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State v Daniel [2022] PGNC 426; N9766 (17 June 2022)

N9766


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) 301, 302, 303 & 304 OF 2015


THE STATE


V


BOB DANIEL


Wewak: Miviri J
2022: 31st May, 17th June


CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation – trial – K 1, 141, 443. 39 – Applied to Own Use – Contract Agreement for K 223, 340. 70 paid in full – Additional Claims Submitted K 337, 916. 00 & K 803, 577. 39. 00 – Breaches of Public Finance Management Act 1995 as amended – No Tender – False Work Agreement – Payment In Breach of Law – Cheating Section 406 (1) (b) (ii) CCA x 2 Counts – Imprisonment not Exceeding 2 years – Concurrent Or Cumulative Sentence – Separate Offences – Totality Effect – PSR MAR Favourable – Whether Custodial Or Non-Custodial Sentence – Means To Repayment – Real Moneys Available – Impounded Two Vehicles valued at K 334, 000.00 – Change Registration Wewak General Hospital Board– Prevalent Offence – 8 years IHL suspended.

Fact
Accused lodged two additional claims K 337, 916.00 and K 803, 527. 39 which had false contract of Agreement specifying both sums. There was no variation in the original contract sum of K 223, 340. 70 that was paid. False certificate of completion were prepared beyond the authority of the certifying officer. Accused received a total sum of K 1, 141, 443. 39 that was deposited into his Company Account that he used.


Held
K 1, 141, 443. 39 used by the Accused.
Two Vehicles Impounded K 334, 000.00.
WS No 376 of 2017 Default Judgement
K 1, 946, 839. 80.
1-year IHL for Cheating cumulative to
7 years IHL for Misappropriation.
8 years IHL suspended on Condition within 18 months
to payback K 807, 443.39 plus interest at 8%
to Wewak General Hospital Board.
18months expiring on 17/08/2023.


Cases Cited:
Belawa v The State [1988-89] PNGLR 496
Gimble v The State [1988-89] PNGLR 271
State v Tiensten [2014] PGNC 224; N5563
Lawrence Simbe v The State [1994] PNGLR 38
Kumbamong v The State [2008] PGSC 51; SC1017
Acting Public Prosecutor v Haha [1981] PNGLR 205
State v Jimmy Kendi (No2) [2007] PGNC 32; N3131
State v Moripi [2017] PGNC 202; N6867
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85
State v Daniel Mapiria [2004] Cr 1118 of 2000
State v Haru [2014] PGNC 314; N5660
Public Prosecutor v Bruce Tardrew [1986] PNGLR 91
Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC564


Counsel:


F. K. Popeu, for the State
S. Parihau, for the Defendant

SENTENCE

17th June, 2022

  1. MIVIRI J: This is the sentence of Bob Daniel of Namuk Angoram East Sepik Province who was convicted with two counts of cheating and a count of misappropriation pursuant to the Criminal Code.
  2. The offence of cheating is set out under section 406 of the Criminal Code in the following terms:

“(1) A person who, by means of any fraudulent trick or device–

(a) obtains from any other person anything capable of being stolen; or
(b) induces any other person–

(i) to deliver to any person anything capable of being stolen; or
(ii) to pay or deliver to any person any money or goods, or any greater sum of money or greater quantity of goods than he would have paid or delivered but for the trick or device,

is guilty of a misdemeanour.


Penalty: Imprisonment for a term not exceeding two years”.


  1. Briefly the relevant facts in respect of the first conviction for cheating is that he between the 15th day of September 2014 and the 30th day of December 2014 in Wewak by fraudulent devise induced the East Sepik Provincial Treasury to pay a sum of K 337, 916. 00 to Pins Construction Limited.
  2. And in respect of the second conviction for the same offence is that he between the 15th day of September 2014 and the 22nd day of January 2015 in Wewak by fraudulent devise induced the East Sepik Provincial Treasury to pay a sum of K 803, 527. 39 to Pins Construction Limited.
  3. In simple language the prisoner nor his company Pins Construction Limited was entitled to either the K 337, 916. 00 and K 803, 527. 39 for any work, and that there was no work, nor work Agreement in respect of both amounts entered into with the Wewak General Hospital Board after due tender, and therefore he cheated when he made out invoices for these amounts and presented to the Hospital and Provincial Treasury for payment. They were not genuine invoices and he knew this at the time that he presented primarily to source and get these moneys. And he secured the payment in both cases to his Company Account Pins Construction Limited Westpac Account number 6000800434 held in the name of the company, whose sole signatory he was.
  4. In my view Cheating involves being dishonest, therefore K 337, 916. 00 and K 803, 527. 39 were not lawfully due to him, so the application of the case of Belawa v The State [1988-89] PNGLR 496 is relevant in the determination of his sentence for the offence of cheating, a maximum sentence of imprisonment not exceeding two years. Which like all criminal offences will not be automatically imposed. The facts and circumstances will have to warrant as setting it as the worst case of cheating to attract. And in my view one of the basis in arriving would be the sum attained as a result of the cheating, here the aggregate of both amounts is K1, 141,443.39. That is quite a large amount, but it will be also important to consider the role that the prisoner played to attain that money. If it was by his own conduct and devise that he used, he will be solely responsible in the sentence meted. But if he is assisted and relies on the role played by co accused to attain, what is achieved, then that will affect the penalty due.
  5. It is clear that he has not acted alone, but with the acquiescence of the officers within the Provincial Treasury Office. They are the delegated officers with the authority under the Public Finance Management Act 1995 as amended, to bring the claim into payment stages. So, he has benefited, but not without the part played out by the Finance and Treasury Officers. Had these officers checked out properly both payments, they would not have been made out to his company Pins Construction Limited. That is, if they too were honest in their duties, this offence would not have given the fruits to the prisoner. The checks and balances were by passed because of the part that was played out by these officers. So, the offence is not single handed attained by the defendant. And this will be reflected in the sentence upon him for the offences. In so making this determination, I am mindful of Gimble v The State [1988-89] PNGLR 271, that whether one is a watchman, or gunmen, or driver of getaway vehicle all are actively playing their parts to give effect to the successful execution of the crime. He played his part starting the process to attain with the false claims which were paid securing his convictions.
  6. When invited on allocutus he had the following to say; “I say sorry to East Sepik Province and the Provincial Administration. I say sorry to the East Sepik Wewak General Hospital. I say sorry to my family. I say sorry to Late Justice Kirriwom and he left 8 years for my case to come. Sorry for you to finish my case. I ask Court for mercy that I be given time but outside on Probation. I can repay back the money. Stadium Sir Hubert Murray and 3-mile hospital is also my work. Some work I carry out with Sepik Builders. Contracted to do Sepik Builders work. And also contracted to do NBC Building Maintenance Wewak. And NBC will give me another one in Vanimo. I want to stay and serve Papua New Guinea.”
  7. The case of Belawa (supra) is applicable here because it sets out in the case of misappropriation cases, a useful starting point in working out sentence due. And relevantly category four, it states where the amount misappropriated is between K40,000 and K150,000, three to five years imprisonment is appropriate. Obviously as seen by now Chief Justice Sir Gibbs Salika in State v Tiensten [2014] PGNC 224; N5563 (28 March 2014) it would not fit because the amount there was K10million. The Court determined its way to the Sentence using various judgements prior leading eventually to the sentence. It firmed that by reference to Lawrence Simbe v The State [1994] PNGLR 38 (2 March 1994) and Kumbamong v The State [2008] PGSC 51; SC1017 (29 September 2008) a trial Judge has very wide powers in the determination of a matter before it. And it is not necessarily governed nor demarcated by tariff and range, but that is not the end of the matter, because the latter are useful guides in arriving at a just and proportionate sentence in a particular case as the present.
  8. So, if I were to start with Tiensten (supra) the court imposed 9 years IHL ordering that 4 years of that sentence will be suspended if payment of K10, 000,000.00 was made within 4 years of date of sentence. The balance of 5 years will be served at the Bomana Jail. That would be the worst case of its kind and therefore warranting the near maximum. It is not the extreme here so that would not be warranted here. Given also that this is a case of two counts of Cheating, which in my view are not isolated from the count of misappropriation the third Count, convicted that he between the 08th day of January 2015 and the 22nd day of February 2015 in Wewak, dishonestly applied to his own use K 1, 141, 443. 39 moneys belonging to the Wewak General Hospital.
  9. Therefore, in my view there is no door that he has not entered, he is after all in the same room by the same door. It is therefore proper given to determine that the two counts of cheating will be served concurrently to each other. There will be one sentence for both. In this regard I take due account of Acting Public Prosecutor v Haha [1981] PNGLR 205 in particular the principles of cumulative and concurrent sentences. Both offences of cheating were committed at about the same period and have come one in the count of misappropriation which is the total figure attained of the individual cheating. In itself it is also part of the definition of being dishonest. Hence the one transaction accord which in my view is proportionate here given. I therefore apply it in the determination of an appropriate term for the counts of Cheating, both will be served concurrently.
  10. I am fortified to take this approach by a similar case as the present, State v Jimmy Kendi (No2) [2007] PGNC 32; N3131 (17 April 2007) where prisoner obtained K4, 298, 037.30, claiming that the State during the Bougainville crisis had unlawfully used his machines equipment of his company. He was helped by corrupt officers in the Department of Finance & Treasury and also Defence. He was found guilty of firstly of false pretence, and secondly of misappropriation of the amount set out above. He was sentenced to 4 years IHL for the first and 9 years IHL cumulative for the second. An effective term of 11 years IHL. Comparably the amount here is less than Kendi’s case which also has the conviction of misappropriation. And in similar vein is the case of State v Moripi [2017] PGNC 202; N6867 (31 July 2017). Sentences of Conspiracy to defraud and obtaining goods by false pretence were made concurrent.
  11. Because “Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative. When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total,” Kerua and Kerua, Public Prosecutor v [1985] PGSC 8; [1985] PNGLR 85 (1 April 1985).
  12. In the light of this, the sentences for the two counts of Cheating against the Prisoner will be concurrently served. They are part of the same transaction lumped out at the end with the Misappropriation. Effecting it is out of the same transaction. So, following Kerua and Kerua (supra) adopting affirming Acting Public Prosecutor v Haha, the sentence for the crime of cheating will be concurrently served. There will therefore be one sentence for both counts. And I determine this sentence to be 1-year IHL concurrent of both cheating conviction. And that 1 year will be served cumulatively with that of the misappropriation. And if the totality is excessive then it will be adjusted to give the proportionate term due the prisoner. Particularly taking account whether or not there is substance in the assertions that he makes of repayment of the K 1, 141, 443.39, the means to effectively pay that money off to the Wewak General Hospital Board and the State.
  13. It is my view that this is the proportionate sentence for both convictions because the offences breached another Act, the Public Finance Management Act. And he enticed public servants who were authorized officers under that Act to disregard its dictate and to go along with him to breach it. The effect is that public money that was intended for the maintenance and repair of the Boram General Hospital was misappropriated. It did not benefit the People of East Sepik Province through the East Sepik Provincial Health Authority. It drew down the quality of health services to the People of East Sepik Province. A trial has been run to attain and therefore the sentence of 1year imprisonment in hard labour concurrent for the offences of cheating is proportionate in the aggregate and I so impose that upon the prisoner Bob Daniel. And these are relevant consideration also in the determination of an appropriate sentence in the case of the third count of misappropriation. It being the total sum of the cheating in each case.
  14. Relevantly, I take account of the presentence and the means assessment reports that have been filed Friday 10th June 2022, to court to be considered in the determination of this sentence on cheating, and also that of the third and final count of misappropriation pursuant to section 383A of the Code. Submissions have been made by the parties for and against since Tuesday 14th June 2022. Notable from these materially, are that he is 57 years old, married with two wives. Originally from Namuk village, Chimbian area of the middle Sepik Local Level Government, Angoram District, East Sepik Province. He is resident at Kreer at the back of the Chambri Basket Camp opposite the Department of Works main office. And is the first born in a family of three boys and three girls. And all the family members are married and have their own families, some of whom are in the village whilst some here in Wewak. He is a married man with two wives. His first wife is from Goroka with whom he has two girls and three boys all grown up. The second wife Sandi Bob lives with him in Wewak. From that union he has a son who is presently attending Sogeri National High School in Central Province. He has three girls two of whom are in grade 8 at Mongnial Primary School and the last child is at Kreer SDA Elementary School at Kreer Compound. The wife informs that as a result of the Conviction published in the National Newspaper his children have been questioned about it. It is affecting the children’s education because they are not attending school as a result. This is the consequence of criminal actions that are imposed upon the family, here children through no fault of theirs. In some cases, seen here grave consequences in the destruction of livelihoods as a retaliation because of the criminal actions taken place. It is therefore immediate that cases brought are reasonably dealt with so that the hurt and harm is minimized when justice is served all. And primarily here the people of East Sepik Province by their Health Authority must recoup its money. Alternatively, if there is no means the prisoner should serve time in jail. Here taking account that he is 57 years old and sentence must fit that fact proportionately.
  15. Prisoner is educated to grade 10 at the Saint Xavier’s High School on Kairuru Island and did grade 11 and 12 through college of distant Education (FODE). He was accepted at Yonki Hydro training school where he attained two degrees, one in Building Engineering and one in civil engineering. He states that some of the biggest projects he contracts and completed worth millions of Kina included the construction of the Sir Hubert Murray Stadium at Konedobu in Port Moresby for the South Pacific games. And also, his company Pins Construction Limited was awarded contracts to build 17 training fields and also the 3-mile Swimming Pool and Aquatic Centre in Port Moresby. All these works were completed in 2016. But the PNG Sports Foundation did not pay his monies owed and so he took the matter to court, court papers he attaches showing that he has successfully got default orders in the sum of K 1, 946, 839.80 plus 8% interest against the PNG Sports Foundation. But the death of his Lawyer then, John Alman Lawyers has resulted in the case not progressing. Further he has two of his impounded Isuzu dump trucks now at the Boram hospital, both valued at K 167, 000.00 each hence the total value of K 334, 000.00 can be recovered from their sale. This is evidence of history of his unblemished record and service to Province, Nation, and People of Papua New Guinea, that must be given due consideration to arrive at a just and proportionate sentence for his case.
  16. Also, his company has been awarded a K5million worth of projects to do full maintenance and renovation work to the National Broadcasting Corporation (NBC) buildings in Wewak and Vanimo. And the project in Wewak is nearly completed and work would soon proceed to Vanimo. He may be awarded contract for the other parts of the country for NBC there.
  17. Here this is self-serving and ought to be corroborated by independent evidence. That is, there are contract papers or any other papers in evidence, verifying this fact that he has indeed secured a contract with the National Broadcasting Corporation which contract is valued at K5million. Some evidence of that contract either from the NBC Ministry, Board, and Management of that fact. That this contract will extend into Vanimo. And may extend into the other parts of the Contract. The effect without this verification is that, the force of this contention is not there to sway the sentence. He has been convicted of misappropriation, element of which is dishonest application. Importantly there must be independent source confirming the existence signing of that contract. If he has stated that he has finished with NBC Wewak certification of completion of that Contract. And new agreement for Works in Vanimo be tendered as proof of that fact. For all it is it is a mere assertion self-serving by a convicted prisoner of the State effectively trying to save his day out of jail.
  18. In respect of the vehicles, they are verified and are the subject of court proceedings evidenced by WS No 615 of 2015 Wewak General Hospital Board v Bob Daniel trading as Pins Construction (first Defendant) and Otto Ganai (second defendant) and Gary Gule (third defendant) and the Court Order that is on file ordered of the 15th May 2015 entered that same day. Impounding of both Isuzu trucks bearing the registration numbers LBN 693 and LBN 496 at the Wewak General Hospital pending the determination of this Court case. And assistance of Police to ensure compliance observance and injunction restraining sale of the vehicles. Also restraining the first defendant his servants or agents from carrying out any work at the hospital.
  19. Both vehicles were bought in the sum of K 167, 000.00 each giving the total sum of K334, 000.00 now physically by virtue of that Court order in the possession of the Wewak General Hospital Board. Effectively for all intent and purposes that is return of the money that was part of the proceeds cheated obtained and misappropriated, even before this proceeding in the possession of the Wewak General Hospital Board. And the State has applied that under section 623A Restitution of Property of the Criminal Code, both vehicles be restored to their owner in law the Wewak General Hospital Board. In my view in fulfilment of that section, there is a conviction against the prisoner on the subject, which clearly shows that it was purchased out of the proceeds of that money, the subject of the cheating and misappropriation convictions. By this section, they revert back to the Wewak General Hospital Board. Because in the civil proceedings, WS No 615 of 2015 and the Court Order that is on file ordered of the 15th May 2015, entered that same, there is no return date of that Court Order. It has been made permanent without settling the ownership to both vehicles. By the determination here, and the convictions means that ownership of the subject vehicles now rests in law with the Wewak General Hospital Board. And in this regard their registration papers be amended to read, bearing that they are now the property of the Wewak General Hospital Board. These are the two Isuzu trucks bearing the registration numbers LBN 693 and LBN 496 at the Wewak General Hospital.
  20. The effect of this determination is that K 334, 000.00 has been recouped back by the Wewak General Hospital Board. It means out of the misappropriated sum of K 1, 141, 443. 39 because this sum has now been recovered, that leaves the difference of K 807, 443.39 outstanding and yet to be recouped.
  21. In this regard the prisoner has produced Court Order in WS No. 376 of 2017 (CC1) in Pins Construction Limited v Justin Tkatchenko in his capacity as Minister for PNG Sports Foundation (first Defendant), and Peter Tsiamalili Jr in his capacity as Chief Executive Officer for PNG Sports Foundation (second defendant), and Micah James in is capacity as Director Corporate Services for PNG Sports Foundation (Third defendant), and the Independent State of Papua New Guinea (fourth defendant), order made of the 14th October 2020 entered 19th October 2020 default Judgment is entered against the Defendants for failure to file their Notice of intention to defend and defence. Outstanding owed by the defendants is the sum of K 1, 946, 839.80 plus interest on 8% per annum from the date when the cause of action arose to the time of settlement pursuant to section 1 (1) and (2) of the Judicial Proceedings (Interest on debts and Damages) Act 1962. Cost of the proceedings be paid by the Defendants. That order was ordered on the 14th October 2020. And it is signed by the Registrar of the Court. This is now June 2022. It means the prisoner has that money K 1, 946, 839.80 plus interest on 8% per annum out of that court order, which can be realized and settling the moneys that are owed of K 807, 443.39, in full with interest and the costs that are set out by the Chief Executive Officer of the hospital. It is by Court Order and is a matter of the prisoner following through and realizing it with the assistance of a lawyer. And which can effectively happen if he is allowed opportunity to do that. It is real opportunity to recoup that money back in full to the hospital. Because it is verified independently by the Court Order that has been issued by this Court. In itself it is proof in favour of prisoner that he has the means to pay off the remaining K 807, 443.39. And in my view that is sound basis upon which orders can be accommodated in the sentence passed to ensure it is recouped. The failure of which will land the prisoner back in jail on the suspended sentence due awaiting breach. Here importantly time within which to complete payment will be accorded upon which recovery is fulfilled failure will land the prisoner back in jail.
  22. This Court has made and followed that option in Belawa (supra), Tiensten (supra), and in State v Daniel Mapiria [2004] CR 1118 of 2000 9 years IHL imposed was wholly suspended for the misappropriation of K3.188 million from the State when prisoner counter signed 41 cheques payable in cash over 10 months applied to the benefit of Registrar of the Board Mr. Aisa. Prisoner was 54 years old in poor medical condition with three diseases likely to rise if not properly managed in prison so court imposed the term above with conditions including restitution to the state of K1 million within 18 months 5 years community service and good behaviour and 6 monthly probation report. Prisoner here is 57 years old therefore of advanced age, a relevant factor in proportioning sentence. It is notable that the presentence report recommends that he be placed on probation. He does not have any condition in health but has benefitted from the crime.
  23. In State v Haru [2014] PGNC 314; N5660 (20 February 2014) prisoner was found guilty of false pretence and misappropriation of land of a sports club sold to a third party. He offered restitution not done. He was sentenced to 8 years IHL for misappropriation of K2, 628, 825.18 of the Kone Tigers Rugby Football League Club, 4 years was to be suspended if he made full restitution. State v Jimmy Kendi (No2) (supra) ties that where the money is not recovered, or there is no prospect of recovery jail term is imposed. And that is emphasized by State v Moripi (supra)
  24. Here the means assessment report has firmed the basis for a non custodial term. Because what is asserted is independently verified as the truth. It can be the basis for the court to give the appropriate sentence. In Public Prosecutor v Bruce Tardrew [1986] PNGLR 91 the court had this to say in, "suspension of sentence pursuant to section 19 (6) of the criminal code is, or maybe appropriate in three broad categories. The categories are not exhaustive (1) where suspension will promote the personal deterrence, reformation, or rehabilitation of the offender; (2) Where suspension will promote the repayment or restitution of the Stolen money or goods; (3) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or health." Prisoner here has demonstrated by evidence, which I have set out above, that repayment will be secured if the sentence is suspended. Suspension of sentence is not an exercise of mercy but serving justice. In this regard there is independent evidence giving effect to that course. This is not a general assertion the proper basis demonstrated here. There is material upon which recovery of K 1, 141, 443. 39 will materialize back to the Wewak General Hospital Board and the State.
  25. In this regard I place no weight on the assertion by the Chief Executive Officer of the Wewak General Hospital. Because he is answerable to the Board who are answerable to the Ministry of Health. The views he expresses therefore to put the prisoner in jail are not of the Board who are at the pinnacle of administration in this matter. Their word will be seriously taken because the State is in serious need of financial resources to serve its people. Here the people of East Sepik Province must get that money because it was given by the Government and the State of Papua New Guinea for improvement of the health infrastructure here. Quality of health Services will be lifted. Therefore, I place no weight on the assertions of the Chief Executive Officer. He is for all intent and purpose answerable to the Board. And is not speaking their tongue here by the evidence set out above of the intent and the spirit of the Board.
  26. There is independent material depicting that prisoner is a mature person whose record shows unblemished conduct up to this offence. Which in my view would not have come complete with those officers in the Provincial Treasury and administration playing corrupt to the Public Finance Management Act. They are stewards who make the system of Government accounting work. If they are lax and stagnant, this is what happens. And the Prisoner is not to be squarely blamed. His success in the commission would have hit the brick wall if the officers of government in accounting dug in fortified by the Public Finance Management Act. Therefore reformation or rehabilitation material here is, in my view favourable to the prisoner by the presentence and means assessment report that evidence that what is projected by Acting Public Prosecutor v Don Hale [ 1998] PGSC 26; SC 564 (27 August 1998). Justice is served not on emotions but on the basis of the facts led not otherwise. The facts here sway that restitution can be attained and has been materially demonstrated here. It would be an error of law to act without, which is not the case here for the prisoner.
  27. Therefore, in respect of count number three on the indictment pursuant to section 383A misappropriation of the Criminal Code Daniel Bob of Namuk village, Chimbian Area Middle Sepik, Angoram District, East Sepik Province is sentenced to 7 years imprisonment in hard labour. But in the exercise of my discretion bearing in mind the aggregate of all that I have set out above, that sentence is wholly suspended for eighteen 18 months on a Probation Order on the following conditions:
  28. You will ensure compliance of all these orders forthwith, because 8 years IHL will be resurrected upon your breach after the lapse on 17th August 2023. Return the trust of this Court because this is your chance you will choose whether you stay out or return to Prison for 8 years IHL.

Ordered Accordingly

__________________________________________________________________

Public Prosecutor : Lawyer for the State

Julius Javapro Lawyers : Lawyer for the Defendant

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