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State v Ugave [2024] PGNC 277; N10946 (6 August 2024)

N10946

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 439 OF 2023

STATE

V

IAN UGAVE alias IAN UGAVA

Waigani: Wawun-Kuvi J
2024: 3rd & 28th June, 6th August

CRIMINAL LAW–SENTENCE –OBTAINING GOODS BY FALSE PRETENCE- section 404(1)(a) of the Criminal Code – Guilty plea –Offender falsely pretended to sell his house-Obtained K340, 000.00 – Sentence of 4 years of imprisonment imposed.

Cases Cited

Lawrence Simbe v The State [1994] PNGLR 38

Lialu v The State [1990] PNGLR 487

State v Tardrew [1986] PNGLR 91

Belawa v The State [1988-89] PNGLR 496

Goli Golu v The State [1979] PNGLR 653

State v Anthony [2024] PGNC 71; N10725
State v Ostakel [2021] PGNC 87; N878

State v Mose [2018] PGNC 317; N7388

State v Moripi [2017] PGNC 202; N6867

State v Kuala [2017] PGNC 96; N6736

State v Agua [2011] PGNC 207; N4499

Legislation
Criminal Code

Counsel
G Goina, for the State
D Kayok, for the Offender

DECISION ON SENTENCE

6^th August 2024

1. WAWUN-KUVI J: Ian Ugave (offender) was convicted following his guilty plea to the crime of Obtaining Goods by False Pretence under s 404(1)(a) of the Criminal Code. The offender informed the victim that he was selling his house. Based on the offender’s statement the victim on three separate occasions gave monies totaling K340,000.00. The offender sold the house to another person.
   
2. I must now decide the appropriate penalty.

Purpose of Sentencing

3. I am reminded that sentencing has many purposes. There are numerous and include, punishment of the offender, rehabilitation, specific and general deterrence, communicating clearly that the community and society does not condone the offender’s conduct and in cases of violent and serious offences for the protection of the community.

Maximum Penalty

4. The maximum penalty is 5 years imprisonment. I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653. This is not such a case.

Personal Antecedents

5. The offender is 40 years old. His home village is Kemakomana Village, Rigo, in Central Province. He is married and has nine (9) children from his and his wife's previous marriages.
   
6. Both of his parents are deceased. He has five half-siblings from his parents’ previous relationships. They all live separate lives.
   
7. After selling his house, he started living in rented properties. He had lived at Boroma, 14 Mile, Central Province at one stage and has moved to Badili here in the National Capital District.
8. He has a bachelor's degree in business from Divine Word University. He attended high school at Ela Murray International and St. Patrick's Silverstream in New Zealand.
   
9. He worked as a political analyst. He has held various positions within the Parliamentary Service, Department of Police, Department of Justice and Attorney General between 2019 and 2022. The most recent was at the Department of Justice and Attorney General as executive officer to the then Justice Minister Bryan Krammer.

Allocutus

10. He apologised to the victim, his father-in-law, his wife and their family. The offender stated that the victim is his in-law because he is related to his father-in-law. Because of that relationship, a rift was created in his family. He apologised to the Court and the State for the time taken for his case. He expressed remorse and apologised for his actions. He seeks leniency and a non-custodial sentence to give him time to repay the money and an opportunity to reconcile with his family and in-laws.
    
11. I have observed the offender during allocutus and find that his remorse is genuine. However, I find that his offer for restitution and reconciliation is belated. The offence was committed between 1 June 2021 and 28 February 2022. The offender had almost 3 years to make restitution and reconcile with his in-laws.

Appropriate range

12. I accept that the guidelines provide parity but do not curtail my discretion. The relevant consideration is the peculiar circumstances of the case: see Lialu v The State [1990] PNGLR 487 and Lawrence Simbe v The State [1994] PNGLR 38.
    
13. The State submits the court refers to the case of Belawa v The State [1988-89] PNGLR 496 for guidance on the sentencing range. It submits for a range between three (3) and five (5) years which falls within the fourth category of the Belawa guidelines.
    
14. The defence submits that the circumstances of the case place it within the 4^th and 5^th category of the Belawa guidelines which would attract a penalty between 3 and 7 years. It submits for a sentence of 4 years imprisonment.
    
15. I concur with Berrigan J's remarks in State v Anthony [2024] N10725 that the sentencing range in Belwa v The State has limited relevance in false pretence sentences, as misappropriation carries a maximum sentence of 10 years. To establish an appropriate range, I will refer to recent similar cases.

Comparable cases

16. Counsel submitted the following comparable cases:
    
17. State v Anthony [2024] PGNC 71; N10725, Berrigan J: The offender was convicted following a trial for obtaining K514, 896.23. He was a police officer. He made false claims of being authorized to sell a property and worked in collaboration with another individual to deceive the victim into signing a contract and issuing a cheque. The victim was unable to take possession of the property and reported the incident to the police. The offender was sentenced to 4 years imprisonment.
    
18. State v Ostakel [2021] PGNC 87; N8787, Berrigan J: The offender pleaded guilty. He made false representations to the victim that he had a substantial sum of money in his bank account and would pay the complainant K1 million for the victim's political campaign. As part of the pretence, the offender informed the victim that the victim had to pay fees to the offender's personal bank account to enable the release of the K1 million. The victim deposited at least K305,800 into the offender's bank account. The offender was sentenced to 4 years imprisonment.
    
19. State v Mose [2018] PGNC 317; N7388, Miviri AJ (as he then was): The offender told the victim that she was selling customary land. The victim paid her overtime money totaling K120,000.00. The victim stopped giving money when it became known that another person occupied the land. The offender was also approaching others. She was sentenced to 4 years imprisonment.
    
20. State v Moripi [2017] PGNC 202; N6867, Salika DCJ (as he then was): The defendant pleaded guilty to the charges of false pretence and conspiracy. She conspired with another employee to submit false invoices to her employer. Based on the false invoices she and her co-conspirator were paid. She received K207,000.00 through her deception. The court sentenced her to 4 years imprisonment for false pretence and two years for conspiracy. The sentences were concurrent. The court ordered that the sentence of 4 years would be suspended on the condition that the offender repaid the money.
    
21. State v Kuala [2017] PGNC 96; N6736, Auka AJ (as he then was): The offender pleaded guilty to false pretence. The victim owned the property. The offender falsely claimed to be the owner and collected rent, totaling almost K282,200.00. The rentals belonged to the victim and her children. The offender was sentenced to 4 years imprisonment which was wholly suspended on conditions.
    
22. State v Agua [2011] PGNC 207; N4499, Kangwia AJ (as he then was): The offender was convicted following a trial. She has obtained K76,700.00 for a claim over a house arising out of the Highlands Highway Rehabilitation Project (H.H.R.P). She was sentenced to 4 years imprisonment which was wholly suspended.
    
23. The comparable cases indicate that for sums ranging from K76,000.00 to K500,000.00, a 4-year prison term has been imposed. This sentencing trend illustrates that as the amount increases, so does the severity of the punishment. Moreover, it is evident from these cases that the court considers suspension of the sentence only when satisfied that the offender has made restitution or is reasonably capable of restitution.

Culpability

24. In considering the offender's level of dishonesty, I find the following factors pertinent:
    
    1. The offender perpetrated the fraud over some time.
    2. The offender's educational background.
    3. The offender’s employment background.
    4. The offender continued to receive money from the victim when he was negotiating and consequently sold the property to someone else.
    5. There was a relationship of trust between the offender and the victim as the offender stated in his allocutus and in his interview with the probation officer.
25. These factors, to my mind, show that the offender was acutely aware that his actions were wrong but persisted. He exploited the victim's urgent need for land to continue extracting money from him. I can reasonably infer that the offender possessed a high degree of dishonesty based on the foregoing factors.

The Effect on the Victim

26. The State has provided a Victim Impact Statement to assist in sentencing. The Probation Officer Mr. James Gopave has also interviewed the victim and incorporated his views in the Pre-Sentence Report.
    
27. The victim is the owner of Mapex Training Institute. It is a nationally owned institution specialising in training in various courses from plant operation to basic secretarial skills. For several years the institution was renting space from Telikom Limited. He entered into an agreement with the offender to relocate the institution and save costs incurred on rental.
    
28. He has spent time and money collating his documents and paying legal fees to his lawyer to formalise the police complaint. He again spent money to locate the offender. He estimates that he spent between K10, 000.00 and K12, 000.00.
    
29. He has suffered a significant business loss in losing the amount of K340, 000.
    
30. The offence has placed a significant emotional burden on him.

Mitigating and Aggravating Factors

31. I have considered the submissions and accept the offender is a first-time offender, he pleaded guilty, he cooperated with police and made admissions. He has also expressed remorse for his actions.
    
32. In aggravation is that a significant amount of money was taken, there has been no restitution, it was a sophisticated fraud that occurred over a period, there was a relationship of trust, and the offence is prevalent.

Consideration

33. In the preceding paragraphs, I reviewed all the relevant factors. This offence is becoming more prevalent. I recently presided over cases where the offenders used property to defraud innocent victims. As the demand for houses and property grows, many unscrupulous individuals, such as the offender, take advantage of the circumstance by deceiving others into parting with their hard-earned money. Sentencing in these cases should serve as a deterrent to the offender and others.
    
34. I find that a sentence of four years imprisonment is appropriate.
    
35. The next issue to consider is whether the sentence should be suspended?
    
36. The defence contends that suspension is appropriate because the offender is willing and able to make restitution.
    
37. The State has chosen to remain neutral, leaving the decision to the court's discretion.
    
38. I thank Mr James Gopave for providing a thorough pre-sentence report and means assessment report. After reviewing the employment contract submitted by the offender, Mr Gopave believes that probation would be beneficial for restitution. He has however raised some significant concerns:
    1. The suggested 5-year timeframe for restitution by the offender seems unrealistic, considering the possibility of the offender absconding and the uncertainty of his continued employment in the current economic climate.
    2. The offender's lack of a fixed address and residence in a rental property could make it difficult for probation services to monitor him, increasing the risk of absconding.
    3. He has been unable to obtain a response from one of the signatories to the employment contract, casting doubt on its authenticity.
    4. The offender's superannuation statement shows his tax -free component as K5,007.79, raising concerns about his ability to make restitution.
       
39. In considering whether to suspend the sentence, I direct my mind to the relevant principles on suspension in The State v Tardrew [1986] PNGLR 91.
    
40. Having taken the probation reports and the circumstances of this case into careful consideration, I find that the prospect of the offender making restitution is unrealistic and belated based on the following factors:
    1. The offence occurred almost three years ago, and the offender has not made attempts to repay the victim.
    2. After the offender sold the property, he did not make attempts to return the victim's money.
    3. His superannuation statement is outdated and does not have sufficient funds to meet restitution.
    4. His employment history is unstable and creates doubt about his future job stability.
    5. His salary under the employment contract is K50, 000 per annum paid monthly. The salary does not appear sufficient to support a family of 12 people in Port Moresby while meeting restitution.
       
41. Other than the reasons given already, the offender has had sufficient opportunity to make some form of restitution prior to sentencing but has not done so. The offence was committed between 2021 and 2022, the offender was committed in 2023 and plead guilty in 2024. These matters demonstrate that it is unlikely that the offender will make restitution to the victim.
    
42. Additionally, there is insufficient material supporting suspension based on rehabilitation. There is not enough material before me. There is a letter purportedly from the offender’s wife which I attach no weight. It is unsigned and was given to the probation officer by the offender. As to the letter which supports the offender’s contribution to the rugby union community, I place very little weight because it is addressed “to whom it may concern” and not to the Court. Nonetheless, it is the only material before the Court.
    
43. The offender is young and there is nothing to demonstrate that imprisonment will cause him excessive hardship.
    
44. For these reasons, I find that suspension is not appropriate.
    

Orders

45. The Orders are as follows:
    1. The Offender is sentenced to 4 years imprisonment.
    2. Bail and any paid sureties are refunded.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender