State v James Mariko

• Jurisdiction: Papua New Guinea
• Judge: Polume-Kiele J
• Judgment Date: 21 September 2015
• Citation: (2015) N6086
• Court: National Court
• Year: 2015
• Judgement Number: N6086

Full : CR. (FC) NO. 84 OF 2015; State v James Mariko (2015) N6086

National Court: Polume-Kiele J

Judgment Delivered: 21 September 2015

N6086

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. (FC) NO. 84 OF 2015

STATE

V

JAMES MARIKO

Prisoner

Kainantu/Goroka: Polume-Kiele J

2015: 17 & 31 July

2015: 21 September

CRIMINAL LAW - Guilty Plea - Obtaining goods or credit by false pretence or wilfully false promise - s 404 (1) (a), Criminal Code Act

CRIMINAL LAW - Sentence - Early guilty plea - No prior conviction - Suspension of sentence considered.

CRIMINAL LAW – Sentence - 3 years imprisonment - s 404 (1)(a), Criminal Code Act, - Deducted 11 months 2 days (pre-trial time held in custody) - s 3 (2) Criminal Justice (Sentences) Act 1986, - Suspended 1 year sentence on terms - s 19 Criminal Code Act- To serve 1 year 28 days imprisonment with hard labour.

Facts

The brief facts are that between the 12th of February 2014 and 16th of April 2014, at Kainantu, in the Eastern Highlands Province of Papua New Guinea, the prisoner by false pretence presented himself to John Sekap and his wife Deaso Sekap that he will buy a used car from the Director of SIL on their behalf and he asked them to make part payment for a used car on their behalf to the Director of SIL. Acting upon this representation, the victims, (complainants) between the period from 12th of February 2014 and 16th of April 2014 respectively gave to the prisoner, a total sum of Eight Thousand and Five Hundred (K8, 500.00) in cash as payment for the used car which unfortunately was not delivered to them. Upon realizing this default, they went themselves to Ukarumpa and consulted with the Director of SIL about the payment of such a used car. The SIL Director however informed them that he never received any payment in the sum of K8, 500.00 from the prisoner as payment for a used car. The prisoner upon becoming aware of his misdeeds, went into hiding until his subsequent arrest and charges upon which he is indicted on one count of obtaining goods or credit by false pretence or wilful false promise, under section 404 (1) (a) of the Criminal Code.

Held:

(1) The prisoner by his own admission has admitted guilty to obtaining goods or credit by false pretence or wilful false promise, a sum of K8, 500.00, the property of John Sekap and his wife Deaso Sekap contrary to s.404 (1)(a) of the Criminal Code Act.

(2) In the Record of Interview conducted on the 18th of November 2014 at Yonki Police Station, Kainantu, Eastern Highlands Province at 1.00 pm., the prisoner admitted to obtaining goods or credit by false pretence or wilful false promise, a sum of K8, 500.00, money which the prisoner admitted to using for his own purpose.

(3) The prisoner is sentence to 3 years imprisonment less the period of 11 months 2 days which is the period that the prisoner has spent in custody pursuant to s 3(2) of the Criminal Justice (Sentences) Act 1986.

(4) In the exercise of discretion under s 19 of the Criminal Code Act, 1 year sentence suspended on terms.

(5) The prisoner is to serve the balance of 1 year 28 days sentence in custody at the CIS, Bihute.

Cases cited

Paulus Pawa v The State [1981] PNGLR.498

Public Prosecutor -v- Don Hale (1998) SC564

State v Henry Eliakim [2007] N3190

State v Solien [2012] N4665

The State v Tom Morris [1981] PNGLR.493

Wellington Belawa -v- The State [1988-89] PNGLR 496

Counsel

Barbara Gore, for the State

John Biki, for the prisoner

JUDGMENT ON SENTENCE

21 September, 2015

1. POLUME-KIELE J. The prisoner appeared before me on the 15th of July 2015 and upon arraignment pleaded guilty to one count of obtaining goods or credit by false pretence or wilfully false promise, a charge laid pursuant to s.404 (1) (a) of the Criminal Code Act (Ch No 262). Section 404 (1) (a) states:

“404. Obtaining goods or credit by false pretence or wilfully false promise.

(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-

(a) obtains from any other person any chattel, money or valuable security; or

…is guilty of a crime.

Penalty: Imprisonment for a term not exceeding five years."

Committal Court Disposition

2. Ms. Gore for the State tendered the Kainantu District Court Deposition into evidence by consent which comprised of the following:

(1) The Record of interview both the original pidgin and English Version dated 17th November 2014, CR No. 55 of 2014; marked as Exhibit "A" relating to the defendant James U Mariko during which he admitted to stealing by false pretence the total sum of K8, 500.00 the property of John Sekap and Deaso Sekap over three separate occasions that is between February 2014 (K3, 000.00); in March 2014, (K1,500.00) and in April 2014, the sum of K4,000.00) all in cash.

(2) The Statements of State witnesses namely John Sekap dated 14th November 2014, Deaso Sekap dated 14th November 2014 and Senior Police Constable Katuga Mogia dated 19th November 2014, Police Investigator, Sergeant Henry Liru both of Kainantu Police Station respectively who all confirmed the identity of the accused and the incident which lead to the charge against the prisoner and his demeanour at the time of the commission of the offence.

3. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted and the prisoner was convicted on the charge of Obtaining goods or credit by false pretence or wilfully false promise prescribed under s 404 (1) (a) of the Criminal Code.

Antecedent Report

4. The accused is 35 years old and married with 4 children. He lives with his family at Ukarumpa Village, in the Obura Wonenara District of the Eastern Highlands Province. He had been employed as a security guard and Advisor at the SIL Surrounding Community. At the time of the commission of the offence, he was a timber sales man (self-employed). The accused has no prior convictions.

Pre-Trial Detention

5. The prisoner was remanded on the 19th of November 2014 and has been held in custody for a period of 11 months 2 days to the date of this decision on sentence.

Allocutus

6. In the administration of the allocutus, when the prisoner was given the opportunity to speak on the issue of penalty; the prisoner said that it was true that he took the money from the victims John Sekap and his wife. He said that he was sorry for what he did. The prisoner apologised to the court and the Lord above for what he had done. In addition, the prisoner asked for leniency and said he intends to repay the money back to the victims. His lawyer, Mr Biki requested that this Court direct the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report and a Means Assessment Report to be furnished for and on behalf of the prisoner. In order to allow for this process to be complied with, I then directed that the Probations Officer, (Kainantu) prepare and file a Pre-Sentence Report and Means Assessment Report on the prisoner and have it filed prior to the 31st of July 2015 for consideration. These Reports were promptly provided and has been considered in the determination of the severity of sentence.

Pre-Sentence Report

7. According to the Pre- Sentence Report, the prisoner has indicated that he will repay the money back to the complainant, whatever the outcome of the National Court decision. He also asked that the court give him a grace period of six months to pay back the money to complainants, John Sekap and Deaso Sekap. In addition, the community is of the view that the prisoner has capacity to repay back the money to the complainant and are supportive. Furthermore, the brother of the prisoner has offered to pay a sum of K2, 000.00 (cash in hand) and has asked that this court consider placing the accused on Probation on conditions that the accused repay the outstanding money within a six month period. This is also supported by Pastor Manuko Yateki who has stated that the prisoner is a humble person without any criminal records and a member of his church and has ability to repay the money back to the complainant through the hiring out his Lucas Saw Mill to help repay the money. Similarly, the relatives of the prisoner have indicated their willingness to assist the accused by contributing cash to settle his debts. The prisoner has five brothers and three sisters who are all married. The prisoner is the fifth child in the family. His 8 siblings are all educated to High School level. His mother has since passed on but his father is still alive.

8. The Pre-Sentence Report compiled by the Probation Officer, Mr. Bennet Amuino has recommended that the prisoner is a suitable candidate to be placed on Probation supervision with certain terms and conditions and these are:

(1) The accused be placed on 150 hours of community work orders to be supervised by CBC Office, Kainantu;

(2) The accused be placed for counselling by the PNG Bible Church twice a week

(3) The accused be given an extended time frame of six months to repay...