The State v Trister Solien (2012) N4665

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 11 May 2012
• Citation: (2012) N4665
• Docket Number: CR NO 291 of 2011
• Court: National Court
• Year: 2012
• Judgement Number: N4665

Full Title: CR NO 291 of 2011; The State v Trister Solien (2012) N4665

National Court: Makail J

Judgment Delivered: 11 May 2012

N4665

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 291 OF 2011

THE STATE

V

TRISTER SOLIEN

Waigani: Makail, J

2012: 09th & 11th May

CRIMINAL LAW - Plea - Sentence - Obtaining goods by false pretence - Real property - First offender - Remorseful - Genuine reason for committing offence - Securing property for accommodation for herself and children following death of defacto husband - Prevalence of offence - Some degree of pre-planning - Not a worse case - Wholly suspended sentence appropriate - Wholly suspended sentence of 2 years imprisonment imposed - Offender entered into own recognizance with surety and placed on good behaviour bond - Cash bail converted to surety - Criminal Code, Ch 262 - Sections 19 & 404(1)(a).

Facts

The offender pleaded guilty to a charge of obtaining goods by false pretence under section 404(1)(a) of the Criminal Code, Ch 262. She lived with her de facto husband on a property at Korobosea in Port Moresby. Following his death, she falsified a contract of sale and had the title of the property transferred to her son who was at all material times a minor of 12 years. In mitigation, it was submitted among other grounds that, she did that because she was worried about her and her three children’s plight associated with the risk of being left homeless after her de facto husband died.

Held:

1. Under section 404(1)(a) of the Criminal Code, Ch 262, the offence of obtaining goods by false pretence carries a prescribed maximum penalty of a term of 5 years imprisonment.

2. The plight of the offender and her three children associated with the risk of being left homeless following the death of the offender’s de facto husband is a strong mitigating factor and significantly reduces the seriousness of the offender’s culpability.

3. Taking into account that there is a dispute over the property and other matters operating in favour of the offender, this was not a worse case of obtaining goods by false pretence and the maximum penalty of a term of 5 years imprisonment was not appropriate.

4. A wholly suspended sentence of 2 years imprisonment was imposed and offender was ordered to enter into her own recognizance and be of good behaviour for that period with surety to the equivalent sum as her cash bail. Her cash bail was converted to surety.

Cases cited:

Goli Golu -v- The State [1979] PNGLR 653

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

Public Prosecutor -v- Don Hale (1998) SC564

The State -v- Geko Kekao & Alex Niviha: (Unnumbered & Unreported Judgment of 14th April 2011)

Counsel:

Mr D Kuvi, for the State

Ms R Endemongo, for the Offender

SENTENCE

11th May, 2012

1. MAKAIL, J: Trister Solien, you pleaded guilty to a charge of obtaining goods by false pretence under section 404(1)(a) of the Criminal Code, Ch 262. This offence carries a prescribed maximum penalty of a term of 5 years imprisonment.

2. You were formerly in a de facto relationship with one Francis Douglas Solien. You came to live with him and his younger brother John William Ford between 1987 and 1988. John was also Francis’ adopted son. You all lived on a property known as section 72, allotment 8, Kuku place, Korobosea in the National Capital District. In 1998, Francis had a heart attack and died. Sometimes after his death, you approached the National Housing Corporation (“NHC”) and entered into a contract of sale for the property and had it transferred to your son Franzuer William Solien.

3. The property was sold at a lesser price because there was no valuation done prior to its sale and that you used your son Franzuer as the purchaser and represented to the NHC that he was a public servant when at all material times, he was a minor of 12 years. John discovered the transfer of title to Franzuer when he made inquiries at the NHC. He reported it to the police and you were subsequently arrested and charged with this offence.

4. Your lawyer Ms Endemongo submitted your case is not a worse case of obtaining goods by false pretence. Thus, you should not be given the maximum penalty of 5 years imprisonment. The State prosecutor Mr Kuvi concedes this point in submissions. The law is that the maximum penalty is reserved for the worst cases: Goli Golu -v- The State [1979] PNGLR 653. The Court has discretion under section 19 of the Criminal Code, Ch 262 to impose a lesser sentence and in the exercise of this discretion, I accept a lesser sentence is appropriate in your case. The question is, what would be the appropriate sentence?

5. Ms Endemongo submitted a wholly suspended sentence of 2 and a half years imprisonment is appropriate and advanced a number of grounds to support this submission. Mr Kuvi does not oppose a term of 2 years imprisonment but points out that a number of aggravating matters are apparent in your case such that a wholly suspended sentence is not appropriate.

6. The case of Wellington Belawa -v- The State [1988-89] PNGLR 496 is a useful guide on sentence in dishonesty cases. The offence you have committed involves dishonesty and so, I will use that case as a guide to determine an appropriate sentence in your case. Some of the matters that may apply in your case are the amount taken or value of property taken, degree of trust, pre-planning, use of property and effect on the victim.

7. It is true and I accept Mr Kuvi’s submission that the offence you have committed is prevalent in our country and in the interests of justice, public interest demands that people who commit this offence must be punished severely. By so doing, it will send a strong message to others that they should not even attempt it because if they do and are caught, they will face the same consequence.

8. Equally important is the manner in which you committed the offence. I accept Mr Kuvi’s submission that there was some degree of pre-planning. You knew the NHC was the registered proprietor of the property. According to the contract of sale, the property was being purchased by Francis through the Government Concession Home Ownership Scheme and when he died, there is no suggestion that you informed the NHC of this. What you did was, you represented to the NHC that Franzuer was a public servant and was interested in buying the property.

9. You proposed to purchase it at a price of K8,060.00. NHC accepted the proposal and transferred the title to Franzuer. At all material times, Franzuer was a minor of 12 years. That deal took a while to complete because the contract of sale was signed on 13th February 2002 and the transfer of title to Franzuer was registered by the Deputy Registrar of Titles on 11th October 2003, some 1 year and 8 months later. To my mind, these events demonstrate that you manipulated the system to get the property.

10. There is dispute in relation to the value of the property. Your lawyer submitted it was K8,060.00. This amount was the purchase price and the Court should accept it as the value of the property. Mr Kuvi submitted it was more than that because there is no valuation report to verify that amount as being the true value of the property at the time it was sold. I must give you the benefit of doubt since you have pleaded guilty to the charge where the only information available is the purchase price of K8,060.00. I accept that as the value of the property.

11. Using the scale of sentences set out in Wellington Belawa’s (supra), as the value of the property is K8,060.00, your case would fall into the second category of such cases because the value of the property falls between K1,000.00 and K10,000.00. The term of sentence in such cases is 2 years imprisonment. This period of time is what your lawyer and Mr Kuvi had suggested should be the length of time you should serve in prison. I am satisfied a head sentence of 2 years imprisonment is appropriate.

12. You had a reason for committing the offence. It was the plight of your children after their father Francis died in 1998. You were worried that they would not have a house to live in and you did everything within your means to secure the property for them. In his submissions, Mr Kuvi concedes that the prejudice to your children’s welfare, in particular shelter is a consideration that significantly reduces the seriousness of your culpability. It is apparent you did not want John to inherit the property following the death of Francis. He also wanted the property and that is why he reported you to the police when he found out that the title had been transferred to Franzuer.

13. Out of the relationship with Francis, you have three children. They are Franzuer, Tamara and Fraser. Franzuer is the eldest and is now 21, Tamara is now 18 and Fraser is 16. You had good intentions. All you wanted was to secure a home for your children. These days, living in the city of Port Moresby is tough, especially if one does not have a house. It is common knowledge, many of our people living in Port Moresby live in settlements or with relatives who...