The State v Max Hibura

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ
• Judgment Date: 18 August 2017
• Citation: (2017) N6993
• Court: National Court
• Year: 2017
• Judgement Number: N6993

Full : CR (FC) 131 of 2017; The State v Max Hibura (2017) N6993

National Court: Salika, DCJ

Judgment Delivered: 18 August 2017

N6993

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 131 of 2017

BETWEEN:

THE STATE

AND:

MAX HIBURA

Waigani: Salika, DCJ

2017: 29 May; 21 June; 25, 31 July; 18 August

PRACTICE AND PROCEDURE – Criminal law – Charge of Obtaining Goods by False Pretence – s.404(i)(a) of the Criminal Code – what is the appropriate sentence – plea of guilty – K11,000.00 obtained by false pretence – sentenced to 3 years imprisonment.

Cases cited:

The State v Joyce Moripi (2017) N6867

The State v Nancy Uviri (2008) N5468

The State v Glenda Nugai Unreported National Court decision dated 6 February 2017.

Counsel:

Mr R Galama, for the State

Mr F Kirriwom, for the Defence

SENTENCE

18 August, 2017

1. SALIKA DCJ: INTRODUCTION: The prisoner is charged with three counts of obtaining goods by false pretence under s.404 (1)(a) of the Criminal Code Act. He pleaded guilty to the 3 counts and the matter is now for sentence.

Facts

2. The prisoner was a teacher and in 2013 was teaching at Guala Primary School in Tari, Hela Province. He became good friends with Paul Nele Tege, a fellow teacher teaching at the same school and they lived together in the same house because they were single teachers.

3. In mid 2013, the prisoner left the school and came to Port Moresby. While here in Port Moresby, he obtained three loans from two different financial institutions – two from Moni Plus Limited and one loan from Nambawan Finance.

4. From Moniplus, the first loan was K5,000.00 and the second loan was K5,100.00. The loan from Nambawan Finance was K1,000.00.

5. The prisoner obtained all loans using Paul Nele Tege’s name and personal information and pretended to be Mr Paul Nele.

6. The prisoner also opened a BSP account under Paul Nele Tege’s name. When the loans were approved the monies were deposited into that particular account and later withdrawn by the prisoner.

7. Paul Nele Tege realised that he had a lot of deductions on his payslips and was earning little. And so he came to Port Moresby to try and sort that out. He found out that the deductions were to Moni Plus and Nambawan Finance and that it was done by his friend Max Hibura.

8. The State alleged that the prisoner’s actions contravened section 404(1)(a) of the Criminal Code Act.

9. On arraignment the prisoner pleaded guilty to all the 3 counts and after reading the depositions the guilty plea were confirmed.

Issue

10. The issue for the court to determine is the appropriate sentences to impose on the prisoner.

The Law

11. Section 404(1) (a) of the Criminal Code says:

S404. 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

false pretence or wilfully false promise.

12. Section 19 of the Criminal Code Act gives the court a wide discretion to impose lesser sentences. It says:

“19. Construction of provisions of Code as to punishments.

1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided—

(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term; and

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(b) a person liable to imprisonment may be sentenced to pay a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment; and

c) a person sentenced on conviction on indictment to pay a fine may be sentenced—

(i) to be imprisoned until the fine is paid, in addition to any other punishment to which he is sentenced; and

(ii) instead of being sentenced to be imprisoned until the fine is paid—to be imprisoned for a term (not exceeding the term provided for in Subparagraph (i)) if the fine is not paid within a specified period (which period may be extended as the court thinks fit); and

(d) a person convicted on indictment of an offence not punishable with death may—

(i) instead of, or in addition to, any punishment to which he is liable—be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) comply with such other conditions as the court may, in its discretion, impose; and

(e) a person convicted of any offence on summary conviction may, instead of being sentenced to any punishment to which he is liable, be discharged on his entering into his own recognizances, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a term not exceeding one year; and

(f) when a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that—

(i) he shall appear and receive judgement at some future sittings of the court or when called on within a period specified by the court; and

(ii) if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposes.

(2) Imprisonment in accordance with Subsection (1)(c)(i), for non-payment of the fine—

(a) shall not extend for a term longer than two years; and

(b) shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

(3) In a case to which Subsection (1)(c) applies, the court may give such directions as it thinks proper as to the enforcement of the sentence of imprisonment, including a direction that the person sentenced appear at some future sittings of the court or when called on, by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period or any extension of that period.

(4) If under Subsection (3) a person directed to appear, or called on by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period, or any extension of that period, does not appear at the required time and place, a Judge may issue a warrant to arrest him and to bring him before a Judge.

(5) Imprisonment under Subsection (1)(d) for not entering into a recognizance—

(a) shall not extend for a term longer than one year; and

(b) shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

(6) When a court sentences any person convicted under Subsection (1)(d) to a term of imprisonment, it may further order that—

(a) the offender be imprisoned for such portion of that term as it thinks proper; and

(b) the execution of the sentence for the remaining portion of the sentence be suspended on his entering into a recognizance, with sureties if so directed, in accordance with Subsection (1)(d) but further conditioned that, if called on, he shall appear and receive judgement in respect of his service of the portion of the sentence.

(7) A Judge may, on being satisfied that the offender has committed a breach of any of the conditions of a recognizance under Subsection (6), forfeit the recognizance and commit him to prison to undergo the suspended portion of his sentence or any part of it.

(8) . . .

(9) Notwithstanding that restriction of movement is not specified as a punishment for an offence, a court may, in addition to any other punishment or punishments imposed, also impose restriction of movement in accordance with Section 600.

(10) When a court is considering the punishment or punishments to be imposed in any case it shall also consider whether, in the circumstances of the case, restriction of movement is an appropriate punishment.”

Personal Particulars

13. The prisoner is 33 years old and now lives at Konedobu in the National Capital District. He is originally from Teria Village, Koroba in the Hela Province. He is married with two children. He was a teacher at the Benaria Community School. He got his Diploma in Primary School Teaching at the Dauli Teachers College in 2009. He is currently living with his Aunt Kome at Konedobu.

14. His mother is alive and living in Tari while the father has passed on. He comes from a family of 4 and is the second eldest in the family. He taught for only 2 years before deciding to come to Port Moresby.

Mitigating Factors

15. The prisoner pleaded guilty to all the 3 counts of obtaining goods by false pretence. He has cooperated with police as well and in the court.

He is a first...