The State v Bygonnes Tuse Nae (1996) N1474

• Jurisdiction: Papua New Guinea
• Judge: Sawong J
• Judgment Date: 18 September 1996
• Citation: (1996) N1474
• Court: National Court
• Year: 1996
• Judgement Number: N1474

Full Title: The State v Bygonnes Tuse Nae (1996) N1474

National Court: Sawong J

Judgment Delivered: 18 September 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1217 OF 1995

THE STATE

V

BYGONNES TUSE NAE

Goroka

Sawong J

10 September 1996

18 September 1996

CRIMINAL LAW — Sentence — Plea of Guilty — 19 counts of misappropriation — Misappropriation — Total Amount misappropriated K103,587.71 — Restitution Orders — Considered not appropriate — Sentence — Custodial sentence appropriate.

The accused a 32 year old father of 3 children with ages ranging from 2 — 7 years pleaded guilty to 19 counts of dishonestly applying to his own use the total sum of K103,587.71, the property of several individuals. The accused started a scheme known as the Eastern Highlands Rural Housing Scheme Incorporated (ENRHS INC) and he invited members of the public to become members and pay as membership fees amounts ranging from K50.00 to K200.00. Any of those members requiring a house to be built were then required to pay a further sum of K1500.00 as a deposit. Any person who was not a member was required to pay a deposit of K3500.00 for basic houses to be built. The accused misappropriated the monies over a period of 18 months.

Held

(1) The offences are serious and prevalent offences that an immediate punitive and deterrent custodial sentences was appropriate.

(2) The sentence of 4 years imprisonment should be imposed, and that no part of the sentence be suspended.

(3) A restitution order should only be made where there is no doubt, on the evidence to which the sentence may have regard for the purpose, of the rights of the respective parties.

(4) Proper evidence must be called to establish ownership and status of properties, before the Court should be invited to make restitution orders.

The accused pleaded guilty to 19 counts of misappropriation and the following reasons were delivered on sentence.

Cases Cited

Wellington Belewa v The State [1988 -89] PNGLR 496

Counsel

Mrs C Ashton-Lewis for the State

Mr D Umba for the Accused

DECISION ON SENTENCE

18 September 1996

SAWONG J: You have pleaded guilty to 19 counts that between 19 January 1993 and 2 August 1994 you dishonestly applied to your own use the total sum K103,587.71 the property of various individuals and the Eastern Highlands Rural Housing Scheme Inc. The charges were laid pursuant S. 383 A (1) (a), (2) (d), of the Criminal Code Act Chapter No 262.

These are serious offences and you could be jailed for up to 10 years imprisonment.

The facts of the case are set out in the various witnesses statements, your records of interviews with the police and other documentary evidence which are all contained in the court depositions. The witnesses statements and the other evidence reveal the following:

In early 1993 you started a scheme called the Eastern Highlands Rural Housing Scheme (hearing after referred to as 'EHRHS'). n or about the 3rd September 1993 you incorporated that organisation which became known as the Eastern Highlands Rural Housing Scheme Incorporated (hearin after called 'EHRHS Inc'). You were the Managing Director of that organisation. The evidence shows that you even proceeded to and publicised the scheme as providing low cost permanent housing for Papua New Guineans. You invited members of the public to become members of the group, and subsequently you set up an office and employed staff. The basis of the scheme was that interested members of the public who were interested in participating the scheme, should pay a membership fee ranging from K50.00 to K200.00 to become members or member of that organisation. Any of those members requiring a house to be built were then required to pay a further sum of between K1500.00 as a deposit towards the full cost of a house.. Any non memberwho wishes to have his or her house built was to pay the sum of K3,500.00 as deposit for the house. The deposits were for the basic house to be built. Included in the scheme was that there were several plans for several different type of houses whose costs ranged from K37,00.00 to K45,000.00. In some cases furniture packages were available and were to be included. Once a member or a non member paid the required deposit, you undertook to have a house of their own choice built at an area chosen by that particular person. The repayment rate was K10.00 per month for members and K20.00 per months for non members. The scheme you had put into place meant that without interest it will take 21 years to pay off a cost of the basic house but with interest at 10% it would never have been possible for anyone to repay the cost of the house at the rate of K10.00 or K20.00 per month.

As a consequence of this scheme being introduced and put into place by you, a large number of people from all walks of life in the Eastern Highlands Province participated in the scheme. Between 19 of January 1993 and the 2 August 1994 these people deposited certain amounts into the scheme to become members of ENRHS Inc. Furthermore, the evidence shows that once they become 'members', they were then enticed to pay further moneys as deposits towards the cost of a house.

The evidence shows that subsequently you built a house at Seigu with a view to encourage further people to take part in the scheme. Apart from that house no other houses were built for those people who have deposited their monies. During 1994 some of the people who had deposited with you became suspicious as no houses had been built. When they made enquires with your office staff your office informed them that either you were not available or that there were no funds to repay their membership fees or their deposits. Those facts give rise to counts 1 to 6 inclusive, 8 & 9 & 11 to19 inclusive.

During the same period, and using same scheme you convinced one Steven Upayaka to withdraw K10,000.00 from his savings account (pass book) and deposited in and interest bearing deposits (IBD) with Credit Corporation in Port Moresby. You told Steven Upayaka that you would help him buy a dump truck if deposited those monies and you would give him a contract work for the truck to transport timber for the building of the houses that you said you were going to construct. The evidence shows that after the money was withdrawn you and Steven Upayaka went to Port Moresby, where your nephew headed the IBD Section at Credit Corporation. The evidence shows that the money was then deposited in an Interest Bearing Deposit and on the 13 July 1994 you went and withdrew the money yourself with interest totalling K10,077.90. You then dishonestly used that money for your own purposes. Those facts form the basis for count number 7.

In relation to count number 10 the evidence shows that you convinced one Newton Seine to give you his National Provident Fund Housing advance cheque totalling K1805.95. After he gave you the cheque, you dishonestly used it for your own purposes. This also occurred between 19 January 1993 and 2 August 1994.

The basis for count 11, is that the accused misappropriated the sum of K56,575.00 being membership fees, members of the public had paid to become members of EHRS Inc. The evidence shows that between 19 January 1993 and 2 August 1994 the accused misappropriated K56,575.00.

The evidence shows that the total amount misappropriated by the accused on the relevant dates was K103,587.71.

After hearing yourself when I administered the allocatus to you and listening to what your lawyer said on your behalf, I adjourned sentencing you to consider those submissions.

This case has caused me considerable concern because of the large amount of money that was misappropriated and that the crimes were committed over a long period of time.

I note what you have said in your allocatus. Your have expressed remorse for your conduct and you have told me that this was your first time to appear before the National Court or for that matter any other court.

I accept in your favour your counsel's submissions that you have pleaded guilty to all 19 counts. Your guilty pleas is consistent with your admissions you made to the police during the investigations. In those circumstances I consider that your plea of guilty on all 19 counts is a genuine plea. I further accept in your favour that you are a first offender. For the past 32 years you have been a man of good character. But your prior good character looses its significance because of the seriousness of the offence or offences for which you have been convicted and which you committed.

I take note of your own person antecedents and...