The State v Dorothy Heni (2019) N7846

• Jurisdiction: Papua New Guinea
• Judge: Berrigan, J
• Judgment Date: 26 April 2019
• Citation: (2019) N7846
• Docket Number: CR (FC) 46 of 2019
• Court: National Court
• Year: 2019
• Judgement Number: N7846

Full Title: CR (FC) 46 of 2019; The State v Dorothy Heni (2019) N7846

National Court: Berrigan, J

Judgment Delivered: 26 April 2019

N7846

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 46 of 2019

THE STATE

V

DOROTHY HENI

Waigani: Berrigan, J

2019: 13 March; and 11, 26 April

CRIMINAL LAW – Sentence – Section 404 (1) (a) of the Criminal Code – Obtaining by false pretence with intent to defraud - Plea of guilty

Cases Cited

Goli Golu v The State [1979] PNGLR 653

Lawrence Simbe v The State [1994] PNGLR 38

Mase v The State [1991] PNGLR 88

The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, 23 June 2017

The State v Ethel Kila, CR (FC) 25 of 2018, unreported, 5 September 2018

The State v Frank Kagai [1987] PNGLR 320

The State v Jack Ostekal Metz (2005) N2824

The State v John Kil (2000) N1974

The State v Larry Dickson CR (FC) 886 of 2013, unreported, 12 August 2013

The State v Niso (No 2) (2005) N2930

The State v Rebecca Kunti, CR (FC) 22 of 2018, unreported

The State v Tiensten (2014) N5563

The State v Tardrew [1986] PNGLR 91

Tremellan v The Queen [1973] PNGLR 116

The State v Wesley Kopman CR (FC) 53 of 2017, unreported, 26th March 2018

Wellington Belawa v The State [1988-1989] PNGLR 496

Counsel

Ms L. Jack and Ms. S Joseph, for the State

Mr E. Sasingian, for the Accused

DECISION ON SENTENCE

26 April, 2019

1. BERRIGAN J: The offender pleaded guilty to seven counts of obtaining by false pretence, with intent to defraud, contrary to section 404 (1) (a) of the Criminal Code (Ch. 226) (the Criminal Code).

2. The offender was the friend and tenant of one Rose Komi. At the offender’s request, Komi found friends and family to lend money to the offender and a vehicle to hire. Between 12 June 2018 and 30 June 2018 the offender obtained the following monies from 6 people by falsely pretending that she had won a catering contract worth K250,000 for the upcoming APEC meeting but required start-up capital to secure the contract, and would repay the borrowed monies with 100% interest. On that basis she obtained the following monies with intent to defraud:

a. On Count 1: K800 from Veronica Gombara;

b. On Count 2: K1000 from Pitu Nis;

c. On Count 3: K1000 from Saki Peong;

d. On Count 5: K200 from Cathy James;

e. On Count 6: K1,500 from Edna Matiabe; and

f. On Count 7: K1,500 from Alice Mandawi.

3. Similarly, with respect to Count 4, the offender obtained with intent to defraud the use of Saki Peong’s property, namely a vehicle, on the false pretence that she would pay him K200 per day when the payment of her catering contract was received.

4. The complainants waited for several weeks before seeking their monies from the offender. In some cases, she continued to pretend that she would repay the monies upon receipt of her contract monies. In others, she failed to respond at all. She moved out of Komi’s home without warning. The matters were eventually reported to police, who were able to secure the return of Saki Peong’s vehicle after 38 days, or a total hire value of K7600.

Sentencing Considerations

5. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:

a. the amount taken;

b. the quality and degree of trust reposed in the offender;

c. the period over which the offence was perpetrated;

d. the impact of the offence on the public and public confidence;

e. the use to which the money was put;

f. the effect upon the victim;

g. whether any restitution has been made;

h. remorse;

i. the nature of the plea;

j. any prior record;

k. the effect on the offender; and

l. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.

6. In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:

a. K1 and K1000, a gaol term should rarely be imposed;

b. K1000 and K10,000 a gaol term of up to two years is appropriate;

c. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and

d. K40,000 and K150,000, three to five years’ imprisonment is appropriate.

7. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; and The State v Tiensten (2014) N5563.

8. Both counsel referred me to cases in support of their respective submissions. The defence cited the decision of The State v Lesi (2018) N7543, in which the accused pleaded guilty before me to four counts of obtaining a total of K39,000 by false pretence with intent to defraud. In each case she falsely pretended, to four different people, that she was expecting a rebate from the Internal Revenue Commission and would repay the monies with interest once the rebate was received. She was sentenced to a total of 3 years’ imprisonment in hard labour applying the totality principle. Two years of her sentence was suspended on conditions.

9. The State also referred me to a number of decisions, including:

a. The State v John Kil (2000) N1974, Kirriwom J, in which the prisoner pleaded guilty to obtaining K1,470 by false pretence with intent to defraud on the basis that he would repay a friend as soon as he received a lump sum termination payment owing to him. He was sentenced to 8 months’ IHL but the sentence was wholly suspended on conditions including restitution of the money obtained, and compensation in the form of a pig and garden food;

b. The State v Larry Dickson CR (FC) 886 of 2013, unreported, 12 August 2013, David J, in which the prisoner obtained cash in the sum of K15,962, cash and property to the value of K700, and cash and property in excess of K1000 from three victims, respectively, over a period of 4 months by falsely pretending that he would repay 100% interest on the money borrowed and on the basis that he needed money to facilitate the transfer of investments made by his late father. A sentence of three years was imposed on the first count and one year each on the remaining two counts. Applying the totality principle, the accused was sentenced to 3 ½ years’ imprisonment;

c. The State v Wesley Kopman CR (FC) 53 of 2017, unreported, 25 August 2017 where Liosi AJ (as he then was) sentenced the prisoner to 4 years’ imprisonment IHL after he pleaded guilty to 1 count of obtaining K63,000 by false pretence, namely that he would repay K10,000 for every K1000 borrowed upon the sale of some gold; and

d. The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, 23 June 2017, Salika DCJ (as he then was), in which the prisoner was sentenced to 4 years’ imprisonment in hard labour. He presented a false cheque written out to himself in the sum of K4 million and told his victims he needed money to clear the cheque. On that basis he obtained K11,000 from four victims at different times.

10. I have also had regard to the following which may provide guidance in determining sentence:

a. The State v Jack Osteka Metz, (2005) N2824, Manuhu AJ (as he then was) in which the prisoner pleaded guilty to one count of obtaining goods or credit by false pretence. Over an 8-month period the prisoner obtained cash, accommodation, meals and other services to the value of K70, 455.36 on the pretence that he was expecting payment in millions of kina from the sale of Treasury Bills. He was sentenced to 3 and a half years’ imprisonment;

b. The State v Ethel Kila, CR(FC) 25 of 2018, unreported, 5 September 2018, Salika DCJ (as he then was) in which the prisoner was found guilty following trial of one count of false pretence. She obtained K22,000 from a husband and wife money lending business by falsely pretending that she would repay K56,000 once she had started her own catering company, for which she produced documents in support, when in fact she intended to travel overseas. She was sentenced to 3 years’ imprisonment which would have been suspended but for the fact that the offender absconded following trial; and

c. The State v Rebecca Kunti, unreported, 2018, Salika DCJ (as he then was) in which the prisoner was sentenced to 4 years’ imprisonment after pleading guilty to two counts of obtaining money by false pretences. On the first count she obtained a total of K65,000 over a number of instalments on the false basis that she would use it to purchase a vehicle on behalf of the...