The State v Tracey Aumora

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 21 June 2016
• Citation: (2016) N6323
• Court: National Court
• Year: 2016
• Judgement Number: N6323

Full : CR (FC) No 126 of 2015;The State v Tracey Aumora (2016) N6323

National Court: Anis AJ

Judgment Delivered: 21 June 2016

N6323

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 126 OF 2015

THE STATE

V

TRACEY AUMORA

Kokopo: Anis AJ

2016: 23 March, 5 & 7 April and 21 June

CRIMINAL LAW – prisoner charged with two counts of false pretence with intention to defraud under section 404(1)(a) of the Criminal Code Act Chapter No. 262 - prisoner pleaded guilty - sentencing - mitigation and aggravating factors considered - money stolen was substantial - Pre-sentence Report recommended probation based on restitution - prisoner's ability to repay considered - no means for repayment disclosed - speculative schedule for repayment - offence against faith or against one's Christian principles regarded as serious - custodial sentence warranted under the circumstances

Cases Cited

Saperus Yalibakut v The State (2006) SC890

State v. Angela Tokonai (2010) N4679

State v. Angela Tokonai (2014) N5736

State v. Jack Ostekal Metz (2005) N2824

State v. James Mariko (2015) N6086

State v. Martha Agua (2011) N4499

Wellington Belawa v the State [1988 – 89] PNGLR 496

Counsel:

Ms T. Aihi, for the State

Ms J. Ainui, for the Accused

DECISION ON SENTENCE

21 June, 2016

1. ANIS AJ: You have pleaded guilty to two counts of false pretence with intentions to defraud under section 404(1) (a) of the Criminal Code Act Chapter No 262 (Criminal Code). This Court indicted and arraigned you on 23 March 2016. Counsel presented submissions on your sentence on 7 April 2016. The Court reserved its decision on sentence to a date to be advised.

2. This is my ruling.

BRIEF FACTS

3. The State (prosecution) alleged that between 31 March 2015 and 30 November 2015, you falsely pretended to be two different persons you were not. Firstly, you held yourself out as a Seventh Day Adventist (SDA) Pastor, and secondly, you held yourself out as an SDA Minister Shangai Mara. You knew Mr Mara earlier when he was with the Malaguna SDA Church at Rabaul in 2006. You also knew that Mr Mara and the complainant Annie Famane (complainant) had an earlier relationship with each other; they were friends and co-workers in 2011.

4. I set out the brief facts supporting the two (2) counts herein:

Count 1: Between 31 March 2015 and 30 November 2015, you falsely pretended to be a SDA Pastor. Under the said disguise, you would text your mother and request her to show the text messages to the complainant. In these text messages, you would request monies to cover church run activities and expenses. The complainant without suspecting, and believing that it was God's work would withdraw various sums of monies from her Bank South Pacific Account number 1000454564. The complainant would pass on the monies to your mother who would then pass them over to you.

Count 2: Between 31 October 2015 and 30 November 2015, you falsely pretended to be one SDA church Minister namely Shangai Mara. Under this disguise, you text the complainant and left messages through your mother. You pretended to be Mr Mara and falsely promised the complainant that you planned to marry her. You would use your mother as the third party to collect money and goods from the complainant. Your mother would receive the monies and goods from the complainant and pass them over to you. At one time, upon your request, the complainant paid for and passed onto you books that were worth K936 and K1, 600 in cash. You continued with these false pretences and received cash on various occasions from the complainant through your mother.

5. Your actions contravened section 404(1)(a) of the Criminal Code which is that you falsely pretended to be persons you were not, with intentions to defraud and consequently you obtained monies that belonged to the complainant totalling K37,950.

PLEA

6. On 23 March 2016, you pleaded guilty to the two counts for the offence of false pretence with intention to defraud contrary to section 404(1)(a) of the Criminal Code.

7. This Court convicted you on the same day.

PENALTY

8. The offence of obtaining goods by false pretence with intention to defraud carries a maximum imprisonment term of five (5) years.

ANTECEDENT REPORT

9. You have no prior convictions. This appears to be your first recorded offence.

10. You are 26 years old. You come from Baluan village in Lorengau, Manus Province. You reside at Bay Road Street in Rabaul, East New Britain Province. The place of your residency at the time of your arrest was Vuvumadiring, Tavui No. 1, Nonga-Rabaul, East New Britain Province.

11. You are married and you have two (2) children aged three (3) years and two (2) years old. But based on evidence presented to this Court, you say you have separated from your husband and now you reside with your mother together with your two (2) children.

ALLOCATUS

12. This is what you told the Court on 7 April 2016 during administration of allocatus:

(i) you apologised to the Court for what you have done.

(ii) you apologised to the family of the complainant for the inconvenience you have caused them.

(iii) you apologised to your family.

(iv) you apologised to the Seventh Day Adventist Church for committing the offence.

(v) you said whatever you did has opened up your mind.

(vi) you made promise to the Court that you will not repeat what you have done.

(vii) you said you are a mother and have two young children to look after.

(viii) you said you have a medical condition which is that you are asthmatic.

OTHER MATTERS OF FACT

13. Since you have pleaded guilty, you are entitled to the benefit of the doubt. By that I refer to the mitigating factors which I have summarised below herein, the allocutus and matters raised by your lawyer that are not contested by the prosecution (see the case of Saperus Yalibakut v The State (2006) SC890).

14. I note that you have co-operated with the police since your arrest and you have admitted to committing the offence in your record of interview.

MITIGATING & AGRAVATING FACTORS

15. After considering submissions from both counsel, I set out a summary of the mitigating factors herein:

• single mother

• first time offender

• admission from the start at the record of interview

• pleaded guilty to the charge

• expressed genuine remorse

• subjected to violence and an unfaithful partner

16. After considering submissions from both counsel, I set out a summary of the aggravating factors herein:

• serious offence

• substantial sum of money involved

• involved pre-planning

• occurred over a long period of time that is 9 months

• prisoner took advantage of victim's religion

• serious breach of trust

• victim lost her life savings from the little she earned

SUBMISSIONS

17. The defence submits the Court should impose a suspended sentence upon you, that is, the defence submits the Court should impose a sentence of four (4) years upon you and have these wholly suspended with strict orders for restitution regarding moneys you took from the complainant. The defence referred to the Pre-Sentence Report and to the proposed schedule of repayment set out therein. The defence submits the Court should use the report and proposals therein as an aid and make conditional orders to you at the time of sentence.

18. The prosecution submits the offence committed was a very serious offence. It submits the offence involved careful or pre-planning. The prosecution submits there had been a clear intention to defraud the complainant. The prosecution submits you executed the plan and under false pretence, you obtained moneys from the complainant over a lengthy period and the complainant suffered as a result by the loss of her money or life savings.

19. In support, the prosecution cites two cases namely State v. James Mariko (2015) N6086 and State v. Angela Tokonai (2010) N4679, and submits the Court should sentence you to four (4) years imprisonment. The prosecution however notes that in the present case and based on the Pre Sentence Report, the complainant did not request for a custodial sentence to be imposed on you.

COMPARATIVE SENTENCES

20. I will look at the case law and consider few cases that may be comparable or relevant, to assist me arrive at an appropriate sentence for you.

21. The first case I refer to is the case of State v. Angela Tokonai (2010) N4679. I note that the prosecution also relied on this case. The prisoner therein pleaded guilty to the obtaining goods by false pretence under section 404(1) (a) of the Criminal Code. The prisoner drew a cheque for K15, 865.50 made payable to the victim for the supply of 132.5kg of sea cucumbers. The sea cucumbers were delivered but the cheque bounced and the victim reported the matter to police who then charged the prisoner. The prisoner pleaded guilty. She was sentenced to 3 years imprisonment. The Court fully suspended the sentence and imposed conditions essentially for the prisoner to pay what she owed. I must add that this case was later recalled back to the same Court because the prisoner had failed to...