State v Girana [2019] PGNC 118; N7834 (23 April 2019)

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CRIMINAL LAW – Sentence – Obtaining property by false pretences – Plea – Four counts – Different victims – Prisoner concocts fraudulent school fee assistance scheme – Obtains different sums of money from different victims within a period of 3 months – Promises 10-fold returns – Fails to deliver on promises – Belawa principles considered and transposed against circumstances of instant case – Not a worst case – Mitigating and aggravating factors considered – Sentences of 12 months (count 1), 12 months (count 2), 18 months (count 3) and 24 months (count 4) respectively – Sentences to run concurrently – Criminal Code Ch. 262, s 404.

SENTENCE – Suspension – Whether appropriate case for – No means to make restitution – Unfavourable Pre-sentence Report – Case does not qualify for suspension according to Supreme Court principles on suspension – Discretion to Suspend nevertheless available unless removed by Parliament through legislation – Appropriate case for exercise of discretion – Sentence wholly suspended on condition.
Cases Cited

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No. 3) [1982] PNGLR 92
Belawa v The State [1988 – 89] PNGLR 496
Thress Kumbamong v The State (2008) SC 1017
Public Prosecutor v Don Hale (1998) SC 564)
Public Prosecutor v Tardrew [1988 -89] PNGLR 91
The State v Kayak (2012) N5176
The State v Yepin (2005) N3503
The State v Florence Nohu; CR (FC) No. 106 – 110 (Unnumbered and Unreported judgment dated 22^nd February 2019 )

1. TOLIKEN, J: On 09^th April 2019, the prisoner Lydia Girana pleaded guilty to an indictment charging her with 4 counts of obtaining property by false pretences thus contravening Section 404 (1)(a) of the Criminal Code Ch. 262. (the Code)

2. The brief supporting facts are as follows; The prisoner concocted a scheme to obtain monies from unsuspecting persons in Buka town by holding herself out to be a leading figure in a School Fees Assistance Program, funded by the PNG National Government to assist residents of the Autonomous Region of Bougainville. She would tell her prospective clients that they would receive 10-fold returns for their investments once funds were released to the Autonomous Bougainville Government. Thereafter she fraudulently obtained sums of monies from four individuals by false pretences at difference times.

3. Henceforth between the 01^st and 10^th day of February 2017 she obtained from one Joel Hiriats the sum of K3000, promising him that he will be paid K30,000 in return by the end of March that year. Mr. Hiriats thereafter continuously followed up with her but has not seen a return for his investment ever since. (Count 1)

4. Then on 13^th February 2017, she informed one Edmond Korana about her school fee assistance program. She convinced him to give her K500 promising a return of K5000 by the end of March 2017. Korana has not received the promised monies ever since. (Count 4)

5. Then yet again between 22^nd of February 2017 and 20^th March 2017, the prisoner obtained K150 from one Jill Tukana promising her K1000 in return for her investment by the end of March 2017. Jill Tukana has not seen any returns for her investment ever since despite following up with the prisoner. (Count 2)

6. And finally between 18^th April 2017 and 26^th April 2017, the prisoner told one Jeffrey (Flex) Tseraha and his wife that she had K170,000 remaining in the program which needed to be expended before the end of April 2017. Tseraha gave her K200 on 18^th April 2017 for a promised return of K2000, and 26^th April 2017 he gave her K400 for a promised return of K4000. Tseraha has not seen any return for his K600 investment since then. (Count 3)

7. The offence of obtaining property by false pretence carries a maximum penalty of 5 years imprisonment. Section 404 (1)(a) relevantly provides –

(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–

(b) induces any other person to deliver to any person any chattel, money or valuable security,

8. The issue for me then is; What should be an appropriate sentence for the prisoner?
SENTENCING PRINCIPLES

9. While the maximum penalty is 5 years imprisonment this does not necessarily mean that the accused will receive the maximum penalty. This is because the maximum, as is trite, is usually reserved for the worst instances of offending. Furthermore each case must be treated according to its own circumstances so that punishment fits the crimes. (Goli Goli v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92)

10. The sentencing principles for offences of dishonesty such as this offence are well settled since the seminal case of Belawa v The State [1988 – 89] PNGLR 496. The Supreme Court held there that the following factors ought to be taken into account when sentencing offenders –

*Amount misappropriated or fraudulently obtained*	*Appropriate term of imprisonment*
K1.00 - K1000.00	Imprisonment should rarely be imposed
K1000 - K10,000	Up to two (2) years
K10000 – K40000	Two (2) to three (3) years
K40000 – K150000	Three (3) to five (5) years

12. Offences of dishonesty including obtaining property by false pretences are very prevalent. I need only cite a few cases with similar circumstances to the case before us, and to give us an idea what the sentences trend had been.

13. The State v Florence Nohu; CR (FC) No. 106 – 110 (Unnumbered and Unreported judgment dated 22^nd February 2019 at Buka) per Bona J. The offender was the Officer In-Charge of Police Prosecutions here in Buka. Over a period of 6 months she obtained a total of K56,000 from 6 different persons by falsely pretending to them that she was in charge of the public tenders of the Community Based Corrections vehicle here in Buka and the fleet of New Zealand Police vehicles throughout the Autonomous Region. The amounts she obtained from those victims, at different times were K6,000 for the first count and K10,000 for each of the succeeding 5 counts.

14. She pleaded guilty to each count. The order does not indicate the sentence for each count but she was ordered to serve a concurrent sentence of 3 years which was wholly suspended, and she was placed on probation with, among others, a condition that she makes restitution to the victims within 2 years.

15. In The State v Yepin (2005) N3503 per Kandakasi J (as he then was): The offender was a Lance Corporal with the Correctional Services based in Vanimo. He arranged with a prisoner for the prisoner’s relatives to deposit K500 into his (the offender) account to meet his transport expenses back to his home after he was discharged. The relatives deposited K300 which the offender applied to his own use. To cover up for his theft the offender then promised the prisoner that he will deduct a portion of his sentence which of course did not eventuate.

16. On another occasion he obtained K200 from the family of another prisoner by making a similar promise which he did keep but rather again applied the money to his own use.

17. The offender was sentenced to 12 months imprisonment which was wholly suspended upon his entering into his own recognizance to be of good behaviour for a period of 12 months with conditions which included a condition that he be home-bound between the hours of 6.00p.m and 6.00a.m. In addition he was also ordered to pay a fine of K300.

18. The State v Kayak (2012) N5176: There the offender pleaded guilty before me to two counts of obtaining property by false pretence. In an elaborate fraudulent scheme he obtained monies and medical supplies from two individuals and a company respectively.

19. On the first count he gained the confidence of the victim (a Church Pastor) and his brother. He represented himself as an employee of a so-called "National Rural Family & Community Service" and falsely represented himself as being able to secure a business loan for the brothers to the value of hundreds of thousands of Kina from the ANZ Bank. He took a total of K10,010.00 from them on separate occasions, supposedly for processing fees. He issued them with official-looking documentation which included altered Morobe Provincial Government receipts. He was of course never in a position to secure such funding for the victims. For this first count I sentenced him to 1 year imprisonment.

20. On the second count the offender colluded with another person and obtained medical supplies from Niugini Wholesale Drugs using a forged Morobe Provincial Government cheque book to a closed account. I sentenced him to 2 years imprisonment.

21. These frauds were elaborate and sophisticated and involved quite a bit of pre-planning. I ordered that these sentences be served concurrently.

23. The prisoner is 42 years old and comes from Banis Village, Buka, Autonomous Region of Bougainville. She is a single mother of two children aged 14 years and 4 years. She was educated up to Grade 12 at Aiyura National High School. She has had various attachments and attended short courses in conflict resolution, eco-tourism and leadership. At various time she was employed with Chris Textiles as a shopkeeper and with NBC as a trainee broadcaster. She also freelanced with the Post Courier and the National newspapers as well as run awareness programs on New Dawn FM on adult literacy for Inter-women’s Forum. She was also employed by the Kamarau International School as Administration officer. She was engaged for 6 months on the Hutjena Secondary School Upgrade and Maintenance Project. After that she was employed as site Clerk/Supervisor for Star North Construction Ltd for the construction of the Tinputz Police Station. From 2010 she had been self-employed by starting an architectural firm called Neutral Architects and associated Works. She is a member of the Catholic Church and is a first time offender.

25. Mr. Lugabai submitted, among other things, that this is not a worst case. And in applying the Belawa principles, the offender was not placed in a high degree of trust and the fraud was committed within a very short period of 3 months, coupled with the fact that the amount she obtained was much, much, less than the amount involved in Nohu’s case. Counsel, however, conceded that the fraud would have had a negative impact on the victim parents and that the prisoner had not repaid any of the monies she obtained.

26. Counsel submitted therefore that a non-custodial sentence would be most appropriate in the circumstances. Alternatively she may be imprisoned for a year for the count involving K3000 and be ordered to repay the lesser amounts.

27. The Pre-sentence Report (PSR) is pretty detailed, but it falls short of recommending probation supervision for the prisoner. Instead the author left it to the Court to impose an appropriate sentence.

28. The Means Assessment Report (MAR) shows that the prisoner has no meaningful means of making restitution given her lack of employment and despite her claim of being self employed such cannot be independently verified.

29. Ms. Dusava submitted in behalf of the State that even though the total amount involved here was smaller when compared to Nohu’s case, this does not mean that the prisoner should get off unpunished. She carefully concocted the scheme to defraud her victims and she has not bothered to make restitution. She maintains in her PSR that she did not intend to defraud anyone and that is evidence that she is not remorseful of what she did.

30. An appropriate sentence for her should therefore be 2 years which may be suspended with strict conditions that she repays the sum taken within 6 months.
WHETHER WORST CASE

31. At this juncture I can safely say that this is not a worst case and therefore should not attract the maximum penalty.

MITIGATING FACTORS

34. Let me now transpose the circumstances of this case against the considerations in Belawa for all 3 counts -

Factors taken into account	Personal Circumstances
Amount taken	K4500
Quality and degree of trust	Neutral
Period fraud was perpetrated	3 months
How was the money used?	Not apparent from the committal statements
Effect on the victim	Victims all lost substantially
Effect on public & public confidence	Neutral – The offender was not reposed with any trust.
Effect on offender	Obviously lost face in family and community.
Offenders history	She has held down several jobs with various organizations as we have seen in her antecedents. She is also self-employed though there is no knowing how well she is doing on that front.
Restitution	No meaningful attempt to make restitution though had opportunity to do so. No means to make restitution according to MAR.
Matters of mitigation	Guilty plea, first time offender. There is no indication or evidence that she was under extreme economic pressure.

35. Now, this was a case in which the prisoner concocted a fanciful story - a totally unbelievable tale that she was a leading figure in a purported School Fee Assistance Scheme by PNG Government for students and their parents here in Bougainville involving millions of Kina. The other 3 victims were obviously simple gullible villagers and it is understandable that they fell into the prisoner’s sweet talk.

36. I, however, cannot understand how Mr. Joel Hiriats (the Air Niugini Manager at Buka at the relevant time) could have been fooled by the prisoner. She would been very convincing to fool such a person of Mr. Hiriats calibre. That the prisoner was able to convince her victims itself bespeaks of how convincing she would have been.

37. It appears that what convinced Mr. Hiriats and the others was the prisoner’s representation that the so-called scheme had the endorsement of the local National Member of Parliament, which of course was not true. In any case it is highly irregular for an obscure private “consultant”, if we may call her that, to be involved in such a scheme as the two governments would have utilized government servants and institutions on the ground to implement such an important Scheme.

38. What is clear to me is that the prisoner, gained the confidence of her victims, who, according to their victim themselves did not know her, because of their desperation to secure school fees for the children. It is despicable and immoral to defraud poor unsuspecting and gullible parents at a time when they are most in need and desperate.

39. Even though the fraud was perpetrated over a short period of 3 months, the prisoner succeeded to defraud her victims of a combined sum of K4500 of their hard and honestly earned cash.

41. I accept that the circumstances of this case are not as serious as those in The State v Florence Nohu and The State v Kayak. Nohu defrauded her victims of a total sum of K56,000. She also stood in a position of trust and hence her breach of that trust was very serious because she was not only a policewoman, but the OIC of Prosecutions. Her offending would definitely have eroded public confidence in the Bougainville Police Service (and of the Royal Papua New Guinea Constabulary), police personnel, law enforcement and the government generally.

42. Kayak’s fraud was also serious. Like the instant case it involved promised returns of hundreds of thousands of Kina. But it involved elaborate planning through the use of Morobe Provincial Government stationery (forged cheque books) to give the scheme an appearance of legitimacy.
43. Even though the prisoner in the instant case did not go that far she also promised huge returns – 10 fold returns – to her victims for their monies and also used the National and Autonomous Bougainville Government and the National Member of Parliament as a cloak for her unlawful scheme.

44. Having considered all the circumstances of this case, the personal circumstances of the prisoner and submissions by counsel, I should think that the following would be appropriate sentences:

45. These sentences shall be served concurrently and none of the period spent in pre-sentence detention will be deducted from the sentence. Effectively the prisoner will serve a total of 24 months or 2 years.

46. In addition, the prisoner is also ordered to pay a fine of K200.00. The prisoner’s bail of K200 is converted as payment of the fine.
47. It must be noted that I have departed slightly from the Belawa principles in imposing terms of imprisonment for the counts involving less than K1000. That is deliberate. This sentence must have a deterrent effect on people, like the prisoner, who think very little of the consequences and the hardships their victims end up in when they fall victim to fraudulent schemes that these fraudsters cook up.

48. And finally, should the sentence of 24 months (2 years) or any part of it be suspended? Suspension of a sentence involves the exercise of discretion by the Court. Such discretion must, however, be exercised according to proper principles. These being that a suspension will be considered if it will among other things promote restitution (Public Prosecutor v Tardrew [1988 -89] PNGLR 91) and if a suspension is supported by a favourable PSR (Public Prosecutor v Don Hale (1998) SC564) notwithstanding that, a sentencing court is not divested of its’ discretion to suspend a sentence, if the justice of the case warrants it, unless such discretion is curtailed by Parliament through legislation (Thress Kumbamong v The State (2008) SC 1017).

50. The PSR is non-committal and the MAR report clearly shows that the offence has not shown that she has the means to make restitution. Naturally then she does not qualify for a suspension. However, as we have seen the court is not entirely divested of its discretion. Parliament has not prescribed minimum penalties here or removed the court’s general discretion, hence, suspension may still be considered.
51. Despite the prisoner’s apparent lack of means she should not think that she should get away easily without repaying his victims. The fact that she may not have any savings does not, however, mean that she cannot raise or find money. In Bougainville all that is needed is a bit of sweat and effort for one, regardless of one's situation, to make money.

52. For this reason I therefore order that the prisoner’s sentence of 2 years be suspended fully upon her being placed on probation for a period of 2 years with the following additional conditions:

Ordered accordingly.
________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for Prisoner

National Court of Papua New Guinea

State v Girana [2019] PGNC 118; N7834 (23 April 2019)