N6918

PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO.161 of 2015  

STATE

V

FOLY ROCKI
Prisoner
Goroka: Polume-Kiele J
2015: 19 October 
2016: 8, 10 November 

CRIMINAL LAW - Guilty Plea - Obtaining goods or credit by false pretence or willfully false promise - s 404 (1) (a), Criminal Code Act

CRIMINAL LAW - Sentence - Early guilty plea – Prior conviction

CRIMINAL LAW – Sentence - 2 years imprisonment - s 404 (1)(a), Criminal Code Act,  -  Deducted 1 year 11 months 10 days (pre-trial time held in custody) - s 3 (2) Criminal Justice (Sentences) Act 1986, - 2 years sentence wholly suspended on terms - s 19 Criminal Code Act with restitution.

Facts
The brief facts are that on the 24th of September 2014, the prisoner called Hatiho Sorihe and told him to bring his Laptop computer to the University of Goroka (UOG) for him to install some latest programs.
The complainant, Hatiho Sorihe, is a Corrections Officer, CIS, Bihute. The complainant had come to know the prisoner as he had previously served time (been in custody) at the Bihute CIS when he was serving time in custody where the prisoner had told the complainant that he was a computer specialist which he believed him. The complainant than brought the laptop to the prisoner and gave it to him at the UOG car park. The prisoner told the complainant that it would take a long time so he suggested that he can stay with his son and when he fixes the laptop, he will give it to the son to bring it back to the complainant in the afternoon. The complainant then left the son and the laptop with the prisoner and returned home. However, the son returned home that afternoon without the laptop. 

It was alleged that the prisoner took the laptop and ran away. Although the security guards from the University gave chase, they were unable to prevent the prisoner getting away. The matter was reported to the Police and it was registered as OB (1709/14) and the prisoner was subsequently arrested and charged for one count of obtaining goods or credit by false pretence or wilful false promise, under section 404 (1) (a) of the Criminal Code.
Held:

(1)	The prisoner by his own admission has admitted guilty to obtaining goods or credit by false pretence or wilful false promise, a laptop computer, valued in the sum of K3, 200.00, the property of Hatiho Sorihe contrary to s.404 (1)(a) of the Criminal Code Act. 

(2)	In the Record of Interview conducted on the 22nd of January 2015 at Goroka Police Station, CID, Goroka, Eastern Highlands Province at 11.10 a.m., the prisoner admitted to obtaining goods or credit by false pretence or wilful false promise, a laptop computer, valued in the sum of K3, 200.00, which the prisoner admitted to have sold at the price of K500.00.   

(3)	The prisoner is sentence to 2 years imprisonment less the period of 1 year 11 months 10 days; the period that the prisoner has spent in custody pursuant to s 3(2) of the Criminal Justice (Sentences) Act 1986.

(4)	In the exercise of discretion under s 19 of the Criminal Code Act, the balance of the remaining 1 month of the 2 years sentence is wholly suspended on terms.

(5)	The prisoner is to pay to the complainant, the sum of K1, 000.00 as compensation for loss of the laptop that was stolen by the prisoner within one month from today, the 9 of November 2016.

Cases cited:

Paulus Pawa v The State [1981] PNGLR.498
Public Prosecutor -v- Don Hale (1998) SC564
State v Henry Eliakim [2007] N3190
The State v Tom Morris [1981] PNGLR.493
Wellington Belawa -v- The State [1988-89] PNGLR 496

Counsel:
Kathwa Umpake, for the State
John Biki, for the Prisoner

JUDGMENT ON SENTENCE

10th November, 2016

1.	POLUME-KIELE J: The prisoner appeared before me on the 19h of October 2015 and upon arraignment pleaded guilty to one count of obtaining goods or credit by false pretence or wilfully false promise, a charge laid pursuant to s.404 (1) (a) of the Criminal Code Act (Ch No 262).  Section 404 (1) (a) states:
“404. Obtaining goods or credit by false pretence or wilfully false promise.
(1) A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud- 

(a) obtains from any other person any chattel, money or valuable security; or 

…
is guilty of  a  crime.

Penalty: Imprisonment for a term not exceeding five years."

Committal Court Disposition

2.	Mr. Emmanuel Thomas for the State tendered the Goroka District Court Deposition into evidence by consent which comprised of the following: 

(1)	The Record of interview both the original pidgin and English Version dated 22nd January 2015, CR No. 61 of 2014; marked as Exhibit "A" relating to the defendant Foly Rocki during which he admitted to stealing by false pretence a laptop computer which is the property of one, Sergeant Hatiho Sorihe, at the University of Goroka sometime in September 2014 (Question 13 and answer to Question 13) which is valued at about K3,200.00 (Question 23 and Answer)
 
(2)	The Statements of State witness namely Hatiho Sorihe dated 11th November 2014, Police Constable Paul Molu dated 29th January 2015, Police Constable Ungai Joshua and Constable Koima Justin Kunduane all of Goroka Police Station respectively who all confirmed the identity of the prisoner and the incident which led to the indictment being laid against the prisoner and his demeanour at the time of the commission of the offence. Constable Koima Justin Kunduane was the Investigating Officer and Constable Ungai Joshua was the corroborator during the Record of Interview.

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 willfully false promise prescribed under s 404 (1) (a) of the Criminal Code.

Antecedent Report

4.	The prisoner is about 25 years old and married with one child. He is from Redtop Village, Lufa, of the Eastern Highlands Province. He is unemployed and lives at 5 Mile, Goroka. The accused has prior convictions.

Pre-Trial Detention

5.	The prisoner was remanded on the 9th of December 2014 and has been held in custody for a period of 1 year 11 months 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 laptop computer from the victim, Hatiho Sorihe and 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 pay for the laptop. 

7.	His lawyer, Mr Biki then 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, (Goroka) prepare and file a Pre-Sentence Report and Means Assessment Report on the prisoner and have it filed prior to the 2nd of November 2015 for consideration. These Reports were promptly provided and has been considered in the determination of sentence. 

Pre-Sentence Report

8.	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.

9.	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.

10.	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 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

11.	In order to determine 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, his co-operation with the police and his explanation as to how he committed the offence in the Record of Interview are factors which favour him.

Aggravating Factors

12.	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

13.	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.  

14.	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 used force or used other forms of weapons 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.

15.	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. 

16.	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

17.	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.

18.	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.

19.	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.

20.	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.

21.	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).

22.	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. 

23.	In the circumstances and upon consideration of the above factors, the prisoner is sentenced to 3 years imprisonment less the period of time of 11 months 2 days  that he has spent in custody pursuant to s 3 (2) of the Criminal Justice (Sentences) Act 1986. 

24.	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.

25.	The prisoner is to serve the balance of the term of sentence of 1 year 28 days  imprisonment at CIS, Bihute

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