The State v Wilkinson Tanef

• Jurisdiction: Papua New Guinea
• Judge: Auka, AJ
• Judgment Date: 30 August 2016
• Citation: (2016) N6465
• Court: National Court
• Year: 2016
• Judgement Number: N6465

Full : CR (FC) No 1071 of 2013; The State v Wilkinson Tanef (2016) N6465

National Court: Auka, AJ

Judgment Delivered: 30 August 2016

N6465

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 1071 OF 2013

THE STATE

V

WILKINSON TANEF

Popondetta: Auka, AJ

2016: 19th & 22nd July & 30th August

CRIMINAL LAW – Sentence – Obtaining goods by False Pretence or Credit by wilfully false promise – Plea of guilty – Obtaining K12, 030.00 in cash – Promised to sell gold bars – failed to deliver the gold bars to victim – Sentence of 3 years – Suspended sentence – Criminal Code S.404 (1) (a) and S.19

Case Cited:

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

Doreen Lipirin v. The State (2011) SC673

Goli Golu v. The State [1979] PNGLR 653

Lawrence Simbe v. The State [1994] PNGLR 38

Public Prosecutor v. William Bruce Tardew [1986] PNGLR 91

The State v. Anegela Tokonai (2012) N4679

The State v. Aumora (2016) N6323

The State v. Dorcas Boski (2014) N5814

The State v. John Kil (2000) PNGLR 253

The State v. Ivan Bob (2013) N5382

The State v. Roselyn Waiembi (2008) N3708

The State v. Steven Luva (2010) N3909

Wellington Belawa v. The State [1988-89] PNGLR 496

Counsel:

Ms Babra Gore, for the State

Mr. E Yavisa, for the Accused

DECISION ON SENTENCE

30th August, 2016

1. AUKA AJ: The accused pleaded guilty to one count of obtaining goods by False Pretence or Credit by wilfully false promise under s.404 (1) (a) of the Criminal Code.

2. The brief facts of the case were that prior to 18th March, 2013 the victim Ronal Saulep and the accused met and Ronald Saulep raised his intention to buy gold. The accused responded and told the victim that he had two (2) gold bars at 25 kg each and was selling each for K60, 000.00. Having heard that Ronald contacted his brother Doctor Moses Manna and told him that he had found someone selling gold bars. From 27th March, 2013 to 9th May, 2013 the victims Ronald and Moses made two payments of K4, 030.00 each to the accused. Those money’s were paid on instalments at accused’s request. As a result the total amount paid to the accused was K12, 030.00. After the last payment was made on 9th May, 2013, the accused promised to deliver the gold bars at Ronald’s place but he never did. From then on when victim got in touch with accused to deliver the gold bars, he was giving excuses and that went for sometimes. The victims became frustrated and reported the matter to Police and the accused was arrested on 13th May, 2013 and charged.

3. On his statement on allocatus, the accused said sorry for what he did and asked the court to give him time so that he can repay the money. He asked the court to have mercy on him. He said he was married and have children who are of young age and there’s no one to look after them. He said he is prepared to repay the money in full.

4. On the request of Mr. Yavisa of Counsel for the accused, the court directed the Probation Officer to compile and file a Pre-Sentence Report and a Means Assessment Report and directed the matter to return on 22nd July, 2016. I am now in possession of those two (2) reports.

5. On 22nd July, 2016 the court heard counsels on Submissions on Sentence. Mr. Yavisa submitted that accused is aged 51 years and comes from Hombariri Village in Oro Province. He is married with 8 children and is a subsistence farmer. He is a member of the Anglican Church. He has no formal education. He is engaged in informal business activities such as running a small fish pond of Talapia and sells Talapia to earn money.

6. Mr. Yavisa urged the Court to consider in accused’s favour the following matters;

1. Accused pleaded guilty and saved Courts time and money.

2. Accused is a first time offender

3. Accused expressed remorse in Court

4. Accused has raised his intention to repay the money within 6 months as per the Means Assessment Report

5. That Accused has spent 1 month 20 days in pre-trial custodial term.

7. Mr. Yavisa submitted that a non-custodial sentence with condition to repay the money is the appropriate sentence in the circumstances of the case.

8. Mr. Yavisa referred the court to the National Court case of The State v. Aumora (2016) N6323. In that case, the accused pleaded guilty to the charge of False Pretence. He was sentenced to 2 years and that sentence was reduced by 8 months 21 days. He served only 2 year and 3 months and 2 days. The custody sentence was imposed because the accused did not have any means to repay the money.

9. For this case, Mr. Yavisa submitted that both the Pre-Sentence Report and the Means Assessment Reports are in favour of the accused. His foster daughter who works with the LNG Company has raised her intention to assist in repaying the total amount within 6 months as per the Means Assessment report.

10. For the prosecution Ms. Babra Gore submitted for a sentence between 2 and 3 years and the sentence to be suspended with condition. Ms. Gore referred the court to the National Court case of The State v. Dorcas Boski (2014) N5814. In that case the accused pleaded guilty to the charge of False Pretence involving K16, 000. 00. Accused was sentenced to 3 years, reduced by 2 months for pre-trial custodial term and remaining term suspended on terms.

11. The maximum penalty for the offence of obtaining goods or credit by False Pretences or by wilful false promise under Section 404 (1) of the Criminal Code is imprisonment for a term not exceeding 5 years.

12. The Court has a general discretion to impose lower sentence with or without other forms of punishment enumerated in S. 19 of the Criminal Code.

13. It is an established principle that the maximum penalty should be reserved for the worst type of case, Goli Golu v. The State [1979] PNGLR 653, Avia Aihi v. The State (No.3) [1982] PNGLR 92. In my view the accused’s case is not the worst type.

14. It is also an established principle that each case should be considered on its own facts and circumstances, Lawrence Simbe v. The State [1994] PNGLR 38.

15. The Supreme Court decision of Wellington Belawa (Supra) is the leading case authority in this jurisdiction for the offence of Misappropriation and it sets out the Sentencing guidelines for that offence inclusive of the factors that are to be considered and the tariff to apply. There appears to be concurrence by the Court’s with general consistency that apart from misappropriation cases, the sentencing guidelines in Wellington Belawa should also apply to all cases involving an element of dishonestly such as those concerning forgery, obtaining goods by false pretences, fraud, stealing and the like in the absence of appropriate sentencing guidelines for those particular offences; e.g., The State v. Roselyn Waiembi (2008) N3708, The State v. Steven Luva (2010) N3909.

16. In the same case of Wellington Belawa (Supra), the Supreme Court recommended that the following factors should be taken into account when determining what penalty to impose on an offender and these are:

1. the amount taken;

2. the quality and degree of trust reposed in the offender;

3. the period over which the offence was perpetrated;

4. the use to which money or property dishonestly taken was put;

5. the effect upon the victim;

6. the impact of the offence on the public and public confidence;

7. the effect on fellow employees or partners;

8. the effect upon the offender himself or herself;

9. the offenders own history;

10. whether restitution was made to the victim;

11. matters of mitigation special to the offender himself or herself, such as ill health, young or old age, effect of excessive nervous strain, co-operation with the police

17. The Supreme Court in the same case of Wellington Belawa (Supra) also recommended a tariff of sentences to be adjusted upward or downward depending on the various factors mentioned above. The Supreme Court said that where the amount misappropriated is between:

1. K1.00 and K1000.00, a gaol term should rarely be imposed;

2. K1000 and K10, 000.00, a gaol term of up to 2 years;

3. K10, 000.00 and K40, 000.00, a gaol term of 2 years; and

4. K40, 000.00 to K150, 000.00, a gaol term of 3 to 5 years.

18. It is generally accepted now that while the factors set out in Wellington Belawa are still relevant, the tariff recommended is outdated and therefore there is a need to impose increased sentence due to the prevalent of the offence. However, the Court still has considerable discretion under S. 19 of the Code to impose an appropriate sentence, depending on the peculiar facts and circumstances of a particular case.

19. Applying the factors recommended in the Belawa case to the circumstances of the present case, this court finds that the following factors are relevant and applicable and can be considered either in favour or against the accused on sentence.

20. The factors which the court considers in favour of the accused are:

1. The accused pleaded guilty;

2. The accused is a first time offender and has no prior conviction and has a previous good record;

3. The accused will continue to suffer personal shame and disgrace because of...