The State v Billson Laupu Seolo

• Jurisdiction: Papua New Guinea
• Judge: Batari J
• Judgment Date: 14 March 2017
• Citation: (2017) N6958
• Court: National Court
• Year: 2017
• Judgement Number: N6958

Full : CR (FC) 31 of 2017; The State v Billson Laupu Seolo (2017) N6958

National Court: Batari J

Judgment Delivered: 14 March 2017

N6958

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 31 of 2017

THE STATE

V

BILLSON LAUPU SEOLO

Kimbe: Batari J

2017: 14 March

CRIMINAL LAW – Sentence – obtaining goods, money or credit by false pretence or wilfully false promise with intention to defraud – accused obtained from complainant total of K7,900 by pretending to be daughter of company executive he was not – plea – sentence – guide - mitigating factors – sentence – sentencing alternative to imprisonment – consideration of - sentence of 3 years suspended on terms appropriate - Criminal Code s. 404(1).

Cases cited:

Albert Age v The State [1979] PNGLR 589

The State v Mary Tengdui (2014) N5827

The State v Welford [1986] PNGLR 531,

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

Counsel:

C. Sambua, for the State

D. Kari, for the accused

DECISION ON SENTENCE

19th July, 2017

1. BATARI J: Billson Laupu Seolo, on 14/03/17 the Court convicted you on one count of obtaining money by false pretence with intent to defraud under s. 404 (1)(a) of the Criminal Code. You are before the court again today to receive your punishment.

2. The common facts which form the basis of your sentence are these. Between 1 September 2015 and 31 December 2015 you, with the intention to defraud Bobby Khol and his wife Brigitha Khol, pretended to the couple that you were a Vanessa, the daughter of Chemica company proprietor, a Mr William Garran. You initially called the couple and pretended to them, you were at Liamo Reef Resort at Kimbe attending a conference and that you needed some cash. The couple accepted your story and sent you some money. Several fictitious calls followed under the guise of Vanessa in dire need of financial assistance for your various needs. On each occasion, you convinced the couple of some return benefits. As a result, you obtained from Bobby and Brigitha Khol, a sum of Seven Thousand, Nine Hundred Kina (K7, 900.00).

A. SENTENCE: FACTORS FOR CONSIDERATION

3. The maximum penalty prescribed under s. 404 of the Criminal Code for the offence of false pretence is, five years imprisonment. This is subject to the court discretion, under s. 19 of the Criminal Code to impose a lesser term. In that regard, the seminal case of Wellington Belawa v The State [1988-89] PNGLR, 496 is where to start. That case on misappropriation sets out relevant principles that have general application to dishonest offences. I have also ordered from the Community Based Corrections (CBC) Office, a Pre-Sentence Report (PSR) and Means Assessment Report (MAR). The reports are now before the court and both counsel have addressed pertinent issues on the question of appropriate penalty.

4. Belawa’s case sets out a number of factors recognized by the Supreme Court which should guide the court in sentencing misappropriation convictions. I consider that the guidelines can extend to such other fraud and dishonest offences as in this case of false pretence or wilfully false promise with intention to defraud. I will use those factors.

a) The amount taken

5. The first major factor is the amount misappropriated. In essence, this factor concerns proportionality of punishment to the amount taken. That is, the larger the amount, the greater the punishment should be. Belawa’s case suggests that:

1) Where the amount misappropriated is between K1 and K1,000, a jail term should rarely be imposed.

2) Where the amount misappropriated is between K1,000 and K10,000, a jail term of up to two years is appropriate.

3) Where the amount misappropriated is between K10,000 and K40,000 two to three years imprisonment is appropriate.

4) Where the amount misappropriated is between K40,000 and K150,000, three to five years imprisonment is appropriate.

6. I make two observations on the foregoing;

1) The nominated amount with the corresponding sentence range for each category has been overcome by time lapse and change of law to increase the maximum penalties for the offence of misappropriation simpliciter and for aggravated misappropriation;

2) The ascending scale of penalties in proportion with the amount taken was based on the maximum sentences of five years for misappropriation simpliciter and 10 years for misappropriation with circumstances of aggravation.

7. The penalty provisions in the new law under s. 383A of the Criminal Code as amended have sorted misappropriation cases into four categories of seriousness. So, a review of the principles in Belawa’s case will be necessary to realign the different categories of misappropriation cases with the new statutory sentencing regime.

8. The offence of false pretence or wilfully false promise with intent to defraud under s. 404 of the Criminal Code does not necessarily require proof that economic loss to the representee resulted. It sufficient to establish that the offender had been dishonestly seeking an advantage for himself/herself. See Albert Age v The State [1979] PNGLR 589. The dishonestly in this case was committed and will be sentenced on that basis. Using the principle in Belawa’s case as a guide, the penalty ranges for this offence should run parallel to but pitched on a lower scaling to that in Belawa’s case, consistent with the low statutory maximum of five years. I suggest the following as a guide:

1) Where the amount or value of goods defrauded is between K1 and K1,000, a jail term should rarely be imposed.

2) Where the amount or value of goods defrauded is between K1,000 and K10,000, a jail term of one year to two years is appropriate.

3) Where the amount or value of goods defrauded is between K10,000 and K40,000 two to three years imprisonment is appropriate.

4) Where the amount or value of goods defrauded is in excess of K40,000 three to the maximum five years imprisonment is appropriate.

9. The total amount the subject of the conviction in this case is nearly K8,000. This represents a substantial amount. It falls into the second category suggested above. The appropriate sentence is one year to two years imprisonment as may be influenced by relevant mitigating and aggravating factors.

b) The degree of trust in the offender including his or her rank

10. The applicability of this factor in misappropriation case is where the prisoner occupied a position of trust and committed the offence in the course of his or her employment. The degree of culpability is determined by the repository of the trust held, viz, the greater the degree of trust and the higher rank, the greater the degree of culpability.

11. The repository of trust in cases like the one before this Court is often gained through mischievous conduct shrouded in dishonesties and misrepresentations. It involved calculated falsehoods to first gain the trust and confidence of a targeted victim before the deceiver strikes.

12. In this case, you capitalized on your uncanny ability to mimic female voices and mannerism to gain the trust and confidence of your victims. You convinced the couple you were the daughter of a wealthy businessman and that they trusted you with their hard earned monies in the belief of substantial financial and travel benefits in return. You deliberately deceived and betrayed the trust of a couple who had for some time minded and brought you up as one of their own family member.

c) The period over which the fraud or thefts have been perpetrated

13. The consideration here is that a chain of dishonest acts spanning over a period implies a confirmed state of “guilty mind”. Conversely, the offender who obtained the goods, money or credit by deceit on a one day “spur of the moment” is unlikely to repeat the act. In your case, your deceit spanned over one month. There is strong trait of a confirmed guilty mind. Your deceitfulness could have gone over a longer period had you not been caught in the act.

d) The impact of the offence on the public and public confidence

14. In misappropriation cases the maintenance of public interest, trust and confidence in the formal sector employment under public or private law is the basis for consideration.

15. This factor may have no immediate bearing for your case. However, the wider concern is the evil side of using natural inclinations to impersonate another person to gain the trust and confidence of a third person with criminal intent. In your case, whatever your circumstances might be or how unnatural it might seem, it is in my view, unacceptable and repugnant against social norm and community tolerance to use your natural make up and inclinations to falsely pretend and deceive others into giving you financial benefits. God-given talents and predispositions must not be abused for evil gains like dishonestly stealing from others.

e) Motive: How money or property dishonestly taken was used

16. The principle here concerns the motive for committing the offence. There is nothing before the Court on...