The State v Isaiah Guda

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ
• Judgment Date: 15 April 2015
• Citation: (2015) N5955
• Court: National Court
• Year: 2015
• Judgement Number: N5955

Full : CR (FC) 47 OF 2014; The State v Isaiah Guda (2015) N5955

National Court: Salika, DCJ

Judgment Delivered: 15 April 2015

N5955

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 47 OF 2014

BETWEEN:

THE STATE

AND:

ISAIAH GUDA

Waigani: Salika, DCJ

2014: 20 November; 05 December

2015: 15 April

CRIMINAL LAW - PRACTICE AND PROCEDURE – Sentence – dishonesty offence – dishonestly applying property to his own use – s.383A of Criminal Code

PRACTICE and PROCEDURE – Sentence – Funds belonging to an Incorporated Land Group - Prisoner not an authorised person to withdraw monies belonging to the Land Group. Prisoner illegally withdrew K436,000 belonging to the Moga Incorporated Land Group.

Cases cited:

State v Mathew Kana CR No 843 of 2012

State v Ludwina Tokiapron (2005)

State v Niso (2005) N2930

State v Buygonnes Tuse Nae (1996) N1474

State v Pongowen Popei and Mark Regione CR 659 and 660 of 2012

Counsel:

Mr W Paka, for the State

Mr J Mesa, for the Defendant

15th April, 2014

1. SALIKA DCJ: Introduction: The prisoner in this matter pleaded guilty to one count of dishonestly applying to his own use and to the issue of Tony Dunstan and Karen Rema K436,000.00 the property of the Moga Incorporated Land Group.

2. The prisoner Isaiah Guda and another person namely Tony Dunstan on different occasions between the 1st day of July 2012 and the 31st day of August 2012 withdrew K436,000.00 from Moga Incorporated Land Goup’s (ILG) account held at Bank South Pacific (BSP). The prisoner and Tony Dunstan were assisted by their lawyer, Karen Rema of Pang Legal Services and the banks inhouse lawyer Robin Kawat to withdraw the monies from the Moga ILG account.

3. At the time of the commission of the offence, the prisoner was not the authorised person to withdraw any monies, dispose of or deal with the Moga ILG account however the prisoner applied to have another Moga Land Group recognised. This was to enable him and Tony Dunstan to access and withdraw monies. The prisoner and Tony Dunstan did this by falsely producing to the Bank South Pacific a Certificate of Recognition. This Certificate of Recognition recognised the prisoner as the Chairman of the ILG which therefore gave him the authority to withdraw the monies from the account. They then successfully withdrew monies from the account to a total of K436,000.00

4. During the commission of the offence, the Moga ILG account was frozen under a National Court Restraining Order. The order restrained any persons from withdrawing any monies or dealing with the account. The prisoner and his lawyer Karen Rema knew very well that there were Restraining Orders in place over that account because that same Restraining Order restrained the complainant as well as that of the prisoner. Despite that Restraining Order the prisoner and Tony Dunstan withdrew from the account. They also made a payment of K5,000.00 to their lawyer Karen Rema for her assistance.

5. Tony Dunstan, Karen Rema and Robin Kawat have never been charged over this incident because I think they bear some responsibility for this.

Issue

6. The prisoner pleaded guilty to the charge. The court now has to decide the appropriate sentence to impose on him.

7. Section 383A says:

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 is guilty of the crime of misappropriation of property.

(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:—

(a) where the offender is a director of a company and the property dishonestly applied is company property; or

(b) where the offender is an employee and the property dishonestly applied is the property of his employer; or

(c) where the property dishonestly applied was subject to a trust, direction or condition; or

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

(3) For the purposes of this section—

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and

(b) a person's application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property; and

(c) a person's application of property shall be taken not to be dishonest, except where the property came into his possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps; and

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender's application of the property, had control of it.

8. The maximum sentence is usually reserved for the worst type of misappropriation. In this case the maximum sentence the court may impose is 10 years imprisonment. The Supreme Court in Wellington Belawa v State (1988-89) PNGLR 496 determined that the higher the amount misappropriated the higher the sentence. That is a consideration the courts must take into account. I am also of the view that who one steals from should be another consideration. Another consideration is the level of sophistication that should be taken into account. These should in my respectful opinion be considered as aggravating factors that should be considered.

9. The Supreme Court in the Belawa case said:

(a) K1-00 to K1,000, a jail term should rarely be imposed.

(b) K1,000 – K10,000 a jail term of up to 2 years was appropriate.

(c) K10,000 – K40,000 a jail term of 3 – 5 years was appropriate.

(d) K40,000 to K150,000 a jail term of 3 – 5 years was appropriate.

The amount misappropriated in this case is K436,000. Under the Belawa formula the prisoner is looking at 5 to 7 years imprisonment.

Personal Particulars

10. The prisoner is a married man aged 54 years. He is from Mailu area in the Abau District of Central Province. He is now living at the ATS Oro Block in Port Moresby on the other side of the Jacksons International Airport. He has two brothers and 3 sisters still living. He and his wife have 4 children 3 sons and a daughter but one of the sons has died so he now has 2 sons and a daughter. He attained grade 8 level education at Kwikila High School in 1975.

11. The prisoner is currently unemployed and has no means of income except selling lollies and biscuits at the road side. He makes about K30 to K50 per day and at weekends about K90-00.

12. The prisoner has no major health issues except that he says he suffers from a Post Traumatic Stress Disorder after he was attacked by a person who hit him with a stone on his head which is unrelated to this case.

13. The prisoner has no prior conviction. He however is not in any position to repay the money. He pleaded guilty to the charge and co-operated with the police.

Aggravating Factors

14. He is an educated person of Grade 8 and breached the trust of his people. Further he was a key player in the fraud. He pretended all along as if he was a genuine landowner when in fact he was not. The accounts of the Land Group were frozen by the National Court and the prisoner, Tony Dunstan, Karen Rema and Robin Kawat assisted to withdraw the money. The prisoner took the risk when he agreed to present himself as the authorised person so that the fraud could be successfully completed.

15. This offence was perpetrated over a period of two months that is between 1st July and 31st August 2012. He and his accomplices carefully planned how the crime would be committed and succeeded in their deceitful ploy. In his Record of Interview he said he gave K5000 to his lawyer Karen Rema as appreciation gift. He did not say how much he gave to his other accomplices, Tony Dunstan and Robin Kawat. In passing I say the police should now hunt Tony Dunstan, Karen Rema and Robin Kawat and have them charged relating to this matter.

16. As to what the prisoner did with the money there is no evidence and he does not say how or where he spent the money or where the money is now. But on all counts it appears that all has been used. It is obvious though that the Moga Land Group and the clan members never saw this money. The prisoner and Tony Dunnstan withdrew large amounts of money and of that K5000 was paid to their lawyer Karen Rema for her assistance or in appreciation for her help and K5000 to BSP’s lawyer Robin Kawat for arranging the uplift of the freeze. Again I make the call for police to hunt down these other players in perpetrating their crime. How was Karen Rema paid for her services as a lawyer quite apart from the gift of K5,000.00. Could Karen Rema have been paid from that K436,000 for her...