N7536
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 83 OF 2018

THE STATE

V

JOESPH ANDE

Waigani: Miviri, AJ
2018: 29th October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation s383A CCA – Trial – intricate scheme to steal– repeated acts of dishonesty – repeated acts of application to own use – first sum K41, 000– second sum K20, 000 – third sum K121, 000 – guilty of personation – guilty of misappropriation x2– guilty of attempted misappropriation– prevalent and serious offence– deterrent & punitive sentence.
Facts
The accused falsely represented himself to be one Thomas Martin with intent to defraud Westpac Bank. He deposited two PNG Electoral Commission cheques for the sum of K 41, 000 and K 20, 000 into this account and made withdrawals therefrom.  Then He opened an unlimited account also in that name and deposited a cheque of K 121, 000 from the electoral Commission of Papua New Guinea. But attempts to withdraw funds were unsuccessful. The bank discovered his false identity and referred him to Police where he was charged with the offence. 

Held
Trial
Large sum of money of State
Scheme well thought out to steal
Successfully discharged to steal two times
Caught third time and convicted.
PSR and MAR indicates no means to repay
Prevalent offence
Strong deterrent and punitive sentence
Cases Cited: 
Public Prosecutor v Kerua [1985] PNGLR 85 
The State v Mase [1991] PNGLR 88 
Tiensten v Independent State of Papua New Guinea [2014] PGSC 74; SC1468 
The State v Yaip Avini [1997] PNGLR 212 
The State v Wellington Balewa [1988-89] PNGLR.496
The State v Simbe [1994] PNGLR 38 
Thress Kumbamong v The State (2008) SC1017
The State v Eric Emmanuel Vele [2002] PGNC 93; N2252
The State v Zuvani [2004] PGNC 127; N2641 
Tiensten v Independent State of Papua New Guinea [2014] PGSC 74; SC1468 
The State v Yaip Avini [1997] PNGLR 212 
The State v Mose [2018] PGNC 317; N7388 
Public Prosecutor v Tardrew, [1986] PNGLR 91 

Counsel:

W. Malo, for the State
W. Dickson & I. Paileae, for the Defendant 
		
SENTENCE
30th October, 2018
1.	MIVIRI AJ: 	This is the sentence upon Joseph Ande, a man with multiple identities who opened an account with a commercial bank and deposited two PNG Electoral Commission cheques. He withdrew and used the proceeds. Then proceeded to deposit a third cheque but did not use the proceeds because he was discovered before he could use it. 

Short Facts

2.	Prisoner with intent to defraud represented by false drivers licence that he was Thomas Martin  opened an account in that name account number 6004731035 with Westpac Bank Limited a choice basic account between the 1st June, 2015 to the 7th January, 2017. He impersonated Thomas Martin a deceased person to pose to collect and then purposely to deposit PNG Electoral Commission cheques for services that was rendered by a Thomas Martin since deceased. Between the 25th June, 2015 and the 20th July, 2015 accused deposited a Bank of Papua New Guinea cheque number 107040 in the sum of K 41, 000.00 the property of the Electoral Commission of Papua New Guinea into this account and dishonestly applied to his own use. 

3.	And on the 24th December, 2015 accused deposited a second Bank of Papua New Guinea cheque Number 004679  in the sum of K 20,000.00 drawn by the PNG Electoral Commission made payable to Thomas Martin into the same Westpac bank account Thomas Martin account number 6004731035. And between the 24th December, 2015 and the 4th February, 2016 the accused dishonestly applied to his own use this K 20, 000.00 the property of the Electoral Commission of Papua New Guinea. 

4.	And again accused went to Westpac Bank and deposited cheque number 004679 drawn from the PNG Electoral Commission in the sum of K 121, 000.00 into the account Thomas Martin account number 6004731035 between the 1st December 2016 and the 7th January 2017 and attempted to dishonestly apply the proceeds to his own use the property of the Papua New Guinea Electoral Commission.

Charges

5.	He was convicted firstly pursuant to Section 488 (1) Personation, "A person who, with intent to defraud any person, falsely represents himself to be some other person living or dead, is guilty of offence that, unless otherwise stated, is a misdemeanour.
Penalty: Imprisonment for a term not exceeding three years.
(2)..................."

6.	And then secondly pursuant to Section 383A, "“(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 five years except in any of the following cases when he is liable to imprisonment for ten years-
(a)	where the offender is a director of a company and the property dishonestly applied is company property;
(b)	where the offender is an employee and the property dishonestly applied is the property of his employer;
(c)	where the property dishonestly applied was subject to a trust. Direction or condition;
(d)	where the property dishonestly applied is of a value of K2000 or upwards.
(3)	For the purposes of this section-
(a)	property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property;
(b) 	a person’s application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;
(c) 	a person’s application of property shall be taken not to be dishonest, except where the property came into possession or control as  trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps;
(d)	persons to whom property belongs to include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who. Immediately before the offender’s application of the property, had control of it. “

7.	And then lastly pursuant to section 4 (1) (a) and (b), "When a person, intending to commit an offence- 
(a)	begins to put his intentions into execution by means adapted to its fulfilment, and 
(b)	manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence he is said to attempt to commit the offence.

Concurrent and cumulative sentence

8.	There were four convictions each with their respective sentences following. Personating in my view was part of the component or make up of the charge of dishonest application of money as here to the prisoner. It was a separate charge of its own but for purposes of sentencing it was closely related to dishonesty in the makeup misappropriation. It was integral to there being dishonesty by the prisoner pretending to be that person Thomas Martin falsely and to get the cheques there from, Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 where the Supreme Court made the following in deciding whether sentences should be cumulative or concurrent the court should be guided by the following principles;

(i)	Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent;
(ii)	Where the offences are different in character, or in relation to different victims the sentences should normally be cumulative;
(iii)	When a court has arrived at an appropriate sentence and decided the total sentence to see if it is just and appropriate. If it is not it must vary one or more of the sentences to get a just total. 
9.	That is applicable given the facts of the present and would be the basis as to whether the sentences imposed here are cumulative or current. It is clear by the law set out above the sentence of personating will not be cumulative to all misappropriation convictions sustained 2, 3, and the attempted misappropriation.

10.	In my view they are also given the law set out above closely related against the same victim the Papua New Guinea Electoral Commission against the same source of funding and the State. It is a single course of transaction but picked out and executed to avoid detection at different dates and times. To strictly go by the definition that they are so and therefore cumulative will be disproportionate considering the principles of totality and therefore given an aggregate disproportionate and crushing upon the prisoner in view of his age, personal particulars and circumstances.

Personal Antecedents

11.	His personal details set out by the presentence report order dated and furnished before court depicts he is 47 years old has two wives and 7 children all dependent on his provision as father. He is resident at Morata1 National Capital District originally from Puluwa Tambul Nebilyer Western Highlands with no prior conviction known to the law. He is a self employed businessman who has accommodation for rental that he sourcing 21 units at K150 to earn up to K1800 given. He also has a taxi currently dysfunctional because of an earlier charge not sustained but the vehicle not in working order. He says he is prepared to pay K1000 every fortnight to seal off the moneys stolen. In my view if the court accedes, in a year 26 fortnights divided by two between those who receive their dues in one fortnight between those in the private and public sector that would be 13 fortnights in a year at K13, 000 a year divided by K61, 000.00 that would be five years to settle this moneys stolen of the state.

12.	Realistically in accordance with Wellington Balewa v The State [1988-89] PNGLR.496 acceding that K40, 000 to K150, 000 draws 3 to 5 years which would be within the facts and circumstances of the present case against the prisoner. He would be looking at a range in that regard worked out with and taking account of his personal facts and circumstances coupled with the aggravating, mitigating and extenuating circumstances to arrive at the balance due to him. In law it would not be an error to adopt and to follow considered and taking account of Simbe v The State [1994] PNGLR 38 (2 March 1994) that each case is due its sentence by its own facts and circumstances. In my view tariff and range is one of the many matters that the Court considers in the overall determination of the ultimate sentence at the end: Thress Kumbamong v The State (2008) SC 1017.

13.	Personation has maximum imprisonment not exceeding 3 years, misappropriation has 10 years maximum because here the amount exceeds two K2000 and a single count of attempted misappropriation by read of section 510 (2) of the Code, the prisoner is liable to punishment equal of one half of the penalty under the section of 383A effectively that is 5 years Imprisonment on the attempted misappropriation. These are the maximum sentences that can be imposed upon the prisoner.

14.	Drawing from all set out above effectively the prisoner is looking at 3 to 5 years imprisonment. Repayment and restitution of moneys stolen is not an abstract but real opportunity probability to pay off and evidence of same: State v Eric Emmanuel Vele [2002] PGNC 93; N2252 sets out including yet another similar case of State v Zuvani [2004] PGNC 127; N2641 (25 August 2004) prisoner pleaded guilty to transferring paperless K22, 685.43 over a period of time, property of her employer Bank of South Pacific Limited into a relatives account where she used the save card to withdraw and used the money. She had almost made complete and full restitution of that money back to the bank. The court considered and imposed 4 years wholly suspended on seven conditions on probation attached. 

15.	I draw the balance between a custodial term and the balance to recoup the moneys that have been drawn with the age of the prisoner and his medical set out by Hope dated the 20th September 2018. It is not an affidavit by section 37 Scientific examination of the deposed by a person holding qualifications in that regard and more so is the fact that it is by law a confidential matter between patient and doctor is not readily available without proper authentication in law reading also the HIV/AIDS Management and Prevention Act 2003 the details purportedly set out by the Hope will not be fitting with this law in particular the requirement of disclosure in law it would not be safe for the court to act on the report in the form and manner it is attached to a report not an affidavit as such its status without proper verification in accordance will not be considered to the balance required. It will be defeating the purpose of law to completely rely on it set out above.

16.	In all fairness to the prisoner taking account of all set out the offence will entail at the highest 5 years imprisonment at the lowest 3 years and conditions of suspension will depend on whether or not there is real recovery of that money to the State. Particularly considering that comparably it is not the worst case viewed with Tiensten v Independent State of Papua New Guinea [2014] PGSC 74; SC1468 (19 December 2014) where K10 million was the amount stolen by Member of Parliament then for Pomio. He challenged the  conviction which was confirmed which followed  that  9 years IHL imposed was confirmed including that four years would be fully suspended if K10 million was repaid to the State. Five (5) years would be served in jail. The amount here is K61, 000 for the actual misappropriation. But the amount that was attempted is K121, 000. 00. He has attempted but has not acquired so that it makes the case in aggravation a lot worse for him. It would also be not on the same footing as in Yaip Avini v The State [1997] PNGLR 212 (15 July 1997) where the appellant got K100,000.00 for road in Hapohandong – Makini Road which was never built and the appellant used the money personally. He was sentenced to 10 years IHL. 

17.	Even the case of State v Mose [2018] PGNC 317; N7388 (24 July 2018) prisoner sold the subject land to three other persons. She did not honour sale to the complainant at the sum of K120, 000 for which she was convicted and sentenced to 4 years IHL. No time deducted as there was no material to so impose. Comparably cash used would be less and the gravity of seriousness would be a lot more. Another case in principle that will affect any sentence is as demonstrated as in the State v Eric Emmanuel (supra) where the Prisoner took the initiative to make repayment of K 11,091.23 even before the formal orders of court and had a balance remaining of K4, 008.77 to settle the money stolen from the Port Moresby Westpac Bank Limited where he was employed as Supervisor international Bank centre. And the presentence report recommended probation with community supervision which was acceded to in view. There is none of that taken here and it would be simply not within the proposition that he has made to pay off that money at K1000 every fortnight to seal off the sum stolen of K61, 000.00 even though an attempt was made to collect K121, 000 not realized through discovery of this offence.

Submission by Counsel

18.	In my view it is not out of law to consider that the composition of the dishonesty of the prisoner when he leads  those who are at Electoral Commission of Papua New Guinea  to believe that he is in fact Thomas Martin and those at the Westpac bank to encash the cheque and for him to benefit from the proceeds. Therefore the cheques which are paid to him that he banks into the account specifically created for that purpose and then uses it. Contrary to defence counsel submission this shows intelligent to devise a scheme to swindle money draw it out into a container where he access and uses the funds it is a scheme that he has utilized twice to successful get government funds for services here. The State has urged that there is no real possibility of repayment given the material he has led including the presentence and means assessment reports. The urge to pay K1000 every fortnight would not be parallel that nothing has happened up to the hour. On the other hand counsel defending has urged suspended term of 3 years IHL is appropriate given the prevailing circumstances of the court to the other side.

Issue
19.	What is an appropriate sentence then for the prisoner?

Sentence

20.	In the light of all set out above in law, evidence, the circumstances of the present case, coupled with evidence and facts there from, a proportionate sentence would be 1 year for impersonation contrary to section 488 (1) of the Code and I so impose that upon the prisoner. For the conviction of misappropriation contrary to section 383A in respect of that of K41, 000 the sentence of the court is 4 years imprisonment in hard labour. In respect of that of K20, 000 the sentence of the court is 2 years imprisonment in IHL. In respect of the conviction of attempted misappropriation pursuant to Section 4 (1) (a) and (b) read with 510 (2) of the Criminal Code Act the sentence of the prisoner is 2 years imprisonment IHL. 

21.	In the exercise of my discretion pursuant to section 19 of the Criminal Code Act it is adjudged that the sentences will be served concurrently as they arise out of the same or closely related facts and circumstances within the meaning of Public Prosecutor v Kerua (supra) and also Mase (supra) and also taking into account principles of totality given the peculiar facts and circumstances. The sentence of the court in all the circumstances would be 4 years imprisonment IHL to be served concurrently. I deduct the time in custody forthwith.

22.	The following orders are made against the prisoner further and in addition to the sentence imposed pursuant to the powers and discretion under section 19 (6) of the Code taking into account Tardrew, Public Prosecutor v [1986] PNGLR 91 (2 April 1986) that three years of that sentence will be suspended on 3 years probation order and supervision pursuant to that Act if K30, 000. 00 of K61, 000.00 is paid by or before Monday 4th March 2019. If payments is made an official receipt must be produced to court upon which the following orders will take effect;

(i)	You shall be released from custody forthwith upon production of an official receipt to that effect;

(ii)	You shall enter into a probation order for 3 years on conditions;

(iii)	You shall within 48 hours report to the Probation Officer;

(iv)	You shall be resident at Morata 1 Port Moresby National Capital District at all times in the course of your probation period.

(v)	You shall not leave this place of residence or Port Moresby without leave of this court during the course of your probation period;

(vi)	You shall perform 600 hours of community work at a worksite to be approved by the Probation Office;

(vii)	You shall keep the peace and be of good behaviour at all times;

(viii)	You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;

(ix)	You shall attend your local Revival Centres church every Sunday for Worship whilst on probation; 
(x)	You shall undergo counselling from your local Pastor for number of times as may be determined by the counsellor;

(xi)	You shall repay in full to Electoral Commission of Papua the remaining sum of K31, 000.00 within 3 years which is also the suspended part of your sentence minimum payment every month shall be K1000.

(xii)	The part payment of K30, 000.00 upfront on the 04th March 2019 shall be witnessed by your probation officer, the police Station Commander Hohola, and Arresting Officer. 

(xiii)	The probation Officer shall file a report on the part payment into the National Court by or before 7 days after the payment is made. 

(xiv)	The Probation Officer shall file a report on the responses and progress of the probationer every four months during the term of the probation and at any other time or interval as the National Court may order upon application until discharge of orders;

(xv)	In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of 3 years sentence suspended.

Ordered Accordingly,
__________________________________________________________________Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant