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State v Takesi [1997] PNGLR 507 (11 June 1996)

[1997] PNGLR 507

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

PAULUS TAKESI

WAIGANI: SEVUA J
7, 11 June 1996

Facts

The defendant was a lawyer employed by the State Solicitor’s Office, Department of Attorney General. He represented some clients pursuing dependency claim for compensation against the Office of Works Compensation on behalf of the dependants of one Kiki Asane, a University of Papua New Guinea staff who was murdered at his residence at the University workers compound at Waigani campus. The defendant received payments from the office of workers compensation but, instead of paying the monies to the clients, he misappropriated part of it.

Held

1. Where a lawyer enjoys a high position of trust, respect, high salary and other prerequisites, depending on the amount of money appropriated, a custodial sentence is appropriate because of the breach of trust situation. In the circumstances, K7,000.00 is substantial therefore a custodial sentence is appropriate and will operate both as a personal deterrence and a deterrence to any other lawyer who might act likewise.
   
2. A sentence of 2 years imprisonment with hard labour on each count, to be served concurrently, is appropriate.
   

Papua New Guinea case cited

Belawa v The State [1988-89] PNGLR 496.

Counsel

J Pambel, for State.
Accused in person.

11 June, 1996

Sevua J. You have been convicted of two counts of false pretence contrary to s 404(1) (a) of the Criminal Code after entering pleas of guilty to both counts. False pretence is a crime, which carries a maximum penalty of 5 years imprisonment.

The facts of this case, which you admitted, are these. In January 1994, you were employed as a lawyer in the State Solicitor’s Office of the Department of Attorney General. One of your duties was to appear in Workers’ Compensation hearings on behalf of the State. You were approached by one Meko Iaia, who knew you as a lawyer and who asked you for assistance in respect of worker’s compensation relating to the death of his brother. That request was made on his own behalf and on behalf of one Elos Kiki, the wife of the deceased. Following this request, you lodged a claim for compensation at the Worker’s Compensation Office in Waigani. When the cheques for the claim were ready, you went to the Office of Workers’ Compensation and represented to one Julie Koefa that you had authority from Meko Iaia and Elos Kiki to collect their cheques. You did not have any authority, and in fact, you lied to Julie Koefa. You then completed and signed certain documents and collected three cheques totalling K11,715.26 on 18 January 1994.

On 19 January 1994, you went to TST Supermarket at Tokarara with cheque no. 424250 in the sum of K7,000.00 payable to Elos Kiki and cashed it by using a false identification card, which had your photograph, but the name of Elos Kiki. Two policemen who knew you as a lawyer assisted you. You purchased goods from TST Supermarket to the value of K1,000.00 and obtained the balance of K6,000.00 in cash, which you applied to benefit yourself.

In your allocutus, you asked the Court for leniency on the following grounds:-

1. you are married with a male child, 11 years old, who attends Waigani Community School and is in Grade 4;
   
2. from the beginning of the investigations in this matter, you had co-operated very well with police investigators;
   
3. you were employed with the Department of Attorney General for about 3 years and were terminated over this matter in early 1994. Thereafter, you had experienced difficulties in getting a job, needless to mention the psychological stress associated with that;
   
4. three and a half years with the Department was comparatively, a short period to acquaint yourself with the pros and cons of the legal profession;
   
5. as a result of what you did, you are so regrettable of the shame you brought upon yourself, your relatives, friends and, most of all, the legal profession;
   
6. you urged the Court to give you an opportunity to make restitution over a period of time so you could seek assistance from family members since you have been unemployed for about 3 years now;
   
7. a penalty other than a custodial sentence would be appropriate in this case, as a custodial sentence would mean that all the many and long years that you had struggled to become a lawyer, would be a great loss to you personally;
   
8. you are a law abiding citizen, who attend church service as an Anglican every now and then, and you would not pose any danger to the community, if given another opportunity; and finally,
   
9. you have asked the Court to consider the sentencing guidelines set out in the case of Wellington Belawa v The State [1988-89] PNGLR 496.
   

I have set out almost all that you said in allocutus because I consider it significant to analyse them. Really, I think the only mitigating factors in your favour is that, you have pleaded guilty and, you are a first offender.

In my view, the offences, which you committed, are very serious because as a lawyer, you were in a very responsible position, a position of trust, which carries a very high esteem in the eyes of the public. As a lawyer, the community expects you to act professionally and ethically at all times. As a lawyer, you were educated and trained to uphold the rule of law and this, the community expects your unfailing and unwavering commitment. Ordinary people in the villages and on the streets no doubt hold lawyers in high esteem because they believe that lawyers can fight for justice for simple people.

You were approached by a simple man who wanted to claim compensation for the death of his brother, a former employee of the University of Papua New Guinea. That man approached you on his own behalf and on behalf of the wife and four children of the deceased. Certainly, the fact that you were a lawyer would have given them faith and hope in obtaining compensation for the demise of their loved-one. I can only imagine how joyous they must have felt knowing that you, a lawyer, would give them all the professional attention required to enable them to succeed in their claim. I am sure they placed all their trust in you because you were a lawyer. Needless to say, you betrayed their trust and stole their money.

To facilitate the success of the crimes you perpetrated, you produced an identification card with your photograph, but the name used, was that of the deceased’s wife, Elos Kiki. As if this was not enough, you used two unsuspecting policemen who knew you as a lawyer, although not by name, to confirm that you were the person whose name and photograph appeared on the false identification card. These false and fraudulent means enabled you to get goods valued at K1,000.00 and cash in the sum of K6,000.00 from TST Supermarket at Tokarara.

Having heard you on allocutus, and particularly, your plea for leniency for a non- custodial sentence, I cannot help, but wonder why, you, a lawyer, who enjoyed a high position of trust and respect with a high salary could ever spivved a poor village family who needed the money more than you, because their bread-winner had been killed. It is quite evident to me that, you have not advanced any reason for committing these crimes. You enjoyed the respect of the community as an employed lawyer with a good salary; so really, you were not hard done by with cash. As a lawyer employed by a Department of the State, you enjoyed a fixed remuneration every fortnight, unlike the dependants of the deceased whose source of income had been unfortunately terminated when the deceased was killed. How could you have done this to the poor victims?

In my view, all the factors, which you have submitted in mitigation, do not assist you at all. Whilst I do sympathise with your wife and son, you should have thought about them before committing these crimes. You can blame no one but yourself for the difficulties in securing a job and the stress related to it. The fact is simple. If you had not been so dishonest, you would not have encountered these difficulties.

In my view, you have tried to justify your action by blaming the length of period you had been employed as a lawyer. However, I cannot accept this. You said three years was comparatively a short period for you to learn the "pros and cons of the legal profession," but I ask here, what "pros and cons" did you want to learn? What you did had to do with honesty and you would have learnt this from your childhood days in your home and in church, not at law school. You learnt professional etiquette at the Legal Training Institute, not at the Department of Attorney General or State Solicitor’s Office. What you did had nothing to do with the "pros and cons of the legal profession." In my view, it had to do with your own integrity and the integrity of the legal profession in this country. It was a straightforward case of dishonest intention and mismanagement of client’s money.

You have urged this Court to impose a non-custodial sentence because you wish to seek assistance from relatives to effect restitution. However, in my view, the fact that you have not made restitution for more than two years does not assist you at all. Since the date of committing these crimes, you have done nothing genuine in making restitution. The victims have suffered for two and half years now because they had lost their money, and as for you, you have not repaid anything, not even a single toea. I appreciate that you have not been able to secure a job, however, if you want to rely on your relatives for financial assistance, you could have done that two and half years ago.

I agree that all the many and long years you had struggled to become a lawyer have now become a great loss to you personally. However, there is just no justification for what you did. As I alluded to earlier, you had a good job and enjoyed a fixed remuneration every fortnight as a Government lawyer. Why do what you did? In my view, it was not a case where you were unemployed and needed that money so badly that you had to cash your client’s cheque.

You may have been a good law abiding citizen, but in my view, your past record as a good law-abiding citizen, ceased at the time you perpetrated these crimes. With this record of criminal conviction, I do not think it will be correct to say that you still have a clean record as a law-abiding citizen. The fact is, you have been convicted of two criminal offences, so your prior good record has now been destroyed.

You have referred to the sentencing guidelines in the Supreme Court case of Wellington Belawa v The State [1988-89] PNGLR 496 and I am conscious of that decision. I have considered all that the Supreme Court said in that case.

I have seriously considered all the mitigating factors you have submitted, however, in my opinion, this is one case, which a non-custodial sentence is just not appropriate. We are dealing with a lawyer here, not an ordinary employee who has committed a white-collar crime. I should reiterate that we are dealing with a lawyer who enjoyed a high position of trust and respect and a high salary together with a high social status in society.

I have already alluded to the fact that I have considered all the matters put forth in mitigation. By the same token, I have also taken into account other factors, which do not favour you and I, wish to advert to these now, because I consider it relevant in striking a balance on what type of penalty this Court should impose.

Firstly, the amount of K7,000.00 is substantial in my view. To the widow and her children, this is quite a substantial amount of money. No doubt, this money would have made a lot of difference if they had received it. Secondly, I consider that the culpability is greater in this case because of the position you held. In other words, a greater degree of trust was placed upon you as a lawyer who accepted instructions to act for the dependants of the deceased. I agree with the principle that "from whom much is given, much is expected." You enjoyed a high position of trust and respect. You enjoyed a high salary and other prerequisites. You, like all other lawyers, had a higher standing and reputation in the community, i.e., your social status in the community, puts you in an elite class. You were a member of the legal profession, the noblest profession in the world since its establishment. The community, therefore, expects you to carry out your duty, not only in a professional and ethical manner, but also in an honest manner.

Thirdly, whilst the fraud was perpetrated, within only two days, the impact on the public and public confidence is a factor the Court cannot just brush aside or ignore. In my view, just as a lawyer equates with law and justice, he should also equate with, not only professionalism and etiquette, but honesty as well.

Fourthly, the victims in this case, that is, the widow and her four children have suffered a great loss, which has not been restored. The money was workers compensation due to them and you stole this money, leaving them a very desperate family indeed.

As to restitution, you have not repaid anything for two and half years now. As I said, the victims have suffered a great loss and their loss has not been restored. You have indicated that if given an opportunity, you would restore this loss. However, in my view, you have not taken any genuine and constructive step to make restitution and I am not sure if you would, given the fact that you have not done anything in the past two years six months.

Whilst you have pleaded guilty, you have not really expressed any remorse for your guilt and especially for the sufferings you had caused to the widow and her four children. You have showed remorse for yourself, but not for the victims and this does not assist you either. This family has lost the benefit of their entitlements and perhaps interest on top of the K7,000.00. The fact that you have not reimbursed them has not reduced their suffering.

As I mentioned earlier, you have not advanced any reason why you decided to steal the cheque and the money. So really, the Court is not appraised of your reason for committing these offences. And I think, usually it would help to ascertain whether the commission of such offences was due to family problems, financial problems due to pressures from relatives or unnecessary strain by excessive responsibility.

I have given special consideration to the fact that your employment with the State Solicitor’s Office was terminated as a result of your behaviour and your failure to secure employment anywhere because of the implication of your criminal conduct. In a way, one could say, this is a punishment in itself, and I do not think I would differ much from that opinion. Your family will obviously suffer. You have suffered, as this is also a public disgrace. However, I consider that the fact that you were in a position of high trust and abused that position outweighs all other considerations.

The principle I would apply in sentencing in this case is that, where a lawyer enjoys a high position of trust, respect, high salary and other prerequisites, depending on the amount of money appropriated, a custodial sentence is appropriate because of the breach of trust situation.

When I apply all these considerations to your case, the amount of K7,000.00 is substantial to the victims and you have not repaid any portion of it. In my view, it would be quite inappropriate to impose a non-custodial sentence. Under the circumstances, I am of the view that the appropriate punishment is a custodial sentence because I consider it a very serious matter for a lawyer to betray his client’s trust like you did. In my view, the sentence will be both a personal deterrence and deterrence to any other lawyer who might act likewise.

Taking all these matters into consideration, I consider that the appropriate sentence is 2 years imprisonment with hard labour on each count, to be served concurrently, and I sentence you accordingly. I order that your cash bail of K200.00 be paid to the National Court as part restitution.

Lawyer for State: Public Prosecutor.
Lawyer for accused: Accused in person.