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State v Ostakel [2021] PGNC 87; N8787 (6 April 2021)

N8787

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 319 OF 2019

THE STATE

V

JACK OSTAKEL

Waigani: Berrigan J
2020: 10^th November,
2021: 8^th March and 6^th April

CRIMINAL LAW–SENTENCE –S 404(1)(b) of the Criminal Code – Guilty plea – Obtained K305,800 by false pretence – Sentence of 4 years of imprisonment.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91
Wellington Belawa v The State [1988-1989] PNGLR 496
Lawrence Simbe v The State [1994] PNGLR 38.
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, 26 March 2018
The State v Larry Dickson CR (FC) 886 of 2013, unreported, 12 August 2013
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

Legislation and other materials cited:

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

Counsel

Ms T. Mosoro, for the State
Mr E. Sasingian, for the Accused

DECISION ON SENTENCE

6^th April, 2021

1. BERRIGAN J: The offender pleaded guilty to one count of obtaining K305,800 by false pretence, contrary to s. 404(1)(b) of the Criminal Code, on the basis of the following agreed facts, which were confirmed by the depositions.
   
2. In March 2016 the offender falsely represented to the complainant that he had a large sum of money in his bank account from which he would give the complainant K1m for the complainant’s election campaign in East Sepik Province. In order to access the monies, however, the offender said that the complainant needed to pay fees to the offender’s personal bank account. Between March 2016 and November 2017 the complainant deposited, or caused to have deposited, to the offender’s bank account at least K305,800. The offender never had access to K1m and never intended to provide any monies to the complainant.
   

Sentencing Principles and Comparative Cases

3. 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.
       
4. 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.
      
5. 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 for equivalent amounts is 10 years.
   
6. Defence counsel submitted that a sentence in the range of three to four years of imprisonment would be appropriate. The State submitted that the maximum sentence of five years should be applied. The State relied on the following cases:
   
   1. 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;
      
   2. 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;
      
   100. 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, 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.
        
7. 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.
        
8. 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

9. Having regard to the principles outlined in Wellington Belawa, the following matters have been taken into account.
   
10. 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 offence in this case involves a substantial amount of more than K300,000.
    
11. Contrary to the State’s submission, the offence did not involve a serious breach of trust. Yes, the offender took advantage of the complainant’s belief in his representations but that is the offence charged. There was no special, fiduciary or familial relationship between the two. As to whether there was a close friendship, that was not alleged in the brief facts.
    
12. The offender maintained the false pretence over an extended period, continuing to meet with the complainant in an effort to maintain the pretence that he was working with the bank to have his monies released. The ruse clearly involved some planning and his dishonesty extended during the relevant period.
    
13. The money was used for the offender’s own benefit.
    
14. The State submits that the impact on the victim has been great. He is unable to repay those who contributed some of the monies obtained by the accused and he has lost his standing in the community as a result. That may be but as far as I can tell the victim has applied monies belonging to the school at which he was a principal. I hope that matter is being properly investigated.
    
15. The offender is 60 years old. He is from Tumel Village in West Sepik Province but lived in his in-law’s house in Gerehu for the past 30 years. He has a wife and five children, the eldest of which is 21 years old, and the youngest is in Grade 5.
    
16. The offender completed Grade 12 at Vanimo High School before starting studies at the University of Technology, which he did not complete. He is not formally employed and has no regular form of income, and no assets.
    
17. The offender suffered from a life threatening heart attack in 2016.
    
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.
    
19. The offender expressed remorse on allocutus which I accept as genuine. He apologised to the court, the victim and his family. His family did not attend he said because they were ashamed of what he had done. He asked for probation.
    
20. The offender cooperated from a very early stage with authorities 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 the offending 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 not a young man. I am sure that his offending has brought shame and a loss of standing to both himself, and his family. It will be very difficult for him to find formal employment in the future, particularly given his age. Time spent in custody will also have a significant effect upon his wife and children.
    
22. There are no matters of mitigation special to the offender.
    
23. Whilst I accept that the offender is not a young man and that he suffered a heart attack, no medial report was provided to assist the court and in the circumstances, I am not satisfied that the offender will suffer exceptionally in prison as a result of his health condition.
    

Sentence

24. The offender has been convicted of one count of obtaining K305,800 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.
    
25. I do not accept the State’s submission that this case falls within that category. The amount is large but it was open to the State to proceed with a misappropriation charge for which a greater maximum penalty is available. The aggravating factors in this case are serious but they do not make it of the worst type.
    
26. 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 and sincere remorse. These are factors in his favour and will be reflected in the sentence imposed. I have taken into account his age and health in this regard. Nevertheless, they are outweighed by the aggravating factors in this case, namely the nature and quantum of the offence, the period over which the monies were obtained, the use to which the monies were put, and the planning involved. Dishonesty offences are prevalent, and this case calls for both general and specific deterrence.
    
27. Having considered all of the above matters, including comparative cases, I sentence the offender to 4 years of imprisonment. On my calculations the offender has been in custody for 2 years, 6 weeks.
    
28. As mentioned, the offender has pleaded for his sentence to be suspended.
    
29. 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.
    
30. I am not satisfied that suspension is justified on health grounds and the offender is not in a position to make restitution. In the circumstances, I refuse to suspend any part of the sentence and make the following orders.
    

Orders

(1) The offender is sentenced to 4 years of imprisonment in light labour to be served at Bomana Correctional Institution.

(2) Time spent in custody, 2 years, 6 weeks will be deducted, leaving a balance of 1 year, 10 months, 2 weeks to be served.

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

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