The State v Dorcas Boski

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 24 October 2014
• Citation: (2014) N5814
• Court: National Court
• Year: 2014
• Judgement Number: N5814

Full : CR. No.750 OF 2009; The State v Dorcas Boski (Prisoner) (2014) N5814

National Court: David, J

Judgment Delivered: 24 October 2014

N5814

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. No.750 OF 2009

BETWEEN:

THE STATE

AND:

DORCAS BOSKI

Prisoner

Mt. Hagen: David, J

2014: 10 & 24 October

CRIMINAL LAW – sentence – obtaining goods by false pretences or wilfully false promise – one count – plea of guilty – Criminal Code, Section 404(1)(a).

Facts

The prisoner pleaded guilty to one count of obtaining K12,000.00 from a male victim by false pretence. The prisoner was a Senior Rental Sales Representative with Avis Rent A Car located at Kagamuga in Mt. Hagen. The victim approached the prisoner for the purchase of a motor vehicle that her employer was selling and she promised to organize its sale and purchase to him on staff price. The victim deposited with the prisoner K16,000.00, but after a long while and despite several follow ups, the motor vehicle was never delivered to him. The prisoner left her employment sometime thereafter. The victim then involved a debt collection agency to pursue the matter with the prisoner. The prisoner managed to repay K4,000.00 to the victim and undertook to pay the balance later, but failed.

Held:

(1) A sentence of three years imprisonment in hard labour was imposed.

(2) The pre-sentence period in custody of two months was deducted and the remaining term suspended on terms.

Cases cited:

Public Prosecutor v Tom Ake [1978] PNGLR 469

Goli Golu v The State (1979) PNGLR 653

Public Prosecutor v Thomas Vola (1981) PNGLR 41

Avia Aihi (No.3) v The State (1982) PNGLR 92

Ure Hane v The State (1984) PNGLR 105

Public Prosecutor v William Bruce Tardrew (1986) PNGLR 91

The State v Frank Kagai (1987) PNGLR 320

John Elipa Kalabus v the State (1988) PNGLR 193

Wellington Belawa v The State (1988-89) PNGLR 496

Lawrence Simbe v The State (1994) PNGLR 38

The State v Paul Takesi (1997) PNGLR 507

The State v John Kil (2000) PNGLR 253

Doreen Liprin v The State (2001) SC 673

The State v Louise Paraka (2002) N2317

The State v Sam Pipi (2004) PGNC 197, N2574

The State v Jack Ostekal Metz (2005) N2824

The State v Alice Wilmot (2005) N2857

The State v Morris Yepin (2005) N3503

Saperus Yalibakut v The State (2006) SC890

The State v Dominic Kurai (2008) N3435

The State v Roselyn Waiembi (2008) N3708

The State v Steven Luva (2010) N3909

The State v Gaibole Dickson Larry (2011) N4455

The State v Joseph Sape (2013) PGNC36, N5096

The State v Angela Tokonai (2012) N4679

The State v John Bolkun (2012) N4689

The State v Ivan Bob (2013) N5382

The State v Larry Dickson, CR No.866 of 2013, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 12th of August 2014

Counsel:

Joe Kesan, for the State

Paul Moses, for the Prisoner

SENTENCE

24th October, 2014

1. DAVID, J: The prisoner, Dorcas Boski was committed to stand trial in the National Court by the Mt. Hagen District Court on 28th of May 2009 charged with one count of obtaining goods by false pretences contrary to Section 404(1)(a) of the Criminal Code. She was admitted to bail a month after her arrest and detention. She absconded bail thereafter and on 17th of December 2009, a bench warrant was issued. She was apprehended following a successful execution of the bench warrant on 24th of September 2014 by police. She appeared before me from custody on 10th of October 2014 and pleaded guilty to a charge of obtaining K12,000.00 by false pretences and was convicted accordingly.

2. The brief allegations were these. The prisoner was employed as a Senior Rental Sales Representative with Avis Rent A Car based at Kagamuga, Mt. Hagen in the Western Highlands Province. On 9th of January 2007, the victim namely John Tomba went to the Avis Office at Kagamuga and enquired with the prisoner about a motor vehicle, a Toyota Mini bus which was being offered for sale. The prisoner promised to help the victim to buy the motor vehicle on a reduced staff price. The victim agreed and deposited K16,000.00 with the prisoner. The victim waited for a long period of time and the bus was not sold to him. So he enquired further at the Avis Office and discovered that the prisoner was no longer employed by the company. He also discovered that the receipt he was given did not correspond with company records. The victim then engaged a private debt collection agency and made enquiries of the whereabouts of the prisoner and located her. She paid K4,000.00 and promised to pay the balance within a short period of time. However, that did not happen and the matter was reported to police and the prisoner was arrested, charged and detained.

3. After administering the allocutus, Mr. Moses for the prisoner requested for a pre-sentence report and a means assessment report to be compiled and filed by the Probation Service, Mt. Hagen which I granted. The Probation Service through Ms Lilly Songoa, Probation Officer has compiled and filed these reports and I commend her for the reports.

4. The prisoner’s Record of Interview conducted by Detective Sergeant James Niangu at the General Office of the Criminal Investigation Division at Mt. Hagen Police Station on 6th of February 2009 and attended by Sergeant Patrick Towingo as corroborator contains admissions.

5. The prisoner has no prior convictions.

6. On her allocutus, the prisoner said sorry to the victim, her family, God and the Court for what she had done. She asked for mercy and requested that she be given a non-custodial sentence in order to resolve the matter out of Court by restitution of the money stolen.

7. Since the prisoner pleaded guilty, she will be given the benefit of the doubt on mitigating matters that are raised in the depositions, the allocutus or in defence submissions that the prosecution does not contest: Saperus Yalibakut v The State (2006) SC890.

8. The prisoner who is of mixed Madang and New Ireland parentage was born on 24th of October 1975 in Mt. Hagen and raised here since childhood. She is aged 39 years now so at the time of the commissioning of the offence, she would have been aged over 31 years and 2 months. Until her arrest and detention, she was residing at the Mt. Hagen “T” School compound in Mt. Hagen. She is one of 7 siblings in her family comprising 4 sisters and 3 brothers and she is the third born. Her father died in 2003 and is survived by her mother. She was previously married from which relationship she produced 4 male children. She has since separated from her husband and her former husband has remarried. One of the children resides with her and the rest reside with their father in Port Moresby. She is a baptized member of the Roman Catholic Church. The prisoner is generally physically and mentally healthy, but has a history of suffering from bronchitis. The prisoner attended primary school at the Mt. Hagen “T” School and completed Grade 10 at the Hagen Park Secondary School in 1992. She attended the Mt. Hagen Technical College in 1993 where she took up short courses in accounting. She was employed by Steamships Hardware as an Accounts Clerk for 4 years from 1995 to 1999. She left that employment and was employed by Trans Niugini Tours as an Accounts Clerk for less than a year. She was then employed by Avis Rent A Car as a Senior Rental Sales Representative for 3 years. She then took up employment with Samtek Hire Car as Office Manageress from 2011 to 2012 and she is now unemployed. The prisoner was arrested on 26th of January 2009 and charged with one count of false pretence. She was admitted to bail after being incarcerated for a month. She absconded bail and a bench warrant was issued for her arrest on 17th of December 2009. She was apprehended on 24th of September 2014 and has been in custody for a month now.

9. I have considered the matters contained in the pre-sentence report and the means assessment report. The reports, amongst other things, report that; the prisoner currently does not have the financial means to meet an order for restitution on her own, but her relatives who are financially sound and members of the community can assist her; of the K12,000.00 the prisoner owes the victim, she will contribute K2,000.00 within one month of sentence and release from custody; and the victim John Tomba wants the amount of K12,000.00 to be paid in cash by two instalments within a period of 6 months, the first to be K8,000.00 and the last to be K4,000.00.

It is therefore recommended that the prisoner be given a non-custodial sentence under the supervision of the Probation Service principally conditional upon restitution being effected within 6 months of sentence by two installments, the first being K8,000.00 and the balance of K4,000.00 to be paid last.

10 In mitigation it was submitted that:

1. the prisoner is a first offender;

2. the prisoner cooperated with the police by making early admissions in the Record of Interview;

3. the prisoner paid K4,000.00 of the initial K16,000.00 she received from the victim;

4. the prisoner expressed genuine remorse;

5. the prisoner had a history of suffering from bronchitis; and

6. this was a non-violent offence.

11. A sentence...