State v Gem [2020] PGNC 390; N8679 (22 October 2020)

N8679

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 280 OF 2017

THE STATE

v

BENEDICT GEM

Waigani: Salika CJ
2018: 1^st, 2^nd & 3^rd August, 23^rd November
2020: 22^nd October

CRIMINAL LAW – Practice and Procedure – Sentence – Charge of Misappropriation – Sentences are increasing - Belawa Considerations still relevant today

Cases Cited:

Belawa v. The State (1988-1989) PNGLR 496
State v. Nancy Uviri (2008) N5468
State v. Israel Minimbi Unnumbered Decision (2020) CR (FC) 127 of 2018.

Counsel:

Ms. L. Jack, for the State
Mr J Kolowe, for the Accused

22^nd October, 2020

1. SALIKA CJ: INTRODUCTION: Benedict Gem was charged with one count of misappropriation of K350,000 pursuant to s.383A (1) (a) and (2) of the Criminal Code Act and convicted of the charge.

Facts

2. Benedict Gem is the owner and the Managing Director of Spring Real Estate, a real estate company.

3. Stanis Talu is the chairman of Petroleum Exploration Joint Venture company (PEJV).

4. Benedict Gem and Stanis Talu have known each other and have had previous business dealings since 2007 and 2008.

5. Stanis Talu was interested in buying some property in Port Moresby and spoke to Benedict Gem about it. Benedict Gem told Stanis Talu to deposit some money into Spring Real Estate bank account and that the company will buy the land for him.

6. Stanis deposited K250,000 into Spring Real Estate, ANZ bank account number 11602628. This is clearly shown in Exhibit “E” of the documents tendered into evidence. Benedict Gem did not dispute this. The money was deposited on 1^st December 2012.

7. Stanis Talu gave evidence of giving K100,000 to Benedict Gem as his commission or his payment for the work Spring Real Estate was to do to secure the property for him.

8. The position up to the date of submission on 9 October 2020 was that Stanis Talu remains landless.

9. At the time of submissions on sentence, Mr. Kolowe of counsel for the prisoner, Benedict Gem, from the bar informed the Court that Stanis Talu had moved onto the block of land given to him by Benedict Gem and that he was already on the land and that effectively the matter was settled. This story was given to me in the morning on 9 October 2020 and Mrs Lilly Jack of counsel for the State asked for an adjournment to 1.30pm because the documents relied on by Mr Kolowe relating to valuation of the land bought by Benedict Gem had been given to her in the Court room and she had no time to peruse them and to do a due diligence check of the prisoner’s story to his lawyer, Mr Kolowe. I adjourned the matter to 1.30pm.

10. At 1.30pm, Mrs Jack informed the Court that Mr Stanis Talu was in Court and I asked him to stand up and he did. Mrs Jack then informed the Court that Stanis Talu had never moved onto the land as claimed by Benedict Gem, and his lawyer, Mr Kolowe

11. It then dawned on me that Benedict Gem is prepared to lie all the way into prison.

Issue

12. The issue before the Court is to determine the appropriate sentence to impose on the prisoner.

The Law

13. The relevant provision of the law relating to the penalty in s.383A (1) (a) and (2) of the Criminal Code reads:

“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) ....

(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.”

14. In this case the value of the property dishonestly applied is more than K2,000.00 and so the prisoner is liable to imprisonment for up to 10 years. This is subject to s. 19 of the Criminal Code, which is that the Court has a discretion to impose a term of imprisonment for a term lesser than the maximum prescribed. Moreover, it is trite law that the maximum imprisonment terms are to be imposed where it is shown that a case is the worst of its type and that the maximum penalty is warranted and or that the person is a repeat offender.

Personal Particulars

15. Benedict Gem is now 48 years old. He was 43 years old when arrested on 19 July 2016. The offence was committed in 2012 when he was 38 years old. It has taken 8 years to put his case to rest.

16. The prisoner is married with children. He is a businessman in the real estate industry. He has a number of assets.

Mitigating factors

17. The prisoner’s mitigating factors are:

1. no prior conviction, thus a first-time offender
2. prisoner expressed remorse
   

Aggravating factors

18. Aggravating factors against the prisoner are:

1. a lot of money belonging to Stanis Talu is involved in the amount of K350,000;
2. while the prisoner expressed remorse and willingness to repay and holds himself out to be a man of substance, he has not repaid Talu and he is only paying lip service by making empty promises to repay;
3. the offence is a prevalent one;
4. the prisoner held money in trust from Talu but the trust was misplaced when he misused the money on himself;
5. the prisoner benefited from the deal by buying a piece of land under his own name.
   

The Belawa Considerations

19. The Supreme Court in Belawa v. The State (1988-1989) PNGLR 490 laid down the following consideration when considering an appropriate sentence. I believe the considerations are still relevant and applicable today as they were back then when an appropriate sentence in that case was being considered. Those considerations are:

1. the amount taken;
2. the quality and degree of trust reposed in the prison;

100. the period on which the fraud was perpetrated;

4. the use to which the property was put to;
5. the effect on the victim;
6. the effect on the public and public conference;
7. the effect on the prisoner himself;
8. restitution;
9. previous history.
   

The Application of the Considerations in this case

20. Applying the Belawa considerations in this case, the evidence shows the following:

1. Amount taken.
   

The person received K350,000 of Talu’s money.

2. The quality and degree of trust reposed on the person.
   

Talu gave K350,000 to the prisoner for the prisoner to buy Talu’s land or property for K250,000. Talu was a client of the prisoner. As his cost, Talu gave K100,000. Talu paid the prisoner for the prisoner to render his service for the benefit of Talu. Talu never benefited; instead the prisoner did. Heavy trust reposed on the prisoner; the prisoner misplaced the trust.

100. The period of time over which the offence was committed. The offence was committed in January 2012 and now its October 2020. The offence itself was committed between 26 January 2012 and 31 January 2012, a period of over 4 days. That is the period indicated on the indictment.
     

4. How the money was used.

The money was used to buy land but not in Talu’s name but in Benedict Gem’s name.

5. The effect on the victim.
   

Talu and his people and the landowner company of which he is the chairman has made a great financial loss.

6. The effect on the offender.
   

The prisoner, to me with respect, does not appear to consider his conduct in this case as wrong. He appears to think that what he did is perfectly alright and that he did nothing wrong. He is quite happy to conduct business as usual. I say those things because he produced a contract of sale, a residential lease agreement for a tenant to rent his property for K2,600 per month. He has not translated the income into repaying Talu either in part or instalments or in full. There is nothing to show for the rental income he says he is earning.

7. Has any restitution been made?
   

No.

Case Precedents

21. The following case precedents are referred to compare this case with:

1. Belawa v. The State (1988-1989) PNGLR 496?
   

The prisoner in that case misused a mere K1,900.00 and was sentenced to 2 years imprisonment. He appealed this decision, but the Supreme Court dismissed his appeal saying the imprisonment term was appropriate. The Supreme Court there suggested the following sentencing ranges for amounts stolen:

• K1.00 to K1,000.00 - no jail term to be imposed.
• K1,000 to K10,000.00 – two years imprisonment term be imposed.
• K10,000.00 to K40,000.00 - 2 to 3 years imprisonment to

be imposed.

• K40,000.00 to K100,000 - 3 to 5 years imprisonment to be imposed.
  

As can be seen above, and it is logical with respect, the higher the amount stolen, the higher the sentence or the penalty. If Belawa case is to be applied here, the sentence to impose would be from 5 years and more.

2. The State v. Nancy Uviri (2008) N5468 Cannings J
   

Nancy stole K536,134.00. She was sentenced to 7 years imprisonment. Cannings J suggested the following:

• K1.00 to K1,000.00 - a suspended sentence be imposed.
• K1,000 to K10,000.00 - 4 years be imposed.
• K10,000 to K40,000 - 4 to 6 years be imposed.
• K40,000 to K150,000 - 6 to 10 years be imposed.
  

If the Cannings J model is applied to this case, the prisoner will be looking at between 6 to 10 years imprisonment.

100. The State v. Israel Minimbi Unnumbered decision (2020) CR (FC) 127 of 2018. The prisoner stole K211,300.00. The money was given to him by Jacob Kundi for Israel Minimbi to buy gold. He did not buy gold but misused it. He was sentenced to 7 years.
     

22. The amount misused here is K350,000.00. The money was intended for the prisoner to buy land for Talu. He bought land for himself instead with that money. Talu entrusted the prisoner with his money. The prisoner’s business is in the real estate industry. He was entrusted by Talu, who engaged him as a professional real estate agent to do his job. Talu was the prisoner’s client. He received monies in trust to perform a duty, a duty he failed to perform. Breach of trust.

23. Considering all the circumstances of the case including no restitution to date, and that the prisoner has lied to this Court right to the time of the handing down of the sentence that the piece of land has been transferred and given to Talu and that Talu was now living on the land, speaks of a man who has no regard and respect for others and the law. I also consider that Belawa was decided 39 years ago. The trend now is to increase the sentence. In the end result, I sentence Benedict Gem to 7 years imprisonment in hard labour.
_________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused