The State v Jack Nunisa

• Jurisdiction: Papua New Guinea
• Judge: Auka, AJ
• Judgment Date: 30 August 2016
• Citation: (2016) N6463
• Court: National Court
• Year: 2016
• Judgement Number: N6463

Full : CR (FC) No 105 of 2014; The State v Jack Nunisa (2016) N6463

National Court: Auka, AJ

Judgment Delivered: 30 August 2016

N6463

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 105 OF 2014

THE STATE

V

JACK NUNISA

Popondetta: Auka, AJ

2016: 27thJuly & 30th August

CRIMINAL LAW – Sentence – Obtaining goods by False Pretence – Plea of guilty – Obtained K13, 500. 00 in cheque – Sentence of 2 years – Suspend Sentence – Criminal Code S.404 (1) (a) and S.19.

Case Cited:

Goli Golu v. The State [1979] PNGLR 653

Lawrence Simbe v. The State [1994] PNGLR 3F

The State v. Anegela Tokonai (2012) N4679

The State v. Ivan Bob (2013) N5382

The State v. Roselyn Waiembi (2008) N3708

The State v. Steven Luva (2010) N399

Wellington Belawa v. The State [1988-89) PNGLR 496

Counsel:

Ms Babra Gore, for the State

Mr. E Yavisa, for the Accused

DECISION ON SENTENCE

30th August, 2016

1. AUKA AJ: The accused pleaded guilty to one count of obtaining goods by False Pretence under S.404 (1) (a) of the Criminal Code Act.

2. The brief facts of the case were that on 22nd May, 2012 the accused Jack Nunisa presented to the former Mayor for Popondetta town, Mr Botty Robinson, a claim of K15, 000.00 for outstanding fees for unspecified scope of advisory services he provided on land and building tax rates.

The claim was processed by his wife who was the Acting Accountant of the Ijivitari District. His wife filled out the information that the payment was for Maruta Transit House. A cheque for K13, 500.00 was raised and not K15,000.00 as claimed, for reasons that the accused’s claim did not have the certificate of compliance for purpose of tax and that there was no supporting documents in the form of reports or photographs of the specified scope of works done to the land and properties and their outcome or results.

The cheque of K13, 500.00 was eventually paid to the accused via Maruta Haus. At the material time of collecting the cheque the accused did not produce any certificate of completion on work he had claimed he had done for the Popondetta town.

Therefore the state alleged that the accused by falsely pretending to former Mayor of Popondetta town, Mr. Botty Robinson that he carried out advisory services on land and building tax rates, obtained a sum of K13, 500.00 for the Popondetta District Treasury with intent to defraud.

3. On his statement on allocatus, the accused said that he is very sorry for his wrong doing and asked the court to be lenient in giving him time to repay all the monies or any part of it as the court sees fit. He said he is married with 3 children who are all in school. He said he has just been re-employed by Oro Provincial Administration and is currently in charge of a Project involving the new resident for the residential judge. He asked the court for leniency and asked for time to repay the money. He said his previous employment was with National Housing Corporation for 25 years and feels that he can contribute to the government in his new capacity as a project officer. He said if the court orders him to repay the money he has relatives who have agreed to repay the money.

4. On the formal request of Mr. Yavisa of Counsel for the accused, the Court directed the Probation Officer to furnish and file both a Pre-Sentence Report and Means Assesment Report and directed that the matter to return on 27th July, 2016. I am now in possession of both Reports and have perused them thoroughly and consider them to be in favour of the Accused. The Pre-Sentence Report recommended him as a good candidate for Probation. The Means Assessment Report at page 5 shows that with the assistance of his relatives, he can repay the money in full within one (1) year.

5. On 27th July, 2016 the court heard counsels on Sentence. Mr. Yavisa submitted that the accused is 51 years old and comes from Lamoa Village in Tufi area of Oro Province. He is married with 3 children, two are attending High School and one attending primary school. He completed grade 10 and matriculated and went to university of Papua New Guinea and spent 2 years. He was formerly employed by National Housing Corporation for 24 years. He was appointed as a Board Member for NBC AusAid Contract. He was also a Board member of International Education Agency (IEA). Currently he is the founder member of Oro Woman Advocacy Group and is also the chairman of the group. Currently he is employed by the Oro Provincial Administration and he is leading the project to build the Oro Residential Judge’s house.

6. Mr. Yavisa submitted and urged the court to take into account in accused favour the following factors;

1. That accused pleaded guilty and saved courts time and money;

2. That accused has apologised for his wrong doing;

3. That accused is a person of good character;

4. That is a first time offender;

5. That he served the state and its people for 24 years through his employment with National Housing Corporation;

6. That he is formally employed and willing to repay the money within 1 year commencing 31st July, 2016 and to end on 31st July, 2017. He is willing to pay K1125. 00 every month as per the payment scheduled contained at page 5 of the Means Assessment Report.

7. Ms. Gore counsel for the state submitted that the accused is well educated and is a former Public Servant and knows what is right and what is wrong and yet he wrongly used the system to benefit himself. Ms. Gore submitted that the offence is prevalent. She referred the court to the National Court case of the State v. Ivan Bob (2013) N5382. In that case the accused pleaded guilty and was sentenced to 2 years but the sentence was wholly suspended with condition to repay the money. She submitted that a sentence between 2 to 3 years should be imposed on the accused.

8. The maximum penalty for the offence of obtaining goods by false Pretence under S.404 (1) of the Criminal Code is imprisonment for a term not exceeding 5 years.

9. The Court has a general discretion to impose lower sentence with or without other forms of punishment enumerated in s.19 of the criminal code.

10. It is an established principle that the maximum penalty should be reserved for the worst type case, Goli Golu v. The State [1979] PNGLR 653. In my view the accused case is not the worst type.

11. It is also an established principle that each case should be considered on its own facts and circumstances, Lawrence Simbe v. The State [1994] PNGLR 38.

12. The Supreme Court decision of Wellington Belawa [1988] PNGLR 416 is the leading case authority in this jurisdiction for the offence of misappropriation and it sets out the Sentencing guidelines for that offence inclusive of the factors that are to be considered and the tariff to apply. There appears to be concurrence by the Court’s with general consistency that apart from misappropriation cases, the Sentencing guidelines in Wellington Belawa should also apply to all cases involving an element of dishonestly such as those concerning forgery, obtaining goods by false pretences, fraud, stealing and the live in the absence of appropriate sentencing guidelines for those particular offences; eg, The State v. Roselyn Waiembi (2008) N3708, The State v. Steven Luva (2010) N3909.

13. In the same case of Wellington Belawa (Supra), the Supreme Court recommended that the following factors should be taken into account when determining what penalty to impose on an offender and these are:

1. the amount taken;

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

3. the period over which the offence was perpetrated;

4. the use to which money or property dishonestly taken was put;

5. the effect upon the victim;

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

7. the effect on fellow employees or partners;

8. the effect upon the offender himself or herself;

9. the offenders own history;

10. whether restitution was made to the victim;

11. matters of mitigation special to the offender himself or herself, such as ill health, young or old age, effect of excusive nerves strain, co-operation with the police.

14. The Supreme Court in the same case of Wellington Belawa (Supra) also recommended a tariff of sentences to be adjusted upward or downward depending on the various factors mentioned above. The Supreme Court said that where the amount misappropriated is between;

1. K1.00 and K1000. 00, a gaol term should rarely be imposed;

2. K1000 and K10, 000.00, a gaol term of up to 2 years;

3. K10, 000. 00 and K40. 000. 00, a gaol term of 2 years; and

4. K40, 000. 00 to K150, 000. 00, a gaol term of 3 to 5 years.

15. It is generally accepted now that while the factors set out in Wellington Belawa are still relevant, the tariff recommended is outdated and therefore there is a need to impose increased sentence due to the prevalent of the offence. However, the Court still has considerable discretion under s.19 of the Code to impose an appropriate sentence, depending on the peculiar facts and circumstances of a particular case.

16. Applying the factors recommended in the Belawa case to the circumstances of the present case, this...