The State v Fano Kuromu (1999) N1942

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 18 November 1999
• Court: National Court
• Judgement Number: N1942

National Court: Kirriwom J

Judgment Delivered: 18 November 1999

N1942

PAPUA NEW GUINEA

(In the National Court of Justice)

CR No. 884 of 1998

THE STATE

Against

FANO KUROMU

GOROKA: KIRRIWOM J

1999: 14 October & 18 November

CRIMINAL LAW – Sentence – Plea of guilty - Dishonestly applied cheque proceeds contrary to specific purpose for which received – Legal owner not suffered loss in strict sense – Third party victim beneficial owner - Incarceration wholly inappropriate - Restitutive justice paramount – Non custodial sentence – Probation order – Probation Act.

Prisoner pleaded guilty to one count of misappropriation of a cheque valued at K9,720 raised in his name but for someone else which he used for other purposes including on himself but had taken steps to pay money to whom it was intended.

Sentenced to two years imprisonment and ordered to serve the sentence on probation on condition that he makes full restitution within six months.

Detailed facts are in the judgment.

Papua New Guinea Cases cited:

Tom Amaiu v The State [1979] PNGLR 576

Brian Kindi Lawi v The State [1987] PNGLR 183

The State v Jack Oroko Tepol (Cr. No. 682/99 – Unreported Judgment – Oct. 99)

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

The State v Rapola (No.1) [1988-89] PNGLR 487

The State v Rapola (No.2) [1990] PNGLR 347

Counsels:

Mrs Christine Ashton-Lewis for the State

Mr Michael Apie’e for the Accused

18 November 1999

Kirriwom, J,: The accused appeared before me on 14/10/99 charged with one count of misappropriation or dishonestly applying to his own use a sum of K9,720, the property of Burns Philp Trading (PNG) Limited, trading as ELA MOTORS - Madang Branch. The offence was allegedly committed on or about 7th April 1997. The case was proceeded with by way of ex-officio indictment, power available to the Public Prosecutor under section 526 of the Criminal Code.

What was originally foreshadowed and scheduled to be a short trial turned out to be a plea, the accused opting to admit the charge on arraignment. In the event that this may have been the result of a misunderstanding I allowed defence counsel time to speak to his client. Upon resumption counsel advised that the plea was in order so I proceeded to read the depositions. I then administered the allocatus and the accused gave a long statement explaining what happened in this transaction. I will revert to that later in my judgment.

But the factual background of the case goes like this. The accused is a career policeman of fourteen years service in the Force, the last ten years with the Highway Patrol based in Henganoffi where he has been since.

In the course of his employment on the highway the accused was responsible for the recovery of a stolen motor vehicle a Toyota Hilux single cab, acting upon advice received from the Madang Police. The vehicle was sighted in the possession of one Benson Bire and seized and detained at the Henganoffi Police Station. Benson Bire was charged with being in possession of motor vehicle allegedly stolen. While this case was pending before the District Court in Kainantu the accused informed Ela Motors in Madang, the owner, of the recovery of the vehicle. They insisted on the return of the vehicle even before the case against Benson Bire was completed. He advised them to contact the Provincial Police Commander, as he had no power to accede to their request. And they did, so the vehicle was released on direction from Mr. Titus Pamben, the then Provincial Police Commander. Meanwhile the case against Benson Bire was dismissed when the prosecution failed to produce any evidence. Consequently the Court ordered the vehicle to be returned to Benson Bire. The Court order was served on the accused but the vehicle was gone. Consequently Benson Bire commenced civil action for the return of the vehicle or its monetary value against the accused and the State. This action was not defended and an award was made in favour of the Plaintiff Benson Bire for the sum of K9, 720.00. This order was served on the accused who contacted Ela Motors Madang and advised them of what had happened. But the vehicle had since been sold and the Manager, presumably out of sympathy for the accused who had helped recover the vehicle and accepting their responsibility for contributing to what had ultimately transpired whilst the said vehicle was subject to a continuing court hearing agreed to help him settle the judgment debt owing to Benson Bire.

On 6/3/97 the accused travelled to Madang and collected a cheque from Ela Motors for the sum of K9, 720.00 to settle the court order. The cheque was made out in his name and he opened an account with PNGBC under his own name to which he deposited that cheque. It was never disputed at the outset that the accused received the cheque from the Branch Manager of Ela Motors Madang. The cheque was made payable to him. Upon his return he opened an account with PNGBC and he deposited the cheque into that account. It is also not disputed that over a period of time he withdrew the monies in the account and used them as it suited him, including paying those informants who helped him with information to recover stolen cars. Amongst the beneficiaries were two policemen who accompanied him to Madang who received K300 each. He said he was under enormous pressure from the informants, who wanted payments for information given to him, which, according to the practice that existed he said, were satisfied from assistance given by private companies.

This is a clear case of breach of trust. The accused was trusted as a policeman and a law enforcer who was caught in a difficult situation by a civil debt and all because of Ela Motor’s fault. As the vehicle was not there and that it was the lack of cooperation from the witnesses from Ela Motors had resulted in the judgement against the accused, the cheque payment was made in sympathy to assist the accused to settle that debt. But once he got the cheque the accused had better ideas. The person who was actually deprived of the benefits accruing to him from this cheque was Benson Bire. Thus, if anyone had suffered any loss, it was not Burns Philip (PNG) Ltd trading as Ela Motors - Madang Branch but Benson Bire, the judgement creditor under a Court Order. However, this point is not relevant before me now because by opting to plead guilty the accused had waived his right to pursue his case on this defence except that he is entitled to raise this point as a mitigating factor in his favour. In sentencing the court allows some discount for plea of guilty particularly where the accused foregoes a technical defence he could legitimately raise but chose to plead guilty instead. In cases like this in my view the Court plays the balancing task in expressing an opinion as to whether the plea must remain as taken or it must be vacated so that the accused is given the opportunity to raise the defence properly in the trial. In a recent case of the State v Jack Oroko Tepol –Cr. No.682 of 1999, I vacated a plea of guilty to a charge of manslaughter under provocation because my subsequent reading of the depositions showed that the defence of aiding in self-defence was available and if successfully raised meant complete exculpation of the accused from the offence charged. While the Court must be impartial in its deliberations by not unduly descending into the arena it must also be seen to be doing justice to all who come before it. And in my view to afford a person a fair trial includes allowing him the chance to take advantage of the defence legitimately available that he may not be aware of or he may have over-looked. In that case the accused saw his wife about to be raped by the deceased and he saved his wife in the nick of time. The deceased who was under influence of drink assaulted the accused and there was a struggle when the accused stabbed the deceased who died later due to loss of blood and other complications. At the outset in that case the State conceded to provocation as defence and indicted the accused for killing on provocation, section 303. But there was also a defence under section 271 - aiding in self-defence - that could have been invoked, even in a charge of homicide under section 303, however, neither counsel had considered that. This is not one of those defences commonly raised in homicide or assault cases and this was the compelling ground for the Court to intervene in the case despite the fact that the accused was represented by counsel.

The accused in this case maintained throughout the conduct of the record of interview that ‘he was authorised by the Branch Manager - Ela Motors Madang to deposit the cheque into his own account and use it as he saw fit’. If the trial were run, this would have been the hotly contested issue because the accused maintained that Benson Bire was not the only one in his mind when he got the cheque, he also had his informants he felt...