The State v Sharon Geli Lesi

• Jurisdiction: Papua New Guinea
• Judge: Berrigan, J
• Judgment Date: 17 October 2018
• Citation: (2018) N7543
• Court: National Court
• Year: 2018
• Judgement Number: N7543

Full : CR (FC) 184 OF 2018; The State v Sharon Geli Lesi (2018) N7543

National Court: Berrigan, J

Judgment Delivered: 17 October 2018

N7543

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 184 OF 2018

THE STATE

V

SHARON GELI LESI

Waigani: Berrigan, J

2018: 19 September, 9 & 17 October

CRIMINAL LAW – Sentence – False pretence – Plea of guilty – No prior conviction – No means to restitute – Partial suspension – Rehabilitation – Section 404 (1)(a) of the Criminal Code..

Cases Cited:

Papua New Guinea Cases

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205

Goli Golu v The State [1979] PNGLR 663

Lawrence Simbe v The State (1994) PNGLR 38

Mase & John v The State [1991] PNGLR 88

Saperus Yalibakut v The State (2006) SC890

Tanabo v The State (2016) SC1543

The State v David Sila Kayak (2012) N5176

The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, 23 June 2017

The State v Ethel Kila, CR (FC) 25 of 2018, unreported, 5 September 2018

The State v Frank Kagal [1987] PNGLR 320

The State v Jack Ostekal Metz (2005) N2824

The State v Larry Dickson, Cr No. 866 of 2013

The State v Mary Tengdui (2014) N5827

The State v Niso (No 2) (2005) N2930

The State v Paul Tiensten (2014) N5563

The State v Rebecca Kunti, unreported, 2018

The State v Tardrew [1986] PNGLR 91

Tremellan v The Queen [1973] PNGLR 116

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

Overseas Cases

R v Edwards (1996) A Crim R 510

Counsel

Ms Wilma Malo, for the State

Mr Edward Sasingian, for the Prisoner

17th October, 2018

DECISION ON SENTENCE

1. BERRIGAN, J: INTRODUCTION: The Prisoner, Sharon Geli Lesi, pleaded guilty to four counts of obtaining money by false pretence with intent to defraud, contrary to Section 404(1)(a) of the Criminal Code.

Facts

2. The brief facts are that between the months of August and December 2017 the offender approached 4 different people. In each case she falsely pretended that she was expecting a rebate from the Internal Revenue Commission and that she would repay the monies with interest once the rebate was received. On that basis she obtained:

a. On Count 1; K2000 from Daren Walo, a student, on 6 August;

b. On Count 2; K25,000 from Jeff Waki, the owner and operator of Hand in Hand Finance, between 16 September and 23 November 2017;

c. On Count 3; K4000 from Thomas Norea, self-employed, between 18 September and 28 November 2017; and

d. On Count 4; K8000 from Jeffrey Liria, a taxi driver, between unknown dates in September and December 2017.

3. In each case the monies were obtained by the prisoner by false pretences with intent to defraud. She failed to repay the monies and the matters were reported to the police.

Maximum Penalty

4. Pursuant to Section 404(1)(a), each offence carries a maximum penalty of five years’ imprisonment. The maximum penalty should usually be reserved, however, for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 663. This is not such a case.

Sentencing Considerations

5. 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 involving 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.

Comparable Cases

6. 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 involved 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;

d. K40,000 and K150,000, three to five years’ imprisonment is appropriate.

7. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: The State v Niso (No 2) (2005) N2930; The State v Tiensten (2014) N5563.

8. Both counsel referred me to cases in support of their respective submissions. The defence relied upon Wellington Belawa, discussed above. The State referred me to:

a. The State v David Sila Kayak (2012) N5176 in which the prisoner pleaded guilty to two counts of false pretences which were separated by different victims, times and mode of operation. On the first count the offender obtained K10,000 by falsely representing that he was able to obtain a large business loan for the benefit of the victims. He supported his claims with falsified documents from the Morobe Provincial Government. On the second count the offender colluded with another to obtain medical supplies to the value of K7410 from a wholesale drug store using a forged and valueless Morobe Provincial Government cheque. The prisoner was sentenced to 1 year and 2 years’ imprisonment respectively, to be served consecutively, without suspension; and

b. The State v Tengdui (2014) N5827 in which the prisoner pleaded guilty to fifteen counts of obtaining a total of K46,650 from fifteen victims by false pretence. The victims were all simple villagers and relatives. The prisoner, a well-educated person obtained K3,110 from each of the victims by falsely representing that she would make arrangements including the purchase of their airline tickets, passports, visas, medicals and identification documents for them to travel to Australia and work as seasonal workers. K23,500 was repaid prior to the matter being reported to police. On conviction, the prisoner was sentenced to 3 years’ imprisonment which was wholly suspended on conditions including full restitution.

9. I have also had regard to the following which may provide guidance in determining sentence:

a. The State v Jack Osteka Metz, (2005) N2824, in which the prisoner pleaded guilty to one count of obtaining goods or credit 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 payment in millions of Kina from the sale of Treasury Bills. He was sentenced to 3 and a half years’ imprisonment;

b. The State v Ethel Kila, CR(FC) 25 of 2018, unreported, 5 September 2018 in which the prisoner was found guilty following trial of one count of false pretence. She obtained K22,000 from a husband and wife money lending business by falsely pretending that she would repay K56,000 once she had started her own catering company, for which she produced documents in support, when in fact she intended to travel overseas. She was sentenced to 3 years’ imprisonment which would have been suspended but for the fact that the offender absconded following trial;

c. The State v Rebecca Kunti, unreported, 2018 in which the prisoner was sentenced to 4 years’ imprisonment after pleading guilty to two counts of obtaining money by false pretences. On the first count she obtained a total of K65,000 over a number of instalments on the false basis that she would use it to purchase a vehicle on behalf of the victim. Using the same approach she obtained a further K30,500 from a second victim;

d. The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, the prisoner was sentenced to 4 years’ imprisonment. He presented a false cheque written out to himself in the sum of K4 million and told the victims he need money to clear the cheque. On that basis he obtained K11,000 from each victim at different times; and

e. The State v Larry Dickson, Cr No. 866 of 2013 in which the prisoner obtained money and property from 3 victims over a 4 month period by falsely pretending that he would pay them 100% interest on money they lent him. He told them that their money would be used to facilitate the transfer of investments made overseas by his late father. On the first count he obtained cash in the sum of K15,962; on the second, property and cash worth K700; and on the third, cash and property in excess of K1000. A sentence of 3 years’ was imposed for the first count. Sentences of 1 year each were imposed for counts 2 and 3. The sentences were to be served consecutively. Applying the totality principle, an effective sentence of 3 ½ years was ordered to be served.

10. The sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v...