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State v Banabas [2021] PGNC 32; N8802 (19 April 2021)

N8802

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 29 OF 2020

THE STATE

V

ENZENG BANABAS

Waigani: Berrigan J
2021: 13^th November, 12^th April and 19^th April

CRIMINAL LAW–SENTENCE –S 404(1)(b) of the Criminal Code – Guilty plea – Obtaining K39,550 by false pretence – Sentence of 3 years of imprisonment, time spent in custody deducted, balance suspended upon condition of restitution.

Cases Cited:

Wellington Belawa v The State [1988-1989] PNGLR 496
The State v Zebedee Jabri Kalup (2015) N6038
The State v Stanley Haru (2014) N5660
The State v Travey Aumora (2016) N6323
The State v Peter Koa Kuala (2017) N6736
The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, 23 June 2017
The State v Joyce Moripi (2017) N6867
The State v Wesley Kopman CR (FC) 53 of 2017, unreported, 25 August 2017
The State v Terence Wilford Tabogani CR (FC) 305 of 2017, unreported
The State v Larry Dickson CR (FC) 886 of 2013
The State v Heni (2019) N7846
The State v Jack Osteka Metz, (2005) N2824
The State v Jimmy Kendi (No. 2), (2007) N3131
The State v Christopher Hulape No 2 (2017) N7173
The State v Ostakel (2021) N8787
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
Mase v The State [1991] PNGLR 88
Tremellan v The Queen [1973] PNGLR 116
Public Prosecutor v Kerua [1985] PNGLR 85
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320.

Legislation and other materials cited:

Sections 19, 404(1)(b) of the Criminal Code.

Counsel

Ms L. Jack, for the State
Mr E. Sasingian, for the Accused

DECISION ON SENTENCE

19^th April, 2021

1. BERRIGAN J: The offender pleaded guilty to 21 counts of obtaining monies by false pretence, contrary to s. 404(1)(b) of the Criminal Code for which the maximum penalty is five years of imprisonment.
   
2. At the relevant time the offender was employed as a Government Relations Officer with TOTAL E&P PNG Limited. Between 1 March 2018 and 31 May 2019 the offender obtained a total of K39,550 from 21 different people on 21 different occasions by false pretence.
   
3. In summary, he obtained monies in the amounts of K4500, K1200, K4000, K22,500 and K1800 intended as tender and related fees by falsely pretending to five small and medium business owners that he was the Projects Coordinator for TOTAL responsible for awarding contracts. (As previously found, the sum of K22,500 established on Count 4 is different from that averred of K31,500). He obtained a further K500, K750, and K550 intended as medical fees from three different people by falsely pretending that he was a recruitment officer with TOTAL. He also obtained K250 on eight separate occasions from different people, intended as visa and passport processing fees, on the false pretence that he was responsible for TOTAL’s Graduate Program, and K150, K400, K400 and K550 from a further four persons on a similar basis. In each case the meetings with his victims took place at TOTAL’s office in downtown Port Moresby.
   

Sentencing Principles and Comparative Cases

4. 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 of 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.
       
5. 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 misappropriated 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; and
   4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
      
6. I note here that we are dealing with the offence of obtaining by false pretence for which a maximum penalty of 5 years applies. The above sentences are in cases of misappropriation for which the maximum is 10 years.
   
7. Both the State and the defence have proceeded on the basis that there was a total of K39,550 involved but, as above, the amount confirmed by the depositions on Count 4 was different to that pleaded. I will take this into account.
   
8. Defence counsel submitted that a sentence in the range of three to four years of imprisonment would be appropriate. It refers to the following cases:
   
   1. The State v Zebedee Jabri Kalup (2015) N6038, Salika DCJ, in which the offender was convicted following trial of four counts of misappropriation in the sums of K1m, K2.5m, K1 and K0.25m and three counts of false pretence, K1m, K2.5m and K0.75m. He was sentenced to 8 years and 3 years’ in respect of each of the misappropriation and false pretence charges, respectively. The false pretence sentences were made cumulative on the misappropriation sentences, leaving a total of 11 years to be served;
      
   2. The State v Stanley Haru (2014) N5660, Salika DCJ, in which the prisoner was convicted following trial for misappropriation and obtaining by false pretence the sum of K2,628,825.18. He was sentenced to 8 years and 4 years, respectively, the sentences to be served concurrently;
      
   100. The State v Travey Aumora (2016) N6323, Anis AJ, in which the offender was sentenced to 4 years. He pleaded guilty to two counts of obtaining a total of K37,950 by false pretence;
        
   4. The State v Peter Koa Kuala (2017) N6736, Auka AJ, in which the prisoner pleaded guilty to obtaining K282,200 by false pretence. He was sentenced to four years which was wholly suspended upon restitution.
      
9. The State submitted that a sentence of three to five years should be applied. The State relied on the following cases:
   
   1. The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, 23 June 2017, Salika DCJ (as he then was), in which the prisoner pleaded guilty to presenting a false cheque written out to himself in the sum of K4 million and told his victims he needed money to clear the cheque. On that basis he obtained K11,000 from four victims at different times. He was sentenced to 4 years on each count to be served concurrently;
      
   1. The State v Joyce Moripi (2017) N6867, Salika DCJ, the offender pleaded guilty to obtaining K207,000 through the submission of false invoices. She was sentenced to 4 years of imprisonment.
   2. The State v Wesley Kopman CR (FC) 53 of 2017, unreported, 25 August 2017 where Liosi AJ sentenced the prisoner to 4 years’ imprisonment IHL after he pleaded guilty to 1 count of obtaining K63,000 by false pretence, namely that he would repay K10,000 for every K1000 borrowed upon the sale of some gold;
      
   100. The State v Terence Wilford Tabogani CR (FC) 305 of 2017, unreported, 26 March 2018, Salika DCJ, in which the prisoner offered to assist his uncle who was running for elections. The offender obtained a total of K12,500 on the false pretence that he required monies for the purpose of the election campaign. The monies were not used for their intended purpose but for his own use. The prisoner was sentenced to 4 years’ imprisonment on a plea of guilty;
        
   4. The State v Larry Dickson CR (FC) 886 of 2013, unreported, 12 August 2013, David J, in which the prisoner obtained cash in the sum of K15,962, cash and property to the value of K700, and cash and property in excess of K1000 from three victims, respectively, over a period of 4 months by falsely pretending that he would repay 100% interest on the money borrowed and on the basis that he needed money to facilitate the transfer of investments made by his late father. A sentence of three years was imposed on the first count and one year each on the remaining two counts. Applying the totality principle, the accused was sentenced to 3 ½ years’ imprisonment;
      
   5. The State v Heni (2019) N7846, Berrigan J, the offender obtained amounts of K800, K1000, K1000, K200, K1500, K1500 from 6 different people by falsely pretending that she had won a catering contract worth K250,000 for the upcoming APEC meeting but required start-up capital to secure the contract, and would repay the borrowed monies with 100% interest. She also obtained the use of a motor vehicle on the basis of a similar false pretence. She was sentenced to sentences of between 2 months and 2 years, all sentences were made concurrent.
      
10. I have also had regard to the following cases:
    
    1. The State v Jack Osteka Metz, (2005) N2824, Manuhu AJ, in which the prisoner pleaded guilty to one count of obtaining property 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 millions of kina from the sale of Treasury Bills. He was sentenced to 3 and a half years’ imprisonment;
       
    2. The State v Jimmy Kendi (No. 2), (2007) N3131, Lenalia J, in which the offender was convicted following trial of fraudulently obtaining and applying to his own use K4,298,037.33 belonging to the State, with the assistance of corrupt officers in the Departments of Finance & Treasury and Defence. He falsely claimed that the Defence Force had unlawfully used machinery and equipment belonging to his company whilst in Bougainville during the Crisis. His company never owned any machinery or equipment at the relevant time. He was sentenced to 9 years for misappropriation; 4 years for false pretence (to be served cumulatively thus a total of 13 years imprisonment);
       
    100. The State v Christopher Hulape No 2 (2017) N7173, Koeget AJ The prisoner was convicted following trial of one count of false pretence and one count of misappropriation of K1.6m of State monies provided for a village fishing project. He was sentenced to 5 years of imprisonment on each count to be served concurrently.
         
    4. The State v Ostakel (2021) N8787, Berrigan J, in which the offender pleaded guilty to obtaining K305,800 on the false pretence that he would provide K1m towards the complainant’s election campaign but needed fees to access the monies from his bank account. He was sentenced to 4 years of imprisonment.
       
11. The sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    

Considerations on Sentence

12. Having regard to the principles outlined in Wellington Belawa, the following matters have been taken into account.
    
13. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. The offences in this case range for the most part from amounts as low as K150 up to K4500. There is one larger amount of K22,500. In total the offences involve a substantial sum of K39,550.
    
14. The offender took advantage of his employment with TOTAL. The offences were clearly well planned in each case. The offences were conducted in TOTAL’s office to give credibility to his ruse, and each offence was deliberately tailored to deceive the particular individual he was dealing with, whether it was a small business owner, or a person looking for employment or an opportunity to participate in TOTAL’s graduate program.
    
15. The amounts obtained in this case are not as large as others that come before this Court. Nevertheless, the impact on the victims has been significant. Business owners lost valuable monies intended to grow their small businesses, and the offender took what little money people who were looking for employment had available. The money was used for the offender’s own benefit. To date there has been no restitution.
    
16. The offender is 29 years old. He is from Mataya Village in Morobe Province. He is married with two young children. He comes from a God fearing and law abiding family, and is the first among his extended family to have a criminal record.
    
17. The offender is well educated. He has Bachelor’s degree in Property Evaluation and Management from the University of Technology, graduating in 2013. After graduation he worked as a property officer at Malahang Industrial Centre, and briefly worked with Ok - Tedi Mining Ltd as a Government Liaison Officer in 2015 before joining TOTAL as a Government Liaison Officer in 2015, where he worked until the offence were detected in 2019. He is currently unemployed and is largely dependent on his sister for financial support.
    
18. In mitigation this is the offender’s first offence. There is limited other information available, Probation Services being unable to obtain the views of community or family. I accept given his past positions that he is of prior good character.
    
19. The offender expressed remorse on allocutus. It was one of the most eloquent and genuine I have heard. In brief, he apologised to the court, the victim and his family. He acknowledged that he had a good career and took advantage of it to commit the offences. Despite earning a good salary, he faced financial difficulties and personal problems. He failed miserably to live within his financial means and failed to seek guidance and advice from his family at the time. His actions have affected the welfare of his wife and children. The time spent in custody, the impact on himself and the pain and suffering inflicted on his family are lessons that he will never forget. He begged for suspension of his sentence so that he might repay the monies taken from his victims.
    
20. The offender cooperated from a very early stage with authorities. He made admissions in his interview with police and pleaded guilty at the first opportunity. He has not at any time tried to hide his involvement in the offending. Whilst that doesn’t excuse his conduct, it does speak to his genuine remorse and has saved the Court and the State the considerable time and expense of a trial.
    
21. The impact of the offence on the offender has been and will continue to be significant. The offender is a highly intelligent and articulate young man. He had a promising career in the private sector as a government liaison officer in the resource industry and he has thrown all of that away. He has embarrassed his family and it will be very difficult for him to find formal employment in the future, particularly in the area of property valuation and management that he is trained in, or in the resource industry generally. Time spent in custody has had, and will continue to have, a significant effect upon his wife and children.
    
22. There are no matters of mitigation special to the offender.
    

Sentence

23. The offender has been convicted of 21 counts of obtaining by false pretence, contrary to s. 404(1)(b) of the Criminal Code for which the maximum penalty is five years of imprisonment. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653.
    
24. There was no need in my view for the State to proceed with 21 counts in this case. It is reminded of s 603 of the Criminal Code which permits the Court to take into account other offences with which an accused has been charged. A number of representative charges would have sufficed to provide an appropriate basis for sentence, with the other charges being taken into account.
    
25. In determining sentence in each case I have taken into account the offender’s personal circumstances. I have also taken into account his lack of previous conviction, his prior good character, very early cooperation with police, early guilty plea and sincere remorse. These are significant factors in mitigation and will be reflected in the head sentence imposed. Given that the State had proceeded with 21 counts, the time, cost and inconvenience saved to the Court, the State and witnesses is very significant.
    
26. Those factors in mitigation must be balanced in each case against the amount of monies obtained, and the planning and deception involved. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.
    
27. Both counsel have submitted that the appropriate sentence in each case is between 3 and 5 years. I do not agree. The majority of the offences concern amounts of less than K1000. It is well established that in general terms a prison term is not appropriate in such cases.
    
28. 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:
    

“It is clearly laid down by this Court in the cases referred to that there are three stages to go through in coming to a total sentence. The first step is to consider the appropriate sentence for each offence charged and then consideration be given as to whether they should be concurrent sentences or cumulative sentences. Where the decision is made to make two or more sentences cumulative, the sentencer is then required to look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total. This principle must be observed because a straightforward addition of sentences usually leads to a total sentence that is excessive in the whole of the circumstances.”

29. Although it is neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent, sentences should generally speaking be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts: Tremellan v The Queen [1973] PNGLR 116. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative: Public Prosecutor v Kerua [1985] PNGLR 85.
    
30. Taking into account all of the matters outlined above, I impose the following sentences of imprisonment in hard labour:
    1. On Count 1, 1 year;
    2. On Count 2, 6 months;
    100. On Count 3, 1 year; and
    4. On Count 4, 2 years;
    5. On Count 5, 6 months;
    6. On each of Counts 6 to 21 he is sentenced to the time already served in custody.
31. 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 general terms therefore the sentences should be served consecutively. Having regard to the principles of totality, however, the sentence for Count 1 will be served consecutively to the sentence on Count 4. All other sentences will be served concurrently. The effective term of imprisonment is 3 years. Time spent in custody, 8 months is deducted, leaving 2 years, 4 months to be served.
    
32. 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.
    
33. The offender has indicated his willingness to make restitution to the victims. Probation Services support the recommendation and confirms that he has the means to do so. I am also satisfied that he has very good prospects of rehabilitation having regard to his conduct since the offence. In the circumstances I intend to suspend the balance of the sentence. This is not an exercise in leniency but an order made in the community interest: The State v Frank Kagai [1987] PNGLR 320.
    
34. Accordingly, I make the following orders.
    

Orders

(1) The offender is sentenced to 3 years of imprisonment in hard labour to be served at Bomana Correctional Institution.

(2) Time spent in custody, 8 months, is deducted, leaving a balance of 2 years, 4 months to be served.

(3) The balance to be served is wholly suspended upon restitution of the sum of K39,550 within two years of today’s date. The monies are to be paid into the National Court Trust Account.

(4) The offender shall enter into his own recognisance to keep the peace and be of good behaviour during the balance of his sentence.

(5) Any bail monies are to be immediately refunded.

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