The State v Joycelyn Yali Siune (2019) N7847
| Jurisdiction | Papua New Guinea |
| Judge | Berrigan, J |
| Judgment Date | 09 May 2019 |
| Citation | (2019) N7847 |
| Docket Number | CR (FC) 62 of 2019 |
| Court | National Court |
| Year | 2019 |
| Judgement Number | N7847 |
Full Title: CR (FC) 62 of 2019; The State v Joycelyn Yali Siune (2019) N7847
National Court: Berrigan, J
Judgment Delivered: 9 May 2019
N7847
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR (FC) 62 of 2019
THE STATE
V
JOYCELYN YALI SIUNE
Waigani: Berrigan, J
2019; 8 March; 26 April and 9 May
CRIMINAL LAW – Sentence – Section 404(1) (a) of the Criminal Code – Obtaining money by false pretence with the intent to defraud - Plea of guilty
Cases Cited
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
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 Lesi (2018) N7543
The State v Niso (No 2) (2005) N2930
The State v Tardrew [1986] PNGLR 91
The State v Terence Wilford Tabogani CR (FC) 305 of 2017, unreported, 26 March 2018
The State v Tiensten (2014) N5563
The State v Rebecca Kunti, unreported, 2018
The State v Wesley Kopman CR (FC) 53 of 2017, unreported, 25 August 2017
Wellington Belawa v The State [1988-1989] PNGLR 496
Counsel
Ms L. Jack and Mr A. Dus, for the State
Mr E. Sasingian, for the Accused
DECISION ON SENTENCE
1. BERRIGAN J: The offender pleaded guilty to one count of obtaining money by false pretence with intent to defraud, contrary to s. 404(1)(a) of the Criminal Code (Ch.226) (the Criminal Code).
2. On 7 occasions between 23 March 2016 and 17 April 2016 the offender and her late husband, Matthew Siune, obtained a total sum of K60,000 from the complainant, Gajanan P. Barve, with intent to defraud by falsely pretending that they would repay all monies at 40% interest. In each case the offender signed a statutory declaration and/or promissory note confirming that the monies would be repaid with interest within a specified period.
3. The offender failed to repay any of the monies as promised. She failed to respond to the complainants’ numerous phone calls and went into hiding. The matter was eventually reported to police.
Sentencing Considerations and Comparable Cases
4. 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:
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.
5. 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.
6. Whilst the principles identified 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; The State v Tiensten (2014) N5563.
7. 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 the 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 having regard to her very good prospects of rehabilitation into the community, in particular that it would enable her to resume her business and support herself and her family than otherwise would be the case.
8. The State also referred me to a number of decisions, including:
a. 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;
b. 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;
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 Terence Wilford Tabogani CR (FC) 305 of 2017, unreported, 26 March 2018, Salika DCJ (as he then was), in which the prisoner offered to assist his uncle who was running for elections. The offender obtained a total of K12,500 on the false pretence that he required monies for the purpose of the election campaign. The monies were not used for their intended purpose but for his own use. The prisoner was sentenced to 4 years’ imprisonment on a plea of guilty.
9. 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 property 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 false pretence that he was expecting 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 moneylending 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 victim. Using the same approach, she obtained a further K30, 500 from a second victim.
10. The sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
Nature and Circumstances of the Offence, including Matters of Aggravation
11. It is well established with respect to offences concerning dishonesty that, in general terms, the greater the amount involved the more serious the offence. The offence in this case concerns a substantial amount of money, totalling K60,000, obtained on 7 different occasions over a period of less than a...
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