State v Kei Liligu

• Jurisdiction: Papua New Guinea
• Judge: Polume-Kiele J
• Judgment Date: 10 November 2016
• Citation: (2016) N6919
• Court: National Court
• Year: 2016
• Judgement Number: N6919

Full : CR. NO.81 of 2015; State v Kei Liligu (2016) N6919

National Court: Polume-Kiele J

Judgment Delivered: 10 November 2016

N6919

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO.81 of 2015

STATE

V

KEI LILIGU

Prisoner

Goroka: Polume-Kiele J

2015: 21 October

2016: 8, 10 November

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

CRIMINAL LAW - Sentence - Early guilty plea – No prior conviction

CRIMINAL LAW – Sentence - 2 years imprisonment - s 404 (1) (a), Criminal Code Act, Order for restitution –partial suspension considered - s 19 Criminal Code Act

Facts

The brief facts are that on or about October 2011, at Goroka, the offender promised to give possession of a piece of land known as Warizotoka to one Brian Eboty, although he had no intention of giving away the land. The land was allocated along Bihute road in the Kama area. Thinking that the offender was genuine in what he said, Brian Eboty made payment to the offender in two instalments, a sum of K3,000.00 on the 18 of October 2011 and the second payment of K3,800.00 on the 23rd of October 2011, totaling K6,800.00 for the piece of land. The offender failed to deliver as promised. Brian Eboty was never given the land and the Prisoner obtained goods or credit from Brian Eboty by false pretence. The offender was subsequently arrested and charged for one count of obtaining goods or credit by false pretence or wilful false promise, under section 404 (1) (a) of the Criminal Code.

The offender pleaded guilty to the charge. On allocutus he showed remorse and asked the Court to be given time to repay the money. He has further asked the Court to be placed on probation.

The maximum penalty under s 404 (1) of the Criminal Code is imprisonment for a term not exceeding five (5) years. It is an established sentencing principle that the maximum penalty is always reserved for the worst kind of the offence.

Held:

(1) The offender by his own admission has admitted guilty to obtaining goods or credit by false pretence or wilful false promise, the sum of K6,800.00 the property of Brian Eboty contrary to s.404 (1)(a) of the Criminal Code Act.

(2) In the Record of Interview conducted on the 22nd of January 2015 at Goroka Police Station, CID office, Goroka, Eastern Highlands Province at 11.10 a.m., the offender admitted to obtaining goods or credit by false pretence or wilful false promise, a sum of K6, 800.00 being payment for a piece of land known as Warizotoka, which the offender had no intention to giving possession of to the victim, Brian Eboty.

(3) The offender is sentenced to 2 years imprisonment with hard labour

(4) In the exercise of discretion under s 19 of the Criminal Code Act, the offender is ordered to make restitution in the sum of K6, 800.00 within six (6) months from today, the 10th of November 2016 to the victim, Brian Eboty or his surviving relative.

Cases cited:

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

The State v Metz (2005) N2824

The State v John Kil (2000) N1974

The State v Thomas Wakai & 3 Ors (2000) N3360,

The State v Morris Yepin (2005) N3503

Public Prosecutor -v- Don Hale (1998) SC564

Counsel:

Mr Kathawa Umpake, for the State

Mr John Biki, for the Prisoner

JUDGMENT ON SENTENCE

10th November, 2016

1. POLUME-KIELE J: The offender appeared before me on the 19th of October 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 Barbara Gore for the State tendered the Goroka 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 November 2013, CR, (FC) 781/2014; marked as Exhibit "A" relating to the defendant Kei Liligu during which he admitted to stealing by false pretence a the sum of K6,800.00 which is the property of one, Brian Eboty, at the University of Goroka sometime in September 2014 (Question 13 and answer to Question 13) which is valued at about K3,200.00 (Question 23 and Answer)

(2) The Statements of State witness namely Brian Eboty dated 15th November 2013 including that of Police (CID) Investigator Patrick Vungabu dated 20th November 2013 and Policewoman (CID) Nancy Lesera dated 19th November 2013 who was the corroborator both of Goroka Police Station during the Record of Interview. The State witnesses respectively confirmed the identity of the prisoner and the incident which led to the indictment being laid 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 offender’s guilty plea was accepted and the offender was convicted on the charge of Obtaining goods or credit by false pretence or willfully false promise prescribed under s 404 (1) (a) of the Criminal Code.

Antecedent Report

4. The offender is 63 years old and married with two children. He is from Mono Village, Kama, of the Eastern Highlands Province. He is unemployed and lived at Mono Village, Goroka. The offender has no prior convictions.

Pre-Trial Detention

5. The offender is currently on bail as of the date of this decision on sentence.

Allocutus

6. In the administration of the allocutus, when the offender was given the opportunity to speak on the issue of penalty; the offender said that it was true that he took the money. 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 offender asked for leniency and said he intends to repay the money.

7. His lawyer, Mr Biki then 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 offender. In order to allow for this process to be complied with, the Probations Officer, (Goroka) was directed to prepare and file a Pre-Sentence Report and Means Assessment Report on the offender and have it filed prior to the 11th of November 2015 for consideration.

8. These Reports were promptly provided and has been considered in the determination of sentence.

Pre-Sentence Report

9. According to the Pre- Sentence Report, the offender has admitted the offence. He further says sorry for his actions and also added that he will never commit such offence in the future. He stated that if the Court release and sentence him to a non-custodial sentence, he will repay the money. Although the offender has indicated that he will pay case and say sorry to the victim, he has not asked the court for a specific period of time to make restitution. Further, the victim has since passed on.

10. With regard to the requirement for views of the community, this Court noted that the community was consulted in relation to the offender’s overall demeanour and the view was that the offender is a law abiding citizen. With regard to the capacity of the offender to repay the sum of K6, 800.00 to the complainant, his capacity to do so is unfavourable. Another point to make here is that the accused is out on bail, yet no attempts have been made in terms of restitution to the victim.

11. This Court also notes the Pre-Sentence and Means Assessment Reports stated that the offender is a humble person and is educated up to Grade 10 level. The offender has a prior conviction for an assault charge and but nothing further had been detailed in the Antecedent Report and as such no more will be said with respect to that. With regard to restitution, the offender has indicated that he will repay the money. The offender has two sisters and one brother who are all married and unemployed. His parents are both deceased.

12. The Pre-Sentence Report compiled by the Probation Officer, Ms Jocabeth Kalagune dated 11th November 2015 has recommended that the offender is a suitable candidate for a suspended sentence with the proposed conditions as follows:

(1) The offender shall repay the amount of K6,800.00 to the victim’s mother;

(2) That the offender shall be placed on probation for a period of 12 months

(3) The offender shall go for counselling sessions at the Mercy Works

(4) That he shall not consume any form of alcohol during his term of probation period

(5) He shall be of good behaviour during his term of probation

(6) That the offender shall not leave his residential area during term of...