State v Takesi [1996] PGNC 13; N1468 (11 June 1996)

Unreported National Court Decisions

N1468

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1092 OF 1995
THE STATE
v
PAULUS TAKESI

Waigani

Sevua J
7 June 1996
11 June 1996

CRIMINAL LAW - Sentence - Dishonesty Offences - Persons in position of trust - Lawyer.

CRIMINAL LAW - Sentence - Forgery - Lawyer in State Solicitor’s Office - Acting for client in Workers Compensation - Collected cheques & applied to own use - Plea of Guilty - Amount apiated K7,000.00 -.00 - No restitution - Sentence of 2 years appropriate.

Held:

1. & W60;e aerawyel enjoysgh psgh position of trust, respect, high salary and other prereqrerequisites, depending on the amount of money appropriated, a custodial sce isopriacausehe brof trust situation.tion.

2.

2.&#160  ҈& In the the circumstances0 K7,000.00 is substantial therefore a custodial sentence is appropriate.

3. ;ټ A sentesentence ofce of 2 years imprisonwith laboueach coch count, unt, to be served concurrently, is approprpropriate.

Counsel:

J Pambel for State

Accusederson

ght">11 Ju11 June 19ne 1996

SEVUA J: You heen convicted of two two counts of false pretence contrary to s. 404 (1) (a) of the Criminal Code after entering pleas of guilty to both counts. False pretenca crime whichwhich carries aximum penalty of 5 years iars imprisonment.

The facts of this case which you admitted are these. In January, 1994 you wmployed as a lawyer in the State Solicitor’s Office oice of the Department of Attorney General. One of your duties was toar in Workers’ Compensation Hearings on behalf of the State. Yre approacheoached by oney one Meko Iaia, who knew you as aer and who asked you for assistance in respect of worker’s compensation relating to t to the death of his brother. That rt was on his own behn behalbehalf and on behalf of one Elos Kiki, the wife of the deceased. Followins request, you lodu lodged im for compensation at the Worker’s Compensation Office in Waigani. When the chhe cheques for the claim were ready, you wo the Office of Workers’ Compensation and representedented to one Julie Koefa that you had authority from Meko Iaia and Elos Ki collect their cheques. You didhave any authorithorithority, 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 T Supermarket at Tokarara with cheque No 424250 in the sum of K7,000.00 payable to Elos Kiks Kiki and cashed it by using a false identification card which had your photograph, but the name of Elos Kiki. You were assisted bypoliceolicemen who knew you as a lawyer. You purchased goods frT SuST Supermarket to the value of K1,000.00 and obtained the balance of K6,000.00 in cash you applied to benefit yourself.

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

1. You are married wita a mhie child, 11 years old, who attends Waigani Community School and is in Grade 4;

2. ـ F60; From the beginning of investigation in this matter, you had co-operated very well with police investig;

3. ҈ Y60; You were emploied wheh the Department of Atof Attorney General for about 3 years and were terminated this matter in early 1994. Thereafter, you haeriencedenced difficulties in getting aing a job, needless to mention the psychological stress associated with that;

4. & T60; 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. Ae a rhaf wd,adi so eegreregreregrettablttable of e of the shame you brought upon yourself, your relatives, friends and, most of all, the legal profession;

6.&ـ҈& You the Cour Court to t to give give you ayou an oppn opportunortunity 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. & A60; A penalty other than a custodial sentence would be appropriate in this case, as a custodial sentence would mean that all the many ong ythat ad sted tome a lawyer, would ould be a great loss to you personally;

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8.&#18. < &ـ You areu are a law abiditi citizen, who attend church service as an Anglican every now and then, and you would not pose any danger to the comy, ifn anoopportunity; and finally

9.&#160  & ; You have aave askedasked 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 aid iocutuause I consiconsider ider it sigt significant to analyse them. Reallthink the only mitigaitigating factors in your favour are that, you have pleaded guilty and, you are a first offender.

In my view, the offences which you committed are very serious becas a lawyer, you were in a vn a very responsible position, a position of trust which carries a very high esteem in the eyes of the public. As a lawyer, the comm expe expect 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 expect your unfailing and unwavering commitment. Ordinaryle invillages and and on the streets no doubt hold lawyers in high esteem by virtue of thef the fact that the villagers and those onstreets believe that lawyers can fight for justice for these simple people.

You were 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 aphed you on his his own behalf and on behalf of the wife and four children of the deceased. Cery, the fact that you w ou w lawyer would have given them faith and hope in obtaining compensation for the demise of thof their loved-one. I can only imagiw joyhey mhey must have felt knowing that you, a lawyer, wor, would give them all the professional attention required to enable them cceed in their claim. I am sure placed all theirtheir trust in you because you were aere 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 identificacard with your photograph, but the name used, was that of the deceased’s wife, Elos Klos 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 nnd photograph appeared on the false identification card. These and fraudulent ment ment 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 particy, your plea for leniency fncy 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 tohat,that, you have not advanced any reason for committing these crimes. You enjoyed the respecthe the community as an employed lawyer with a good salary, so really, you were not hard do with cash. As a lawy lawyer employea 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 hane this tois to the poor victims?

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

In my viey view, you have tried to justify your acty blaming the length of period you had been employed as a lawyer, however, I cannot accept cept this. You said three years was romparatively a short period for you to learn the “pros and cons of the legal profession,” but I ask here, what &#82os and cons” did you want to learn? What you did had to dh honh honesty and youd you would have learnt this from your childhood days in your home and in church, not at law school. You t professional etiquetiquette at the Legal Training Instituot at the Department of Attf Attorney General or State Solicitor’s Office. What you did had no to do o do with the &#8220 and cons of the legal prof profession.” In my view, it had toith yith your own integrity and the integrity of the legal ssion in this country. It was a straforward case case case of dishonest intention and mismanagement of client’s money.

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. Asluded to earlier, you haou had a good job and enjoyed a fixed remuneration every fortnight as a government lawyer. Whwhat id?&#In my view, itw, it wasn’t a case wher where you were unemployed and needed that that money so badly that you had to cash client’s cheque.

You may have been a good law abiding citizen, but in my view,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 don’t think it will be correct to say you still have a clean record as a law-abiding citizen. The fact is yve been conviconvicted of timinal offences, so your prior good record has now been desn destroyed.

You have referred to the sentencing guidelines in the me Court case of Wellington Belawa v The State [1988-89] PN9] PNGLR 496 and I am conscious of that decision. I have considered hat the the Supreme Court said in that case.

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

I have dy alluded to the fact that I have considered all the mattematters put forth in mitigation. By ame token, I have also 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 strikibalance 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 mwould have have made alot of difference if they had received it. Secondly, I consider the culpability is greater in this case because of the position you In words, a greater degredegree of trust was placedlaced upon you as a lawyer who accepted instructions to act for the dependof theased. I ag I agree with the prleciple that “from whom much is given, much is e is expected.” You enjoyed a high pon of n of trust and respect. Yjoyed a high salary and oand other prerequisites. You, like allr lawyers, has, had a r standing and reputation in the community, ie, your social status in the community, puts yuts you in an elite class. You were a memf thel profeprofession, the most noble profession in the wohe world since its establishment. The comy therefore expectepected y carry out your duty, not only in a professional and ethical manner, but in an honest mannemanner.

Thirdly, whilst the fraud wrpetrated, within only two days, the impact on the public alic and public confidence is a factor the Court cannot just brush aside or ignore. In my view, just lawyer eqer 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 wo compensatensation 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. Aaid, ictims have suffesuffesuffered a great loss and their loss has not been restored. You have indi that if give given an oppoty, you would restore this loss, however, in my view, you have not taken any genuine and cond constructive step to make restitution aam not sure if you would, given the fact that you have not 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 tnefienefit of their entitlements and perhaps interest on top of the K7,000.00. The faat you hav reimbursebursed rsed them has not reduced their suffering.

As I mentioned earlier, you have not advanced any reason why ecided to steal the cheque and the money. So really, the Court t appt appraised of yoof 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, fial problems due to pressuressures 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 don’t think I would differ much from that opinion. Youily will obviously suf# suf#160; You have suffered as this is also a public disgrace. However, sider that that that the fact that you were in a position oh trust and abused that position outweighs all other considonsiderations.

The principle I would apply in sentencing in this ca that, where a lawyer enjoyenjoys 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. It would be quite inappropriate to impose a non-custodial sentence, in my view. Under the cstances, I am o 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 cl#8217;s trust like you did. In ew, the sentence ence wnce will be both a personal deterrence and a 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 cail of l of K200.00 be paid to the National Court as part restitution.

Lawyer for State: Public Prosecutor

Lawyer for Accused: Accused in person