Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Anthony [2024] PGNC 71; N10725 (16 April 2024)

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

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:
   
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. 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:
   
   1. 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
   2. 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:
   
   1. 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;
   2. 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;
   100. 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;
   4. 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;
   5. 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 he would provide K1m towards the complainant’s election campaign but needed fees to access the monies from his bank account. He was sentenced to 4 years of imprisonment. It also appears from the other cases referred to in Banabas that sentences of 3 years or more are commonly applied for amounts greater than K10,000.
    

Consideration

11. This is not a case warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653 applied. 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 circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    
12. Applying the principles outlined in Wellington Belawa, the following matters have been taken into account in determining an appropriate sentence. The suggested tariffs in that case have limited applicability in this case, however, given the maximum penalty of 10 years available for s383A(1)(a)(2)(d). Some judges prefer to identify a starting point on sentence. If it is necessary to do so then it is the midpoint of two and a half years.
    
13. There are a number of matters in aggravation.
    
14. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. The offence in this case involves a very substantial amount of K514,896.20.
    
15. I do not agree, however, with the submission of both counsel that this was a case involving a breach of trust. There were lies and a failure to deliver on the agreement but this was not a case involving any special relationship, whether familial or fiduciary, between the offender and the complainant.
    
16. In aggravation, the offending involved significant planning, with at least one other person, over a period of time. The offender met the complainant at least twice and showed him the property he said he had authority to sell. He signed documents attesting to witnessing the signature of the registered proprietor when no such thing happened. He used his position as a police officer to instil confidence and he knew that the person who attended settlement was not Joe Mur, if such a person ever existed. All of this was done to induce the complainant to purchase the property when he knew that he did not have the registered proprietor’s authority.
    
17. The offence is seriously aggravated by the fact that the offender was a police officer, albeit on suspension, and moreover, a member of the Fraud Squad. He knew exactly what he was doing and that it was criminal. Whilst not committed in the course of his duty the offender used his position as a police officer to instil confidence in the complainant.
    
18. The Courts have made it clear many times that police officers must expect severe consequences when they breach the law: State v Naime (2005) N2873; Gary Louha v The State (2023) SC2552; The State v Benedict Simanjon (2020) N8637 at [64]; The State v Tony Kande & Ors (2021) N9252 at [62] and [67]; The State v Nathan Manikumbu & Ors (2023) N10116 at [36], amongst others.
    
19. The offence was conducted for financial benefit and the offender did benefit. Of the monies deposited to his company’s account he obtained the benefit of at least K84,896.23 himself. I reject the offender’s statement on sentence that he gave away K18,000 in commission to two other agents, which is contrary to what was established at trial. It is not clear what happened to the balance of the monies, K430,000, which were withdrawn a few days later. Certainly, the offender obtained access to the monies. I will, however, assume in the offender’s favour that those monies were given to his partner, Nick Harrison. That does not mean that the offence is less serious but it does mean that the extent to which the offender benefitted personally is reduced.
    
20. As for the impact on the victim, both the complainant and the bank have at a minimum been seriously inconvenienced. The complainant and the bank are now locked in civil proceedings over the loan intended for the purchase of the property. The complainant suggests in the pre-sentence report that the bank may be insured for the loss but that was not clarified with a proper officer at the bank itself and the offender is not in a position to know. In any event, the monies have gone and ultimately someone will have to bear the cost. (Defence counsel suggests that the complainant may have obtained title. That has not been established. The complainant did not obtain possession. The loan to purchase the property was stopped and it appears that the issue of title is a matter of dispute between a number of interested parties. Even if the complainant did obtain title then the true owner would have been deprived of it.)
    
21. The offender is 42 years old. He is from Lankep Village, Wabag District, Enga Province, where his mother still lives with his younger siblings. His father, a chief, is now deceased.
    
22. The offender is married with 8 children aged 1, 3, 5, 7, 9 (two), 15 and 16 for whom he is the sole breadwinner. He is also the sole breadwinner for 3 in-laws who live with him at Morata Barracks, including one who is 19 years of age and studying law at the University of Papua New Guinea.
    
23. The offender completed high school in Wabag and attended the University of Papua New Guinea before withdrawing due to lack of funds. He passed out from Bomana Training College in 2010 and has served the force since then. He was suspended on full pay in 2017. He conducts informal marketing with his wife.
    
24. In mitigation this is the offender’s first offence. He is of prior good character. He has a long service record with police. He is also a member of the NCDC Mediation Committee. Chief Mediation Coordinator Michael Yossman, a former police officer has known the offender for more than 10 years both as an officer and a mediator and regards him as a humble man who has done much to maintain peace and good order within the community both here and in his village. As a mediator he has sacrificed much time free of charge to resolve disputes.
    
25. The impact on the offender will be grave. It appears inevitable that he will lose his position within the police force and all that entails: see s 33(2) of the Police Act, 1988. I expect it will be very difficult for him to find formal employment in the future given the nature of the offence. Whilst I acknowledge that this and any imprisonment will cause great hardship to the offender’s family, it is well established that except in very extreme circumstances, it is not ordinarily a relevant consideration on sentence: Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
    
26. There are no other matters in mitigation. Whilst the offender has apologised to the complainant, his employer, the true registered title holders, the National Housing Commission and Kina Bank for causing inconvenience and tarnishing their reputations he maintains that he did not know that the documents he relied on were false and there is no true remorse.
    
27. It is not a matter in mitigation that Nick Harrison has not been charged and prosecuted. Police have issued a warrant for his arrest as he has gone on the run but that is beside the point. The offender may have been working with another person but it was the offender who made the false pretence that induced the delivery of the monies to his company’s bank account and it should not be forgotten that the offender is a police officer. Even assuming in favour of the offender that he did not benefit to the same extent as Nick Harrison he was equally culpable given his role and experience. I was not able to make any finding about the involvement of anyone else.
    
28. For obvious reasons, I also reject the submission that the seriousness of the offending is in any way diminished by the fact that the ruse was not detected by the bank.
    
29. There are no matters of mitigation special to the offender. I accept that the offender has a hernia. There is some suggestion that he was born with it. There is no medical report and no material to suggest that his condition cannot be managed by Correctional Services.
    
30. I have had regard to the offender’s personal circumstances and the matters in mitigation, including his lack of previous conviction and prior good character. These factors must be considered against the aggravating factors in this case, namely the quantum of the offence bearing in mind the extent to which the offender personally benefited, the planning involved and the fact that the offender is a police officer. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.
    
31. Having considered all of the above matters I sentence the offender to four years of imprisonment.
    
32. The offender pleads for his sentence to be suspended. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
    
33. There is no evidence before me to suggest that the offender will suffer excessively in prison. Probation Services recommend suspension but on its own assessment the offender does not have the means to make restitution. He has no savings and no monies in the bank. He told Probation Services that he had another business but refused to provide details of even its name. The offender suggests repayment in two years but no schedule is provided and even limiting restitution to the monies retained in his company’s bank account that would be more than K3500 per month for which he has no capacity. I am also not persuaded that suspension is in the interests of the offender’s prospects for rehabilitation. In all the circumstances of the offence and the above matters it is my view that this is not a matter warranting suspension: The State v Frank Kagai [1987] PNGLR 320; Doreen Liprin v The State (2001) SC673 considered.
    
34. I make the following orders.
    

Orders

(1) The offender is sentenced to four years of imprisonment without hard labour.
(2) The offender’s bail monies are to be refunded.
(3) Any sureties lodged by the offender’s guarantors are to be refunded.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Makeu Legal Services: Lawyers for the Offender