N11580

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) NO. 217 OF 2021

THE STATE

V

TOBIAS KONDUPO

WAIGANI: BERRIGAN J
16 OCTOBER, 10 NOVEMBER 2025

CRIMINAL LAW–SENTENCE – S 404(1)(b) of the Criminal Code – Guilty plea – Four counts of inducing the delivery of monies by three financial institutions to himself by false pretence – Total value of 13,812.73 – Effective sentence of 2 years of imprisonment imposed.

Cases cited
Wellington Belawa v The State [1988-1989] PNGLR 496 
The State v Ostakel (2021) N8787
The State v Tracey Aumora (2016) N6323
The State v Enzeng Banabas (2021) N8802
The State v Dorothy Heni (2019) N7846
The State v Max Hibura (2017) N6993
The State v Mary Tengdui (2014) N5827
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
The State v Benedict Simanjon (2020) N8637
State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252
The State v James Paru (No 3) (2021) N9248
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 

Counsel
D Digori, for the State
J Kolowe, for the accused

DECISION ON SENTENCE

1.	BERRIGAN J: The offender pleaded guilty to 4 counts of inducing three financial institutions to deliver monies to him by false pretence, contrary to s 404(1)(b) of the Criminal Code for which the maximum penalty is five years of imprisonment.

2.	The offender admitted on arraignment that he and Nickson Roy were colleagues employed by the Department of Health attached to the Kerema General Hospital in 2016 and 2017.  Several years later, between 13 February and 6 March 2020 the offender pretended to be Nickson Roy, or on one occasion aided another person pretending to be Nickson Roy, to obtain loans in Roy’s name, the proceeds of which were delivered to the offender to a total value of K21,700.  

3.	On 13 February 2020 the offender and another person, Erick Tom, completed a loan application form in Nickson Roy’s name with J. Mali Finance Ltd (JMFL) for K2000. Erick Tom signed the document and presented it to Mark Karibe of JMFL. The offender told Mr Karibe that Erick Tom was Nickson Roy, resulting in the approval of the loan. From the proceeds, K200 was given in cash to Erick Tom, while K1800 was deposited to the offender’s personal bank account with BSP.

4.	On 3 March 2020 the accused presented himself to Jerkins Webster of Cannan Finance Ltd (CFL), this time pretending that he was Nickson Roy. He completed a loan application form in the complainant’s name and obtained a loan of K3200.

5.	On 4 March 2020 the accused applied to Moni Plus (Heduru Moni Ltd) for a loan of K15,000 in Mr Roy’s name. The loan was approved and the offender used the funds to refinance the existing loans with JMFL and CFL.

6.	The following day the offender again pretended to be the complainant to Cannan Finance Ltd and obtained a further loan and monies in the sum of K1500.

7.	In each case the offender supported the loan applications with false documents including a letter of employed from David Duna, Acting Human Resource Manager of Kerema Provincial Health Authority, dated 3 March 2020, a Department of Health Nursing Services Identification Card, a Department of Health Director Nursing Services Identification Card and a PNG Driver’s Licence.

Principles, Submissions and Comparative Cases
8.	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:

a)	the amount taken;
b)	the quality and degree of trust reposed in the offender;
c)	the period over which the offence was perpetrated;
d)	the impact of the offence on the public and public confidence;
e)	the use to which the money was put;
f)	the effect upon the victim;
g)	whether any restitution has been made;
h)	remorse;
i)	the nature of the plea;
j)	any prior record;
k)	the effect on the offender; and
l)	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.

9.	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:

a)	K1 and K1000, a gaol term should rarely be imposed;
b)	K1000 and K10,000 a gaol term of up to two years is appropriate;
c)	K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
d)	K40,000 and K150,000, three to five years’ imprisonment is appropriate.

10.	That guide is unchanged for our purposes: see David Kaya and Philip Kaman v The State (2020) SC2026.

11.	I note 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. 

12.	The State seeks a sentence of two to four years having regard to the following cases:

a)	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; 

b)	The State v Tracey Aumora (2016) N6323, Anis AJ, the offender pleaded guilty to two counts of obtaining monies totalling K37,950 on the false pretence that she was an SDA Pastor or Minister. She was sentenced to 4 years of imprisonment on each count to be served concurrently;
c)	The State v Enzeng Banabas (2021) N8802, Berrigan J, in which the offender pleaded guilty to 21 counts of obtaining monies by false pretence. Between 1 March 2018 and 31 May 2019, while employed as a Government Relations Officer with Total E&P PNG Limited, he dishonestly obtained a total of K39,550 from 21 different people by falsely representing that he was authorized to collect fees for tenders, recruitment, graduate programs, and visa or passport processing on behalf of the company. He was sentenced to an effective sentence of 3 years imprisonment, less time spent in custody, which was wholly suspended upon conditions including restitution; 

d)	The State v Dorothy Heni (2019) N7846, Berrigan J, in which the offender pleaded guilty to 7 counts of obtaining by false pretence. She obtained monies in amounts of K800, K1,000, K1,000, K200, K1,500, K1,500, to a total value of K7000, from 6 different people by falsely pretending that she had won a catering contract 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 an effective sentence of 2 years of imprisonment, less time spent in custody.  

13.	Defence counsel seeks a sentence of one to two years of imprisonment, wholly suspended. He referred to the following cases:

a)	The State v Max Hibura (2017) N6993, Salika DCJ in which the offender pleaded guilty to 3 counts of obtaining K11,100 by false pretence. He was sentenced to 3 years to be served concurrently, less time spent in custody, all of which would be suspended upon restitution of the full amount: “…all of that will be suspended, if he and all his relatives pay up the K11,000 to Moni Plus and Norman Finance Ltd. If all is paid, he comes out, if not he remains there until the entire amount is paid”;

b)	The State v Mary Tengdui (2014) N5827, David J, in which the prisoner pleaded guilty to 15 counts of false pretence to a total value of K21,250. She was sentenced to a 3 year effective sentence. s in hard labour to be served concurrently. In that case, His Honour deducted the pre-trial custody of 7 days, and balance was suspended on the condition that the prisoner re-pay K1,862.50 on a monthly basis for 12 months to restitute the full amount she used;  

Sentence

14.	Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. Applying the principles outlined in Wellington Belawa, the following matters have been taken into account in determining an appropriate sentence.

15.	This is not a case warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653 applied.

16.	The amounts in this case place the offences in Counts 1, 2 and 4 at the lower end of category two of Wellington Belawa, attracting a sentence up to two years of imprisonment as a starting point.  

17.	I initially confirmed the amount on Count 3 as K15,000.  Neither party addressed the fact that in that case K7887.27 of the loan monies were deposited to Mr Roy’s account with Heduru Moni and remained there and it was the balance of K7112.73 that was delivered to the offender. That does not alter the fact that the offender induced Heduru Moni to deliver that money to “any person” but as charged the indictment referred to delivery to the offender. The amount of monies delivered is not an essential element of the offence but he should be given the benefit in the circumstances of a plea. On the basis of K7112.73 the offending in Count 3 falls in the second category, attracting a starting range of up to two years.

18.	There was some breach of trust. It is not suggested that there was a fiduciary or other special relationship between the two but certainly the offender took advantage of his relationship as a colleague of Nickson Roy to use his identity to commit the offences. 

19.	The offences were committed on four separate occasions during a three-week period. The offences were clearly well planned in each case and involved significant preparation, including the use of false documentation, the involvement of another person in one instance, and some degree of sophistication.  

20.	The impact on Mr Roy has been great. Both he and the offender are from Southern Highlands and he regarded the offender as his colleague and brother. The theft of his identify has caused psychological distress, cost and inconvenience. It appears that he has been required to service the debt or at least part of it with Heduru Moni.  It is also reasonable to infer that the other financial institutions also suffered some cost and inconvenience albeit the first two loans were refinanced. No information was obtained from the financial institutions by Probation Services. 

21.	The monies were used by the offender for his own benefit. To date there has been no restitution.  

22.	The offender is 33 years old.  He is from Bela Village, Mendi in Southern Highlands Province. He is married with four children aged between 10 months and eight years of age.

23.	In mitigation this is the offender’s first offence.  He is of prior good character. He is relatively well educated and served for several years in the health industry. 

24.	He completed Grade 12 before attending Mendi Nursing College where he successfully obtained a Diploma in nursing. He was employed as Assistant Critical Nursing Officer with Port Moresby General Hospital from 2015 to 2017. He transferred to Kerema Hospital where he worked for a year before taking up work with SOS, Newcrest at Lihir until he was laid off when the sub-contractor experienced financial difficulties. He found employment again and was sent to Manus to take care of asylum seekers. When that shut down he returned to Port Moresby and was recently employed with Papua New Guinea Defence Force (PNGDF) Medical Team attached at the Air Transport Wing (ATW) Clinic but was terminated in relation to the offence. 

25.	Deputy Community Chairman, David Melare, says that the offending is out of character and is confident that the offender has learnt his lesson and poses no threat to the community. He is a respected resident of Kaysee settlement in Port Moreseby. Moses Miria Reuben, businessmen from the same community makes similar comments. 

26.	I have also taken into account that he cooperated with police in 2020 and made admissions in his record of interview. He pleaded guilty before the National Court. I take this into account as a reflection of his genuine remorse which he expressed on allocutus. I also take it into account into account on the basis that it has saved both this Court and the State and its witnesses the cost and inconvenience of a trial.  

27.	The offender made a long and at times emotional statement on allocutus during which he apologised to the court, the victim and his family. The impact of the offence on him has been great. He has effectively thrown away a good career in the health industry, where he is much-needed, and I have no doubt as demonstrated by his sacking from the PNGDF health service, that he will struggle to obtain employment in the future as a result of the conviction. Time spent in custody has had, and will continue to have, an impact on his wife and children.  

28.	There are no matters of mitigation special to the offender having regard to his age or health.  There has been some delay in this matter but that arises as a result of his failure to appear. I note the principles applying: The State v Benedict Simanjon (2020) N8637 at [40]; State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252 at [58]; The State v James Paru (No 3) (2021) N9248 at [37]. I make it clear that his failure to appear is not a factor in aggravation but for obvious reasons the delay which he has caused until his apprehension on bench warrant is not a factor in mitigation. 

29.	In determining the sentence on each count I have taken into account the offender’s personal circumstances, together with his lack of previous conviction, prior good character, early cooperation with police, guilty plea and sincere remorse. These are significant factors in mitigation but must be balanced against the amount of monies obtained, the breach of trust, the level of planning and deception involved and the impact on the victim(s).  Dishonesty offences are prevalent and this case calls for both general and specific deterrence.  

30.	In all the circumstances I impose sentences on Counts 1, 2 and 4 of 6 months, 12 months, and 6 months respectively. On Count 3, I impose a sentence of eighteen months. 

31.	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.”

32.	There is no “all-embracing” rule as to when sentences for two or more convictions should be made concurrent.  Generally, sentences should 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.  

33.	The offences are of similar character and were conducted during the same relatively short period. The offender induced three different loan companies to deliver the monies. On one view the sentences might be served cumulatively to that extent. The first three offences also show an escalation in monies delivered. Having regard to the nature of the offending, the time frame involved and the principles of totality the sentences will be served cumulatively to an effective total sentence of two years of imprisonment. A sentence of two years is also commensurate with the comparative authorities for similar amounts set out above.  

34.	I exercise my discretion to deduct the time spent in custody, namely five months, 1 day.

35.	The offender, his wife and community leaders beg for suspension of the sentence so that he might repay the monies. The Acting Chaplain of Bomana Correctional Service confirms that he a church leader within the prison. 

36.	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.  

37.	Suspension is not warranted for the purpose of restitution and is not supported by the report from Probation Services. Whilst his wife indicates that she and her family are willing to contribute K5000 there is no evidence that they have any real ability to do this and from her other statements it is very clear that she is struggling financially. I accept that Mr Reuben has the means to contribute K5000 but that does not meet the monies delivered. The offender says that he has monies in superannuation but no statement was produced in support. In addition, an order for restitution will burden the offender with a debt which it does not appear he can meet when he has already served a significant portion of the sentence.

38.	Moreover, suspension is not appropriate in this case. Imprisonment will not cause excessive suffering. The offender initially cooperated with police and I have given him credit for this in the head sentence. There is nothing particularly significant about the progress made towards rehabilitation whilst in custody. Whilst I have not taken into account his failure to appear as a factor in aggravation it is nevertheless a factor to be considered when determining whether he has shown any particular grounds for suspension on the basis of rehabilitation. In this regard a bench warrant was initially issued in 2022. He was taken into custody and then absconded. He was eventually apprehended on a further bench warrant in July this year. 

39.	Accordingly, I make the following orders.

Orders

(1)	The offender is sentenced to:
a.	On Count 1, 6 months of imprisonment;
b.	On Count 2, 12 months of imprisonment;
c.	On Count 3, 18 months of imprisonment;
d.	On Count 4, 6 months of imprisonment;
(2)	The sentences on Counts 1, 2 and 3 will be served concurrently.

(3)	The sentence on Count 4 will be served cumulatively with the sentences on Counts, 1, 2 and 3.

(4)	Time spent in custody, five months, 1 days will be deducted from the effective head service of two years of imprisonment, leaving a balance of 1 year, 6 months, 29 days to be served.

Lawyer for the State: Public Prosecutor		
Lawyer for the offender:  Public Solicitor