State v Tobena [2014] PGNC 307; N5601 (12 May 2014)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

CRIMINAL LAW – VERDICT – Multiple charges of misappropriation and false pretence - Most elements of the offence and facts not in contention – Only logic and reasonable inference from accepted primary facts support an inference against the accused – Verdict of guilty on all 14 counts except one count returned –

CRIMINAL LAW –Offences committed by a highly educated and seasoned public servant – Consequences of the crime known full well by the accused – Deliberate acts of false pretence and misappropriation. Section 404(1) (a) and Sections 383A (1) (b).

1. GEITA AJ: You pleaded not guilty to a total of 15 counts comprising of 7 counts of obtaining goods by false pretence contrary to section 404 (1) (a) of the Criminal Code and 8 counts of misappropriation contrary to section 383A (1) (2) of the Criminal Code.

2. Between 6th of December 2007 and 31 October 2008 the accused whilst employed as Town Manager for Wewak Urban Local Level Government (WULLG) from here onwards, periodically submitted false claims. These involved a total of 8 cheques made out in the name of a number of persons including himself working with (WULLG) and others outside the organisation. All cheques were drawn from (WULLG) operating account totalling K18, 826.10.

*To whom cheque paid*	*Reason for payment*	*Chq amount & details*
1. Mrs. Christine Sual	For legal fees	Chq No.211-K2000 The cheque was cashed the same day and monies given to the Accused. No legal services were rendered.
2. Mrs. Maureen Tawia-	For survey work carried in 2008	Chq No. 419 K6380 Cheque cashed and monies used by the accused instead of purpose intended.
3. Mr. Lucas Waitik-(30/5/2008.)	False claim for hire of grass cutters.	Chq Nos 616 K2, 360 – Lucas does not own a grass cutter. Messrs Chris Munku & Accused benefitted.
4. Mr. Lucas Waitik-(11/6/2008)	False claim for hire of grass cutters from several people.	Chq No.440 K2, 070 False claim as Lucas does not own a grass cutter. Messrs Celestine Honok & the Accused benefitted.
5. Between 11/09/08 and 4/09/08.	Accused and Solostine Honok submitted a false claim.	Chq No. 617.K2070. Cheque cashed and monies used by both men.
6. Mrs Rhonda Monji-	False claim raised under Monji's name	Chq No. 621 K1776-10 Cheque cashed and monies used by the accused.
7. Mr. Patrick Wolly	Submitted false claim for payment of his outstanding accommodation at Kurakum Lodge. Claim he was not entitled too as he was not yet appointed Town Manager.	Chq No. 642 K540 – Paid to Patrick Wolly of Kurakum Lodge.
8. Mr. Linus Kenny	For carpentry work carried out on staff toilet. Same work done by a Registered Contractor earlier (Sailas Kurua) who was also paid the same amount.	Chq No. 650 K1200 –Kenni also paid the same amount as a result of false claim submitted by the accused.
9. Mr.Tony Emmanuel	Accused submitted a false claim for payment of rental accommodation by Water Board from owner Tony Emmanuel	Chq No.658 K2500- Cheque cashed and monies used by the accused.

3. The State evidence consisted of four oral testimonies and documentary evidence tendered into court by consent. By consent they were grouped in this manner. Exhibit "A" List of Exhibits pp 80 – 86 inclusive of the accused Record of Interview; The body of the exhibits referred to in the list referenced WULLG 1- 13. (Wewak Urban Local Level Government). Exhibit "B" Witness Patrick Wolly's Statement; Exhibit "C" Witness Elias Samba's Statement; Exhibit "D" Witness Michael Kabaru's Statement.

4. Christine Saul, employed as a Cashier with Wewak Urban Local Level Government, (WULLG) from here on testified of being called to the office from home on 7 December 2007, purposely to cash a cheque written out in her name for payment as former Lord Mayor's legal fees. She cashed the cheque No. 211, worth K2000 hesitantly and handed cash over to the accused in his office. At the time the former Lord Mayors wife Mrs Kovi was present to receive the proceeds. The witness said she appeared confused as to why the former Lord Mayor's legal fees were made under her name. Back in the officer her boss the accused and the Mayor signed the certificate which was returned to the District Treasury.

5. In examination in chief the witness recognised the cheque bearing her name and also recognised the accused signature as counter signing officer. She however denied seen an Invoice Statement at the time. She later wrote a note to the District Treasury explaining her role in this dubious scheme in her defence.

6. On cross examination the witness said she signed the acquittal for the monies because her boss the accused did not do an acquittal. She said she did that to clarify her side of the events. She said it was not normal practise for staff members to get advances. She admitted that the office holds a petty cash advance for small purchases for instance payment of fuel but not for staff advances.

7. Rhonda Monjii, a Billings Clerk with WULLG testified of being visited by her Manager the accused at her home on Saturday 12 September 2008 to help cash a cheque made out in her name. The accused arrived at her home around 8 am in the morning in a hired vehicle accompanied by Ward 2 Councillor. She was told that her pay of K276.10 was included in the cheque and for her to cash the cheque valued at K1500 at Tang Mao Trading. She was assured by the accused that he had made arrangements with the store for the cheque to be cashed. The witness said she got in the vehicle and they returned to WULLG office. She said she followed her boss's instruction, went to Tang Mao, cashed the cheque and returned to her house with the K1176.10 in cash. She retained K276.10 said to be her pay and returned the balance K1500 to the accused in town. In return she was given a further K100.00 by the accused. On Monday 15 December 2008 she returned to work and learnt that her pay of K276.10 was already in her account.

8. In examination in chief the witness said the accused gave no explanation for offering her the K100. She however recognised the finance forms used to have the monies cleared including the BSP Cheque No 621 which she cashed under her name.

9. In cross examination the witness said when she was working as a Billings Clerk the Town Manager was the accused David Tobena. She said David Tobena was accompanied by his driver James Fredolin and Ward 2 Councillor Noel Ape when they came to her house on 13 September 2008. When questioned how it was possible for her to cash the cheque at Tang Mow without purchasing some store goods she replied that the accused had made prior arrangements with a particular lady saleswoman who cashed the cheque. Saying she was only following instructions from her boss, the accused. When questioned how she identified the particular saleswomen at Tang Mow she replied that she was accompanied by the saleswomen's husband who was already waiting for them at WULLG Office at the time. When the witness was further questioned that the accused would give testimony of some shopping done in return for cash she remained adamant that she was given cash in full. (Note: Witness remained unfazed under aggressive cross examination).

10. Lucas Waitik is employed by WULLG Nursery Assistant. His job includes planting of flowers, cleaning the town and cutting grass. He testified of being called into his bosses' office sometimes in July 2008. His boss, the accused David Tobena was in his office with Chris Mungu. The witness said when he got to the office he was given a cheque of K2360 to go and deposit and withdraw some money the same day. He then took the cheque to BSP Wewak, deposited it and withdrew most of the money, leaving only K20 as deposit fee. The witness deposited K1000 into Mr. Tobena's account and returned to the office with only K1340. Mr Tobena than told him to hand the money over to Chris Mungu. Mr Chris Mungu than returned K400 to him saying it was for grass cutting work done by him. He said Chris Mungu was his supervisor at the time. The witness said the accused gave no explanation for making the cheque payment under his name.

11. On examination in chief the accused denied making any claim for payment of grass cutting services within the town area nor did he submit any invoice for payments. He however recognised the cheque made under his name and admitted making endorsement of encashment. He said he does not own a brush cutter and also did not hire out same.

12. The same witness testified of being called into the accused's office on 12 September 2008 via a messenger Petrus Alim telling him that his boss, the accused was waiting for him at BSP Bank. He said it was around 4pm when he explained his way into the bank saying that his boss was waiting for him inside. He was given a cheque worth K2070 written under his name for him to deposit and cash at the same time. The witness said he did what was told to him by the accused and returned to the office with K2050 cash. In the accused's office he was told to hand the cash over to Solostine Honok, the District Accountant. He was paid K100 in return.

14. On cross examination the witness said at the time all brush cutters from service providers were damaged and not on hire. He said Nick Rambusumbi was a known service provider and not John Mungu. He said Nick Ranbusumbi gets paid for his grass cutting services. When asked if he sometimes makes claims for John Mugu he denied making them. Cross examination continue:

Q.10 I put to you that K2260 cheque was for the hire of John Mungu's brush cutter?

Q.16 The two cheques made out in your name, do you know who made them in your name?

A. Came to office and gave money to David Tobena and he told me to give to Solostine Honok.

15. Mr Michael Gawi, employed as Deputy Town Manager in 2008 gave testimony of being given K40 in two K20 notes by the accused near the Post Office with no explanations given for the gesture. At the time he was accompanied by the Town Manage Peter Saun.

16. On cross examination he said that was the only time the accused gave him money however gave no explanation for giving me the money.

17. Witness Michael Kabaru, a Botanist by profession has been employed by WULLG for the past 20 years. He testified that he was appointed care taker Manager for WULLG on 13 January 2009 through a Finance & Executive Council Authority, replacing the accused David Tobena for allegations of mismanagement of funds. He said the same meeting resolved to engage qualified inspectors and the fraud squad to conduct investigations. The witness said as acting Town Manager his job was to ensure the smooth running of the organisation and that town services were provided. The whole of the witness testimony was tendered into court by consent and Market Exhibit "D".

18. Witness Mathis Porika a former councillor testified of chairing a special Finance Executive Council meeting on 13 January 2009 which resolved to sideline the accused David Tobena as WULLG Town Manager in order for CID to investigate allegation of mismanagement. During the same meeting Mr. Michael Kabaru was appointed care taker Manager.

19. At the end of the State's evidence your Lawyer made a no case submission in respect of all of the charges. The State did not concede to your application in respect of all charged. Your application was however dismissed and your case progressed to trial.

20. The accused has a trail of successful careers in managing Local Level Government offices and such like offices including a stint as a military officer. He admits being charged for misappropriation of public funds in 2009 and his office locked down with timber denying him access to the office on 9 January 2009. He was appointed Manager of Wewak Urban Local Level Government, (WULLG) from here on, on 29 March 2007.

21. He testified of being locked out of his office due to allegations made against him for misusing K25, 000.00. These were monies specifically set aside for Police use in 2008 Christmas/New Year operations. The witness said because the allegations could not materialise a search warrant was issued by the District Court and his house searched for evidence. He said when Police failed to find any evidence in his house a second search warrant was obtained and the Wewak District Treasury searched for evidence relating to the misuse of public funds levelled against him which eventually led to his arrest.

22. On examination in chief when, prodded by his Lawyer to give reasons and explain why he was charged and the many names introduced during State evidence the witness testified in the following. He said during his term as Manager of WULLG he had no Finance and Administrative Officers to assist him so he was performing those two functions himself.

23. The accused said the monies came out of 2007 approved budget for that purpose. The monies were paid in cash to the Lord Mayor by the Cashier Christine Saul in his presence in the cashier's office.

24. The accused fell short of telling the court that the K2000 cheque was not made out to Mr. Terrence Kovi but instead was made out to Mrs Christine Saul. The witness was summoned from her home to come to the office by the accused purposely to assist in cashing the cheque which was made out under her name. Since the accused was her superior she complied, went to the bank, cashed the cheque, returned to the office and handed the money to Mrs Kovi, the Lord Mayor's wife who was waiting in the accused's office. The manner and process in which the monies were sourced smelt fishy and lacked transparency. The accused's explanation of K2000 being paid as cash advance did not hold water as no such facility existed within the organization: Only a small petty cash float was maintained for small purchases for instance, fuel, small stationery etc. The cheque was processed by the accused and signed for encashment under the name of Christine Saul.

25. By operation of Section 404 (1) (a) and Section 383A (1) (2) of the Criminal Code Act the required elements of dishonestly applying for the use of another person property (cash monies) (emphasis mine) belonging to another is made out.

26. On the evidence before me I find that you by false pretence and with intent defrauded Wewak Urban Local Level Government (hereon WULLG) the sum of K2000 in cash. Count 1 is made out. Count 2 is easily dismissed since the tenor of the charge is the accused applying monies for his own use.

27. In his defence the accused said Maureen was paid for services rendered as that activity was considered vital for revenue generation purposes for the government. He however denied benefitting from this transaction. No other witnesses were called save for vital documentary evidence put into court by consent: They include the paid vouchers for Cheque No. 419 amounting to K6380.00, made payable to Maureen Tawia being for cash advance. The General Expense Form or what is normally referred to as FF4 supporting the release of the cheque payment appeared to be grossly tampered with: Maureen's name appeared as the initial beneficiary however her name was crossed out and substituted with a Christine Saul. This time the same finance documents showed signs of further tampering: Christine Saul's name was removed and substituted with Maureen Tawia's name who was to be the beneficiary of the proceeds. The accused's endorsements authorising payment and signature appeared on all finance forms. Evidence before courts shows that Maureen and her other colleagues who took part in the survey were all employees of the WULLG and were paid public servants. The State contended since they were all employees they were not entitled to extra payments over and above their salaries, save overtime. This money however was not for overtime work.

28. The only issue for me to resolve is general denial. First, whether the uncontested documentary evidence supports an inference that you dishonestly applied monies for your own use and for the use of others? If the answer to that issue is yes, then the next issue is whether that is the only inference open to the Court? A determination of these issues will determine whether or not you are guilty of the charges against you. These issues will be determined on the basis of the facts or evidence before me.

29. By operation of Section 404 (1) (a) and Section 383A (1) (2) of the Criminal Code Act the required elements of dishonestly applying for your own use and the use of another person property (cash monies) (emphasis mine) belonging to another is made out.

30. The sum total of all the above facts leads me to the only reasonable and logical inference open to me: That you engineered the release of the said cheque, had them cashed through Maureen Tawia and applied the monies for your collective use. Furthermore since you acted in association with Maureen Tawia, it is open to infer that you all benefitted from the proceeds of the cashed cheque. You by false pretence and with intent defrauded Wewak Urban Local Level Government (hereon WULLG) the sum of K6380.00 in cash. For these reasons I return a verdict of guilty on this count.

31. The accused offered no explanation for this payment save to say that his reasons were similar to those given in Count 3 above. Although Count 3 factual situations were different, his explanations were received as presented. Under the circumstances Lucas Waitik's oral testimony remains intact and undisturbed.

32. Employing the same dubious scheme as before in earlier counts, the accused used his gardener, a staff of very low status as he was considered easy prey, I might add here to carry out his plans to steal from his employer. Since the accused was his superior he complied, went to the bank, and deposited the cheque which was made out under his name, withdrew all the money leaving only K20 as deposit fee. With the remainder of the cash he deposited K1000.00 into the accused's bank account and returned to the accused's office with K1340.00. That money was then handed over to Mr. Chris Mungu who was waiting in the accused's office. For his troubles K400.00 was given to him by Mr. Chris Mungu. The witness denied ever owning a brush cutter and denied submitting claims for grass cutting services rendered.

33. By operation of Section 404 (1) (a) and Section 383A (1) (2) of The Criminal Code Act the required elements of dishonestly applying for the use of his own and the use of another person, property (cash monies) (emphasis mine) belonging to another is made out.

34. On all the facts before me I am satisfied that the accused by false pretence and with intent defrauded (WULLG) and obtained the sum of K2360 in cash, part of which was paid to Mr Chris Mungu and the witness or what I refer to as "the mule" for his efforts. Mr Chris Mungu was Waitik's supervisor at the time of the offence and benefitted from the dubious scheme. He also in my view should be investigated and prosecuted for his part in this fraud. I therefore return a verdict of guilty on this count.

35. In his defence the accused said the monies were paid to Lucas Waitik to be distributed to several persons, no names mentioned, for the hire of their brush cutters in Wewak town. Such claims for payment were raised and submitted on their behalf by Lucas Waitik. Upon receiving the monies Lucas would than distribute the cash to the brush cutter owners. None of those persons were called to corroborate his evidence. In his response to Count 7 the accused said his reasons were the same as those given in Count 6.

36. Unfortunately Lucas Waitik's oral evidence fails to find corroboration in the accused's version of events. He employed his same dubious scheme as before in earlier counts and used his gardener, a staff of very low status as he was considered easy prey, I might add here to carry out his plans to steal from his employer. He said since the accused was his boss he complied with his instructions. The witness denied raising the claims for payment. He was directed to go and meet the "boss", the accused just before close of business at 4.00pm at the Bank of South Pacific Wewak Branch. He met the accused who handed him a cheque of K2360 under his name. The accused than returned to his office and waited for his return. The witness cashed the cheque leaving K20.00 as withdrawal fee and returned with the balance to the accused. Upon his return he handed over the cash to Mr. Celestine Honok who was waiting in the accused's office. Mr. Honok was the District Accountant at the time. For his part he was paid K100 in return.

37. By operation of Section 404 (1) (a) and Section 383A (1) (2) of the Criminal Code Act the required elements of dishonestly applying for the use of his own and the use of another person, property (cash monies) (emphasis mine) belonging to another is made out.

38. The above facts conclusively support the only logical inference that: you used the same "mule", Lucas Waitik to misappropriate monies for your own use and to the use of others. Furthermore there is evidence that you acted in association with the "mule" and Mr.Solostine Honok. Inferentially it is open to me to infer that you also benefitted from this dubious scheme. Mr. Solostine Honok held a very important position at the time and succumbed to the accused's misdeeds. He also in my view should be investigated and prosecuted for his part in this fraud. I therefore find you guilty on Counts 6 & 7 for false pretence and misappropriation.

39. In his defence the accused said the monies were paid as cash advance to one staff member Rhonda Monjii in appreciation for her working long hours during the long weekend celebration from 12th September to 17th September in 2008 where the WULLG was heavily involved. He said all monies were acquitted for and reports presented to the Finance Executive Committee, The City Mayor and the District Treasury. Although there appears to be some sort of report authored by the accused, his report was not supported by proper acquittal documents. In short the accused failed to produce the acquittal documents in court nor were any of those officers called to corroborate his testimony.

40. The accused testimony did not find corroboration in Rhonda Monjii's oral testimony which was very detailed. She said very early in the morning on the day in question a Saturday, the accused accompanied by Ward 2 Councillor Noel Ape came to her house in a hired vehicle and asked her to go cash the cheque made out under her name at Tang Maus' shop in Town. She was told that her pay of K276.10 was included in the cheque. The witness said she had not difficulty in cashing the cheque without purchasing some foodstuff as is the usual practise because the accused had pre arranged with a staff member at Tang May to receive her. After cashing the cheque she kept K276.10 and returned K1500 to the accused who was waiting in his office. For her efforts she was paid another K100 by the accused in return. During aggressive defence cross examination the witness was reminded that defence would call evidence to rebut her version of events, the witness remained calm and unfazed. As it turned out the accused did not call their witness: a defence ploy to intimidate and discredit Rhonda's testimony.

41. As can be seen from the evidence as they unfolded the accused employed his same dubious scheme seen before in earlier counts and used his junior female staff member earning a salary of little under K300, a staff of very low status as she was considered easy prey, I might add here to carry out his plans to steal from his employer. Like in previous instances the accused was her boss and she complied with his instructions.

42. By operation of Section 404 (1) (a) and Section 383A (1) (2) of the Criminal Code Act the required elements of dishonestly applying for his own use, property (cash monies) (emphasis mine) belonging to another is made out.

43. Like what has happened in earlier instances all factors point conclusively to the only logical inference open to me that: you used one of your lowly paid junior staff member to cash the cheque for you and applied the monies to your personal use. It goes without saying that you acted in association with Rhonda and you benefitted from the proceeds. For these reasons, a verdict of guilty is returned on Counts 8 and 9 for false pretence and misappropriation.

44. Counts 10 to 15 remain unexplained as the accused offered no explanation in his defence. No witnesses were called nor rebuttal documentary statements produced in court. His lawyer also did not pursue further answers or explanations from him after it became apparent to the State Prosecutor Mr. Kupmain that the accused was giving his evidence with the aid of prepared notes. Upon a successful application the accused's prepared notes were removed from him. Defence lawyer Mr. Lunge immediately called for an adjournment when he sensed that his client was somewhat handicapped without his notes. From here onwards the accused took no issue on the truthful and the reliability of State documentary evidence. Your only argument through your lawyer was State evidence was inconclusive and insufficient. Mr Lunge submitted that documentary evidence alone were not sufficient to show the intent of his client on both offences. He submitted that the court cannot infer the dishonesty or intent to defraud of his client on the face of documentary evidence alone. Witnesses must be called.

45. The State on the other hand argues that, based on the uncontested evidence, the only logical inference and reasonable inference open to the court is that you by false pretence defrauded WULLG and dishonestly applied and benefitted from these overt transactions. In his response to the reliance had on documentary evidence and exhibits Mr. Kupmain said "these papers" referring to the exhibits and documentary evidence, don't lie, they speak the truth. He submitted that the court use the documents to get an appreciation of what was involved together with oral testimonies given by State witnesses.

46. Against this backdrop I proceeded to burrow through the uncontested evidence to make findings the way I did. For counts 10 & 11 there was overwhelming evidence showing that finance documents were falsified by the accused. The accused raised and authorised the payment of K540 to Patrick Wolly, owner of Kurakum Lodge for rents, he incurred before taking up office. All vouchers and invoices supporting this claim appeared to be falsified as they refer to the hire of a lawn mower from Patrick Wolly. The documents were falsified with endorsements bearing the accused's name and signature as claimant. Inferentially it was open to court to form the view that he benefitted from this dubious scheme. Now applying logic and common sense to this case the accused's actions amount to a clear breach of false pretence and dishonesty. Monies rightly belonging to the people of East Sepik through their local level government (WULLG) were defrauded and used by the accused. I therefore return a verdict of guilty on both counts.

Counts 12 & 13 – Payment of K1200 made to Linus Kenny for repair of staff toilet.

47. The accused offered no explanation in his defence on these two counts. The State also did not call any independent witnesses to make out their case. Although there appears be some documentary evidence before court showing instances of the accused falsifying and endorsing payments for work done previously by a registered contractor Silas Kerua who was under paid by K3000.00. Part of his contracted monies totalling K1200 was paid to one of his workers, Linus Kenny, by false pretence. All documentary evidence pointing to the accused who was the mastermind behind falsifying the finance forms: FF3 and FF4 in both instances for which two lots of payments were made out to two different people for the same renovation job. Silas Kerua protested about why he was underpaid in a letter sent to the Provincial Administrator who intern directed the accused to explain the anomaly. There is no documentary evidence showing his response.

48. Due to the foregoing reasons and on all the facts before me leads me to the only reasonable and logical inference open to me: That you engineered the release of the said cheque, had them cashed through the two men. Furthermore since you acted in association with Linus Kenny and Silas Kerua, it is open to infer that you all benefitted from the proceeds of the cashed cheque. You by false pretence and with intent defrauded Wewak Urban Local Level Government (hereon WULLG) the sum of K1200.00 in cash. For these reasons I return a verdict of guilty on both counts.

Counts 14 & 15 – Payment of K2500 made to Tonny Emmanuel as accommodation rental.

49. The defendant offered no explanation of his involvement on these two counts. The State only relied on documentary evidence tendered into court by consent. This charge arose from a claim/invoice of K 2500 submitted on 9 September 2008 by a Thomas Emmanuel for services rendered to the accused in rental arrears. All finance documents appeared to be screened and approved for payment by the accused resulting in Cheque No. 658 for K2500 raised on 12 September 2008 in favour of Tonny Emmanuel.

50. On 28 October 2008 the accused raised a new set of claims for the same rental arrears under his own name and benefitted from a cheque payment (Chq No. 730) on 31 October 2008. By letter of 31 October 2008 addressed to the District Administrator he requested that the cheque raised in favour of Tonny Emmanuel be cancelled and a replacement cheque be raised. He however fell short of informing the District Administrator in his same letter that he was the beneficiary. The letter appeared to be a smoke screen as he had already been paid the sum of K2500 two days earlier. Based on the documentary evidence before me, especially the chronology of events as they unfolded leaves me with only one reasonable and logical inference, in that the accused falsified documents purporting to be those of Tony Emmanuel, succeeding in getting the cheque raised, had it cancelled and submitted new invoices under his name and was paid the K2500. The recipient Tonny Emmanuel was used as a smoke screen. Be that it may it is open to infer that he also benefitted from the proceeds of this crime. There is no evidence that Tony Emmanuel protested over the cancellation of cheque payments raised in his favour. Taking all of these factors into account I am satisfied that the accused by a false pretence and with intent obtained monies from WULLG and dishonestly applied them to his own use. For these reasons I return a verdict of guilty on Counts 14 and 15.

S.404. Obtaining goods or credit by false pretence or wilfully false promise.

(1) A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud—

(b) induces any other person to deliver to any person any chattel, money or valuable security,

(2) It is immaterial that the thing is obtained or its delivery is induced through the medium of a contract induced by the false pretence or the wilfully false promise, or partly by the false pretence and partly by the wilfully false promise, as the case may be.

(1) A person who dishonestly applies to his own use or to the use of another person—

(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,

(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:—

53. I find that there was no pressure or threats abound at the time, although you said there were some from local politicians, which may have forced your hand into doing what you did i.e. stole from WULLG. Furthermore you knew the consequences of your actions but continued on doing what you knew was wrong until your were found out and charged. Who knows? Had you not been caught in this dubious scheme you could have stolen huge amounts of money belonging to the people of Wewak Town? It follows in my view that you must be held accountable for the crime committed. There is ample credible evidence, both oral and documentary that supports courts findings that you are very learned and intelligent hence you would have appreciated the rights and wrongs of your actions at the time. I am therefore satisfied that you knew that what you were doing was dishonest (The State v Laumadava [1994] PNGLR 291 and Kindi Lawi v The State [1987] PNGLR 183).

54. Due to the foregoing reasons I confirm a verdict of guilty on all 7 Counts of false pretence. They include Counts 1, 4,6,8,10,12 and 15. Count No.2 is dismissed.

I also confirm verdicts of guilty on 7 Counts of misappropriation of various sums of money between the same period totalling K18,826.10 They include Counts 3,5,7,9,11,13 and 14.

55. Accordingly I convict you on each of the counts of false pretence contrary to Section 404 (1) (a) and misappropriation contrary to Section 383A (1) (2) of the Criminal Code Act as amended.

You are now a prisoner of the State and as such I order that your bail be revoked and you be placed in the custody of the State at the Boram CIS pending your sentence.

Orders accordingly
_______________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused

National Court of Papua New Guinea

State v Tobena [2014] PGNC 307; N5601 (12 May 2014)