The State v Lydia Girana (2019) N7834

• Jurisdiction: Papua New Guinea
• Judge: Toliken J
• Judgment Date: 23 April 2019
• Citation: (2019) N7834
• Docket Number: CR NO. 35, 36, 37 & 38 OF 2018
• Court: National Court
• Year: 2019
• Judgement Number: N7834

Full Title: CR NO. 35, 36, 37 & 38 OF 2018; The State v Lydia Girana (2019) N7834

National Court: Toliken J

Judgment Delivered: 23 April 2019

N7834

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 35, 36, 37 & 38 OF 2018

THE STATE

V

LYDIA GIRANA

Buka: Toliken J

2019: 9th, 23rd April

CRIMINAL LAW – Sentence – Obtaining property by false pretences – Plea – Four counts – Different victims – Prisoner concocts fraudulent school fee assistance scheme – Obtains different sums of money from different victims within a period of 3 months – Promises 10-fold returns – Fails to deliver on promises – Belawa principles considered and transposed against circumstances of instant case – Not a worst case – Mitigating and aggravating factors considered – Sentences of 12 months (count 1), 12 months (count 2), 18 months (count 3) and 24 months (count 4) respectively – Sentences to run concurrently – Criminal Code Ch. 262, s 404.

SENTENCE – Suspension – Whether appropriate case for – No means to make restitution – Unfavourable Pre-sentence Report – Case does not qualify for suspension according to Supreme Court principles on suspension – Discretion to Suspend nevertheless available unless removed by Parliament through legislation – Appropriate case for exercise of discretion – Sentence wholly suspended on condition.

Cases Cited

Goli Golu v The State [1979] PNGLR 653

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

Belawa v The State [1988 – 89] PNGLR 496

Thress Kumbamong v The State (2008) SC 1017

Public Prosecutor v Don Hale (1998) SC 564)

Public Prosecutor v Tardrew [1988 -89] PNGLR 91

The State v Kayak (2012) N5176

The State v Yepin (2005) N3503

The State v Florence Nohu; CR (FC) No. 106 – 110 (Unnumbered and Unreported judgment dated 22nd February 2019 )

Counsel

S Dusava, for the State

F Lugabai, for the Prisoners

JUDGMENT ON SENTENCE

23rd April, 2019

1. TOLIKEN, J: On 09th April 2019, the prisoner Lydia Girana pleaded guilty to an indictment charging her with 4 counts of obtaining property by false pretences thus contravening Section 404 (1)(a) of the Criminal Code Ch. 262. (the Code)

FACTS

2. The brief supporting facts are as follows; The prisoner concocted a scheme to obtain monies from unsuspecting persons in Buka town by holding herself out to be a leading figure in a School Fees Assistance Program, funded by the PNG National Government to assist residents of the Autonomous Region of Bougainville. She would tell her prospective clients that they would receive 10-fold returns for their investments once funds were released to the Autonomous Bougainville Government. Thereafter she fraudulently obtained sums of monies from four individuals by false pretences at difference times.

3. Henceforth between the 01st and 10th day of February 2017 she obtained from one Joel Hiriats the sum of K3000, promising him that he will be paid K30,000 in return by the end of March that year. Mr. Hiriats thereafter continuously followed up with her but has not seen a return for his investment ever since. (Count 1)

4. Then on 13th February 2017, she informed one Edmond Korana about her school fee assistance program. She convinced him to give her K500 promising a return of K5000 by the end of March 2017. Korana has not received the promised monies ever since. (Count 4)

5. Then yet again between 22nd of February 2017 and 20th March 2017, the prisoner obtained K150 from one Jill Tukana promising her K1000 in return for her investment by the end of March 2017. Jill Tukana has not seen any returns for her investment ever since despite following up with the prisoner. (Count 2)

6. And finally between 18th April 2017 and 26th April 2017, the prisoner told one Jeffrey (Flex) Tseraha and his wife that she had K170,000 remaining in the program which needed to be expended before the end of April 2017. Tseraha gave her K200 on 18th April 2017 for a promised return of K2000, and 26th April 2017 he gave her K400 for a promised return of K4000. Tseraha has not seen any return for his K600 investment since then. (Count 3)

THE OFFENCE

7. The offence of obtaining property by false pretence carries a maximum penalty of 5 years imprisonment. Section 404 (1)(a) relevantly provides –

404. OBTAINING GOODS OR CREDIT BY FALSE PRETENCE OR WILFULLY FALSE PROMISE.

(1) A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud–

(a) obtains from any other person any chattel, money or valuable security; or

(b) induces any other person to deliver to any person any chattel, money or valuable security,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding five years.

(2) ...

(3) ...

ISSUES

8. The issue for me then is; What should be an appropriate sentence for the prisoner?

SENTENCING PRINCIPLES

9. While the maximum penalty is 5 years imprisonment this does not necessarily mean that the accused will receive the maximum penalty. This is because the maximum, as is trite, is usually reserved for the worst instances of offending. Furthermore each case must be treated according to its own circumstances so that punishment fits the crimes. (Goli Goli v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92)

10. The sentencing principles for offences of dishonesty such as this offence are well settled since the seminal case of Belawa v The State [1988 – 89] PNGLR 496. The Supreme Court held there that the following factors ought to be taken into account when sentencing offenders –

· the amount taken

· the quality and degree of trust reposed in the offender

· the period over which the theft or fraud was perpetrated

· the use to which the money or property dishonestly taken was put

· the effect upon the victim

· the effect of the offence upon the public and public confidence

· the effect on fellow employees or partners

· the effect on the offender himself

· the offender's own history

· whether restitution has been made

· the matters of mitigation special to the offender such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; any help given by him to the police.

11. The court also suggested the following sentencing scale as shown below:

Amount misappropriated or fraudulently obtained	Appropriate term of imprisonment
K1.00 - K1000.00	Imprisonment should rarely be imposed
K1000 - K10,000	Up to two (2) years
K10000 – K40000	Two (2) to three (3) years
K40000 – K150000	Three (3) to five (5) years

SENTENCING TREND

12. Offences of dishonesty including obtaining property by false pretences are very prevalent. I need only cite a few cases with similar circumstances to the case before us, and to give us an idea what the sentences trend had been.

13. The State v Florence Nohu; CR (FC) No. 106 – 110 (Unnumbered and Unreported judgment dated 22nd February 2019 at Buka) per Bona J. The offender was the Officer In-Charge of Police Prosecutions here in Buka. Over a period of 6 months she obtained a total of K56,000 from 6 different persons by falsely pretending to them that she was in charge of the public tenders of the Community Based Corrections vehicle here in Buka and the fleet of New Zealand Police vehicles throughout the Autonomous Region. The amounts she obtained from those victims, at different times were K6,000 for the first count and K10,000 for each of the succeeding 5 counts.

14. She pleaded guilty to each count. The order does not indicate the sentence for each count but she was ordered to serve a concurrent sentence of 3 years which was wholly suspended, and she was placed on probation with, among others, a condition that she makes restitution to the victims within 2 years.

15. In The State v Yepin (2005) N3503 per Kandakasi J (as he then was): The offender was a Lance Corporal with the Correctional Services based in Vanimo. He arranged with a prisoner for the prisoner’s relatives to deposit K500 into his (the offender) account to meet his transport expenses back to his home after he was discharged. The relatives deposited K300 which the offender applied to his own use. To cover up for his theft the offender then promised the prisoner that he will deduct a portion of his sentence which of course did not eventuate.

16. On another occasion he obtained K200 from the family of another prisoner by making a similar promise which he did keep but rather again applied the money to his own use.

17. The offender was sentenced to 12 months imprisonment which was wholly suspended upon his entering into his own recognizance to be of good behaviour for a period of 12 months with conditions which included a condition that he be home-bound between the hours of 6.00p.m and 6.00a.m. In addition he was also ordered to pay a fine of K300.

18. The State v Kayak ...