National Court of Papua New Guinea

Committal Court Disposition

2. Mse for the State tendered the Kainantu District Court Deposieposition into evidence by consent which comprised of the following:
   
   • (1) The Record of interview both the original pidgin and English Version dated 17th November 2014, CR No. 55 of 2014; marked as Exhibit "A" relating to the defendant James U Mariko during which he admitted to stealing by false pretence the total sum of K8, 500.00 the property of John Sekap and Deaso Sekap over three separate occasions that is between February 2014 (K3, 000.00); in March 2014, (K1,500.00) and in April 2014, the sum of K4,000.00) all in cash.
     
   • (2) The Statements of State witnesses namely John Sekap dated 14th November 2014, Deaso Sekap dated 14th November 2014 and Senior Police Constable Katuga Mogia dated 19th November 2014, Police Investigator, Sergeant Henry Liru both of Kainantu Police Station respectively who all confirmed the identity of the accused and the incident which lead to the charge against the prisoner and his demeanour at the time of the commission of the offence.
     
3. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted and the prisoner was convicted on the charge of Obtaining goods or credit by false pretence or wilfully false promise prescribed under s 404 (1) (a) of the Criminal Code.
   

Antecedent Report

4. The accused is 35 years old and married with 4 children. He lives with his family at Ukarumpa Village, in the Obura Wonenara District of the Eastern Highlands Province. He had been employed as a security guard and Advisor at the SIL Surrounding Community. At the time of the commission of the offence, he was a timber sales man (self-employed). The accused has no prior convictions.
   

Pre-Trial Detention

5. The prisoner was remanded on the 19th of November 2014 and has been held in custody for a period of 11 months 2 days to the date of this decision on sentence.
   

Allocutus

6. In the administration of the allocutus, when the prisoner was given the opportunity to speak on the issue of penalty; the prisoner said that it was true that he took the money from the victims John Sekap and his wife. He said that he was sorry for what he did. The prisoner apologised to the court and the Lord above for what he had done. In addition, the prisoner asked for leniency and said he intends to repay the money back to the victims. His lawyer, Mr Biki requested that this Court direct the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report and a Means Assessment Report to be furnished for and on behalf of the prisoner. In order to allow for this process to be complied with, I then directed that the Probations Officer, (Kainantu) prepare and file a Pre-Sentence Report and Means Assessment Report on the prisoner and have it filed prior to the 31st of July 2015 for consideration. These Reports were promptly provided and has been considered in the determination of the severity of sentence.
   

Pre-Sentence Report

7. According to the Pre- Sentence Report, the prisoner has indicated that he will repay the money back to the complainant, whatever the outcome of the National Court decision. He also asked that the court give him a grace period of six months to pay back the money to complainants, John Sekap and Deaso Sekap. In addition, the community is of the view that the prisoner has capacity to repay back the money to the complainant and are supportive. Furthermore, the brother of the prisoner has offered to pay a sum of K2, 000.00 (cash in hand) and has asked that this court consider placing the accused on Probation on conditions that the accused repay the outstanding money within a six month period. This is also supported by Pastor Manuko Yateki who has stated that the prisoner is a humble person without any criminal records and a member of his church and has ability to repay the money back to the complainant through the hiring out his Lucas Saw Mill to help repay the money. Similarly, the relatives of the prisoner have indicated their willingness to assist the accused by contributing cash to settle his debts. The prisoner has five brothers and three sisters who are all married. The prisoner is the fifth child in the family. His 8 siblings are all educated to High School level. His mother has since passed on but his father is still alive.
   
8. The Pre-Sentence Report compiled by the Probation Officer, Mr. Bennet Amuino has recommended that the prisoner is a suitable candidate to be placed on Probation supervision with certain terms and conditions and these are:
   
   • (1) The accused be placed on 150 hours of community work orders to be supervised by CBC Office, Kainantu;
     
   • (2) The accused be placed for counselling by the PNG Bible Church twice a week
     
   • (3) The accused be given an extended time frame of six months to repay the money in the sum of K8,500.00 back to the complainants John Sekap and Deaso Sekap
     
   • (4) The accused shall not change his address or move to other Provinces until his term of Probation is completed.
     
9. Whilst this court is grateful for the preparation of the Pre-Sentence and Means Assessment Reports and his promptness in the completion of such; the demeanour of the prisoner does not favour him. The overall demeanor of the prisoner over the period when he was asked to repay the money which he obtained by false pretence or wilfully false promise under s 404 (1) (a) of the Criminal Code, he ran away and was in hiding until he was caught by the Yonki Police personnel. This behaviour does not indicate any remorsefulness for what he did wrong. Furthermore, whilst the community speaks well of the prisoner and has shown their willingness to assist rehabilitate the prisoner back into the community, including his request to this court to give him an opportunity to make amends and to repay the sum of money which was obtained by false pretence or wilfully false promise, nothing constructive has materialised up to now and the victims have been waiting for over a year to get their money back and are still waiting.
   

Mitigating Factors

10. In order to determine the severity of sentence, the court took into consideration factors relevant to this case such as the prisoner’s early guilty plea, which greatly assisted this court in arriving at this early outcome. In addition, the prisoner is a first time offender, his co-operation with the police and his explanations as to how he committed the offence in the Record of Interview are factors which favour him.
    

Aggravating Factors

11. The aggravating factors against the prisoner are however that he obtained goods or credit by false pretence or wilfully false promise and for this charge, the case of Wellington Belawa -v- The State [1988-89] PNGLR 496 is relevant as a useful guide in determining the severity of sentence in dishonesty cases such as the offence which the prisoner has committed. Matters that are taken into account in the determination of sentence will involve the amount of money obtained, pre-planning, and degree of trust, use of the money and the effects on the victims.
    

Submission on Sentence

12. Mr Biki in his submission on behalf of the prisoner on sentence submitted that although the prisoner had pleaded guilty upon indictment on the charge of one count of obtaining goods by false pretence contrary to s 404 (1) (a) of the Criminal Code Act for which the maximum penalty prescribed are set out under s 404 (1) (a) of the Code is imprisonment for a terms not exceeding five years; Mr Biki reiterated that the courts have wide discretion under s 19 of the Criminal Code to impose a lesser penalty.
    
13. In these circumstances, the issue before the court is whether or not the prisoner should be sentenced according to the penalties prescribed under s 404 (1) (a) of the Code? Mr Biki submitted that the maximum sentence of imprisonment for a term not exceeding five years is not applicable in this case because of a number of reasons and he outlined these reasons to be as follows: Firstly, the facts of the case is peculiar and different thus this court should consider imposing sentence case by case; Secondly by operation of s 19 of the Criminal Code, this exercise of powers gives this Court wide discretion in making the maximum sentence discretionary; thirdly, this case does not fall into the worst case scenario and thus does not attract the maximum sentence and lastly, the prisoner did not use force or use other forms of weapons and tried to threaten the victims during the commission of the offence. In addition, Mr Biki also made references to a number of case authorities in support of his submission on sentence and these case authorities are discussed as appropriate.
    
14. In reply, Ms Gore for the State submitted that this is a case where the prisoner has stolen the sum of K8, 500.00; the property of another person, namely John Sekap and Deaso Sekap. Ms Gore also submitted that up to now, none of the amount of K8, 500.00 has been repaid. Whilst it is also noted that the prisoner has stated in the Pre-Sentence Report that he is willing to repay the sum of money stolen, there is really no genuine attempt or efforts made to pay back the sum of K8, 500.00 to the victims.
    
15. With regard to sentence, Ms Gore submitted that this Court has wide discretion under s 19 of the Criminal Code to impose an appropriate penalty and also to impose conditions as to the repayment of the money stolen and in the circumstances submitted that the court exercise discretion to impose a custodial sentence for a period until the full amount of the sum of K8, 500.00 is repaid to the victims accordingly.
    

Determination of sentencing criteria

16. In applying the sentencing criteria given in Wellington Belawa v the State [1988-89] PNGLR 496; this court noted that although the amount of money obtained by deceitful dishonest behaviour on the part of the prisoner was small compared to the Welling Belawa v the State (supra) case, the prisoner was trusted by the victims to use the money given for a particular purpose. However, the prisoner had misapplied this amount of money to his own use. In addition, the actions of the prisoner had greatly affected these ordinary villagers, who have suffered the loss of their well-earned cash in the sum of K8, 500.00. Furthermore, the offence is serious in nature, in that the prisoner abused the trust that the victims placed in him to do well and he failed them miserably. The prisoner took advantage of these ordinary village people and dishonestly applied to his own use, the sum of K8, 500.00. In addition, the prisoner did not give himself up voluntary after the offence was discovered, he instead ran away and hid until he was caught by the police. The prisoner has to this day not repaid any of the money misused or misapplied and the victims are still waiting for the money to be repaid in full.
    
17. Whilst there appears to be some indication that the accused has capacity and willingness to repay the money stolen, there is no guarantee that repayment will be paid if at all. Besides, it would be more convincing if some form of repayment were made prior to the matter being brought before the courts or the conclusion of these proceedings.
    
18. In the State v Solien [2012] N4665, his Honour Makail J considered 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 as a strong mitigating factor and significantly reduces the seriousness of the offender's culpability. In this case, his Honour also took 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. His Honour Makail J thus imposed a wholly suspended sentence of 2 years imprisonment and the 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.
    
19. In contrast, this present case involved the prisoner who had deliberately pre-planned and abused the degree of trust placed in him by the victims. In addition the prisoner applied the money to his own use. This misapplication of the money obtained by the prisoner had greatly affected the victims who are deprived of the efficient use of their hard-earned cash. As such, this is a crime for which the prisoner must be held accountable. Thus the issue before the court is what would be an appropriate penalty to impose. Here the Code prescribes a penalty of imprisonment for a term not exceeding five years, thus in compliance with such requirements, consideration will be given to the relevant mitigating factors discussed above to determine penalty. The prisoner in this case has said he is sorry to the victims and also to his family members. He has also brought shame, humiliation and disgrace to the victim’s family and also his own family. He also asked that he be placed on probation with conditions which include having to repay the money within six months.
    
20. In this case, the manner in which the prisoner went about obtaining the cash payment and promising to procure the purchase of a used vehicle at SIL was deceitful in that his act of assistance was fraudulent and dishonest as the prisoner knew that there was no used vehicle being offered for sale at SIL and the representation he was offering to Mr John Sekap and his wife Deaso Sekap was false and a wilfully false promise under s 404 (1) (a) of the Criminal Code. The element of fraudulent behaviour of the accused before and after getting the money and the application of such money does indicate that the court must infer in terms of cases such as Paulus Pawa v The State [1981] PNGLR.498 and The State v Tom Morris [1981] PNGLR. 493 that the money was used by the accused for his own purposes and these are evidence of a deceitful and dishonest behaviour on the part of the prisoner. The case of the State v Henry Eliakim [2007] N3190 is useful as a guide to determining the severity of sentence although this case involved a conspiracy to defraud (s 407) and stealing (s 372 (1) and (7) (a) of the Criminal Code in terms of what considerations should be taken into account based on the sentencing criteria given by the Supreme Court in Wellington Belawa v the State (supra).
    
21. This court also noted that the prisoner has by his own admission pleaded guilty to the charge. This has reduced the time and costs of having this matter tried if he had denied it. The prisoner had also apologised and is a first offender which is confirmed by the antecedent report presented by the State. These matters are taken into consideration because they support the submission presented for and on behalf of the prisoner by his lawyer with regard to the request for a wholly suspended sentence. In this case, the Pre-Sentence Report provided by the Probation Officer has recommended that the prisoner is a suitable candidate for a suspended sentence (Public Prosecutor -v- Don Hale (1998) SC564). In this case, the pre-sentence report presented supported the prisoner's request for a suspended sentence. However in the light of the matters discussed above, I am satisfied a partly suspended sentence is appropriate.
    
22. In the circumstances and upon consideration of the above factors, the prisoner is sentenced to 3 years imprisonment less the period of time 11 months 2 days spent in custody pursuant to s 3 (2) of the Criminal Justice (Sentences) Act 1986.
    
23. In the exercise of discretion under s 19 of the Criminal Code, suspend 1 year of the sentence on the following terms:
    
    • (1) The prisoner shall repay within 6 months the full sum of K8, 500.00 to John Sekap and Deaso Sekap;
      
    • (2) Such repayment shall be evidenced by the production of such a receipt of payment by John Sekap and Deaso Sekap respectively and the Probation Officer, Kainantu accordingly;
      
    • (3) The prisoner shall keep the peace within the community and with the victims;
      
    • (4) Failure to pay the full sum of K8, 500.00 to John Sekap and Deaso Sekap within 6 months shall result in the vacation of the suspension of the 1 year sentence which means that the prisoner shall serve the full term of the 3 years sentence in custody.
      
24. The prisoner is to serve the balance of the term of sentence of 1 year 28 days imprisonment at CIS, Bihute
    

Orders accordingly
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused