The State v Joesph Ande

• Jurisdiction: Papua New Guinea
• Judge: Waigani: Miviri, AJ
• Judgment Date: 29 October 2018
• Citation: (2018) N7536
• Court: National Court
• Year: 2018
• Judgement Number: N7536

Full : CR No. 83 OF 2018; The State v Joesph Ande (2018) N7536

National Court: Waigani: Miviri, AJ

Judgment Delivered: 29 October 2018

N7536

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 83 OF 2018

THE STATE

V

JOESPH ANDE

Waigani: Miviri, AJ

2018: 29th October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation s383A CCA – Trial – intricate scheme to steal– repeated acts of dishonesty – repeated acts of application to own use – first sum K41, 000– second sum K20, 000 – third sum K121, 000 – guilty of personation – guilty of misappropriation x2– guilty of attempted misappropriation– prevalent and serious offence– deterrent & punitive sentence.

Facts

The accused falsely represented himself to be one Thomas Martin with intent to defraud Westpac Bank. He deposited two PNG Electoral Commission cheques for the sum of K 41, 000 and K 20, 000 into this account and made withdrawals therefrom. Then He opened an unlimited account also in that name and deposited a cheque of K 121, 000 from the electoral Commission of Papua New Guinea. But attempts to withdraw funds were unsuccessful. The bank discovered his false identity and referred him to Police where he was charged with the offence.

Held

Trial

Large sum of money of State

Scheme well thought out to steal

Successfully discharged to steal two times

Caught third time and convicted.

PSR and MAR indicates no means to repay

Prevalent offence

Strong deterrent and punitive sentence

Cases Cited:

Public Prosecutor v Kerua [1985] PNGLR 85

The State v Mase [1991] PNGLR 88

Tiensten v Independent State of Papua New Guinea [2014] PGSC 74; SC1468

The State v Yaip Avini [1997] PNGLR 212

The State v Wellington Balewa [1988-89] PNGLR.496

The State v Simbe [1994] PNGLR 38

Thress Kumbamong v The State (2008) SC1017

The State v Eric Emmanuel Vele [2002] PGNC 93; N2252

The State v Zuvani [2004] PGNC 127; N2641

Tiensten v Independent State of Papua New Guinea [2014] PGSC 74; SC1468

The State v Yaip Avini [1997] PNGLR 212

The State v Mose [2018] PGNC 317; N7388

Public Prosecutor v Tardrew, [1986] PNGLR 91

Counsel:

W. Malo, for the State

W. Dickson & I. Paileae, for the Defendant

SENTENCE

30th October, 2018

1. MIVIRI AJ: This is the sentence upon Joseph Ande, a man with multiple identities who opened an account with a commercial bank and deposited two PNG Electoral Commission cheques. He withdrew and used the proceeds. Then proceeded to deposit a third cheque but did not use the proceeds because he was discovered before he could use it.

Short Facts

2. Prisoner with intent to defraud represented by false drivers licence that he was Thomas Martin opened an account in that name account number 6004731035 with Westpac Bank Limited a choice basic account between the 1st June, 2015 to the 7th January, 2017. He impersonated Thomas Martin a deceased person to pose to collect and then purposely to deposit PNG Electoral Commission cheques for services that was rendered by a Thomas Martin since deceased. Between the 25th June, 2015 and the 20th July, 2015 accused deposited a Bank of Papua New Guinea cheque number 107040 in the sum of K 41, 000.00 the property of the Electoral Commission of Papua New Guinea into this account and dishonestly applied to his own use.

3. And on the 24th December, 2015 accused deposited a second Bank of Papua New Guinea cheque Number 004679 in the sum of K 20,000.00 drawn by the PNG Electoral Commission made payable to Thomas Martin into the same Westpac bank account Thomas Martin account number 6004731035. And between the 24th December, 2015 and the 4th February, 2016 the accused dishonestly applied to his own use this K 20, 000.00 the property of the Electoral Commission of Papua New Guinea.

4. And again accused went to Westpac Bank and deposited cheque number 004679 drawn from the PNG Electoral Commission in the sum of K 121, 000.00 into the account Thomas Martin account number 6004731035 between the 1st December 2016 and the 7th January 2017 and attempted to dishonestly apply the proceeds to his own use the property of the Papua New Guinea Electoral Commission.

Charges

5. He was convicted firstly pursuant to Section 488 (1) Personation, "A person who, with intent to defraud any person, falsely represents himself to be some other person living or dead, is guilty of offence that, unless otherwise stated, is a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

(2)..................."

6. And then secondly pursuant to Section 383A,

"“(1) A person who dishonestly applies to his own use or to the use of another person –

(a) Property belonging to another; or

(b) Property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

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 five years except in any of the following cases when he is liable to imprisonment for ten years-

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

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

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

(d) where the property dishonestly applied is of a value of K2000 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;

(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 thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into 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;

(d) persons to whom property belongs to 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. “

7. And then lastly pursuant to section 4 (1) (a) and (b), "When a person, intending to commit an offence-

(a) begins to put his intentions into execution by means adapted to its fulfilment, and

(b) manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence he is said to attempt to commit the offence.

Concurrent and cumulative sentence

8. There were four convictions each with their respective sentences following. Personating in my view was part of the component or make up of the charge of dishonest application of money as here to the prisoner. It was a separate charge of its own but for purposes of sentencing it was closely related to dishonesty in the makeup misappropriation. It was integral to there being dishonesty by the prisoner pretending to be that person Thomas Martin falsely and to get the cheques there from, Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 where the Supreme Court made the following in deciding whether sentences should be cumulative or concurrent the court should be guided by the following principles;

(i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent;

(ii) Where the offences are different in character, or in relation to different victims the sentences should normally be cumulative;

(iii) When a court has arrived at an appropriate sentence and decided the total sentence to see if it is just and appropriate. If it is not it must vary one or more of the sentences to get a just total.

9. That is applicable given the facts of the present and would be the basis as to whether the sentences imposed here are cumulative or current. It is clear by the law set out above the sentence of personating will not be cumulative to all misappropriation convictions sustained 2, 3, and the attempted misappropriation.

10. In my view they are also given the law set out above closely related against the same victim the Papua New Guinea Electoral Commission against the same source of funding and the State. It is a single course of transaction but picked out and executed to avoid detection at different dates and times. To strictly go by the definition that they are so and therefore cumulative will be disproportionate considering the principles of totality and therefore given an aggregate disproportionate and crushing upon the prisoner in view of his age, personal particulars and circumstances.

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