The State v Moses Peraki (2019) N8027

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 20 September 2019
• Citation: (2019) N8027
• Docket Number: CR (FC) 122 of 2019
• Court: National Court
• Year: 2019
• Judgement Number: N8027

Full Title: CR (FC) 122 of 2019; The State v Moses Peraki (2019) N8027

National Court: Berrigan J

Judgment Delivered: 20 September 2019

N8027

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 122 of 2019

THE STATE

V

MOSES PERAKI

Waigani: Berrigan J

2019: 12 August, 6 and 20 September

CRIMINAL LAW – Practice and procedure – Sentence –S. 404(1)(a) of the Criminal Code – Obtaining by false pretence with intent to defraud.

Cases Cited:

Goli Golu v The State [1975] PNGLR 653

Lawrence Simbe v The State [1994] PNGLR 38

SaperusYalibakut v The State (2006) SC890

The State v Tardrew [1986] PNGLR 91

The State v Frank Kagai [1987] PNGLR 320

The State v Jack Osteka Metz (2005) N2824

The State v Niso (No 2) (2005) N2930

The State v Nancy Leah Uviri (2009) N5468

The State v Tiensten (2014) N5536

The State v Moses Mariko [2015] N6086

Tanabo v The State (2016) 61

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 Rebecca Kunti, unreported, 2018

The State v Dorothy Heni (2019) N7846

Wellington Belawa v The State [1988-1989] PNGLR 496

References cited

Section404(1)(a),of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Mr. J. Gubon, for the State

Mrs. V. Mauta, for the Offender

DECISION ON SENTENCE

20 September, 2019

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).

Facts

2. The offender told the complainant that gold buying and selling was a lucrative business and that together they would make a profit. He also told the complainant that he had been in business for some time and that given his wealth of experience nothing would go wrong. The offender asked the complainant to give him K10,000 and assured him he would generate a profit.

3. On the basis of the false pretence about his experience in the gold business and his ability to make a profit, the complainant gave the offender K10,000on 11 March 2011.

4. No monies were ever paid to the complainant by the offender. The offender was finally apprehended in August 2018.

5. The issue to be determined today is an appropriate sentence.

Sentencing Considerations and Comparative Cases

6. 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:

(a) the amount taken;

(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.

7. 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.

8. In general terms, this case falls within the third category of Wellington Belawa. Whilst the principles to be applied when determining sentence 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; and The State v Tiensten(2014) N5563.

9. The State submitted that a sentence in the “range” of about three years of imprisonment was appropriate. In support of its submissions it referred to the following cases:

(a) 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 following a trial. 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; and

(b) The State v Moses Mariko(2015) N6086, Polume-Kiele J, in which the prisoner pleaded guilty to obtaining K8,500 by falsely pretending to the complainant and his wife that he would buy a vehicle on their behalf. The vehicle was never delivered and the offender went into hiding until he was apprehended by the police. He was sentenced to 3 years’ imprisonment less time spent in pre-trial custody of 11 months and 4 days. One year of the sentence was suspended on conditions, including restitution; and

(c) The State v Nancy Leah Uviri(2009) N5468, in which Cannings J suggested that the sentencing trend in Wellington Belawa should be revised such that a sentence of between 4 and 6 years’ imprisonment would be appropriate where a sum of between K10,000 and K40,000 is involved.

10. Defence counsel submitted that an appropriate head sentence lies in the range of 2 to 3 years.

11. I have also had regard to the following cases 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;

(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; and

(d) The State v Dorothy Heni (2019) N7846, the offender pleaded guilty before me to seven counts of obtaining K13,600 by false pretence, with intent to defraud. She falsely pretended to 6 people that she had won a catering contract worth K250,000 for the 2018 APEC meeting. She asked them to lend her money and a vehicle on the basis that she required start-up capital to secure the contract, and undertook to repay the borrowed monies with 100% interest. That did not eventuate and she went into hiding. The matter was eventually reported to the police and the offender was apprehended. She was sentenced to 2 years’ imprisonment, less the time spent in remand awaiting trial.

12. The sentence in this matter 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

13. Applying the considerations set out in Wellington Belawa, the following matters have been taken into consideration in determining a sentence.

14. It is well settled that with respect to offences concerning dishonesty, in general terms, the greater the amount of money involved the more serious the offence. K10,000 is a substantial amount of money. The offence involved a single incident and it has not been alleged that it involved pre-planning.

15. There is no evidence as to the use to which the monies were put. In his record of interview the offender states that he used the monies to purchase gold but at a loss. If he wished to have this considered on the plea it needed to be agreed with the State, or proved by evidence on the sentence proceedings. In any event it is not in dispute that the monies were obtained by false pretence and that the impact on the victim has been significant in terms of financial loss.

16. It has been...