State v Hulape (No 2) [2017] PGNC 387; N7173 (24 November 2017)

N7173

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 88 OF 2014

THE STATE

V

CHRISTOPHER HULAPE
(No 2)

Waigani: Koeget, J
2017: 24^th November.

CRIMINAL LAW – sentencing – prisoner convicted after trial – prisoner convicted on charges of false pretence and misappropriation – prisoner convicted while serving suspended sentence of earlier crime – prisoner planned for and executed second offence - aggravating factor – no mitigating factors – prisoner sentenced to 5 years each in hard labour for both counts to be served concurrently - current sentence to be served cumulatively to the sentence passed in the first offence - 404 (1)(a) and s383A (i) of Criminal Code Act

FACTS

The Eopi Cooperative Society Ltd was incorporated on 12^th September 2008 and its objectives was to develop fisheries sector for Vailala Hiloi village in the Ihu Sub District of the Gulf Province.

The financial members of the Cooperative Society Ltd belong to the Eopi clan ILG and the prisoner was the Chairman with six other members of the Society.

The Eopi clan ILG was the customary landowner (of coast line), water ways and land where the fishing project was to be established and the society conducts its business.

A bank account was opened at ANZ Bank, Jacksons Airport Branch bearing account number: 13862277 with initial deposit of K5,100.00. The signatories to the account were the prisoner, William H. Kapekoro, David S. K. Hulape.

An application for financial assistance was submitted to the Department of National Planning and Monitoring on 23^rd of February, 2011. The application was approved and the State drew a cheque in the name of Eopi Cooperative Society Ltd in the sum of K1.5 million. The prisoner deposited Bank of Papua New Guinea cheque No. 000043 dated 1^st March, 2011 for K1.5 million drawn on the account of Department of National Planning and Monitoring into the Cooperative Society’s account.

The State alleged that between 29^th July and 24^th October, 2011, monies were drawn and applied to the use of the prisoner.

On 22^nd February 2012, Police investigation confirmed no project was initiated at the proposed site.

SENTENCE

24^th November, 2017

1. KOEGET, J.The prisoner is charged with one count of False Pretence under section 404 (1)(a) of the Criminal Code Act. He is also charged with one count of Misappropriation under section 383A (i)(a) of the Criminal Code Act.
   

ISSUES

2. The prisoner was convicted on both counts after a trial and the issue for the Court’s determination is what is the appropriate sentence the Court should impose upon the prisoner and whether sentences should be served concurrently or cumulatively.
   

PERSONAL PARTICULARS

3. The prisoner is 40 years of age and comes from Vailala Hiloi village in the Ihu subdistrict of the Gulf Province. He is married and resides with his wife and children at their family residence located at Section 317, Allotment 50, Waki Place, Gerehu Stage 6 in the National Capital District.
   
4. The prisoner was engaged as Ministerial staff with Department of National Planning and Monitoring and resigned prior to the commission of the offences for which he has been convicted by the court.
   

AGGRAVATING FACTORS

5. The prisoner was convicted with his wife previously by the National Court for similar offence in early 2017 and he is on suspended sentence. This is his second conviction by the National Court for similar offence. The commission of the offences were planned by the prisoner.
   
6. The prisoner pleads for leniency of court when imposing sentence. He requires approximately 3 years to raise funds to repay the sum misappropriated.
   
7. The prisoner has proposals of how the monies can be earned to repay the sum of K1.5 million but no certainty whether the proposals are viable.
   

SENTENCE

8. The prisoner is on suspended sentence because he was allowed by the National Court to complete the projects in the Milne Bay Province.

There is no report on the status of those projects to date. In this case the prisoner is expecting the court to accord him the similar treatment.

9. I am not convinced that the prisoner will repay the sum misappropriated within 3 years because he gave no explanations of what happened to the proceeds of K500,000.00 part of K1.5 million invested with National Development Bank.
   
10. The Society invested K200,000.00 in the construction of duplexes at Kokopo in the East New Britain Province. He has not provided any explanations on whether the duplexes are completed and rented out, and who benefits from proceeds of the rentals.
    
11. The prisoner made large deposits of monies into the accounts of which he is the Director and his wife the shareholder of Mettle Ltd and Torch Bearer Ltd. If monies refunded to the Eopi Cooperative Society Ltd by Mettle Ltd and Torch Bearer Ltd, then where are the monies now? There are no monies in the account of Eopi Cooperative Society Ltd.
    
12. The prisoner is sentenced to 5 years in hard labour on the first count and he is sentenced to 5 years in hard labour on the second count.
    

ORDERS

13. The Orders of the Court are:
    
    • (1) The second sentence is to be served concurrently upon the first sentence.
    • (2) These sentences are to be served cumulatively upon the previous sentence imposed by the National Court in Milne Bay Province in 2017.
      

Ordered accordingly.
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Public Prosecutor: Lawyer for the Defence
Bigisegi Legal Services: Lawyers for the State