The State v Peter Koa Kuala

• Jurisdiction: Papua New Guinea
• Judge: Auka AJ
• Judgment Date: 13 April 2017
• Citation: (2017) N6736
• Court: National Court
• Year: 2017
• Judgement Number: N6736

Full : CR (FC) No 138 of 2015; The State v Peter Koa Kuala (2017) N6736

National Court: Auka AJ

Judgment Delivered: 13 April 2017

N6736

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 138 OF 2015

THE STATE

V

PETER KOA KUALA

PORGERA: Auka AJ

2017: 12th & 13th April

CRIMINAL LAW – Sentence – Obtaining goods by false pretence – Plea of guilty – Collected Two Hundred and Eighty Two Thousand Kina as rental monies – False lease of property to others without complainant’s permission – Failed to pay the moneys to the complainant – Sentence of 4 years and wholly suspended the sentence with conditions – Criminal Code S.404 (1) (a) and S.19.

Case Cited:

Wellington Belawa v. The State [1988-1989] PNGLR 496

The State v. Feubilo Dickson (2011) N4455

Goli Golu v. The State [1979] PNGLR 92

Saperus Yalibakit v. The State (2006) SC890

Doreen Liprin v. The State (2011) SC 673

The State v. Roselyn Walembi (2008) N3708

The State v. Docas Boski (2014) N5814

The State v. Ivan Bob (2013) N5382

The State v. Joyce Pora (2016) N6343

The State v. Jack Nuisa (2016) N6465

The State v. Tristen Solien (2012) N4665

Public Prosecutor v. William Bruce Tardew [1986] PNGLR 91

Counsel:

Mr. Philip Tengdui, for the State

Mr. Jeffrey Kolowe, for the Accused

DECISION ON SENTENCE

13th April, 2017

1. AUKA AJ: The accused pleaded guilty to one count of obtaining goods by False Pretence under s.406 (1) (a) of the Criminal Code.

2. The brief facts of the case were that the complainant, Mrs Salome Yalia is the owner of a property described as section 01 Allotment 04 at Porgera Station, Enga Province. In 2006, at the death of the complainant’s husband, Mr Joseph Yalia, the accused Peter Koa Kuala went into occupation of the Property through his daughter whom the deceased married as his second wife sometime before his demise. And between 2006 and 2014 whilst living with his daughter and grandchildren, the accused by falsely pretending to be the owner of the property, leased the property to others and collected rental moneys for a total of 9 years until he was evicted by legal process in 2014. During the period, the accused collected total rentals almost in the sum of K282, 200. 00. At the time there was no lease Agreement between the complainant as the owner of the property and the accused. State alleged that accused collected the money by False Pretence and kept and used the money for himself. State alleged that the money was the property of the complainant Mrs Salome Yalia and her children.

3. On his statement on Allocatus, the accused said and I quote “I apologise and thank the court for hearing the case. I apologise to the Land Lord, the vendors and the purchaser. I am the first born in the family of four (4) children. I am 55 years old. I am a tradesman and a motor mechanic by profession. However at the moment I am not employed. I am a subsistence farmer. I have five (5) wives and two have left me. I have twenty two (22) children altogether to look after. I am a leader in the community and also a local land owner. My first wife gave birth to my daughter who was married to the owner of the property who is the deceased. My daughter was in grade 8 when the late owner married her which I was not aware of. That was in 2004. It was through my daughter that I moved into the property and lived with her and her child. I apologise for been in the Property where I did not have the Property Title. I want to stay in the village and be punished at the village level and stay out of jail. That’s all.

4. Mr Kolowe in his submission on sentence submitted that the accused pleaded guilty and saved courts time and resources. He has expressed genuine remorse to the court and to the owner of the property. That he has no prior conviction. As the accuseds daughter was married to the late owner Joseph Yalia, that justified him on why he moved into the property. Mr Kolowe submitted that the accused is 55 years old and has so many children to look after and as the only bread winner, he submitted and urged the court to sentence him to 1 to 3 years but wholly suspend the term with conditions. Mr Kolowe also urged the court to consider that amongst the many children he has cared for over the years, he had also looked after his daughter and grandchild whom the owner had left behind after his death. The court was urged to consider in accuseds favour all these matters.

5. Mr Philip Tengdui of counsel for the State submitted and urged the court to consider the following matters against the accused on sentence;

1. That the offence was committed within a period of nine (9) years;

2. That the amount involved was substantial amount which the accused himself benefited from. However as there was no clear evidence in court of how much accused collected and then used, I gave the benefit of doubt to the accused in giving less weight to this factor against him (Saperus Yalibakit v. The State (2006) SC890;

3. The effect on the victim and her 5 children were great in that their means of support was taken away which was very serious;

4. The accused partly benefited himself in the expense of the complainant;

5. That no restitution have been made.

Mr Tengdui referred the court to the often cited case of Wellington Belawa [1988-1989 PNGLR 496 where the Supreme Court said that where the amount is between K40, 000 to K150, 000. 00 a gaol term of 3 to 5 years is appropriate.

He further referred the court to the case of The State v. Feubole Dickson (2011) N4455 where the accused was sentenced to 2 years and the sentence was wholly suspended. He submitted that in this case a substantial amount is involved and therefore the sentence should be higher and he submitted that a sentence of 2 to 4 years is appropriate. He also asked the court to impose certain orders restraining the accused from interfering with the complainant and her property.

6. The maximum penalty for the offence of obtaining goods or credit by False Pretence under section 404 (1) of the Criminal Code is imprisonment for a term not exceeding 5 years.

7. The court has a general discretion to impose lower sentence with or without other forms of punishment enumerated in s.19 of the Code.

8. It is established principle that the maximum penalty should be reserved for the worst type of case: Goli Golu v. The State [1988-1989] PNGLR 653.

9. The Supreme Court decision of Wellington Belawa is the leading case authority in this jurisdiction for the offence of Misappropriation and it sets out the sentencing guidelines for that offence inclusive of the factors that are to be considered and the tariff to apply. There appears to be concurrence by the Court’s with general consistency that apart from Misappropriation cases, the sentencing guidelines in Wellington Belawa should also apply to all cases involving an element of dishonesty such as those concerning forgery, obtaining goods by false Pretence, Fraud, Stealing and the like in the absence of appropriate sentencing guidelines for those particular offences, The State v. Roselyn Walembi (2008) N3708.

10. In the same case of Wellington Belawa, the Supreme Court recommended that the following factors should be taken into account when determining what penalty to impose on an offender and some of these matters are the amount taken or value of property taken, degree of trust, pre-planning, use of property, the period over which the offence was perpetrated and the effect on the vicim.

11. The Supreme Court in the same case of Wellington Belawa also recommended a tarrif of sentences to be adjusted upward or downward depending on the various factors mentioned above. The Supreme Court said that where the amount misappropriated is between;

1. K1.00 and K1000. 00 a gaol term should rarely be imposed;

2. K1000. 00 and K10, 000. 00 a gaol term of up to 2 years is appropriate;

3. K10, 00. 00 and K40, 000. 00 a gaol term of 2 to 3 years is appropriate;

4. K40, 000. 00 to K150, 000. 00 a gaol term of 3 to 5 years is appropriate.

12. It is generally accepted now that while the factors set out in Wellington Belawa are still relevant, the tariff recommended is outdated and therefore there is need to impose increased sentence due to the fact that the offence is a prevalent offence. However, the court still has a considerable discretion under s.19 of the Code to impose an appropriate sentence, depending on the peculiar facts and circumstances of a particular case.

13. Having in mind the factors recommended in the Belawa case to the circumstances of the present case, this court finds that the following factors are relevant and applicable and can be considered either in favour or against the accused in sentence. In favour of the accused the Court considered the following factors;

1. The accused pleaded guilty and saved court’s time and resources;

2. The accused is a first time offender and has no prior conviction and has a previous good record;

3. The accused has offered and will continue to suffer personal shame, and disgrace because of his conviction and sentence;

4. The...