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State v Kunjip [2024] PGNC 260; N10927 (26 July 2024)

N10927

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) 154-158 OF 2024


THE STATE


V


HILDA KUNJIP


Mt Hagen: Berrigan J
2024: 11th, 22nd and 26th July


CRIMINAL LAW– SENTENCE – GUILTY PLEA - S 404(1)(a) of the Criminal Code – Obtaining property by false pretence – Four Counts – Total of K172,000 by salesperson from prospective customers – Effective Sentence of 5 years of imprisonment.


Cases Cited:
Wellington Belawa v The State [1988-1989] PNGLR 496
David Kaya and Philip Kaman v The State (2020) SC2026
State v Mary Tengdui (2014) N5827
The State v Sharon Geli Lesi (2018) N7543
The State v Dorothy Heni (2019) N7846
The State v Enzeng Banabas (2021) N8802
The State v Roy Anthony (2024) N10725
The State v Kawa (2022), N9468
The State v Peter Koa Kuala (2017) N6736
The State v Travey Aumora (2016) N6323
The State v Dorcas Boski (2014) N5814
The State v Zebedee Jabri Kalup (2015) N6038
The State v Stanley Haru (2014) N5660
The State v Travey Aumora (2016) N6323
The State v Moses Mariko (2015) N6086
The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported
The State v Jack Osteka Metz, (2005) N2824
The State v Ethel Kila, CR (FC) 25 of 2018
The State v Rebecca Kunti, unreported, 2018
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
Mase v The State [1991] PNGLR 88.
Tremellan v The Queen [1973] PNGLR 116
Public Prosecutor v Kerua [1985] PNGLR 85
The State v Tardrew [1986] PNGLR 91


Legislation and other materials cited:
Sections 19, 404(1)(a) of the Criminal Code.


Counsel:
Mr M. Tamate, for the State
Mr F. Timbi, for the Offender


DECISION ON SENTENCE


26th July 2024


  1. BERRIGAN J: The offender pleaded guilty to four counts of obtaining monies by false pretence with intent to defraud, contrary to s. 404(1)(a) of the Criminal Code (Ch.226) (the Criminal Code), for which the maximum penalty is five years of imprisonment.
  2. The offender was a Senior Car Salesperson employed by Ela Motors in Mt Hagen. On four occasions between June and November 2020 the offender negotiated deals with separate customers for the purchase of vehicles from Ela Motors, following which she obtained cash from the customer for that purpose when she intended to keep the monies for her own use in each case instead.
  3. For completeness I note that the indictment refers to a “false pretence” in each case when the representations are correctly “false promises” but no issue was raised and the distinction is not material in this case: see s 403 of the Criminal Code.
  4. On Count 1, the offender obtained K40,000 in June 2020 from a prospective Ela Motors’ customer, Tumun Mingal, for the purpose of purchasing a vehicle. Tumun had obtained a loan for the purchase on the advice of the offender. She gave him a fake receipt for the monies and told him that the vehicle would be ready by August but kept the cash for herself instead.
  5. On Count 2, Saki Kekdui approached the offender at Ela Motors on 2 September 2020 and told her he wanted to purchase an Isuzu Truck. She told him to raise a bank cheque in the sum of K40,000 payable to an entirely different dealer, Boroko Motors, and bring it to her with an additional sum of K10,000 in cash for that purpose. Upon receipt of the monies she told Saki that she would inform him when the truck was ready for pick up. She kept the K10,000 cash for herself and used the cheque to purchase a truck from Boroko Motors which she gave to another person.
  6. On Count 3 the offender agreed to sell Priscilla Mirr a used Toyota Land Cruiser from Ela Motors for K30,000. Priscilla gave her K20,000 on 30 October 2020 and the balance of K10,000 on 2 November at Ela Motors sales office. Again, the offender kept the monies for herself. Priscilla went to follow up on the vehicle on 7 November 2020 but was told that the complainant had been terminated. The matter was reported to police.
  7. On Count 4, Bokey Banake brought K52,000 to the offender on 3 November 2020 following a previous meeting. Upon receiving the money she asked him to sign a loan application form which she had completed, saying that the loan would go towards meeting the balance of the cost. She took the cash and told him to come back and collect the receipts and other documents from Ela Motors in two hours time. She never returned.

Sentencing Principles and Comparative Cases

  1. 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 misappropriation, including:
  2. Having regard to the scale outlined in that case, and following amendments to s 383A, the Supreme Court (Batari and Berrigan JJ) in David Kaya and Philip Kaman v The State (2020) SC2026 suggested that the following scale of sentences may usefully be accepted as a base, to be adjusted upwards or downwards according to the factors outlined in Wellington Belawa, such that where the amount misappropriated is between:
  3. I am grateful to counsel for their submissions.
  4. The State submits that each of the offences warrant a term of two to four years, to be imposed cumulatively, but adjusted having regard to the principles of totality. It refers to the following cases in support of its submissions:
  5. Defence counsel submits that a sentence of two years in each case is appropriate, to be served cumulatively but adjusted for totality. He referred to the following cases:
  6. The following cases are also relevant:

Consideration


  1. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
  2. Applying the principles outlined in Wellington Belawa, supra the following matters have been taken into account.
  3. Whilst serious, none of the offences are of the worst kind warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653.
  4. The offences in this case do, however, each involve substantial amounts of between K40,000 and K52,000, placing them in the fourth category of David Kaya & Anor v The State, attracting a starting range of three to five years of imprisonment, noting, however, the very significant difference in the maximum penalty applicable of ten years for misappropriation.
  5. The offences did not involve a breach of trust in the sense of a special relationship between the offender and her victims but she certainly took advantage of their confidence and her position with Ela Motors to commit the crimes.
  6. Whilst not particularly sophisticated, each offence involved some planning. In two cases the offender was aware that the victims needed to obtain loans to complete their intended purchases. She can have been in no doubt that the people that she was fooling could not afford to lose the monies that she obtained. There is no dispute that the monies were applied other than for her own use.
  7. This is not a case involving any real impact on the public or public confidence other than that it is important to take into account that these sorts of offences are prevalent and the offending in this case calls for both general and specific deterrence.
  8. I have no doubt that the impact on each one of the victims has been great. Time did not allow Probation Services to speak to all of the victims. But those spoken to demonstrate the sometimes severe and enduring consequences such offences have on ordinary people and their families, not only financially but in terms of their physical and mental health.
  9. Priscilla Mirr was self-employed and both her health and business suffered greatly when she lost her savings. Her husband took time off work to try to find the offender and their children were unable to attend school for some time as there was no money for school fees. Bokey Banake was admitted to hospital with high blood pressure and he and his wife initially divorced as he blamed her for referring him to the offender. They have since reconciled. He too spent time and money trying to locate the offender.
  10. The offender is from Koglamp Village, Hagen Central District, Western Highlands Province. She was married at the time of the offences but her husband left her in 2021. She has four children aged 17, 16, 10 and 6 years. Her 16 year old daughter lives in Port Moresby with her sister in law. The other children live with her in Mt Hagen. Her ten year old son suffers from a disability.
  11. The offender completed Grade 12 and obtained a certificate in Sales and Marketing from Mambo Heights Tafe College in 2007. She started work in 2008 with Digicel PNG in Mt Hagen before joining Coca Cola in 2009. In 2012 she joined Ela Motors where she was employed until the offences in 2020. In 2022 she went to Lae and worked with PNG Motors until she was arrested in 2023.
  12. In mitigation this is the offender’s first offence. She is of prior good character. Her pastor Richard Tenta confirms that she is an active member of the Evangelical Lutheran Church in Mt Hagen.
  13. It is also in the offender’s favour that she cooperated with police following her apprehension late last year. She pleaded guilty at the first opportunity in the National Court. I take this into account as indicative of her remorse, which she expressed on allocutus. I also take it into account on the basis that it has saved Court time and the State and its witnesses the cost and inconvenience of a trial.
  14. The impact on the offender has been grave. She lost a secure position in a large and reputable business. Since her termination she has struggled to obtain employment and I have no doubt that the conviction will make it difficult for her to secure a position in sales or elsewhere in the formal sector in the future. Whilst I appreciate that the impact on the offender’s family is not ordinarily a relevant consideration on sentence, I have also taken into account that imprisonment will cause great suffering to her children and one in particular who suffers a disability.
  15. There are no matters of mitigation special to the offender in terms of health, age or great strain. There has been some delay in the matter being brought to court but that appears to be because the offender left Mt Hagen and was not charged until she was apprehended in Lae. She was charged in December 2023 and there has been no significant delay since then.
  16. Having considered all of the above matters, I sentence the offender to three years of imprisonment on Counts 1 to 3 and four years of imprisonment on Count 4. A greater penalty is on Count 4 is warranted to reflect that the offence occurred even after the offender had been removed from Ela Motors and the large sum involved.
  17. Neither party suggested an appropriate effective penalty. I remind myself of the approach to be taken when deciding whether sentences should be made concurrent or cumulative and the principle of totality, Mase v The State [1991] PNGLR 88.
  18. There is no all embracing rule as to when sentences for two or more convictions should be made concurrent, but generally speaking sentences should be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts: Tremellan v The Queen [1973] PNGLR 116. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative: Public Prosecutor v Kerua [1985] PNGLR 85.
  19. The offences are all of the same character and all arose out of similar facts. There should be some cumulation, however, to reflect the fact that the offences involved different victims at different times during a period of about 5 months, together with the fact that the offender persisted even after she had been dismissed from Ela Motors. Having regard to the principles of totality it is appropriate that that there is a total cumulative effect of 2 years, or an effective sentence of 5 years. In the interests of clarity I intend to reflect this by making part of the sentence on Count 4 cumulative on the other counts.
  20. I exercise my discretion to deduct time spent in custody, four months, 26 days.
  21. I have seriously considered the offender’s plea for the sentence to be suspended. It is not supported by Probation Services and whilst I am required to consider the reasons for that recommendation ultimately it is a matter for the Court to decide in the circumstances of the case.
  22. This is not a case where the offender will suffer excessively in prison. She has no means to make restitution. The offender says that she is waiting for the Jiwaka Provincial Government to pay a K70,000 hire car bill for her company “Crim Hire Car” which she says has been outstanding since 2020, when she received a part payment of K30,000. She produces a receipt for K30,000 but there is no material establishing her connection with the company and moreover, no evidence that any further monies are owing to it or to her.
  23. The offender also produced a letter from Hargy Oil Palm Limited dated 4 July 2024 apparently provided in support of a loan application by her to purchase a dump truck so that it could be hired by them when works begin. There is no guarantee the offender will be successful in her loan application and no detail about how much the offender will be paid if and when the work begins.
  24. I do not intend to impose a financial burden on her or her family for years to come which appears to be unattainable. Furthermore, whilst I appreciate that the offender has taken steps towards rehabilitation, the offending in this case is serious and suspension is not warranted on that basis either in my view: The State v Tardrew [1986] PNGLR 91 applied.

Orders


  1. Accordingly, I make the following orders:

Sentence accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner


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