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State v Kuala [2017] PGNC 96; N6736 (13 April 2017)

N6736


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) No. 138 OF 2015


THE STATE


V
PETER KOA KUALA


PORGERA: Auka AJ
2017: 12th & 13th April


CRIMINAL LAW – Sentence – Obtaining goods by false pretence – Plea of guilty – Collected Two Hundred and Eighty Two Thousand Kina as rental monies – False lease of property to others without complainant’s permission – Failed to pay the moneys to the complainant – Sentence of 4 years and wholly suspended the sentence with conditions – Criminal Code S.404 (1) (a) and S.19.


Case Cited:
Wellington Belawa v. The State [1988-1989] PNGLR 496
The State v. Feubilo Dickson (2011) N4455
Goli Golu v. The State [1979] PNGLR 92
Saperus Yalibakit v. The State (2006) SC890
Doreen Liprin v. The State (2011) SC 673
The State v. Roselyn Walembi (2008) N3708
The State v. Docas Boski (2014) N5814
The State v. Ivan Bob (2013) N5382
The State v. Joyce Pora (2016) N6343
The State v. Jack Nuisa (2016) N6465
The State v. Tristen Solien (2012) N4665
Public Prosecutor v. William Bruce Tardew [1986] PNGLR 91


Counsel:


Mr. Philip Tengdui, for the State
Mr. Jeffrey Kolowe, for the Accused


DECISION ON SENTENCE


13th April, 2017


  1. AUKA AJ: The accused pleaded guilty to one count of obtaining goods by False Pretence under s.406 (1) (a) of the Criminal Code.
  2. The brief facts of the case were that the complainant, Mrs Salome Yalia is the owner of a property described as section 01 Allotment 04 at Porgera Station, Enga Province. In 2006, at the death of the complainant’s husband, Mr Joseph Yalia, the accused Peter Koa Kuala went into occupation of the Property through his daughter whom the deceased married as his second wife sometime before his demise. And between 2006 and 2014 whilst living with his daughter and grandchildren, the accused by falsely pretending to be the owner of the property, leased the property to others and collected rental moneys for a total of 9 years until he was evicted by legal process in 2014. During the period, the accused collected total rentals almost in the sum of K282, 200. 00. At the time there was no lease Agreement between the complainant as the owner of the property and the accused. State alleged that accused collected the money by False Pretence and kept and used the money for himself. State alleged that the money was the property of the complainant Mrs Salome Yalia and her children.
  3. On his statement on Allocatus, the accused said and I quote “I apologise and thank the court for hearing the case. I apologise to the Land Lord, the vendors and the purchaser. I am the first born in the family of four (4) children. I am 55 years old. I am a tradesman and a motor mechanic by profession. However at the moment I am not employed. I am a subsistence farmer. I have five (5) wives and two have left me. I have twenty two (22) children altogether to look after. I am a leader in the community and also a local land owner. My first wife gave birth to my daughter who was married to the owner of the property who is the deceased. My daughter was in grade 8 when the late owner married her which I was not aware of. That was in 2004. It was through my daughter that I moved into the property and lived with her and her child. I apologise for been in the Property where I did not have the Property Title. I want to stay in the village and be punished at the village level and stay out of jail. That’s all.
  4. Mr Kolowe in his submission on sentence submitted that the accused pleaded guilty and saved courts time and resources. He has expressed genuine remorse to the court and to the owner of the property. That he has no prior conviction. As the accuseds daughter was married to the late owner Joseph Yalia, that justified him on why he moved into the property. Mr Kolowe submitted that the accused is 55 years old and has so many children to look after and as the only bread winner, he submitted and urged the court to sentence him to 1 to 3 years but wholly suspend the term with conditions. Mr Kolowe also urged the court to consider that amongst the many children he has cared for over the years, he had also looked after his daughter and grandchild whom the owner had left behind after his death. The court was urged to consider in accuseds favour all these matters.
  5. Mr Philip Tengdui of counsel for the State submitted and urged the court to consider the following matters against the accused on sentence;
    1. That the offence was committed within a period of nine (9) years;
    2. That the amount involved was substantial amount which the accused himself benefited from. However as there was no clear evidence in court of how much accused collected and then used, I gave the benefit of doubt to the accused in giving less weight to this factor against him (Saperus Yalibakit v. The State (2006) SC890;
    3. The effect on the victim and her 5 children were great in that their means of support was taken away which was very serious;
    4. The accused partly benefited himself in the expense of the complainant;
    5. That no restitution have been made.

Mr Tengdui referred the court to the often cited case of Wellington Belawa [1988-1989 PNGLR 496 where the Supreme Court said that where the amount is between K40, 000 to K150, 000. 00 a gaol term of 3 to 5 years is appropriate.


He further referred the court to the case of The State v. Feubole Dickson (2011) N4455 where the accused was sentenced to 2 years and the sentence was wholly suspended. He submitted that in this case a substantial amount is involved and therefore the sentence should be higher and he submitted that a sentence of 2 to 4 years is appropriate. He also asked the court to impose certain orders restraining the accused from interfering with the complainant and her property.


  1. The maximum penalty for the offence of obtaining goods or credit by False Pretence under section 404 (1) of the Criminal Code is imprisonment for a term not exceeding 5 years.
  2. The court has a general discretion to impose lower sentence with or without other forms of punishment enumerated in s.19 of the Code.
  3. It is established principle that the maximum penalty should be reserved for the worst type of case: Goli Golu v. The State [1988-1989] PNGLR 653.
  4. The Supreme Court decision of Wellington Belawa is the leading case authority in this jurisdiction for the offence of Misappropriation and it sets out the sentencing guidelines for that offence inclusive of the factors that are to be considered and the tariff to apply. There appears to be concurrence by the Court’s with general consistency that apart from Misappropriation cases, the sentencing guidelines in Wellington Belawa should also apply to all cases involving an element of dishonesty such as those concerning forgery, obtaining goods by false Pretence, Fraud, Stealing and the like in the absence of appropriate sentencing guidelines for those particular offences, The State v. Roselyn Walembi (2008) N3708.
  5. In the same case of 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 some of these matters are the amount taken or value of property taken, degree of trust, pre-planning, use of property, the period over which the offence was perpetrated and the effect on the vicim.
  6. The Supreme Court in the same case of Wellington Belawa also recommended a tarrif 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 K1000. 00 a gaol term should rarely be imposed;
    2. K1000. 00 and K10, 000. 00 a gaol term of up to 2 years is appropriate;
    3. K10, 00. 00 and K40, 000. 00 a gaol term of 2 to 3 years is appropriate;
    4. K40, 000. 00 to K150, 000. 00 a gaol term of 3 to 5 years is appropriate.
  7. 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 need to impose increased sentence due to the fact that the offence is a prevalent offence. However, the court still has a considerable discretion under s.19 of the Code to impose an appropriate sentence, depending on the peculiar facts and circumstances of a particular case.
  8. Having in mind the factors recommended in the Belawa case to the circumstances of the present case, this court finds that the following factors are relevant and applicable and can be considered either in favour or against the accused in sentence. In favour of the accused the Court considered the following factors;
    1. The accused pleaded guilty and saved court’s time and resources;
      1. The accused is a first time offender and has no prior conviction and has a previous good record;
      2. The accused has offered and will continue to suffer personal shame, and disgrace because of his conviction and sentence;
      3. The accused expressed genuine remorse and asked the court for mercy;
  9. The factors which the court considered against the accused are:
    1. A substantial amount was received from rental monies as a result of his dishonesty. However as there was no clear evidence in Court on how much the accused collected I gave the benefit of doubt to the accused in giving less weight to this factor against him (Saperus Yalibakit v. The State (2006) SC890);
    2. The accused applied the money to his own use. However as there is no clear evidence on how accused used the money the benefit of the doubt will be given to him. I place little weight on this against the accused. (Saperus Yalibakit v. The State (Supra);
    3. The victim who is an individual with children endured and suffered stress, anxiety and inconvenience over the loss of the money;
    4. The accused had failed to repay the full amount of K282, 000. 00. However as there is no sufficient evidence on how much he received, the benefit of the doubt will be given to him by not taking that alleged amount against him (Saperus Yalibakit v. The State (Supra);
    5. The accused is an educated person who is able to tell what is right from wrong;
    6. That the offence is a prevalent offence.
  10. I am also required to weigh the consequences of sending offenders to prison from “non violent crimes” and those which have been categorised as “violent crimes”. In the case of Doreen Liprin v. The State (2001) SC 673, the Supreme Court highlighted the need to give serious consideration to alternatives to prison sentences to non violent offences. This would serve as a punishment and at the same time, reduce the costs to the society in terms of the costs of incarceration and avoid the risk of turning an offender into a hard core criminal. I consider this case as a non-violent case and have agreed to apply the considerations in this case.
  11. The trend of sentencing on obtaining goods or credit by false pretence depends entirely on the facts of each case. I refer to the following cases for purposes of comparing the type of sentence imposed on this type of offences:
    1. In The State v. Ivan Bob (2013) N5382, the prisoner was convicted for obtaining K5, 025. 00 from the victim by false pretence. The victim was doing some maintenance work for 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 K5000. 00 as part payment of the house and a further K525. 00 for maintenance work to be done to the house prior to being occupied. The money was never repaid. A sentence of 2 years imprisonment was imposed and the sentence was wholly suspended on condition.
    2. In The State v. Dorcas Boski (2014) N5814 the accused pleaded guilty to one count of obtaining K12, 000. 00 from a male victim by False Pretence. The accused was a Rental Sales Representative with Avis Rent A Car in Mt. Hagen. The victim approached the accused for purchase of a Motor Vehicle that her employer was selling and she promised to organise its sale and purchase to him on staff price. The victim deposited with the accused K16, 000.00, but after a long while and despite several follow ups, the motor vehicle was never delivered to him. The victim then involved a debt collection agency to pursue the matter with the accused. The accused managed to repay K4, 000, 00 to the victim and under took to pay the balance later, but failed. His Honour David J sentenced the accused to 3 years, reduced by 2 months for pre- trial custodial term and the remaining term suspended on terms.
    3. In The State v. Joyce Pora (2016) N6343, the prisoner was convicted for obtaining K10, 000.00 from the victim by false pretence. This is a case where the accused approached the victim Evelyn Opa to borrow Ten Thousand Kina for her to start off a gold buying business in Porgera. She entered into a verbal agreement with the victim that when she makes enough money she will repay the Ten Thousand Kina with profit in cash. And as it happened on 19th November, 2015 the victim went to the bank and withdrew Ten Thousand Kina in cash and gave it to the accused on the agreement that accused will repay her the money with profit. Accused took the Ten Thousand Kina in cash and instead of using the money in the proposed gold buying business she used the money for her own personal use. The victim after a long wait and despite several follow-ups with the accused to repay her the money with profit it turned out that accused did not have the money and as such failed to repay the Ten Thousand Kina with profit to the victim. The victim reported the matter to Police and accused was arrested and charged and detained. She pleaded guilty and the court sentenced her to 3 years imprisonment reduced by 2 months for pre-trial custodial term. The remaining term was wholly suspended with condition.
    4. In The State v. Jack Nuisa (2016) N6436, the accused pleaded guilty to one count of obtaining goods by False Pretence under S.404 (1) (a) of the Criminal Code Act and was sentenced to 3 years imprisonment. However that sentence was wholly suspended with conditions. This is a case where the accused presented to the Mayor of Popendetta town a claim of K15, 000. 00 for outstanding fees for unspecified scope of advisory services he provided on land and building tax rates. A cheque for K13, 500. 00 was eventually paid to the accused on work he had claimed he had done which infact he did not do.
    5. In The State v. Wilkinson Tanef (2016) N6465, the accused pleaded guilty to one count of obtaining goods by False Pretence under S.404 (1) (a) of Criminal Code Act and was sentenced to 3 years imprisonment and 1 month 20 days deducted for pre-trial custody term and the balance of 2 years 10 months suspended with conditions. This is a case where the accused failed to deliver two (2) gold bars which he was selling for K60, 000. 00 each. The victim made two payments of K4, 030.00 each to the accused. Those moneys were paid on instalments at accused request and as a result, the total amount paid to the accused was K12, 030. 00. After the last payment was made, the accused promised to deliver the gold bars but he never did. The victim was giving excuses and that went for some time. The victims became frustrated and reported the matter to Police and the accused was arrested.
    6. In The State v. Trister Solien (2012) N4665, the accused pleaded guilty to a charge of obtaining goods by False Pretence under S.404 (1) (a) of the Criminal Code. The accused lived with her de facto husband on a property at Korobosea in Port Moresby. The de facto husband died and she falsified a contract of Sale and had the title of property transferred to her son who was at all material times a minor of 12 years.
  12. Taking into consideration all the particular circumstances of the present case, the trend of sentencing in some similar cases and the sentencing guidelines in Wellington Belawa’s case, I consider a sentence of 4 years imprisonment in hard labour appropriate. Accordingly I impose a sentence of 4 years imprisonment.
  13. Should I suspend all or part of the sentence? I have considered the principles of suspending sentences provided in the case of Public Prosecutor v. Willie Bruce Tardew (1986) PNGLR 91 and Doreen Lipirin v. The State (2002) SC 673 and I propose to wholly suspend the term of 4 years as it will promote deterrence, reformation or rehabilitation of the prisoner and promote the repayment of the money.
  14. The following conditions shall apply:
    1. An order for restitution is made whereby the prisoner shall within 4 years after the date of sentence pay to the victim the amount of K100, 000. 00.
    2. Restitution shall be by way of 12 months instalment of K25, 000. 00 and the first instalment must be paid by or before the 12th April, 2018 and the rest 12 monthly thereafter and which payment shall be reported to and recorded by the Registry at Wabag National Court.
    3. The prisoner shall enter into his own recognisance without surety to keep the peace and be of good behaviour during the period of suspension.
    4. The prisoner shall not change his residential address at Porgera unless he has given the National Court Registry at Wabag reasonable notices of his intention to do so and the reason for the proposed changes.
    5. The prisoner shall not leave Porgera town without the leave of this court during the period of suspension.
    6. The prisoner shall keep the peace and be of good behaviour and must not cause trouble, or harass the complainant and her family;
    7. The prisoner is restrained from interfering with the complainants property located at Section 1 Allotment 4 located at Porgera Town.
    8. The prisoner shall not consume alcohol or drugs;
    9. If the prisoner breaks one or more of these conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the suspended term of 4 years.

Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused

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