State v Olewale [2004] PGNC 33; N2758 (29 October 2004)

N2758

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR NO. 1481 OF 2002

BETWEEN

THE STATE

AND:

LUKESON OLEWALE
Prisoner

DECISION ON SENTENCE

WAIGANI : DAVID, A.J.
2004 : 9th, 23rd September,
28th, 29th October,

CRIMINAL LAW - Sentencing – uttering a cheque and misappropriation – amount misappropriated K40,000.00 – Means Assessment Report shows that prisoner has no immediate means to restitute – family willing to assist prisoner to restitute – Three (3) years imprisonment in hard labour for uttering – Four (4) years imprisonment in hard labour for misappropriation – sentences to be served concurrently - SS.462(3)(h), 463(2) and 383A(1) Criminal Code.

Cases cited:
Wellington Belawa v. The State [1988-89] PNGLR 496
The State v. Louise Paraka (2002) N2317
The State v. Paroa Kaia (1995) N1401

Counsel:
Mr L. Tabi for the State
Mr D. Kapi for the Accused

DAVID, A.J.: The prisoner pleaded guilty to one (1) count of uttering a cheque and one (1) count of misappropriation contrary to Sections 463(2) and 383A(1) of the Criminal Code. The brief facts presented by the State were that the prisoner uttered a cheque for K40,000.00 against the account of Fly River Provincial Government operated at Papua New Guinea Banking Corporation, Port Moresby Branch ("the bank") and was deposited into the prisoner’s personal account which was also operated at the bank. An amount of K38,000.00 was withdrawn immediately after the cheque was cleared, but the State conceded that the prisoner only applied to his own use K12,000.00 the property of Fly River Provincial Government and the balance was distributed to the prisoner’s other conspirators and others. The prisoner pleaded guilty to the two (2) charges on those basis.

Evidence

The prisoner at the material time was a Revenue Officer employed in the Revenue Section of the Fly River Provincial Government, Daru and the Acting Executive Officer to the Liquor Licensing Board.

On 19th June 2001 the prisoner instructed a Ms Marian Kila, a typist employed in the Education Office, Daru to type the prisoner’s name and the figure K40,000.00 on the said cheque. The cheque was already signed, which was forged, and only required the name of the payee and the amount to be typed in when it was given to Ms Kila. Ms Kila did as she was instructed and gave the said cheque back to the prisoner who travelled to Port Moresby thereafter.

On 4th July 2001 at Port Moresby, the prisoner presented cheque number 018350 dated 19th June 2001 made payable to himself for K40,000.00 at the bank. The cheque was drawn against account No.294 006 270140 operated by the Fly River Provincial Government at that bank and was obtained fraudulently. The prisoner conspired with others including a Bank Manager of the bank who allowed the fraudulent cheque to be deposited into the prisoner's personal account No. 294-63331698 operated at the bank and arranged for its clearance although a stop-payment notice was given to the bank by the Fly River Provincial Government. The prisoner immediately withdrew K38,000.00, shared the money with the other conspirators and others leaving a balance of K2,000.00 in his account. The prisoner applied to his own use K12,000.00 when he knew that the monies were obtained by fraudulent means.

Allocatus

When allocatus was administered, the prisoner expressed remorse, that he committed the crime to pay medical expenses for his wife, that he requested leniency and a non-custodial sentence which would enable him to arrange funds to restitute, that his father was very old and sick who wanted to see him before anything happened, his son was out of school since 2001 because of his predicament, that he was the only breadwinner and his family would struggle if he were incarcerated.

The Law

Uttering

Section 463(2) of the Criminal Code creates the offence. Section 462 of the Criminal Code prescribes the penalties to be applied in various categories of uttering offences (same punishment as for forgery). The prisoner pleaded guilty to uttering a cheque alluded to above and I need not repeat the details again. Section 463(2) of the Criminal Code reads:-

"A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question"

Section 462(3)(h) of the Criminal Code covers cheques: see The State v. Louise Paraka (2002) N2317. That provision reads:-

"a bank note, bill of exchange or promissory note, or an acceptance, endorsement, or assignment of a bank note, bill of exchange or promissory note"

The prescribed penalty is imprisonment for a term not exceeding fourteen (14) years.

In The State v. Louise Paraka (supra) Justice Kandakasi stated that the sentencing guidelines in Wellington Belawa v. The State (1988-89) PNGLR 496 could also apply to forgery cases (which also includes uttering) with necessary modifications as an element of dishonesty is involved in all such cases.

Mr Kapi of counsel for the prisoner has not made any submission on this aspect. Mr Tabi of counsel for the State submits that a one (1) year goal term is appropriate.

Misappropriation:

Section 383A(1)(a) of the Criminal Code creates the offence and prescribes the penalty which I set out as follows:-

"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;

(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 K2,000.00 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; .........."

The prescribed maximum sentence that can be imposed for the offence of misappropriation is imprisonment for ten (10) years. The case of Wellington Belawa v. The State (supra), although outdated, sets out the sentencing guidelines for misappropriation cases. That case sets out the following factors that may be taken into account when determining what penalty to impose on an offender and these are:-

1. the amount taken;
2. the degree of trust reposed in the offender;
3. the period over which the offence was perpetrated;
4. the use to which the money was put to;
5. the effect upon the victim;
6. the effect upon the offender himself;
7. restitution.
   

In Wellington Belawa v. The State (supra), it also recommended a scale of sentences to be adjusted upward or downward depending on the various factors mentioned above and these are, where the amount misappropriated is:-

1. between K1.00 and K1,000.00, a goal term should rarely be imposed;
2. between K1,000.00 and K10,000.00, a goal term of up to two (2) years;
3. between K10,000.00 and K40,000, a goal term of two (2) to three (3) years;
4. between K40,000.00 to K150,000.00 a goal term of three (3) to five (5) years.
   

The prevalence of the offence calls for stiffer sentences too: The State v. Paroa Kaia (1995) N1401, but the Court still has the sentencing discretion under Section 19 of the Criminal Code.

In applying the sentencing guidelines alluded to above, I consider each of the factors as follows:-

1. The amount taken

The cheque for K40,000.00 payable to the prisoner was obtained fraudulently and deposited into the prisoner’s personal account operated at the bank. K38,000.00 was withdrawn on 4th July 2001 out of which the prisoner received K12,000.00 which he applied to his own use.

2. The degree of trust

The prisoner was a public servant employed as a Revenue Officer in the Revenue Section of the Fly River Provincial Government and was also acting as the Executive Officer to the Provincial Liquor Licensing Board.

3. The period over which the offence was committed.

This was a one off case.

4. The use to which the money was put to.

The evidence contained in the depositions show that the prisoner, his other conspirators and others used this money. The State has conceded that the prisoner only received K12,000.00.

5. The effect on the victim.

It is no doubt that the Fly River Provincial Government has suffered a substantial financial loss.

6. The effect on the offender.

He was terminated from his employment in 2001.

The prisoner is unemployed and has a wife and two (2) young children to look after every day and the education of his son has been greatly affected. He resides with his uncle in Port Moresby with no means of income.

7. Restitution
   

There has been no attempt to restitute to date however the prisoner requests time to do that by selling fuel with the assistance of his family (Exhibits D1 and D2). The Means Assessment Report shows that the prisoner has no means to restitute at the time the report was written.

Mr Kapi of counsel for the prisoner has submitted that in line with the sentencing guidelines in Wellington Belawa v. The State (supra) a non- custodial sentence within the range of two (2) to three (3) years with an order for restitution to pay K12,000.00 would be appropriate. He submitted that the mitigating factors the Court should consider are:-

1. That the prisoner made admissions in the Record of Interview;

2. That the prisoner pleaded guilty on both counts saving the Court’s time and State’s expenses in bringing witnesses to trial especially those from Daru;
3. Expression of remorse by the prisoner when allocatus was administered;
4. The prisoner was a first time offender;
5. The prisoner has co-operated with the police.
   

Mr Tabi of counsel for the State has submitted that a three (3) years custodial sentence to be suspended is appropriate with conditions including an order for restitution. He further submits that the Court consider the following aggravating factors:-

1. The money misappropriated is substantial;

2. The prisoner has made no attempt to restitute to date;
3. K12,000.00 was put to the prisoner’s own use;

4. White collar crime in the public service and the public to lose confidence in the public service;

5. The victim lost a substantial amount of money;

6. Prevalence of the offence.

The prisoner is forty (40) years old, is married with two (2) children. He comes from Kunini village in the Western Province and is a member of the United Church. He attended the Daru High School where he attained a Grade 10 Certificate in 1982.

I have considered the expression of remorse by the prisoner and other matters raised by the prisoner when allocatus was administered, the fact that a trial has not taken place because the prisoner pleaded guilty to both charges saving the Court’s time and expenses of the State to bring witnesses to trial, the Means Assessment Report provided by the Probation Service, the prisoner’s family’s willingness to assist him with restitution, the prisoner is a first-time offender and co-operated with the police and other factors for and against the prisoner which I have been asked to consider by counsels for the parties and I further consider the following sentences as appropriate in the particular circumstances of this case:

Count 1 for Uttering, a sentence of three (3) years imprisonment in hard labour;

Count 2 for Misappropriation, a sentence of four (4) years in hard labour.

I convict and sentence the prisoner accordingly.

These sentences will be served concurrently less one (1) week the prisoner spent in custody. However, the sentences will be suspended in their entirety and the prisoner is to be released forthwith on probation for the balance of the term on the following conditions:-

1. The prisoner enter into his own recognition to keep peace for the currency of the suspended sentence;
   
2. The prisoner is to contact the Chief Probation Officer immediately.
   
3. The prisoner is to report to the Probation Officer at Daru within one (1) month from today and thereafter as and when required by the Probation Officer to do so.
   
4. The prisoner is to return to Daru, Western Province within one (1) month from today and he is not to change his residential address being Kunini village, Daru, Western Province unless he has given the Chief Probation Officer reasonable notice of his intention to do so and the reason for the proposed change.
   
5. The prisoner is not to leave Daru during the period of the suspended sentence without the permission of the Court;
   
6. The prisoner shall for the purpose of the Probation Act, allow a Probation Officer to enter his home during reasonable hours to monitor his compliance of these terms and to make such recommendations, as they consider appropriate either for a variation or an implementation of these terms. The Probation Service shall produce and furnish to the Court a report on a quarterly basis.
   
7. During the period of suspension, the prisoner is to render free community service to the Daru General Hospital, Western Province or such other public institution at the rate of eight (8) hours per week at the direction, supervision and control of the Probation Service.
   
8. The prisoner is to pay the sum of K12,000.00 to the Fly River Provincial Government on or before 28th October 2005. This money is to be paid to the Registrar of the National Court at Waigani who shall then cause the monies to be paid to the victim, the Fly River Provincial Government.
   
   9. The sum of K1,000.00 from the bail monies shall be converted and applied as part payment of restitution to the Fly River Provincial Government. The balance of the bail monies of K1,000.00 be returned to the prisoner.
      
   10. The prisoner shall not take in any alcohol and drug of any kind whether factory made or home brewed during the period of the suspended sentence.
       
   11. The prisoner will be at liberty to apply for a review and or variation of any of these terms including the lifting of any of them provided that there has been substantial compliance.
       

In the event that any one of the conditions is not complied with, then the prisoner’s probation will be breached and he will be sent to goal at Bomana, Daru, Western Province to serve the balance of the term which is being suspended.

Orders are made on those terms.
___________________________

Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Public Solicitor