The State v Lukeson Olewale (2004) N2758

• Jurisdiction: Papua New Guinea
• Judge: David AJ
• Judgment Date: 29 October 2004
• Citation: (2004) N2758
• Court: National Court
• Year: 2004
• Judgement Number: N2758

Full Title: The State v Lukeson Olewale (2004) N2758

National Court: David AJ

Judgment Delivered: 29 October 2004

N2758

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

AT WAIGANI

CR NO. 1481 OF 2002

BETWEEN

THE STATE

AND:

LUKESON OLEWALE

Prisoner

DECISION ON SENTENCE

WAIGANI : DAVID, A.J.

2004 : 9th, 23rd September,

28th, 29th October,

CRIMINAL LAW - Sentencing – uttering a cheque and misappropriation – amount misappropriated K40,000.00 – Means Assessment Report shows that prisoner has no immediate means to restitute – family willing to assist prisoner to restitute – Three (3) years imprisonment in hard labour for uttering – Four (4) years imprisonment in hard labour for misappropriation – sentences to be served concurrently - SS.462(3)(h), 463(2) and 383A(1) Criminal Code.

Cases cited:

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

The State v. Louise Paraka (2002) N2317

The State v. Paroa Kaia (1995) N1401

Counsels

Mr L. Tabi for the State

Mr D. Kapi for the Accused

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DAVID, A.J.: The prisoner pleaded guilty to one (1) count of uttering a cheque and one (1) count of misappropriation contrary to Sections 463(2) and 383A(1) of the Criminal Code. The brief facts presented by the State were that the prisoner uttered a cheque for K40,000.00 against the account of Fly River Provincial Government operated at Papua New Guinea Banking Corporation, Port Moresby Branch (“the bank”) and was deposited into the prisoner’s personal account which was also operated at the bank. An amount of K38,000.00 was withdrawn immediately after the cheque was cleared, but the State conceded that the prisoner only applied to his own use K12,000.00 the property of Fly River Provincial Government and the balance was distributed to the prisoner’s other conspirators and others. The prisoner pleaded guilty to the two (2) charges on those basis.

Evidence

The prisoner at the material time was a Revenue Officer employed in the Revenue Section of the Fly River Provincial Government, Daru and the Acting Executive Officer to the Liquor Licensing Board.

On 19th June 2001 the prisoner instructed a Ms Marian Kila, a typist employed in the Education Office, Daru to type the prisoner’s name and the figure K40,000.00 on the said cheque. The cheque was already signed, which was forged, and only required the name of the payee and the amount to be typed in when it was given to Ms Kila. Ms Kila did as she was instructed and gave the said cheque back to the prisoner who travelled to Port Moresby thereafter.

On 4th July 2001 at Port Moresby, the prisoner presented cheque number 018350 dated 19th June 2001 made payable to himself for K40,000.00 at the bank. The cheque was drawn against account No.294 006 270140 operated by the Fly River Provincial Government at that bank and was obtained

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fraudulently. The prisoner conspired with others including a Bank Manager of the bank who allowed the fraudulent cheque to be deposited into the prisoners

personal account No. 294-63331698 operated at the bank and arranged for its clearance although a stop-payment notice was given to the bank by the Fly River Provincial Government. The prisoner immediately withdrew K38,000.00, shared the money with the other conspirators and others leaving a balance of K2,000.00 in his account. The prisoner applied to his own use K12,000.00 when he knew that the monies were obtained by fraudulent means.

Allocatus

When allocatus was administered, the prisoner expressed remorse, that he committed the crime to pay medical expenses for his wife, that he requested leniency and a non-custodial sentence which would enable him to arrange funds to restitute, that his father was very old and sick who wanted to see him before anything happened, his son was out of school since 2001 because of his predicament, that he was the only breadwinner and his family would struggle if he were incarcerated.

The Law

Uttering

Section 463(2) of the Criminal Code creates the offence. Section 462 of the Criminal Code prescribes the penalties to be applied in various categories of uttering offences (same punishment as for forgery). The prisoner pleaded guilty to uttering a cheque alluded to above and I need not repeat the details again. Section 463(2) of the Criminal Code reads:-

“A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and

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is liable to the same punishment as if he had forged the thing in question”

Section 462(3)(h) of the Criminal Code covers cheques: see The State v. Louise Paraka (2002) N2317. That provision reads:-

“a bank note, bill of exchange or promissory note, or an acceptance, endorsement, or assignment of a bank note, bill of exchange or promissory note”

The prescribed penalty is imprisonment for a term not exceeding fourteen (14) years.

In The State v. Louise Paraka (supra) Justice Kandakasi stated that the sentencing guidelines in Wellington Belawa v. The State (1988-89) PNGLR 496 could also apply to forgery cases (which also includes uttering) with necessary modifications as an element of dishonesty is involved in all such cases.

Mr Kapi of counsel for the prisoner has not made any submission on this aspect. Mr Tabi of counsel for the State submits that a one (1) year goal term is appropriate.

Misappropriation:

Section 383A(1)(a) of the Criminal Code creates the offence and prescribes the penalty which I set out as follows:-

“383A 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; or

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(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 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;

(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 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; ……….”

The prescribed maximum sentence that can be imposed for the offence of misappropriation is imprisonment for ten (10) years. The case of Wellington Belawa v. The State (supra), although outdated, sets out the sentencing guidelines for misappropriation cases. That case sets out the following factors that may be taken into account when determining what penalty to impose on an offender and these are:-

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1. the amount taken;

2. the degree of trust reposed in the offender;

3. the period over which the offence was perpetrated;

4. the use to which the money was put to;

5. the effect upon the victim;

6. the effect upon the offender himself;

7. restitution.

In Wellington Belawa v. The State (supra), it also recommended a scale of sentences to be adjusted upward or downward depending on the various factors mentioned above and these are, where the amount misappropriated is :-

1. between K1.00 and K1,000.00, a goal term should rarely be imposed;

2. between K1,000.00 and K10,000.00, a goal term of up to two (2) years;

3. between K10,000.00 and K40,000, a goal term of two (2) to three (3) years;

4. between K40,000.00 to K150,000.00 a goal term of three (3) to five (5) years.

The prevalence of the offence calls for stiffer sentences too: The State v. Paroa Kaia (1995) N1401, but the Court still has the sentencing discretion under Section 19 of the Criminal Code.

In applying the sentencing guidelines alluded to above, I consider each of the factors as follows:-

1. The amount taken

The cheque for K40,000.00 payable to the prisoner was obtained fraudulently and deposited into the prisoner’s personal account operated at the bank. K38,000.00 was withdrawn on 4th July 2001

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out of which the prisoner received K12,000.00 which he applied to his own use.

2. The degree of trust

The prisoner was a public servant employed as a Revenue Officer in the Revenue Section of the Fly River Provincial Government and was also acting as the Executive Officer to the Provincial Liquor Licensing Board.

3. The period over which the offence was committed.

This was a one off case.

4. The use to which the money was put to.

The evidence contained in the depositions show that the prisoner, his other conspirators and others used this money. The State has conceded that the prisoner...