N9620

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 285 OF 2020

THE STATE

V

LAPI KAY

Goroka: Miviri J
2022: 08th April, 4th May

CRIMINAL LAW – Practice and Procedure – s404(1)(a) False Pretence CCA – Plea– Repair Maintenance of complainants vehicle – Towed to Prisoners Premises – Vehicle not fixed – Parts Stripped & Missing – K74, 322.78 worth of Parts – complainant led to believe– false representation – Loss of Vehicle Business – serious offence – PSR & MAR in Favour of Prisoner – punitive & deterrent sentence.
Facts
The Prisoner falsely represented to the Complainant that he will repair her vehicle and return it. He obtained it to his premises but never repaired. He stripped it of all its parts leaving the vehicle in serviceable and defunct.

Held
Plea
Serious breach of trust
First offender 
PSR & MAR favourable
Deterrent & punitive sentence

Cases Cited:

Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC564
Kumbamong v The State [2008] PGCS 51; SC1017 
Lawrence Simbe v The State [1994] PNGLR 38 
State v Duk [2009] PGNC 247; N3924 
State v Eric Emmanuel Vele [2002] PGNC 93; N2252
State v Hagei [2005] PGNC 60; N2913
State v Thomas Jim Nori [2016] N6467
State v Zuvani [2004] PGNC 127; N2641 
Tardrew, Public Prosecutor [1986] PNGLR 91 
Wellington Balewa v The State [1988-89] PNGLR 496

 Counsel:

K. Umpake, & L. Toidalema & J. Noma, for the State
G. Apa, for the Defence
		
SENTENCE

04th May, 2022

1.	MIVIRI J: This is the sentence of the prisoner convicted after pleading guilty to falsely pretending to the complainant that he would fix and repair her Toyota Land Cruiser 10-seater vehicle. Instead, the vehicle was stripped of all its parts making it in serviceable.

2.	Prisoner is a mechanic who asked one Teddy Ulopo’s first wife between March 2017 and April 2017 to fix the clutch cylinder kit of his vehicle a Toyota Landcruiser, White in colour registered number EAE 299. Discussion followed suit and agreement was reached that he would fix the clutch cylinder kit because it was malfunctioning. He insisted that he would take the vehicle to his residence to have it fixed from there. He would bill them and have the vehicle returned upon payment. But during the election period Prisoner was seen driving the vehicle around with a Goroka Open candidates’ poster on it. He was stopped by the complainants who expressed dissatisfaction in the way he was using the vehicle without their consent. He promised to return it with the bill but never did. The complainant later discovered that various parts of the vehicle valued up to K 74, 322. 78 were stripped off leaving the vehicle unusable and beyond repair.

3.	The prisoner pleaded guilty to Obtaining goods or credit by false pretence or wilful false promise section 404 of the code reading:

“(1)	A person who by false pretence or wilful false promise, or partly by a false pretence and partly by a wilfully false promise, with intent to defraud—
(a)	Obtains from any other person any chattel, money or valuable security; or
(b)	Induces any other person to deliver to any person any chattel, money or valuable security,
is guilty of a crime
Penalty: Imprisonment for a term not exceeding five years.
 (2) 	It is immaterial that the thing obtained or its delivery is induced through the medium of a contract induced by the false pretence or the wilfully false promise, or partly by the false pretence and partly by the wilfully false promise, as the case may be.
 (3)	A person incurring a debt or liability who obtains credit by false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, or by any other fraud, is guilty of a misdemeanour.
	Penalty: Imprisonment for a term not exceeding one year.
(4)………
4.	What is clear is that the actions of the prisoner will draw at the maximum not exceeding five years imprisonment. It is trite that the maximum penalty of five years will be drawn the worst case of its kind. And what is a worst case is deduced by individual facts and circumstances. At the outset this is not the worst case of false pretence and so would draw a determinate sentence. 

5.	The prisoner is a trained mechanic and has work experience with a number of workshops fixing vehicles. The presentence report sets that he was employed as a mechanic with Lae Builders in Lae Morobe Province from 2011 to 2013. Which is the result of education completed at the Goroka Technical College in 2010. He is settled in life because he is married and has five children, 3 boys who are aged, 4, 6, & 8 years old. And two girls aged 7 seven and 12 Twelve years respectively.
 
6.	At the prime this is purely a commercial relationship between the prisoner on the one hand and the complainant on the other hand. The subject of the relationship is the Toyota Land Cruiser ten-seater registered number EAE 299. The complainant trusted that the prisoner had exerted upon him to fix the subject vehicle but it did not see the complainant, its owner because it was stripped off all parts making it useless without. The prisoner pleaded guilty to the indictment presented against him. He recounted in allocutus that he was prepared to fix the vehicle or a like vehicle and have it returned to the complainant. That the parts were stolen when he was in Madang. He could not locate them. Though the vehicle was with him.

7.	It was a very weak excuse to say that the parts of the vehicle were stolen whilst it was in his possession in his yard. It would not have been in his yard had he not sought and obtained the consent of the complainant. He therefore in law had a duty to ensure that it was safe and secure within. Importantly that it was fixed repaired of the defect agreed to, bill made out to the complainant paid for, and returned. But it did not eventuate as simple in that manner. Its parts were removed making it useless and so the complainant was entitled in the way contended to pursue and obtain it operational and serving. In the presentence report, complainant voiced that, initially when allocated the Prisoner, what was needed to be repaired was only the cylinder kit, which would have seen out a budget of K50.00 at the highest level. Hence, he demanded that there were two options open to the Prisoner given, the first was to pay for the sum of K 74, 322. 78. Or a reduced amount of K 50, 000.00. And the second option was to have the vehicle fully fixed serviced to running condition and to have it given back to the victim. And thirdly if he was not able to meet both conditions, he serve the sentence imposed by the Court in jail.

8.	What is clear, is that the prisoner does not immediately have the means to settle as voiced by the complainant victim. According to the means assessment report he earns K400.00 from small rental properties that he has. And that he is awaiting K 20, 000.00 due next month June 2022 from a sale of a small piece of his land. In both instances the means to settle what is sought out by the complainant cannot be immediately released given. Time would have to be taken to recover but an opportunity ought to be given the will to have the vehicle back to the complainant attempted. In my view this is a sensible option to be exercised given that the Prisoner has pleaded guilty. He is a first offender of good standing in the community evidenced out by the probation report, verified by one Supi Amu, Elder of the Komiufa SDA Church given that he is a married man with five young children of his who depend on his provision. They would be seriously affected should an immediate jail custodial term is imposed.

9.	But it is workable for the Prisoner to use the skills he possesses to get another second-hand vehicle fix it and to give it back to the victim to satisfy. Here primarily time is needed. And given that the length of time taken to effect this is uncertain because the prisoner does not have personal savings to realize this option immediately. The offence is a serious one in that the life of the complainant has been seriously affected by the prisoner. He has been deprived of his vehicle no fault of his. He did not personally consent, as consent was given by his wife because he was out of the country at that time.

10.	There is a meeting of the minds both by the complainant and the Prisoner, that some attempt must be accorded for the return of the vehicle, or a like vehicle to the complainant. And time would be accorded for this to happen, given that the prisoner does not of present have the means. The time to accord is not gauged by factors conducive to this end in the hands of the Prisoner. Except that he is a skilled mechanic who can provide and return that vehicle if he has the money. Both presentence and the means assessment report do not disclose favourable to this end. Because it would tie in with suspension of sentence if there is real means evident that suspension of sentence would attain what is due the complainant. Here indeed he would have his vehicle back. Presentence report has not recommended in favour of probation but has left the matter to the discretion of the Court given.

11.	And here It would serve no utility to suspend sentence where there are no real means to recoup what has been lost. Here there is no real concrete material means for the complainant to be given back what is due to him. Prisoner does not point to any substance, a vehicle in his yard to be fixed with parts bought from his savings to put back the vehicle back to the complainant. It cannot be a wait and see. That is not justice as it will lead back here to Court to enforce and order that is given without any basis to realize. There is simply no evidence that the Prisoner will make good what is ordered as a condition of probation. Given the period that this matter has been awaiting leading up from the Committal on the 11th November 2020 to the present, there is no payment nor an attempt by the Prisoner to settle what is owed the complainant, so that the plea is backed by real attempt to settle what is due the complainant.

12.	These facts views in the light of Public Prosecutor v Bruce Tardrew [1986] PNGLR 91 shed that, "suspension of sentence pursuant to section 19 (6) of the criminal code is, or maybe appropriate in three broad categories. The categories are not exhaustive (1) where suspension will promote the personal deterrence, reformation, or rehabilitation of the offender; (2) Where suspension will promote the repayment or restitution of the Stolen money or goods; (3) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or  health."  
 
13.	Applied here the presentence report with the means assessment report both do not bear out real prospect of the repayment back of the Toyota Land cruiser ten-seater valued at K 74, 322.78 to the complainant. Suspension will promote personal deterrence, but must be seated on real evidence to succeed recouping the vehicle for the complainant. That is not the case here except the word of the Prisoner without independent verification that what he contends will happen, complainant will recover loss due.

14.	There can be no repayment and restitution where there are no means to draw out to level for the complainant. It is not a gamble but real opportunity to realize the loss suffered by the complainant. There is no medical evidence that the prisoner will suffer if incarcerated as a result of this conviction. His children will certainly miss his provision for them. But that is natural to the conviction he has authored no fault of theirs. There is no evidence of suffering over and above for them as a result. There are no extenuating circumstances, State v Hagei [2005] PGNC 60; N2913 (21 September 2005) that warrant a penalty other that what is ordinarily due given. The evidence does not warrant a treatment quite apart from the ordinary in similar cases due.

15.	Here evident is the element of dishonesty by the prisoner in the way that he acted. The evidence is that the subject vehicle was fixed operational seen by the complainants used by the Prisoner with poster affixed to it in for Goroka Open in the elections. Rather than give the vehicle to the complainant there and then when they complained, he chose to keep it to their detriment, because parts were removed making it difunctional and useless for the complainant, but incurring K 74, 322.78 to put it back on the road useable. It is clear given that the observation of the Supreme Court in Wellington Balewa v The State [1988-89] PNGLR 496, are in my view applicable here given the facts circumstances including both the mitigating and aggravating factors here in the following order:

(i)	Amount that was taken;
(ii)	Degree of trust held by the prisoner;
(iii)	Period over which the offence is committed;
(iv)	Use of what the property was put to;
(v)	Effects on the victims;
(vi)	Effects on the offender herself;
(vii)	Effect on the public confidence;
(viii)	Restitution.

16.	The value of the vehicle is K 74, 322.78 which falls into the category four (4) set out by that case that an amount between K40,000 and K150,000, three to five years imprisonment is appropriate. This is because the degree of trust was over whelming such that the vehicle was left in the hands of the prisoner. And from the initial time taken between March 2017 and April 2017 up to the date of sentence today, there is no evidence that the vehicle has been repaired fixed ready to be delivered to the Complainant. Nor is there evidence that there is any real prospect of it getting to that level from the resources that the prisoner has to deliver. It was put to election use in the 2017 Goroka Open Seat and after drawn to the notice of the prisoner to desist, it become defunct because its parts were removed leaving K 74, 322. 78 to put it back on the road serviceable. Who better with the knowledge and skills to master that? It was in the possession of the prisoner at all relevant times then. He is a mechanic with the skills and know how to remove the parts, or to put it back.

17.	Seriously the victim has lost out on the vehicle, the prospects of gaining it from the hands of the prisoner are remote considering his extent of resources to recoup and redeliver the complainant. Its effect on the prisoner is imprisonment because there is no real concrete evidence to suspend to recoup. Sentencing is not a gamble but dictated by evidence applied to the law. There is no evidence to apply so as to suspend part of the sentence to allow recouping the vehicle to the Complainant. Restitution is not a dream but must be real. The court will allow opportunity for restitution if there is evidence to sustain and support. Here considering the presentence report and the means assessment report in its entirety, there is really no basis for suspension of the sentence on the condition that the vehicle will be repaired handed over to the complainant with confirmed time and date.
18.	In State v Thomas Jim Nori [2016] N6467 a sentence of 2 years IHL suspended on payment of a fine of K10, 000.00 was imposed. That is not the same here because prisoner does not demonstrate any credibility with substance here for repayment. In the State v Eric Emmanuel Vele [2002] PGNC 93; N2252 Prisoner there took the initiative to make repayment of K11,091.23 even before the formal orders of court and had a balance remaining of K4, 008.77 to settle the money stolen from the Port Moresby Westpac Bank Limited where he was employed as Supervisor international Bank centre. And the presentence report recommended probation with community supervision which the court acceded to in view of that being so in the light of Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC564 (27 August 1998) that criminal sentencing is a community responsibility. The Sentence there was 2 and a half years suspended on very strict conditions of Probation. The circumstances here do not fit that and it would not be the same to here to follow suit.

19.	In State v Zuvani [2004] PGNC 127; N2641 (25 August 2004) prisoner pleaded guilty to transferring paperless K22, 685.43 over a period of time property of her employer Bank of South Pacific Limited into a relatives account where she used the save card withdraw and used the money. She had almost made complete and full restitution of that money back to the bank. The court considered and imposed 4 years wholly suspended on seven conditions on probation attaching. There is no repayment at all here nor any means to so repay here.

20.	Which was the same in State v Duk [2009] PGNC 247; N3924 (15 July 2009) prisoner was an accountant of Wau Microbank. He dishonestly obtained and used K32, 800 in customer’s deposits that he applied to his own use contrary to section 383A of the Code. He never paid back any amount of that money. The court considered and imposed 4 years IHL none of which was suspended given that he had not repaid nor was there any facts to impose otherwise. He was a graduate from the Divine Word University with a Bachelor of Business Studies. The amount there is lower than the present.

21.	I take due account that an appropriate sentence would be determined by reference to its own set of facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38 which views are also set out in Kumbamong v The State [2008] PGCS 51; SC1017 (29 September 2008) a trial Judge's discretion to impose appropriate sentence is not restricted by the guidelines as that would amount to legislating and restriction of it. Consequently, I consider that the appropriate sentence given all set out above in the case of the prisoner is two (2) years IHL in jail. I am not sentencing him for dishonest application but for false pretence hence the sentence imposed in view of the maximum under section 404 (1) of the Code. And I so impose that upon him. I order any time on remand to be deducted forthwith. I further order that the bail moneys be refunded forthwith.

22.	The sentence is 2 years IHL in jail. Time in custody is deducted forthwith and Bail is refunded forthwith. Warrant will issue in accordance.

Orders accordingly. 
__________________________________________________________________
Public Prosecutor:  Lawyer for the State
Public Solicitor    : Lawyer for Defence