastor Tum Eresi was the principal signatory to the account of the church operated at the Australia & New Zealand Banking Group (PNG) Limited with two other pastors. After obtaining the false identification card, the prisoner, made out withdrawal forms in various amounts, forged the signatures of the three signatories and withdrew a total of K3,485.00 at the Mt. Hagen and Lae Branches of the Australia & New Zealand Banking Group (PNG) Limited. A sentence of three years imprisonment less the pre-sentence custody period was imposed and the balance of the sentence was suspended on various conditions including an order for full restitution.


37. In The State v Ivan Bob (2013) N5382, the prisoner was convicted for obtaining K5,025.00 from the victim by false pretences. The prisoner was doing some maintenance work for the National Housing Corporation and he told victim that the house he was repairing was going to be sold to him for K19,000.00. He then obtained from the victim K5,000.00 as part-payment of the house and a further K525.00 for maintenance work to be done on the house prior to being occupied. The money was never repaid. A sentence of 2 years imprisonment was imposed and the sentence was suspended in its entirety on terms.


38. In Larry Dickson, the prisoner, in a period of about four months, approached three victims in Mt. Hagen promising that he would pay them 100% interest on money they lent him. He promised that their money would be used to facilitate the transfer of investment made overseas by his late father which investments were in the millions. He was charged with three counts of obtaining goods by false pretences. He got cash in the sum of K15,962.00 from the first victim (first count). He got property worth K700.00 comprising cash in the sum of K600.00 and store goods worth K100.00 from the second victim (second count). He got property worth in excess of K1,000.00 comprising cash in the sum of K700.00, fuel worth K300.00 as well as three live chickens from the final victim (third count). A sentence of 3 years was imposed for the first count. Sentences of 1 year each were imposed for counts 2 and 3. These sentences were to be served consecutively. Applying the totality principle, an effective sentence of 3 ½ years was ordered to be served by the prisoner.


39. In Dorcas Boski, the prisoner worked for Avis Rent A Car in Mt. Hagen. She obtained K16,000.00 from the victim for the payment of a vehicle which was put on sale. She altered company records and left her employment without concluding the sale. She repaid the victim K4,000.00, but failed to repay K12,000.00. She was indicted for obtaining from the victim K12,000.00 by false pretences. A sentence of 3 years was imposed less the remand period. The balance of the sentence was suspended in its entirety on terms including an order for restitution of K12,000.00 within six months of sentence.


40. As I have intimated already, in considering an appropriate sentence for the prisoner, I will be guided by the sentencing guidelines in Wellington Belawa and the starting point of 2½ years imprisonment suggested in Dominic Kurai. Under the sentencing guidelines recommended in Wellington Belawa, these offences fall into the second category where the tariff is a gaol term of up to two years.


41. The maximum penalty for the offence is usually reserved for the worst case. In my respectful view, the present case does not fall within the worst category for this offence: Goli Golu v The State (1979) PNGLR 653, Avia Aihi (No.3) v The State (1982) PNGLR 92 and Ure Hane v The State (1984) PNGLR 105.


42. In the exercise of my sentencing discretion, I am also guided by the trite legal principle that each case must be sentenced on its own set of facts and circumstances: Lawrence Simbe v The State (1994) PNGLR 38.


43. The aggravating factors and the mitigating factors are equal, but I consider the weight of the aggravating factors to be significant. As a consequence, taking into consideration all the peculiar circumstances of the present case, I consider that a sentence of 3 years imprisonment in hard labour for each count to be served concurrently will be appropriate.


44. The time in remand which is a period of 9 days shall be deducted in accordance with Section 3(2) of the Criminal Justice (Sentences) Act 1986.


45. The resultant length of sentence to be served will be 2 years, 11 months and 19 days (the remaining term).


46. Incarceration will be at the Baisu Correctional Institution.


47. Should I suspend the whole or any part of the remaining term? The pre-sentence report and means assessment report recommend a non-custodial sentence. The prosecution do not seriously object to the Court considering suspending the whole or any part of the remaining term, but submit that any suspension must be accompanied by an order for full restitution. The victims prefer that an order for restitution will be in order, but require payment within seven days from date of sentence and in default imprisonment. I have considered the principles of suspending sentences propounded in Public Prosecutor v Thomas Vola (1981) PNGLR 41, Public Prosecutor v William Bruce Tardrew (1986) PNGLR 91, The State v Frank Kagai (1987) PNGLR 320 and Doreen Liprin v The State (2001) SC 673 and I propose to suspend the whole of the remaining term on terms which I will set out later as it will promote; personal deterrence, reformation or rehabilitation of the prisoner; and the repayment or restitution of the money stolen.


48. The following conditions shall apply:


  1. an order for restitution of an aggregate amount of K21,350.00 by the prisoner is made;
  2. an additional amount of K1,000.00 shall be paid to the victims for the cost of Tep Kintip going to Port Moresby to pursue the matter with the prisoner;
  3. the prisoner shall within 12 months after the date of sentence pay to the victims through deposits made to the National Court Trust Account the total sum of K22,350.00 by 12 monthly instalments of K1,862.50 and the first instalment must be paid by or before the 1st of January 2015 and the rest monthly thereafter;
  4. moneys paid for the admission of the prisoner to bail totalling K1,500.00 shall be applied towards the first instalment payment;
  5. the funds held in the National Court Trust Account will be disbursed by cheque to a person nominated by the victims upon completion of the payment of K22,350.00 by the Assistant Registrar of the Mt. Hagen National Court in the presence of the Mt. Hagen Provincial Probation Officer and a magistrate from the Counselling Committee of Maip village.

6. the prisoner shall enter into her own recognizance without surety to keep the peace and be of good behaviour during the period of suspension;


7. the prisoner shall contact the Mt. Hagen Provincial Probation Officer within seventy hours after the passing of this sentence and thereafter as and when required by him or her;


8. the prisoner shall not change her residential address at Kelua, Mt. Hagen, Western Highlands Province unless she has given the Mt. Hagen Provincial Probation Officer reasonable notice of her intention to do so and the reason for the proposed change;


9. the prisoner shall not leave the Western Highlands Province without the leave of this Court during the period of suspension;


10. the prisoner shall, for the purpose of the Probation Act, allow a Probation Officer to enter her home during reasonable hours to monitor her compliance of these terms and to make such recommendations as the Probation Officer considers appropriate either for a variation or an implementation of these terms; and the Probation Service shall produce and furnish to the Court a report every three months until completion of the suspended sentence.


11. the prisoner shall provide free community service of two hours per day every government fortnight Friday during the first 12 months of the sentence at a public institution in Mt. Hagen to be determined and supervised by the Mt. Hagen Provincial Probation Officer.


12. if the prisoner breaches any one or more of these conditions, she shall be brought before the National Court to show cause why she should not be detained in custody to serve the remaining term.


49. A warrant shall issue forthwith to give effect to this sentence.


Sentenced accordingly.


______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner

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