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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 1274 OF 2003
THE STATE
v
JIMMY KENDI (N0.2)
Kokopo: Lenalia, J
2006: 4th July
2007: 15th February & 17th April
CRIMINAL LAW – Particular offences – Obtaining goods by false pretence – Charge of – Criminal Code s.404, Ch.No.262.
CRIMINAL LAW – Particular offence – Misappropriation on monies obtain by false pretences or by fraudulent means – Misappropriation – Criminal Code s.383A (1) (a).
CRIMINAL LAW – Misappropriation by a private citizen – No breach of trust involved – Sentencing principles – Offences of misappropriation & False pretences – Cumulative and concurrent sentences – Custodial sentences appropriate.
Cases cited
Taiba Maima v Ben Hambakon Sma [1971-1972] PNGLR 49
Goli Golu v The State [1979] PNGLR 653
Acting Public Prosecutor v Konis Haha [1981] PNGLR.205
Avia Aihi v The State (N0.3) [1982] PNGLR 92
The State v Tardrew [1986] PNGLR 91
Brian Kindi Lawi v The State [1987] PNGLR 183
Wellington Belawa v The State [1988-89] PNGLR.496
Mase v The State [1991] PNGLR 88
The State v Napilye Kuri [1994] PNGLR 371
The State v Bygoness Tuse Nae (1996) N1474
Joshua Yaip & Or v The State (1997) SC533
The State v Vurmete (2000) N2008
The State v Nakikus Konga (2002) CR.N0.32 of 2001
The State v Sylvanus Siembo & 2 Others (2002) CR.N0. 1220 of 2000, CR.N0S.97 & 722 of 1999
The State v Louise Paraka (2004) N2317
The State v Benson Likius (2004) N2618
The State v Lukeson Olewale (2004) N2758
The State v Shirely Tainoli (2004) N
The State v Ben Wafia & 3 Others (2004) N2547
The State v Iori Verega (2005) N292
The State v Jack Oseketal Metz (2005) N2824
Counsel
C. Sambua, for the State
H.Namani, for Accused
17 April, 2007
1. LENALIA, J: On 4 July 2006, the prisoner was found guilty on two counts - one for obtaining monies by false pretence and the second one for misappropriation of the monies obtained from the first offence. These offences are contrary to Sections 383A (1) (a) and 404 of the Criminal Code. The total amount involved in the two charges was Four million, two hundred and ninety – eight thousand, thirty seven kina and thirty – three toea (K4, 298, 037.33), being the property of the State.
Finding of Facts.
2. Between 1983 and 1987, the prisoner operated an earth moving company in Arawa on what it used to be North Solomons Province now the Autonomous Region of Bougainville. The name of that company was JIMENDI Enterprises Limited. A part from the machineries the company had, it leased a number of machineries and equipment from Credit Corporation (PNG) Limited for purposes of road construction and maintenance.
3. In 1987, the prisoner’s company ran into difficulties due to its inability and failure to comply and keep up with its monthly rentals for all equipments and machineries leased. The result was that Credit Corporation (PNG) Limited repossessed its machineries and left them on site. In order to complete the road project, North Solomons Provincial Government entered into an agreement with Credit Corporation to complete the uncompleted work left by the prisoner’s company.
4. After the road and the building of a bridge were completed, Credit Corporation appointed a Receiver Manager to manage the affairs of the machineries on the island of Bougainville until all machineries and equipment were shipped across to Port Moresby where they were refurbished and sold.
5. About twelve years later (1999), on 14 December the prisoner wrote a letter to the then Acting Defence Force Secretary claiming that the Defence Force maritime and infantry elements which were present on Bougainville during the crisis period had unlawfully used his machinery and equipment on Loloho and Torauto Island during the Bougainville crisis from 1993 to 1997. On his letter to the Defence Secretary the prisoner said, defence force personals had used two of his machines during the operation in Bougainville. He referred to one of those two machines as 1 Caterpillar D6C Bulldozer, Serial No. 10K 11209, engine No.3306.
6. The second machine referred to was a Komatsu W180 Bucket Loader, Serial No.50120 and the model number was KWA05-8. The accused calculated the amount owing to him to be two million, three hundred and eighty-four thousand, eight hundred and eighty-three kina and ninety-five toea (K2, 384, 883. 95), including all accumulated interests.
7. According to the State’s case, the total amount obtained by false pretence which was paid to the prisoner was four million, two hundred and ninety-eight thousand, and thirty seven kina, thirty three toea (K4, 298, 037.33).
Brief of Evidence on what transpired on trial. .
8. The evidence from which the prisoner was convicted is that, between 1986 and 1988, the accused operated a construction company in Arawa, North Solomons Province. That company whose proprietor was the prisoner, operated under its business name "JIMENDI ENTERPRISES LIMITED" (herein under referred to as JEL).
9. In 1986, the prisoner’s company was awarded a contract by the North Solomons Province to carry out work on the Pitpit Bridge on Inus area in Bougainville. When the prisoner’s earth-moving company was wound up in 1987, he had no more machinery on site except for one bulldozer, one fork-loader two trucks and two Toyota Hilux 2 wheel drive utilities, but these machines were located on Buin District on the southern tip of Bougainville.
10. The evidence adduced on trial revealed that, after the prisoner submitted his fraudulent claim, with the assistance of some corrupt officers from the Department of Finance & Treasury and the Department of Defence assisted in pushing the claim through all authorities concern resulting in such fraudulent claim being processed by Finance & Treasury Department.
11. The result of such illegal action was that the Department of Finance and Treasury drew a cheque made payable to Bakanovi Transport Pty. Ltd in the sum of K4, 298, 037. 33 on Cheque No.632311 dated 14 November 2000.
12. It was proved by evidence that Mr. Kendi and his wife Norma Kendi were the proprietors of the said Bakanovi Transport Pty Ltd when in fact the said company never owned any machinery or equipment during the period which the prisoner had claimed for.
13. The evidence of all the five (5) witnesses who gave sworn testimony including all the documentary evidence (refer to my Judgment on verdict dated 4 July, 2006) show that, by 1987 when the prisoner’s company wound up its operations in Bougainville, the prisoner did not have any other machines left on site either at Arawa, Loloho, Torato island or even on Buka island. According to the defence evidence, the prisoner had one machine plus a truck and two utilities, but they were located on the southern tip of Bougainville, in Buin District. There was no evidence to show any of such vehicles or the machine were ever used in the area where the Defence Force elements were based
14. When the prisoner wrote to the Secretary of the Department of Defence on 14 December claiming that his caterpillar D6C Bulldozer Serial N0-10K 11209 was used at Loloho and a Komatsu WA 180 Bucket Loader which Serial N0 was -50120 Model KWAOS – 8 used on Torato island between 1993 and 1997 he knew that the presentation he made on that letter was totally baseless and fraudulent with the intention to defraud the State.
15. Two Bougainvillean witnesses Tony Busu and John Felix testified that as far as they knew, between 1993 and 1997, the prisoner did not have any more machinery on Bougainville.
16. Evidence by John Felix showed that when he was working with the Defence Force element in 1997, he being a mechanic he fixed the two machines a D6C Caterpillar Serial N0.10K11209 and a Komatsu Bucket Loader Serial N0.50120.
17. Tony Busu said those two machines were previously owned by a company which operated on the island whose proprietor was Mr. Peter Goodenough. John named the company as Torutoru Pty Ltd. He said such company was wound up after the civil unrest commenced in Bougainville.
18. According to this witness, the two machines were partly burnt and John said that the claim lodged by the prisoner to the Defence Force hierarchy was fraudulent as the prisoner knew that, he did not have any more machines on Bougainville or if he had any, there was no evidence to support such claim.
19. When the court connected the above evidence to that by another witness, Mr. Eruel Pital an employee of Hastings Deering said in his evidence on oath that, a caterpillar bulldozer with the same description given above was sold by Hastings to Itakara Plant Hire, a company operating in Arawa at that time. Eruel Pital said in evidence that a caterpillar bulldozer Serial No.10K 11209 Engine N0.3N29121 was sold by Hastings Deering to the above company.
20. One will note from the evidence of the two Bougainvillean witnesses that, the prisoner’s earth moving company ceased operation in 1987. Tony Busu in his testimony said, after that year, the prisoner did not have any more machines left on Bougainville. If he had any machines left, they would have been engaged to complete the work on the Pitpit bridge.
21. On the defence evidence, the prisoner maintained that he owned certain machineries on the island. He said the Defence Force soldiers had used his machines and so he had to claim for the period the machines were used.
22. Henry Hanimo who was called as the first defence witness said, when the accused earth moving company was wound up, he continued to work in a logging company called Bakanovi Hauliers Limited.
23. That company was owned by the prisoner. He said such company stopped operating in 1991. He then returned to Rabaul leaving the following machines, a fork loader, two trucks, one bulldozer and two 2x4 Toyota Hilux Utilities. I was sure beyond reasonable doubt that if there were other machines owned by the prisoner, this witness would have told the court.
24. Even if any of the above machinery was used by the Defence Force, the prisoner could have claimed for the appropriate period since his logging company wound up in 1991. However that was not the case because the prisoner claimed for the period between 1993 and 1997.
25. One could assume from the above piece of evidence that, there could have been a real possibility that the accused could have owned some machines left on the island after his company wound up its operations, particularly the earth moving company and of course his logging company as well. But according to the evidence of Henry Hanimo, the machines and vehicles he referred to were left in Buin, the southern tip of the Bougainville island.
26. As the court found, the prisoner’s companies operated from 1983 to 1987. After 1987, the prisoner’s earth moving company had been wound up. The prisoner made a claim for the period between 1993 and 1997 in his letter to the Secretary of the Department of Defence.
27. Obviously, as the court found, there was no other evidence to support the defence case resulting in a finding of guilty to both charges. The argument raised by the defence counsel on address on sentence that, the accused had been a real businessman and that, the reason why the prisoner engaged management companies like Hanks Management to investigate and find out if the prisoner’s machines were in fact being used in the manner as claimed by the accused, was not supported by any tangible evidence and such proposition cannot be sustained.
Addresses on Sentence.
28. Allocutus was administered to the prisoner on 13 July 2006. The prisoner said, he accepted the judgment of the court. He said he has a large family to look after and that this is his first time to come to court. He requested that the court should give him a suspended sentence and time to effect restitution.
29. Mr. Lidgett, the then lawyer for the prisoner on that same date requested for adjournment and for the court to direct the Community Correction & Rehabilitation Officer to compile a pre-sentence and means assessment reports. The court directed as requested. The court adjourned for that purpose. The two reports were filed on 10 August last year.
30. The matter had been adjourned from time to time first due to the change of defence lawyer on the choice of the prisoner from Warner Shand Lawyers to Amet Lawyers. Secondly, both counsels are from Port Moresby and they had to fit their travel itineraries into their busy schedules trying to find time to come into this province for this one particular case only.
31. Then on 15 February, this year, I heard counsels’ addresses on sentence. On mitigation Mr. Namani of Amet Lawyers urged the court to take into account a whole range of circumstances of the case to determine appropriate sentences.
32. Counsel submitted those circumstances include the Bougainville civil war, the prisoner’s inability to travel to Bougainville during the crisis, the fact that the accused was a real businessman and that the public servants and management agents who were engaged to process the claim could have played a part in such claim with the intention to be paid some money.
33. Counsel cited one by the name of ‘Tien Topidik’ as an example. On the Bougainville crisis, counsel urged that, when the conflict started, the prisoner like all other non-Bougainvilleans fled the Province in fear and left all their belongings behind. They submit this was a situation where due to the confusion and uncertainty of what was happening, the prisoner and other businessmen were left guessing as to what could happen to their properties.
34. It was submitted on behalf of the prisoner, that he is married with two wives and he had a total of 13 children out of which six (6) are adopted. On the prisoner’s health, Dr. John Kaven the senior specialist physician at the Nonga General Hospital diagnosed the prisoner to be suffering from "hypertension" and "polyarthritis". The later condition affects the accused’s legs while the former is commonly known as "high blood pressure".
35. An interesting part of defence counsel’s submission on sentence is that since their client’s case is a non-violent offence, the prisoner should be given a non-custodial sentence and urges that as a sentencing Judge, I should conscientiously explore the feasibility of a non-custodial sentence so that the community will become part of the process of dispute resolution.
36. Coupled with such proposition counsel submitted that if the prisoner is given a suspended sentence, he will do all he can on his part to assist the Public Prosecutor to try and find out those who were involved in processing the claim. He submitted there were Public Servants, and consultant companies engaged by the prisoner who would give further information on the claim he did and other claims.
37. Obviously, the venue before which such plea is being made now is a wrong one. I noted from the record of interview conducted with the prisoner that, the prisoner did not co-operate well with the investigating team. There was no co-operation with the authorities as demonstrated by the prisoner’s evasive answers to questions put to him by the policemen during the interview conducted with him. Be that as it may, the time for investigating the allegations put against the prisoner has now gone. If there were others involved in the commission of these offences, let the State investigate and the truth will find itself out.
38. On aggravation, Mr. Sambua of counsel for the State submitted in reply that the prisoner ought to be sent to goal for making up a false claim when the prisoner knew well that between 1993 and 1997 he had no machines operating on Bougainville. Counsel argues that non-violent crimes are far serious than violent offences because non-violent offences particularly misappropriation and like offences are cases where breach of trust is involved.
39. Obviously, the current case does involve a certain degree of breach of trust to the community and his business associates. The money disbursed to the prisoner was the State’s money which the prisoner claimed for services rendered to the State which were totally non-existent.
40. Counsel submitted that, the principle enunciated by the Supreme Court in Wellington Belawa v The State [1988-89] PNGLR 496 is clear that, where the amount misappropriated or stolen is substantial, the greater the punishment should be.
41. The State says to which I agree that, though the prisoner is not a person in high position of trust but by using his business and business connections he exerted influence and pressure to manipulate the Government through the Papua New Guinea Defence Force and the Department of Finance hierarchies to process the fraudulent claim.
42. Because the amount involved in the current case was so substantial, the prosecution urges the court to impose a term of years in line with s.383A (2) (d) of the Code. Under Subsection (2) of the above provision, a person who commits an offence under any of the circumstances under that Subsection, the penalty is 10 years imprisonment.
LAW.
43. The prisoner was found guilty on two counts, one of obtaining the amount of K4, 298, 037.00 by false pretence with the intention to defraud the State and secondly, a charge of misappropriating the proceeds of the first offence contrary to Sections 404 and 383A (2) of the Criminal Code. I quote Subsections (1) and (2) of the later Section:
"383A. Misappropriation of property.
(1) A person who dishonestly applies to his own use or to the use of another person—
(a) property belonging to another; or
(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,
is guilty of the crime of misappropriation of property.
(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:—
(a) where the offender is a director of a company and the property dishonestly applied is company property; or
(b) where the offender is an employee and the property dishonestly applied is the property of his employer; or
(c) where the property dishonestly applied was subject to a trust, direction or condition; or
(d) where the property dishonestly applied is of a value of K2, 000.00 or upwards".
44. Under s.383A (2) of the Code, the prisoner could be sentence to the maximum penalty of 10 years imprisonment because the amount misapplied was well over K2, 000.00. The prisoner was a private businessman but the amount he misapplied was over the amount stated in Subsection (2) of the above Section. Where an amount is less than K2, 000.00, a person can be sentenced to 5 years imprisonment.
45. For the offence of obtaining the money by false pretence under s.404, the prisoner could be sentenced to the maximum of 5 years imprisonment. The wording of second charge in the indictment states:
"404.Obtaining goods or credit by false pretence or wilfully false promise.
(1) A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud—
(a) obtains from any other person any chattel, money or valuable security; or
(b) induces any other person to deliver to any person any chattel, money or valuable security,
is guilty of a crime.
Penalty: Imprisonment for a term not exceeding five years.
(2) It is immaterial that the thing is obtained or its delivery is induced through the medium of a contract induced by the false pretence or the wilfully false promise, or partly by the false pretence and partly by the wilfully false promise, as the case may be.
(3) A person incurring a debt or liability who obtains credit by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, or by any other fraud, is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding one year.
46. The Supreme Court case of Wellington Belawa v The State (supra) would set the basis for the discussion on any misappropriation, stealing or offences of similar nature. In the above case, the appellant was the Administrative Secretary of West New Britain Province who pleaded not guilty to obtaining goods by false pretence involving an amount of K1, 979.
47. He bought a fibre-glass dinghy and an outboard motor by using an integrated local purchase order (ILPOC) pretending that such were to be used by the Government when in fact, he sent such properties to Manus Province as presents for his wife’s relatives.
48. According to the above case, there are numerous factors which a sentencing judge should take into account on sentence in dishonest offences. They include the following:
49. Looking at the above guidelines, the principle on the amount taken is clear that, the larger the amount misappropriated the punishment ought to be higher. As was in the circumstances of the instant case, after the prisoner had committed false pretence, he acquired the amount of K4, 298, 037.00.
50. Mr. Sambua of counsel for the State submitted that the amount involved in the instant case is one of the highest amounts in all stealing or misappropriation cases in the history of Papua New Guinea since Independence. Obviously, the amount involved in the present case was so large as well as it was the property of the Independent State of Papua New Guinea.
51. It was not the case where the prisoner misappropriated the money belonging to his own company. Though there was no breach of trust involved in the circumstances of the current case but the impact on the public creates a bad picture that the State’s financial administration system is a failed system because anyone with the kind of fictitious claim put up by the prisoner can make such demand and get away with large sums of money very easily.
52. What bothers this court is the fact that, when the prisoner wanted to put his claim through, the prosecution evidence clearly reveals that, he never made any proper investigation to find out whether his machines were actually being used by the Defence Force maritime and land elements present on the war-torn island of Bougainville during the crisis period.
53. The prisoner himself never went to Bougainville to see if any of his machines were being used by the Defence Force or whether any of his machines were still around by the time he compiled his claim. There was no evidence from any of the prisoner’s consultants to show if the prisoner had any such machines operating on site at the time for which the prisoner claimed for.
54. Let me now discuss a number of misappropriation cases which I think might be relevant to the question of sentence. The task of a sentencing judge in any criminal case is an onerous and crucial duty imposed on him or her by the Constitution and s 19 of the Criminal Code. That is to enforce the law and punish offenders who commit crimes against the State as opposed to the civil processes.
55. This is the stage of the criminal process where a combination of factors will be considered. They include the entire circumstances of the case, the relevant law and sentencing principles set by the Supreme Court, the public interest and interests of individuals concern including the victim (s) and what should be the appropriate penalty in any particular case all of which are relevant and pertinent questions on consideration in the proper exercise of the courts sentencing discretion.
56. In the most recent past, there has been a sharp increase in the number of dishonest offences particularly offences such as stealing, misappropriation, false pretences and like offences. Judges both in the National Court and Supreme Court have consistently given warnings that, due to the prevalent nature of the offence of dishonest offences, the courts must uphold the Constitution and impose appropriate penalties so as to befit the crime committed and the community concern over such offences.
57. The sentencing approach taken by the judges of this court in various dishonest offences has varied from case to case depending on the circumstances of each case such as the amounts involved, the degree of trust and the considerations set out by the Supreme Court in the case of Wellington Belawa v The State (supra).
58. In the State v Tardrew (1986) PNGLR 91 (Kidu CJ, Bredmeyer & Barnett JJ), the Supreme Court said, the appropriate sentence in a case where there was repayment of the whole amount appropriated of K82,202.73, was five years. The Court in that case set down three broad categories but not exhaustive on suspending a sentence in a misappropriation case. They are where a suspension will promote personal deterrence, reformation or rehabilitation. Secondly where suspension will promote restitution of stolen money or goods, and thirdly where imprisonment would create excessive degree of suffering where an offender has bad physical or mental heath. In Wellington Belawa v The State (supra), Bredmeyer J said at p.500 that in respect of amounts involving between K40, 000 — K150, 000 a sentence of three to five years would be appropriate. In State v Bygonnes Tuse Nae (1996) N1474 (Sawong J) where there were 19 counts totalling over K103, 000 an effective sentence of 4 years IHL was imposed. In The State v Vurmete (10/11/2000) N2008 (Gavera-Nanu J) where K41, 000 taken, none repaid, a sentence of 3 years 6 months was imposed. In The State v Benson Likius (8/3/2004) N2518 a sum of K68, 679 were misappropriated by a payroll clerk. There were assets from which substantial restitution could be made immediately. This court sentenced the accused to 5 years imprisonment IHL, 2 years were suspended on probation with conditions of repayment.
59. In State v Shirley Tainoli (24/11/2004) (Mogish J), unnumbered judgment, the offender had deposited a stolen cheque to the value of K185, 000 into an account controlled by her and her husband. At the time of sentence she had a 9 months old baby, the whole of the amount was recovered, she did not benefit from the fraud, there was no breach of trust and the offence was perpetrated only once. The offender was sentenced to 4 years imprisonment in light labour which was wholly suspended on probation conditions.
60. In Joshua Yaip Avini and Plaridel Nony Acosta v The State (19th May 1997) SC523, the two appellants were charged with charges of misappropriation and conspiracy to defraud under ss.383A and 407(1) (b) of the Code. The amounts involved in that case was K100, 000. A trial was conducted at the end of which, the defence counsel made a submission of no case to answer. The trial judge objected to the application and directed the trial to continue on the basis that, there was enough evidence on which the two accused could be convicted. When the trial continued, the two appellants exercised their rights to remain silent. They did not even call any witnesses. They were convicted and sentenced to a term of 8 years imprisonment.
61. On appeal, the majority ruled that, even though there was a breach of criminal procedure which should be viewed seriously because
such a breach attempts to undermine the full protection of the law within the meaning of
s 37(1) of the Constitution, such an irregularity should not operate to invalidate the conviction and sentence. The appeal was dismissed and conviction and sentence
were confirmed.
62. In The State v Iori Veraga (17.6.05) N2921, the accused was charged for misappropriation of K235, 300.00 the property of then National Provident Fund. He was found guilty of four counts of conspiracy and misappropriation. He was sentence to 16 years. For two counts, sentences were ordered to be served consecutively. The remaining four counts, sentences were ordered to be served concurrently. The effective sentence was 6 years.
63. In Brian Kindi Lawi v The State [1987] PNGLR 183; the appellant was a former Member of Parliament who received two cheques in public funds for K6, 000.00 and K10, 000.00 respectively for road and agriculture works and paid the moneys into his private account. There was no evidence that the moneys were expended on the projects the funds were intended for. He was convicted of two counts of misappropriation and sentenced to 2 years IHL and 5 years IHL respectively with an order for the sentence for the second count to be reduced to 3 years if he repaid the sum of K10, 000.00 to the State.
64. On appeal against conviction and sentence, the Supreme Court dismissed the appeal against conviction, but reduced the sentences. The sentence of 2 years for the first count was reduced to 18 months on the basis that the prisoner was a first offender, and had later applied the K6, 000.00 to Mt Giluwe Corporation for agricultural projects. The sentence of 5 years for the second count was also considered excessive and reduced to 3 years if the prisoner repaid the sum of K10, 000.00 to the State. He had the money in his lawyer’s trust account and was ready to make restitution, but the trial Judge did not consider that.
65. In The State v Napilye Kuri [1994] PNGLR 371 the Court said at page 375 of the judgment:
"The people of Papua New Guinea are entitled to expect some responsibility with the administration and spending of government resources and money. Public accountability of public monies demands proper appropriations and control of such monies. Public or government funds are not personal accounts into which those in control should have the right and power to dip into when they wished to ensure support or help their friends. So if people in control or leadership creates schemes for such an indiscriminate use of public monies, they are leaving themselves open to charges such as this one, misappropriation for their own ends, to help their friends rather than the proper management for the people as a whole and the nation."
66. In The State v Sylvanus Siembo & 2 Ors. (CR 1220/2000; CR 97/1999 & CR 722/1999) unreported and unnumbered dated 30th May 2002, the first prisoner was the Member of Parliament and Governor of Oro. He was convicted with two others and they were sentenced to 6 years imprisonment over the misappropriation of K100, 000.00 with a partial suspension of 3 years. They appealed to the Supreme Court and it is not known to date what has happened to that appeal. In the circumstances of the current case, it involved a large amount of money misappropriated from the public money.
67. In The State v Nakikus Konga (2002) CR.N0.32 of 2001 an unreported and unnumbered judgment, the prisoner was the Member of Parliament for Gazelle Open Electorate and was found guilty and convicted of misappropriating public funds totaling K50, 000.00 belonging to the National Gaming Control Board. The Court on 24 May, 2002 sentenced him to 5 years imprisonment suspended with conditions and a fine of K2, 000.00, and an order for restitution. On the second count involving K10, 000 he was found not guilty and was acquitted.
68. More recently in The State v Daniel Mapiria (unreported judgment dated 1 October 2004, the prisoner misappropriated an enormous sum of money amounting to K3.188, 000,000, the property of National Gaming Control Board (NGCB). As Chairman of the Board, he was a signatory to the board’s operating account. He would sign blank cheques and left them with the then Registrar of the board who was also one of the signatories. The cheques were filled out for various sums of money.
69. He was found guilty after a trial and sentenced to a term of 9 years imprisonment. However he was found to have been suffering from a medical condition of some sort. This resulted in the whole sentence being suspended. If he was sent to jail, his condition would have been worsened and life threatening. It is noted here that, that case had special mitigating circumstances. In fact the presiding judge commented in that case that it was a case with special mitigations.
70. I have also looked at cases such as The State v Louise Paraka (2002) N2317, a case where the accused was charged with two charges of forgery and two others for uttering the two cheques worth K6, 000.00, offences contrary to s.462 (1) and s.463 (2) of the Code. The accused in that case pleaded guilty and was sentenced to three years imprisonment. The sentence was wholly suspended. In The State v Jack Oseketal Metz (2005) N2824, the prisoner incurred a bill of K70, 445.36 by falsely pretending that he was expecting millions of kina from sales of treasury bills. The accused in that case pretended to the complainants that the payments would be made through the then Papua New Guinea Banking Corporation. Amounts incurred were for accommodation, meals and drinks, cigarettes and provisions for extra guests at the DALCREST Guest House in Madang. He was sentenced to three and a half years imprisonment.
71. The point that has been stressed in all the above cases is that, the greater the degree of trust is, the higher the culpability is placed on those people who are in high positions. In the case before me, although the prisoner was not in the category of cases which I have cited, he was not on the position of trust, but as an experienced businessman in his own right, had a duty to conduct his business activities with honesty and dignity. Without such dignity and honesty, he can loose the trust and confidence not only on his own business but it may affect the business community and the government as well because the accused evidence shows that the government had awarded him a number of road projects in the past not only in Bougainville but in this Province as well.
72. I have had the benefit of hearing the defence counsel in detail on his address on sentence making elaborate pleas for leniency on behalf of his client. Mr. Namani submitted that, the prisoner is a first offender and he has been a businessman for the last twenty years. Counsel urged the court not to consider the pre-sentence report filed by the Community Correction Officer on 4 August 2006. I have however considered the prisoner’s medical condition. I am of the view that such conditions are not serious. Counsel cited the case of The State v Ben Wafia & 3 Ors (2004) N2547 where the court in that case said:
"I have already expressed the view in many cases already such as that of The State v. Zima Munduai, that the Court is not bound to accept the recommendations in a pre-sentence report. Instead, the Court must satisfy itself that, the recommendation is a well-balanced and is a fair reflection of the community’s response to the crime. Proceeding on that basis, I have also expressed the view in the case cited and others that, where a non-custodial sentence is recommended as in this, the offender must come within the age group, 19 years and below. I proceeded on the authority of the Supreme Court judgment in Acting Public Prosecutor v. Don Hale."
73. In the instant case, the prisoner was not so cooperative with the police during the initial investigation and could not even co-operate and be honest with the Community Correction Officer when he was interviewed as most questions asked to the prisoner were met by evasive answers. For instance at paragraph number 7, the prisoner was asked about his physical assets. He gave a brief account of his assets on hand but he did not disclose the value of his company Bakanovi Hauliers or the two work boats that serve Pomio District and the New Ireland Province. A person by the name Gerard Waipo, a former associate and employee of the prisoner revealed to the probation officer that, the accused’s trucking and shipping services had all been wound up. Being faced with that difficulty, there is no obligation on the part of this court to consider the pre-sentence report and the means assessment report.
74. The learned counsel for the State referred the court to a number of cases which I have quoted earlier. Part of his submission relates to the large sum of money involved in the instant case and the manner under which the money was used. Mr. Sambua submitted that, to give away large sums of money to certain individuals as shown by the evidence merely confirms the false pretence with which the offences were committed. Counsel urged this court to impose a term of years on the accused because the amount taken was so large.
Conclusion.
75. In conclusion, the court must take into account the fact that the amount involved was so large. I also consider the dishonest manner under which the prisoner engaged in to make the false claim against the State. To make a claim against the State or against anyone for purposes of gain without proof or material evidence of services rendered amounts to cheating and the courts must be vigilant and guard the interest of the public law abiding citizens whose money is being used for private gain. The public interest is therefore a relevant consideration in these "white collar" crimes more particularly where the amount involved in the instant case was well over K4, 000, 000.00. The interest of justice demands that our courts accord due consideration to the concerns and frustrations of our communities in these days of increasing criminality both in violent and non-violent crimes.
There was no restitution here nor was there any co-operation with the police and prosecution authorities. There is no undertaking either by the prisoner or the pre-sentence report on how quickly the prisoner should make restitution if he was ordered to. Although the PSR seems to suggest that the prisoner could make restitution within two years, there is no evidence of how and where the money should come from to effect restitution. The prisoner himself said he could effect restitution within four years. He did not reveal to the writer of the pre-sentence report any information on his bank accounts. He only gave information about his wife having certain banking accounts. Interestingly, even the companies the prisoner refers to in the PSR, there are no company accounts obtained from the prisoner.
76. The instant case involves a large amount of money ever misappropriated in this country in the "cash-trap’ public institutions. In this case the State and the Department of Defence were the victims. What impact on the public and public confidence has these offences created? Obviously, the prevalence of dishonesty offences such as the ones before this court undoubtedly diminishes public trust and confidence in public officials and professional people like the prisoner in this case who has been a businessman for over twenty years.
77. The prisoner being a businessman for over 20 years can be said to be a professional businessman in business dealings and conduct of his own business. There was obligation on the prisoner to conduct his business fairly and transparently to maintain his standing in the community and amongst his business associates. The amount involved was so large that, the court cannot ignore nor condone the action of the prisoner in the manner he fraudulently submitted his claim against the Department of Defence. As the court found, there was no valid basis for the prisoner to have made such a claim which eventuated in the State committing a large sum of money to something which was never actually done.
78. The amount involved in the circumstances of this case was K4, 298, 037.33. I remind myself that the amount is so large and it is the biggest amount involved in any fraudulent cases in the history of Papua New Guineas since independence.
79. The prisoner is charged with two charges. I do remind myself of the totality principle which say that where a person is charged with more than one charge, the court must consider if sentences should be made concurrent or cumulative. Out of the many cases on this point, the cases of Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 and Mase v The State [1991] PNGLR 88 say that if I decide to impose consecutive sentences, I must make sure that the balance or total sentence is just and appropriate to the circumstances of the cases under consideration. In the circumstances of this case, I am of the view that given the serious nature under the prisoner employed to obtain the money, consecutive sentences should be imposed.
80. It is trite law that maximum penalties should be reserved for the worst type of cases. Where a court feels that the maximum penalty should be imposed because the nature of the crime is very serious, the maximum penalty should be imposed. This does not mean that a case must be the worst imaginable. However both the nature and circumstances of the crime must be considered: Taiba Maima v Ben Hambakon Sma [1971- 1972] PNGLR 49, Goli Golu v The State [1979] PNGLR 653 (see also Avia Aihi v The State (N0.3) [1982] PNGLR 92.
81. Taking all those factors into consideration the judgment of this court is that for the charge of obtaining the money by false
pretences under s.404 of the Criminal Code contained in Count 1, the prisoner be imprisoned for a term of 4 years. For Count 2 on the charge of misappropriation under s.383A
(2), the prisoner be imprisoned for a term of 9 years. The cumulative effect
of these two sentences adds up to 13 years imprisonment. The prisoner’s bail money shall be refunded to him.
________________________
The Public Prosecutor: Lawyer for the state
Amet Lawyers: Lawyer for the Accused.
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