The State v Christian Korei (2005) N2946

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 24 November 2005
• Citation: (2005) N2946
• Docket Number: CR 1069/2005
• Court: National Court
• Year: 2005
• Judgement Number: N2946

Full Title: CR 1069/2005; The State v Christian Korei (2005) N2946

National Court: Lay J

Judgment Delivered: 24 November 2005

N2946

PAPUA NEW GUINEA

NATIONAL COURT OF JUSTICE

CR1069/2005

STATE

and

CHRISTIAN KOREI

LORENGAU: LAY, J

2005: 9TH & 24TH November

CRIMINAL LAW-misappropriation-Criminal Code s383A(1)-K82,529.68-plea of guilty-first offender-donor funding-money for village classroom-restitution made of K65,000-ability to repay the balance-4 years IHL all suspended to enable repayment- recognizance to repay unrecovered balance of K17529 with interest within 1 year from sale of Port Moresby house.

Cases Cited

State v Tony Baik N1930; Wellington Belawa v. The State [1988-89] PNGLR 49; State v Tardew (1986) PNGLR 91; State v Bygonnes Tuse Nae (1996) N1474; The State v Vurmete (10/11/2000)N2008; The State v Benson Likius (8/3/2004) N2518.

Counsel

P Kaluwin

L. Siminji

LAY J: On a plea of guilty the Defendant was convicted of one count of misappropriation contrary to s383 of the Criminal Code.

The plea was entered after the following facts were put to the Defendant. On 14th July 2001 a cheque of K82,529.68 was deposited by international money transfer to the Defendant’s bank account. The money was sent by Mr. Peter Builder, a World War II veteran. The purpose was to build a double classroom at Ponam Island where the donor had spent time during the war. After receipt of the money the Defendant withdrew money from his account both at Lorengau and Port Moresby and applied those funds to his own use until the account was frozen by the bank. At the time of freezing of the account there was a balance of K51,493.46 remaining. The Defendant later withdrew the sum of K50,000 from the account and deposited it to the account of Ponam Primary School.

On his allocutus the Defendant said how sorry he was for the offence. He apologised to the people of Ponam for abusing their trust. He promised to pay back the money which he still owes.

Defence counsel submitted that the Defendant is 56 years old, married with 3 children, the youngest a son doing grade 11 at high school. The Defendant has 3 brothers and 2 sisters all adult and married. The Defendant is the first born. He is himself from Ponam Island. He attends the Catholic Church. He was educated to grade 10 in 1968. He joined the Electricity Commission and worked initially as an electrician. After 28 years service he was retrenched in 1997 having reached the post of divisional project manager. The Defendant was arrested on the present charge and released on K350 bail.

Counsel submitted in mitigation I should take into account:

· The guilty plea

· That the plea is consistent with the record of interview, a statutory declaration and newspaper articles containing confessions;

· The effect on the victim who has lost his name;

· Defendant is a first offender;

· Served the country for 28 years;

· Amounts paid back were K15,000 20/1/03 and K50,000 10/7/03;

· The balance of K50,000 was immediately transferred when the account was frozen;

· A balance of only K17,529.68 (“the principle”) is due to be paid;

· Defendant has a Port Moresby house valued at K120,000 from which he can repay the balance due.

It was conceded that the following were aggravating factors:

· The amount taken was substantial;

· The amount was taken in breach of trust;

· The trust was a serious one involving a donor, the Defendant’s own people and the future of their children;

· The period over which the offence was committed was lengthy;

· Some of the money was used on payment of land rent and other outgoings, repairs and maintenance for the Defendant’s Port Moresby residence;

· The school still needs the balance of the money to build the classroom.

Unfortunately the fraudulent theft and misappropriation of funds held in trust is a prevalent offence in this country as observed in State v Tony Baik N1930 (Injia J as he then was). Defence Counsel referred me to the Supreme Court decision of Wellington Belawa v. The State [1988-89] PNGLR 496 in which the Court said the following factors should be taken into account (from the head note):

“(1) the amount taken;

(2) the quality and degree of trust reposed in the offender including his rank;

(3) the period over which the fraud or the thefts have been perpetrated;

(4) the use to which the money or property dishonestly taken was put;

(5) the effect upon the victim;

(6) the impact of the offences on the public and public confidence;

(7) the effect on fellow-employees or partners;

(8) the effect on the offender himself;

(9) the offender’s own history;

(10) restitution; and

(11) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.”

In the State v Tardew (1986) PNGLR 91 (Kidu CJ, Bredmeyer & Barnett JJ), the Supreme Court said, the appropriate sentence, when there was repayment of the whole amount appropriated of K82,202.73, was five years. In that case Bredmeyer J at p.500 said that in respect of amounts involving between K40,000 — K150,000 a sentence of three to five years would be appropriate. In State v Bygonnes Tuse Nae (1996) N1474 (Sawong J) where there were 19 counts totaling over K103,000 an effective sentence of 4 years IHL was imposed. In The State v Vurmete (10/11/2000)N2008 (Gavera-Nanu J) K41,000 taken, none repaid, a sentence of 3 years 6 months imposed. In The State v Benson Likius (8/3/2004) N2518 (Lenalia J) a sum of K68,679 was misappropriated by a payroll clerk. There were assets from which substantial restitution could be made immediately. Sentence of 5 years IHL, 2 years suspended on probation and conditions of repayment. In State v Shirley Tainoli (24/11/2004) (Mogish J), unnumbered judgment, the offender had deposited a stolen cheque to the value of K185,000 into an account controlled by her and her husband. At time of sentence she had a 9 months old baby, the whole of the amount was recovered, she did not benefit from the fraud, there was no breach of trust and the offence was perpetrated only once. The offender was sentenced to 4 years light labour which was wholly suspended on probation conditions.

Pursuant to s19 of the Criminal Code the Court may suspend part of a period of imprisonment upon the defendant entering into a recognizance (s19(6)) in addition to any other punishment to which he is liable (s19(1)(d)(i) and the recognizance may order the defendant to comply with such other orders as the court in its discretion may impose (s19(1)(d)(ii). If the court is considering a period of suspended sentence for a person 19 years of age or greater, a pre sentence report should be obtained: Public Prosecutor v. Don Hale [1998] SC 564.

This Case

The Amount Taken

The amount taken is substantial. No doubt on Ponam Island it is an amount no individual could hope to possess or any community organization raise.

Nature of the Trust

In this case it appears from the depositions that the commission of the offence had its genesis much earlier than the receipt and deposit of the funds in the Defendant’s personal bank account. Mr Builder, the donor, had fulfilled a lifetime dream to re-visit the scene of his war-time experiences as an airforce pilot at Ponam, and the people of Ponam Island of whom he had found memories. He did so on a tour ship which called to Manus in mid 2000. On his visit he asked the people of Ponam to make a suggestion of something he could do for them. A committee was formed and the suggestion put forward of a double classroom and the cost was indicated. The Defendant put himself forward as intermediatary and was in correspondence with Mr. Builder. Thus he knew from that correspondence that the commitment to provide the money had been made and that it was being sent. He shared that information with no one. He kept it to himself.

When it came time to have the money directed to an account in Papua New Guinea the Defendant advised Mr. Builder to direct the money to the Defendant’s personal account. The Defendant knew that the school had its own account. When the funds arrived and were deposited to the Defendant’s personal account he kept that to himself also. It was not until some months had passed and there had been no acknowledgement of the receipt of the funds, that Mr. Builder started making enquiries through other sources. Eventually a ‘tok save’ went out on the radio. That was the first knowledge the people of Ponam had of the existence of the money. The Defendant says he kept quiet about the money because the issue of land for the classroom was not settled and the knowledge that there was money available would have made settling the land issue much more difficult. That is credible. Island dwellers in Manus do not have surplus land. Land is valuable and there is much pressure on it. Nevertheless, by keeping the information entirely to himself the Defendant placed himself in a position of absolute control over the money and in a position of maximum temptation.

The Defendant placed himself in the position of trustee for the school, the people of Ponam and especially the children now and in the future....