The State v Roy Anthony

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 16 April 2024
• Neutral Citation: N10725
• Citation: N10725, 2024-04-16
• Counsel: Ms L. Ilave, for the State,Mr M. Makeu, for the Offender
• Docket Number: CR (FC) No. 65 OF 2022
• Hearing Date: 16 April 2024
• Court: National Court

N10725

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 65 OF 2022

The State

v.

Roy Anthony

Waigani: Berrigan J

2024: 16^th April

CRIMINAL LAW — SENTENCE — S 404(1)(b) of the Criminal Code — Induced delivery of K514,896.23 by false pretence — Sentence of 4 years of imprisonment.

Cases Cited:

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

State v Peter Koa Kuala (2017) N6736

State v Joyce Moripi (2017) N6876

The State v Enzeng Banabas (2021) N8802

The State v Travey Aumora (2016) N6323

The State v Kapika (2022), N9740

The State v Boski (2014) N5814

The State v Solien (2012) N4665

The State v Ostakel (2021) N8787

Goli Golu v The State [1979] PNGLR 653

Lawrence Simbe v The State [1994] PNGLR 38

State v Naime (2005) N2873

Gary Louha v The State (2023) SC2552

The State v Benedict Simanjon (2020) N8637

The State v Tony Kande & Ors (2021) N9252

The State v Nathan Manikumbu & Ors (2023) N10116

The State v Frank Kagai [1987] PNGLR 320

Doreen Liprin v The State (2001) SC673

The State v Tardrew [1986] PNGLR 91

Legislation and other materials cited:

Sections 19, 404(1)(b), Criminal Code

Counsel

Ms L. Ilave, for the State

Mr M. Makeu, for the Offender

Public Prosecutor: Lawyers for the State

Makeu Legal Services: Lawyers for the Offender

DECISION ON SENTENCE

16^th April 2024

1. Berrigan J: The offender, Roy Anthony, was convicted following trial of inducing the delivery of K514,896.23 to Marine Holdings Ltd, a company wholly owned and operated by him, by falsely pretending that he had lawful authority to sell a residential property with intent to defraud, contrary to s404(1)(b) of the Criminal Code (Ch. 262) (Criminal Code).

2. The maximum penalty for the offence is five years of imprisonment.

3. The offender was a police officer attached to the Fraud Squad since passing out in 2010. He had been working in real estate following his suspension in 2017. The offender falsely pretended to the complainant, Clement Paubali, that he was authorised to sell a residential property in Boroko, NCD, when he had no such authority.

4. Instead, the offender was working with another person, Nick Harrison, to sell the property without the knowledge and authority of the registered title holder for their own benefit. As part of the ruse, the offender met with the complainant at the property and falsely represented that he was acting for a person called Joe Mur who had title to the property. He told the complainant that he was a police officer in a clear attempt to instil confidence in the complainant. He falsely attested to witnessing the execution of both a contract of sale and a transfer instrument by Joe Mur when no such thing happened. As a result the complainant signed a contract of sale for the property for the price of K600,000. On the day of settlement, and with the offender's knowledge, another person pretending to be Joe Mur attended the bank with Nick Harrison to maintain the deception. Following settlement, the complainant caused a K514,896.20 cheque to be drawn in favour of Marine Holdings Limited, a company wholly owned and operated by the offender. K430,000 in cash was withdrawn from the account by Roy Anthony a few days later. The complainant was unable to take possession of the property, however, and reported the matter to police. He put a stop to the loan with Kina Bank but there is some dispute between him and the bank about the loan or at least the deposit and the complainant has since brought civil proceedings against the bank.

Allocutus

5. On allocutus the offender provided a detailed affidavit outlining his personal circumstances, employment history, and community work, which I will return to below. He also sets out a number of matters which go to verdict and it is clear that he maintains his innocence. He asks the Court to give him a suspended sentence.

Sentencing Principles 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 of 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. The State submitted that a sentence of 3 to 4 years of imprisonment was appropriate. It did not oppose suspension to promote restitution. It referred to the following cases in support:

a) State v Peter Koa Kuala (2017) N6736, Auka J: the offender pleaded guilty to obtaining rentals totalling K282,000 over a period of 9 years by falsely pretending that she was the owner of the property. She was sentenced to 4 years of imprisonment on conditions, including restitution of K100,000; and

b) State v Joyce Moripi (2017) N6876, Salika DCJ: the prisoner pleaded guilty to one count of conspiracy to defraud under s.407 of the Criminal Code Act and one count of obtaining goods by false pretence under s.404(1) a of the Criminal Code Act. She was a property manager employed by Century 21 Siule Real Estate Limited and between 1 January and 30 September 2013 she conspired with another person to submit false invoices for upholstery work alleged to have been done at a client's residence and obtained K207,000. She was sentenced to 4 years on each count to be served concurrently, to be wholly suspended upon restitution.

8. Defence counsel submitted that a sentence of 3 years of imprisonment was appropriate, wholly suspended to enable restitution of K70,000.

9. In addition to Kuala, counsel relied on the following cases in support:

a) The State v Enzeng Banabas (2021) N8802, Berrigan J: the offender pleaded guilty to 21 counts of obtaining monies by false pretence, contrary to s. 404(1)(b) of the Criminal Code. The offender was employed as a Government Relations Officer with TOTAL E&P PNG Limited. Between 1 March 2018 and 31 May 2019 the offender obtained a total of K39,550 from 21 different people on 21 separate occasions by various false pretences: he obtained K4500, K1200, K4000, K22,500 and K1800 intended as tender and related fees by falsely pretending to five small and medium business owners that he was the Projects Coordinator for TOTAL responsible for awarding contracts; K500, K750, and K550 intended as medical fees from three different people by falsely pretending that he was a recruitment officer with TOTAL; K250 on eight separate occasions, intended as visa and passport processing fees, on the false pretence that he was responsible for TOTAL's Graduate Program; and K150, K400, K400 and K550 from a further four persons on a similar basis. He was sentenced to sentences between 6 months and 2 years on each count on the indictment, some of which were to be served concurrently and some cumulatively. An effective head sentence of 3 years was imposed having regard to the principles of totality, less time spent in custody, the balance of which was suspended on conditions, including restitution;

b) The State v Travey Aumora (2016) N6323, Anis AJ: Offender pleaded guilty to two counts of obtaining a total of K37,950 by falsely pretending to be an SDA Pastor. The complainant provided him monies for church run activities and expenses on count 1 and books and cash on count 2 on the false promise that he intended to marry the complainant. The offence was planned, occurred over 9 months, took advantage of the offender's religion, breached her trust and took her life savings. He was sentenced to 2 years in prison less time spent in custody;

c) The State v Kapika (2022), N9740, Rei AJ: Offender pleaded guilty to one count of obtaining K53,570.50 by falsely pretending to sell genuine gold. He was sentenced to 3 years, wholly suspended on condition of restitution of K45,000 within 2 years;

d) The State v Boski (2014) N5814, David J: Offender pleaded guilty to obtaining K12,000 as part of payment for a vehicle. He was sentenced to 3 years, wholly suspended on condition of restitution within 6 months;

e) The State v Solien (2012) N4665, Makail J: the offender lived with her de facto husband on a property at Korobosea in Port Moresby. Following his death, she falsified a contract of sale and had the title of the property transferred to her son who was at all material times a minor of 12 years because she was worried that her three children were at risk of being left homeless after her de facto husband died. She was sentenced to 2 years, wholly suspended.

10. I have had also had regard to the other cases set out in Banabas, supra, including The State v Ostakel (2021) N8787, Berrigan J, in which the offender pleaded guilty to obtaining K305,800 on the false pretence that...