The State v James Yaleme (2015) N8266
| Jurisdiction | Papua New Guinea |
| Judge | Batari J |
| Judgment Date | 20 October 2015 |
| Court | National Court |
| Citation | (2015) N8266 |
| Docket Number | CR (FC) 63 of 2015 |
| Year | 2015 |
| Judgement Number | N8266 |
Full Title: CR (FC) 63 of 2015; The State v James Yaleme (2015) N8266
National Court: Batari J
Judgment Delivered: 20 October 2015
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR (FC) 63 of 2015
THE STATE
V
JAMES YALEME
(No. 2)
Waigani: Batari J
2015: 20th October
CRIMINAL LAW – Sentence – obtaining goods, money or credit by false pretence or willfully false promise with intention to defraud – accused obtained from complainant total of K15,000 and on loan arrangement – false cheque tendered as purported assurance – cheque bounced and offender avoided repayment - offence – sentence – guide - mitigating factors – restitution – relevance of – suspension of sentence – 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:
J. Apo, for the State
R. Yansion, for the Accused
DECISION ON SENTENCE
20th October, 2015
1. BATARI J: JamesYaleme, on 10/09/15 the Court convicted you on one count of obtaining money by false pretense with intent to defraud under s. 404 (1)(a) of the Criminal Code. The facts also supported the elements of willfully false promise. You are before the court again from remand to receive your sentence.
2. I will sentence you on these brief facts. In June/July of 2013 you approached the complainant, Jackson Andiki for a K2,500 loan. He was then a money lender in the informal sector. You are the proprietor of a company, Kobs Engineering Limited with two subsidiaries in JY Securities Services and J & J Bakery Services. Two weeks later, you requested a further loan and settled for K12,500. You undertook to repay both amounts with a 50% interest and also gave the complainant a signed, undated Cheque in the sum of K30,000 with instructions to bank it after three months. The bank dishonored the Cheque upon presentation.
3. The complainant made numerous failed attempts to locate you so; he intercepted and detained your company vehicle. It was then that you came out of hiding and laid a complaint with police. Your complaint backfired as you were then arrested and charged with this offence.
A. SENTENCE: FACTORS FOR CONSIDERATION
4. The maximum penalty prescribed under s. 404 of the Criminal Code for the offence of false pretence is, five years imprisonment, subject to the court’s discretion, judicially exercised under s. 19 of the Criminal Code to impose a lesser term. In this regard, sentencing principles in the often-cited case of Wellington Belawa v The State [1988-89] PNGLR, 496 is where to start.
5. I have also ordered from the Community Based Corrections (CBC) Office, a Pre-Sentence Report and Means Assessment Report. The reports are now before the court and both counsel have addressed pertinent issues on the question of appropriate penalty.
6. Belawa’s case sets out a number of factors recognized by the Supreme Court which are intended to
a) The amount taken
7. 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 misappropriate 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.
8. I make two observations on the foregoing; (i) the nominated amounts with the corresponding sentence range for each category is now surpassed by time lapse and change of law; (ii) the scale of penalties was no doubt, set consistently with the maximum sentences of five years for the less serious and 10 years for misappropriation with circumstances of aggravation.
9. But now that the new penalty law under s. 383A of the Criminal Code have sorted misappropriation cases into four categories of seriousness, a review of the principles in Belawa’s case will be necessary to realign the different categories of misappropriation with the new statutory sentencing regime.
10. The offence of false pretence or willfully 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: Albert Age v The State [1979] PNGLR 589 at 590 -591. However, 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. 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 value of goods defrauded is in excess of K40,000 three to the maximum five years imprisonment is appropriate.
11. The total amount the subject of the conviction in this case is K15,000. This represents a substantial amount. It falls into the third category suggested above. The appropriate sentence is two to three 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
12. This factor is relevant 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. The repository of trust in cases like the one before this Court lies in contractual relationships. Schemes of money lending in the informal sector I think, are largely unregulated, insecure and vulnerable to manipulation and abuse. They depend entirely on personal trust and honesty of their clients.
13. In this case, you were not the victim’s regular customer. To gain his trust, you gave him a K30,000 cheque in purported future repayment of the principal amounts plus interests. When the cheque bounced, you disappeared from the scene. Your conduct was no doubt calculated to deceive the victim and to avoid detection. You breached the victim’s trust. You only came out of hiding after he detained your vehicle albeit, improperly. Your demeanor clearly exhibited a high degree of culpability.
c) The period over which the fraud or thefts have been perpetrated
14. 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.
15. The evidence against you did not show a trail of false pretenses with intent to defraud the same victim though; there are suggestions of others falling victims to your scam. This conviction may be relevant if charges pertaining to other victims are sustained, upon prosecution. For now, I give you the benefit of doubt.
d) The impact of the offence on the public and public confidence
16. The maintenance of public interest, trust and confidence in the formal sector employment under public or private law is the basis for consideration here. I am not sure if money lending in the informal sector is regulated. There is no evidence the complainant’s activity is properly registered with the IPA as a business activity.
17. This factor may have no immediate bearing to this case. However, the wider concern is the social ills that flow from unregulated money buying schemes that have become the norm amongst the low to middle income wage-earners. Highly inflated interest rates on repayment of the principal amount, meant the borrower is barely surviving on his/her meager earnings and it becomes a vicious circle when he or she has to keep borrowing out of necessity. Likewise, lenders are often hard done by when repayments are delayed or unsecured borrowers disappeared with impunity. In extreme cases where the activity is deemed illegal, the lender may have some difficulty enforcing his right or interest in a civil suit.
e) Motive: How money or property dishonestly taken was used
18. The principle here...
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