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Amaiu v The State [1979] PNGLR 576 (6 November 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 576 - Tom Amaiu v The State 

[1979] PNGLR 576

SC167

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TOM AMAIU

V

THE STATE

Waigani

Prentice CJ Raine DCJ Andrew J

30 October 1979

6 November 1979

CRIMINAL LAW - Particular offences - Stealing - Stealing of cheque - Proof of ownership of property not essential - “Owner” of property in cheque - Whether property must pass before offence constituted - Distinction between larceny by trick and obtaining by false pretences - Criminal Code, s. 377[dcxcvii]¹.

CRIMINAL LAW - Appeal against sentence - Appeal against severity - Stealing - Stealing of cheque by person in position of authority - Need for deterrent effect - Sentence of five years’ imprisonment confirmed.

On appeal against conviction and sentence of five years’ imprisonment with hard labour on a charge of stealing K10,120 the property of one Wagop, it appeared that the appellant, a Member of Parliament, aware that certain payments by the Government for timber royalties had become available to certain clan groups and members, gained possession of a cheque payable to Wagop, by falsely representing two persons to the bank as Wagop and his son and thus securing authorizaton of payment of the funds into his own bank account, none of the money being subsequently recovered. On the appeal against conviction it was argued that there was no evidence that any property in the cheque had ever passed to Wagop and therefore it could not be stolen from him.

Held

(1)      In order to support a charge of or involving larceny it is not essential to prove the name of the owner of the property or to prove the ownership of the property.

Lodge v. Lawton[1978] VicRp 10; , [1978] V.R. 112; and

R. v. King (1978), 19 S.A.S.R. 118, referred to.

(2)      At the very least Wagop had a “special property in” the cheque within the meaning of s. 377(7) of the Criminal Code; it was money waiting to be collected by Wagop, and under s. 382 of the Criminal Code when received by the appellant on behalf of Wagop, it was deemed to be the property of Wagop.

(3)      The appellant was correctly charged with the offence of stealing (larceny) for when he was handed the cheque there was no intention that any property in it should pass to him but he was merely given possession of it to physically convey it to the “owner”.

Distinction between larceny by trick and obtaining by false pretences discussed.

(4)      There had been no miscarriage of justice and the conviction should be confirmed.

(5)      The trial judge had not erred in principle in considering surrounding circumstances including the position of authority held by the appellant and the amount involved, in deciding upon an appropriate punishment.

(6)      The sentence imposed of five years’ imprisonment with hard labour was not in the circumstances manifestly excessive and should be confirmed.

Appeal

This was an appeal against conviction and severity of sentence of five years’ imprisonment with hard labour imposed on the appellant for the offence of stealing K10,120.

Counsel

J. P. Pollak, for the appellant.

B. J. Cassells, for the respondent.

Cur. adv. vult.

6 November 1979

PRENTICE CJ:  An appeal has been brought against both conviction and sentence of the appellant for stealing K10,120 the property of Wagop Korowai. Leave has been granted in respect of the appeal against severity of sentence.

The sole ground ultimately relied upon as to conviction was that the cheque (“monies”, under s. 1 of the Criminal Code for purposes of this prosecution) never became the property of Wagop, and therefore could not be stolen from him. The argument relies entirely upon technical submissions concerning the passing of property.

The facts as found by the trial judge remain unchallenged. The appellant was the Member of Parliament for the Kompiam electorate. He became aware that certain payments by the Government for timber royalties had become due to certain clan groups and members. He had discussions about these payments with government officials in Port Moresby. The government department arranged for cheques in payment of the royalties to be made available through a bank in Mt. Hagen.

The appellant went to the bank to gain possession of some of the monies concerned — to which apparently he had no personal entitlement. He even went to the length of bringing an elderly man and his son from a primitive village area, and by dint of speaking in place talk to these individuals secured their making a mark on a letter purporting to authorize Wagop’s monies to be paid to the appellant (and thereafter allowing payment into the appellant’s bank account). He in fact falsely represented the two men to the bank official as being Wagop and his son. The official was deceived by his pretences; and the cheque was handed over to the appellant as being the authorised agent of Wagop. The appellant had no such authorisation to accept the cheque or to dispose of the monies it represented to his own use in the fashion he did subsequently.

As Channell B. said in R. v. Prince[dcxcviii]²:

“If, however, the bank clerk makes a mistake as to the genuineness of a signature, nevertheless he has authority to decide that point; and if he pays money on a forged order, the property therein passes from the master, ...”

(His remaining words are not appropriate to the facts of this case.)

I am of the opinion that the bank official here intended to hand over possession of the cheque to the appellant as being authorised agent of Wagop, and that in doing so it must be presumed that the bank intended thereby to transfer property in the monies which the cheque represented, to Wagop. The subsequent appropriation of these monies to his own use by the appellant therefore constituted a stealing from Wagop.

However, I agree with my brother Andrew’s opinion in his judgment which I have had the advantage of reading in draft, that it is unnecessary because of provisions of the Criminal Code to decide this point.

The definition of “owner” in s. 377(7), and the provisions of s. 382, are sufficient to establish that the appellant’s actions amount to the stealing of Wagop’s property.

I agree with Andrew J.’s judgment both as to conviction and sentence for the reasons he has advanced, and I have nothing further to add. I would dismiss the appeal and confirm the conviction and sentence.

RAINE DCJ:  I agree with the judgment of my brother Andrew.

ANDREW J:  The appellant was convicted by the National Court sitting in Mt. Hagen on 29th May, 1979, upon a charge that he, on or about 11th August, 1978, in Papua New Guinea stole money to the value of K10,120 the property of one Wagop Korowai. He was sentenced to a term of imprisonment of five years with hard labour. He now appeals against both the conviction and the sentence.

The original notice of appeal specified some seven grounds of appeal against the conviction but only one has now been pursued. The learned trial judge’s findings of facts are consequently not in dispute. The appellant on 11th August, 1978, called at the office of the Bureau of Management Services in Mt. Hagen and asked for and received a cheque made out to one Wagop Korowai in the sum of K10,120. This person Wagop Korowai was the nominated representative of his clan to receive the proceeds due to that clan of what was known as the Jimi River Timber Trust No. 2, and the payment was the final or capital payment out of the trust fund, the trust having been wound up or in the process of being wound up. The cheque was paid into an account of a company called Tat Enterprises Pty. Ltd., in which the appellant was by far the largest shareholder and one of three directors authorised to operate on the company’s bank account. Prior to the cheque being paid in however, it was queried by the Papua New Guinea Banking Corporation as it had not been endorsed by the payee named but by the appellant himself. The learned trial judge found that the appellant had pretended that another person was Wagop Korowai and induced that person to endorse the cheque. By this means the cheque was then credited to Tat Enterprises.

The grounds of appeal against these findings were wisely abandoned by counsel for the appellant. In my view they were clearly findings which were open and reasonable and indeed there was ample evidence upon which the conviction was founded.

The point taken is that there was no evidence that any property in the cheque had ever passed to Wagop Korowai and that therefore the appellant could not lawfully have been convicted of stealing from Wagop Korowai.

I think the first point to note is that by s. 1 of the Criminal Code “money” is defined as:

“S1.    ‘Money’ includes bank notes, bank drafts, cheques, and any other orders, warrants, authorities, or requests, for the payment of money.”

At the time the appellant obtained the cheque it was awaiting collection by Wagop Korowai, and it was drawn by the Bureau of Management Services in his favour.

Stealing is defined by s. 377 of the Criminal Code:

“(1)    A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(2)      A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents, that is to say:

(a)      an intent to permanently deprive the owner of the thing of it; or

(b)      an intent to permanently deprive any person who has any special property in the thing of such property; or ...”

By s. 377(7) the term “owner” includes the owner, any part owner, or any person having possession or control of, or a special property in, the thing in question. (The emphasis is mine.)

I find it unnecessary to decide whether property in the cheque had passed to Wagop Korowai, for as set out above in the definition sections of the Criminal Code, at the very least he had a special property in the cheque. It was simply money which was waiting to be collected by Wagop Korowai and which was taken by the appellant. When the cheque was handed to the appellant there was no intention that any property in it should pass to him. It was handed to the appellant as a means of conveying it to Wagop Korowai. Furthermore, by s. 382 of the Criminal Code when a person receives any money on behalf of another the money is deemed to be the property of the person on whose behalf it is received.

It is not always necessary in order to support a charge of or involving larceny to prove the name of the owner of the property or to prove the ownership of the property. See Lodge v. Lawton[dcxcix]³ and R. v. King[dcc]⁴.

The indictment in this case indicated with clearness the property referred to and the appellant could not have been in any doubt or uncertainty as to what was alleged against him.

The ground of appeal does raise a problem which has occasioned much difficulty in the past, and that is the distinction between larceny by a trick and obtaining by false pretences. The difference is as follows. The distinction between larceny and the statutory offence of obtaining property by false pretences is that if a person being the owner of a chattel, or having authority from the owner to alienate it, is induced by the fraud of another person to part with it to him, and the latter at the time of taking it intends to misappropriate it as his own, then, if the former intended to part with property in the chattel to the taker as well as possession, the offence is not larceny but false pretences; but if he intended to part only with possession of the chattel to the taker, the offence is larceny. See R. v. Ward [dcci]⁵.

In my view the appellant was correctly charged with the offence of stealing, for when he was handed the cheque there was no intention that any property in it should pass to him but he was merely given possession of it to physically convey it to Wagop Korowai.

Owing to the close similarity between stealing and obtaining by false pretences, it is often difficult to know which offence should be charged but since they are materially different they cannot be joined in the same indictment. It is undesirable that one should be able to avoid conviction of either on the ground, in effect, that he has committed the other. To reduce the likelihood of a technical acquittal where it is clear that an accused has committed one of these offences but has been charged with the other, five Australian States have statutory rules that where the accused is charged with stealing but false pretences is proved, he may be acquitted of stealing and convicted of false pretences, and vice versa. See Howard, Australian Criminal Law (2nd ed., 1970), p. 202, and in our Criminal Code see s. 556.

In all of the circumstances of this case it is clear that there has been no miscarriage of justice. For the reasons given I would dismiss the appeal against the conviction.

The appellant also appeals against the sentence. It was submitted that the learned trial judge acted upon a wrong principle and that the sentence was manifestly excessive. In his remarks on sentence his Honour made reference to other associated matters of obtaining money by means of false pretences with intent to defraud and an offence of forgery. It was said that the appellant had thus been punished for matters outside the offence of stealing.

The learned trial judge said:

“As things are, this court is only called upon to punish the offender for the offence of stealing of which he has been convicted, and the facts relating to the other two matters can only be taken into account as part of the general circumstances, apart from the amount involved by which the nature and the degree of gravity of this particular offence of stealing may be assessed, and its proper punishment determined.”

On sentence a trial judge is entitled to consider surrounding circumstances in deciding upon an appropriate punishment. By s. 608 he may receive “such evidence as he sees fit.”

In my view he did not act on any wrong principle in considering those other matters as being relevant to the general circumstances of the case.

I remain unpersuaded that the sentence was manifestly excessive. As his Honour found; it was a very bad case. The sum was large and it was neither recovered no repaid. The maximum sentence was seven years. The appellant was a Member of Parlaiment who tricked his own people and stole their money. It is hard to imagine a worse case. As his Honour said:

“This offence constitutes an instance of the educated and well placed preying on the uneducated and less well placed, and it is the duty of the court to impose such penalties in such cases as will be seen as fitting by the community, and which will act as a deterrent to other likeminded persons, particularly at this stage of the country’s development when opportunities for exploitation of the kind involved in this case tend to abound, and stealing of money is such a serious and widespread problem.”

For these reasons I would dismiss the appeal against sentence.

Appeal dismissed. Conviction and sentence of National Court confirmed.

Solicitor for the appellant: Craig, Kirke & Wright.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.

[dcxcvii] The relevant portions of s. 377 of the Criminal Code are set out at p. 580.

[dcxcviii] (1868) 19 L.T. 364, at p. 366; (1868) L.R. 1 C.C.R. 150, at p. 154.

[dcxcix] [1978] V.R. 112.

[dcc] (1978) 19 S.A.S.R. 118.

[dcci] [1938] NSWStRp 5; (1938) 38 S.R. (N.S.W.) 308.