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State v Lesi [2018] PGNC 436; N7543 (17 October 2018)

N7543

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 184 OF 2018

THE STATE

V

SHARON GELI LESI

Waigani: Berrigan, J
2018: 19 September, 9 & 17 October

CRIMINAL LAW – Sentence – False pretence – Plea of guilty – No prior conviction – No means to restitute – Partial suspension – Rehabilitation – Section 404 (1)(a) of the Criminal Code..

Cases Cited:
Papua New Guinea Cases

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Goli Golu v The State [1979] PNGLR 663
Lawrence Simbe v The State (1994) PNGLR 38
Mase & John v The State [1991] PNGLR 88
Saperus Yalibakut v The State (2006) SC890
Tanabo v The State (2016) SC1543
The State v David Sila Kayak (2012) N5176
The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, 23 June 2017
The State v Ethel Kila, CR (FC) 25 of 2018, unreported, 5 September 2018
The State v Frank Kagal [1987] PNGLR 320
The State v Jack Ostekal Metz (2005) N2824
The State v Larry Dickson, Cr No. 866 of 2013
The State v Mary Tengdui (2014) N5827
The State v Niso (No 2) (2005) N2930
The State v Paul Tiensten (2014) N5563
The State v Rebecca Kunti, unreported, 2018
The State v Tardrew [1986] PNGLR 91
Tremellan v The Queen [1973] PNGLR 116
Wellington Belawa v The State [1988-1989] PNGLR 496

Overseas Cases

R v Edwards (1996) A Crim R 510

Counsel

Ms Wilma Malo, for the State
Mr Edward Sasingian, for the Prisoner

17^th October, 2018

DECISION ON SENTENCE

1. BERRIGAN, J: INTRODUCTION: The Prisoner, Sharon Geli Lesi, pleaded guilty to four counts of obtaining money by false pretence with intent to defraud, contrary to Section 404(1)(a) of the Criminal Code.
   

Facts

2. The brief facts are that between the months of August and December 2017 the offender approached 4 different people. In each case she falsely pretended that she was expecting a rebate from the Internal Revenue Commission and that she would repay the monies with interest once the rebate was received. On that basis she obtained:
   
   1. On Count 1; K2000 from Daren Walo, a student, on 6 August;
   2. On Count 2; K25,000 from Jeff Waki, the owner and operator of Hand in Hand Finance, between 16 September and 23 November 2017;
   100. On Count 3; K4000 from Thomas Norea, self-employed, between 18 September and 28 November 2017; and
   4. On Count 4; K8000 from Jeffrey Liria, a taxi driver, between unknown dates in September and December 2017.
      
3. In each case the monies were obtained by the prisoner by false pretences with intent to defraud. She failed to repay the monies and the matters were reported to the police.

Maximum Penalty

4. Pursuant to Section 404(1)(a), each offence carries a maximum penalty of five years’ imprisonment. The maximum penalty should usually be reserved, however, for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 663. This is not such a case.
   

Sentencing Considerations

5. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:
   
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
       

Comparable Cases

6. In addition the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:
   
   1. K1 and K1000, a gaol term should rarely be imposed;
   2. K1000 and K10,000 a gaol term of up to two years is appropriate;
   100. K10,000 and K40,000, two to three years’ imprisonment is appropriate;
   4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
      
7. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: The State v Niso (No 2) (2005) N2930; The State v Tiensten (2014) N5563.
   
8. Both counsel referred me to cases in support of their respective submissions. The defence relied upon Wellington Belawa, discussed above. The State referred me to:
   
   1. The State v David Sila Kayak (2012) N5176 in which the prisoner pleaded guilty to two counts of false pretences which were separated by different victims, times and mode of operation. On the first count the offender obtained K10,000 by falsely representing that he was able to obtain a large business loan for the benefit of the victims. He supported his claims with falsified documents from the Morobe Provincial Government. On the second count the offender colluded with another to obtain medical supplies to the value of K7410 from a wholesale drug store using a forged and valueless Morobe Provincial Government cheque. The prisoner was sentenced to 1 year and 2 years’ imprisonment respectively, to be served consecutively, without suspension; and
      
   2. The State v Tengdui (2014) N5827 in which the prisoner pleaded guilty to fifteen counts of obtaining a total of K46,650 from fifteen victims by false pretence. The victims were all simple villagers and relatives. The prisoner, a well-educated person obtained K3,110 from each of the victims by falsely representing that she would make 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. K23,500 was repaid prior to the matter being reported to police. On conviction, the prisoner was sentenced to 3 years’ imprisonment which was wholly suspended on conditions including full restitution.
      
9. I have also had regard to the following which may provide guidance in determining sentence:
   
   1. The State v Jack Osteka Metz, (2005) N2824, in which the prisoner pleaded guilty to one count of obtaining goods or credit by false pretence. Over an 8 month period the prisoner obtained cash, accommodation, meals and other services to the value of K70,455.36 on the false pretence that he was expecting payment in millions of Kina from the sale of Treasury Bills. He was sentenced to 3 and a half years’ imprisonment;
      
   2. The State v Ethel Kila, CR(FC) 25 of 2018, unreported, 5 September 2018 in which the prisoner was found guilty following trial of one count of false pretence. She obtained K22,000 from a husband and wife money lending business by falsely pretending that she would repay K56,000 once she had started her own catering company, for which she produced documents in support, when in fact she intended to travel overseas. She was sentenced to 3 years’ imprisonment which would have been suspended but for the fact that the offender absconded following trial;
      
   100. The State v Rebecca Kunti, unreported, 2018 in which the prisoner was sentenced to 4 years’ imprisonment after pleading guilty to two counts of obtaining money by false pretences. On the first count she obtained a total of K65,000 over a number of instalments on the false basis that she would use it to purchase a vehicle on behalf of the victim. Using the same approach she obtained a further K30,500 from a second victim;
        
   4. The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, the prisoner was sentenced to 4 years’ imprisonment. He presented a false cheque written out to himself in the sum of K4 million and told the victims he need money to clear the cheque. On that basis he obtained K11,000 from each victim at different times; and
      
   5. The State v Larry Dickson, Cr No. 866 of 2013 in which the prisoner obtained money and property from 3 victims over a 4 month period by falsely pretending that he would pay them 100% interest on money they lent him. He told them that their money would be used to facilitate the transfer of investments made overseas by his late father. On the first count he obtained cash in the sum of K15,962; on the second, property and cash worth K700; and on the third, cash and property in excess of K1000. A sentence of 3 years’ was imposed for the first count. Sentences of 1 year each were imposed for counts 2 and 3. The sentences were to be served consecutively. Applying the totality principle, an effective sentence of 3 ½ years was ordered to be served.
      
10. The sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    

Nature and Circumstances of the Offence, including Matters of Aggravation

11. Having regard to Wellington Belawa, I consider the following matters. The offences involve substantial amounts of K2000, K25,000, K4000 and K8000, respectively, representing a total of K39,000 over 5 months. There is no evidence of the use to which the money was put and there has been no restitution to date.
    
12. I accept the State’s submission that the victims of counts 1, 3 and 4 are relatively unsophisticated, being a student, a self-employed man and a taxi driver, respectively. The second victim operates a money lending business operating across Port Moresby and cannot be regarded as such. There was no special relationship of trust between the offender and the victims in this case. Nevertheless, the Prisoner took advantage of each of the victims through her false representations and all are now without substantial amounts of money which according to the Pre-Sentence Report has impacted on their families and/or businesses.
    
13. In addition, the offences clearly involved a level of planning and were intended for financial gain.
    
14. The State has also raised as a matter of aggravation the use of government documents to lure the victims into giving monies. The matter was not in the summary of facts to which the offender pleaded guilty and accordingly the offender is given the benefit of a reasonable doubt in that regard: Saperus Yalibakut v The State (2006) SC890; Tanabo v The State (2016) 61.
    

Personal Circumstances

15. The Prisoner is 42 years old and comes from the Malaita District of the Solomon Islands. She first came to Papua New Guinea when she was adopted by a family from the Western Highlands Province. She was married but has been separated from her husband for the past 6 years and is the primary carer and, until recently, the principal financial provider for her four children, aged between 6 and 19 years of age, who she lives with at 5 Mile Settlement in the National Capital District.
    
16. She obtained her Higher School Certificate in 1991 and graduated with Diplomas in Accounting and in Business Management from the Solomon Islands College of Higher Education in or about 1993. She then undertook a number of book keeping, basic computing and secretarial short courses. Since 1996 she has been employed from time to time in a range of roles including accountant and general manager, most recently running her own security and accounting businesses. She is currently unemployed, however, as these business ceased operating following her arrest earlier this year.
    

Mitigation

17. In mitigation this is the Prisoner’s first offence. She is previously of good character. According to the Village Court Magistrate at 5 Mile the Prisoner is well respected by the community and assists community leaders with the resolution of disputes.
    
18. She cooperated with police and pleaded guilty at an early stage. On allocatus she expressed remorse, which I accept as genuine. She apologised to the court, her family and the victims. She saved the State the cost and expense of a trial.
    
19. I have no doubt that the effect of the offence on the offender herself has been a grave one. From all reports, including that of Probation Services, she is normally a highly motivated and self-reliant individual. The offences will inevitably bring shame to her in the community and have a significant impact on her four children. I also accept that at the time of the offences she was under strain associated with maintaining her businesses and supporting her family. It is clear from the materials before me, however, that these were not the only motivating factors.
    

Sentence

20. The prisoner has been convicted of four counts of obtaining monies by false pretences with intent to defraud. The aggravating matters in this case clearly outweigh the mitigating factors. The offences are serious and prevalent and there is a need for both general and personal deterrence.
    
21. I remind myself of the approach to be taken when deciding whether sentences should be made concurrent or cumulative, and the principles of totality: Mase v The State [1991] PNGLR 88 at 92.
    
22. Taking into account all of the matters outlined above, I impose the following:
    
    1. On Count 1, a sentence of 6 months’ imprisonment in hard labour;
    2. On Count 2, a sentence of 2 years’ imprisonment in hard labour;
    100. On Count 3, a sentence of 1 year imprisonment in hard labour; and
    4. On Count 4, a sentence of 1 year imprisonment in hard labour.
       
23. There is no “all-embracing” rule as to when sentences for two or more convictions should be made concurrent: Tremellan v The Queen [1973] PNGLR 116. Whilst of a similar character and conducted during the same 5 month period, the offences in this case concerned different and unrelated victims, at different times and locations. In my view the sentences should otherwise be served consecutively, however, having regard to the principles of totality, the sentences for Counts 1 and 3 will be served concurrently with Count 4. The sentence for Count 4 will be served consecutively with the sentence of Count 2. The effective term of imprisonment is 3 years in hard labour. No time has been spent in custody to date.
    
24. The question remains whether to suspend any of the sentence. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
    
25. There should be no suspension without the support of a pre-sentence report: Public Prosecutor v Don Hale (1998) SC 564; Edmund Gima and Siune Arnold v The State (2003) SC730; Richard Liri v The State (2007) SC 883.
    
26. A medical report states that the offender has an unspecified heart defect and recommends ongoing review and the avoidance of stress. It is not suggested that her condition would cause an excessive degree of suffering in prison.
    
27. The offender has indicated her willingness to make restitution to the victims. According to the Pre-Sentence Report and the Means Assessment Report, however, she has no means of paying restitution or a court fine. It would not be appropriate to order restitution in those circumstances.
    
28. The categories identified in Tardrew are not exhaustive. At common law hardship suffered by an offender’s family may in “highly exceptional” circumstances mitigate a prison sentence. See R v Edwards (1996) A Crim R 510 at 516-7.
    
29. It is clear that a sentence of imprisonment will have a significant impact on the offender’s four children in this case but it has not been submitted that it would cause an exceptional degree of suffering. According to the Pre-Sentence Report, her former husband, whilst unable to assist with restitution, is now supporting both the offender and their children.
    
30. I am, however, satisfied that the offender has very good prospects of rehabilitation. The report by the Probation Services recommends her as suitable for probation. I am further satisfied that partial suspension of the sentence would promote her rehabilitation into the community by enabling her to resume her businesses and support herself and her family earlier than otherwise would be the case. This is not an exercise in leniency but an order made in the community interest: The State v Frank Kagai [1987] PNGLR 320.
    
31. In the circumstances I order that following the service of 12 months’ imprisonment, the balance of the head sentence, namely 2 years, be suspended on condition that the offender enter into her own recognisance, without surety, to keep the peace and be of good behaviour during the period of suspension.
    
32. Bail moneys are to be refunded.
    

The Court orders accordingly.

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