The State v Ruth Tomande (2019) N8030

• Jurisdiction: Papua New Guinea
• Judge: Berrigan, J
• Judgment Date: 20 September 2019
• Citation: (2019) N8030
• Docket Number: CR (FC) 63 OF 2019
• Court: National Court
• Year: 2019
• Judgement Number: N8030

Full Title: CR (FC) 63 OF 2019; The State v Ruth Tomande (2019) N8030

National Court: Berrigan, J

Judgment Delivered: 20 September 2019

N8030

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 63 OF 2019

THE STATE

V

RUTH TOMANDE

Waigani: Berrigan, J

2019: 17, 18, 19, 21, June; 5 July, 20 September

CRIMINAL LAW – Decision on plea – Part VIA of the Criminal Code - Money laundering – S. 508B of the Criminal Code – “Criminal property” – Underlying offence charged on indictment not made out as a matter of law – Plea to money laundering accepted.

Cases Cited:

Papua New Guinea Cases

Alexander Age v The State [1979] PNGLR 589

Brian Kindi Lawi v The State [1987] PNGLR 183

The State v Francis Laumadava [1994] PNGLR 291

Yalibakut v The State (2006) SC 890

The State v Ruth Tomande (2019) N7798

The State v Edward Bae (2019) N8029

Overseas Cases

R v Roebuck (1856) 25 LJMC 101

R v Marston (1918) 13 Cr App R 203

R v Lurie (1951) 35 Cr App R 113

R v Ball (1951) 35 Cr App R 24

R v Smith & Ors (1951) 34 Cr App R 168

R v Stones (1968) 52 Cr App R 36

R v Beck [1980] Qd R 123

R v Lenehan [2009] QCA 187

References Cited

Sections 383A, 404, 508A, 508B, 508C, 508D, 508E, 508F and 508G of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms H. Roalakona with Ms T. Kametan, for the State

Mr E. Sasingian, for the Accused

DECISION ON PLEAS OF GUILTY

20 September, 2019

1. BERRIGAN J: Following my ruling on a preliminary objection, the State presented an indictment containing 14 counts of obtaining monies by false pretence, one count of money laundering and one count of misappropriation contrary to ss.404(1)(a), 508B(1) and 383A(1)(2) of the Criminal Code (Ch. 262) (the Criminal Code) respectively: The State v Ruth Tomande (2019) N7798.

2. A trial proceeded. During examination of the State’s second witness the accused indicated that she wished to plead guilty to all charges. She was arraigned and pleaded guilty to the following charges.

3. Count 1 of the indictment alleged that between 30 April 2017 and 1 June 2017, the accused “by falsely pretending to the Bank of South Pacific that the loan application in the name of Joseph Kupamu was genuine and obtained from the said Bank of South Pacific monies in the sum of… K20,850.23” with intent to defraud. Counts 2 to 14 were in similar terms but referred to the loan application being made in the name of a different individual in each case. The amount of monies averred in each case varied between K15,781.71 and K30,624.18. The offences were alleged to have taken place on various dates between 30 April 2017 and 1 January 2018. In total the amount of the monies allegedly obtained by false pretence was K372,131.74.

4. Count 15 of the indictment alleged that between 30 April 2017 and 1 January 2018 the accused “dealt with monies in the sum of… K368,141.64 that is criminal property by concealing and disguising the property and had knowledge or reasonably ought to know that the property is criminal property”, contrary to s. 508B(1) of the Criminal Code, also referred to as money laundering.

5. Count 16 alleged that during the same period the accused dishonestly applied to her own use and the use of the others monies in the sum of K368,141.64, the property of BSP, contrary to s. 383A(1)(2) of the Criminal Code, also referred to as misappropriation.

Facts on Arraignment

6. At the relevant time the accused was employed as a Home Loan Officer with Bank South Pacific (BSP) Boroko Banking Centre. Between 30 April 2017 and 1 January 2018 the accused extracted from the bank’s records, fourteen (14) loan applications previously submitted by existing bank customers but which had been declined. Each application had a unique customer identification (CIF) number and was supported by documentation including the original applicant’s payslips, confirmation of employment and photo identification.

7. The accused used the declined applications, and supporting documentation, of those initial customers, together with inflated salary figures, to apply for loans in the names of 14 different bank customers through the bank’s automated loan system, the “Lend Fast System”.

8. The remainder of the alleged facts is quoted verbatim for reasons that will become clear.

“6. Because of the inflated salary figures entered by the accused, the loans were approved on the system and the accused uploaded the loan contract to the Lend Fast System for Lending Support to fund the loans.

7. Once the loans were funded into the customer’s account, the accused compiled office entry debits and credits to authorise tellers to process transactions of the financed loans into numerous accounts belonging to the accused relatives and other bank customers. She did this to conceal the monies. The monies were also credited back to the loan accounts to fund loan repayment to avoid arrears and alert of her fraudulent conduct.

7a. The bank was alerted of this criminal conduct when a customer after having his loan application declined received an SMS alert through his mobile phone that his loan was approved. As a result of that alert he enquired at the bank and his account had been funded and then giving rise to the investigation into the conduct of the accused person.

8. The State alleges that by extracting the customer’s declined loan applications and using their customer identification file numbers to manipulate the lend fast system through data entry to approve and generate the different loans in the name of customers, the accused had obtained monies by false pretence and with the intent to defraud thereby contravened section 404(1) of the Criminal Code Act.

9. Further, the State alleges that by concealing and transferring the loan monies in the total sum of K368,141.64 through various bank accounts, being criminal property and knowing that the loan money is criminal property the accused had laundered money and thereby contravened section 508B(1) of the Criminal Code (Money Laundering and Terrorist Financing (Amendment Act).

10. The State alleges that when the monies were transferred into the accounts belonging to the accused relatives, the accused accessed the monies and dishonestly applied to her own use and the use of others monies in the total sum of K368,141.64, the property of Bank South Pacific Limited thereby contravening section 383A(1) and (2) of the Criminal Code Act.”

9. In summary, it was alleged that the accused obtained the monies by false pretence at the time the loans were approved on the bank’s system, that she then laundered those monies through various bank accounts, and that she also misappropriated monies in the same amount laundered.

10. I accepted the accused’s provisional plea of guilty to each of the 16 counts contained on the indictment subject to reading the depositions. It is well established in this jurisdiction that it is the duty of the judge on a guilty plea to examine the depositions to check that there is evidence of the elements of the offence: Yalibakut v The State (2006) SC 890.

11. Having read the depositions I expressed the tentative view that the depositions were not consistent with the offences under s. 404(1)(a) of the Criminal Code being complete at the time the loans were approved or even when the loan monies were transferred to the accounts of the 14 loan recipients nominated by the accused; that this then raised an issue as to whether it had been established that the property was at that point “criminal property”, necessary to form the basis of the money laundering charge under Count 15 on the indictment. Furthermore, I also expressed the view that there was a potential issue with respect to s. 16 of the Criminal Code, which provides that a person shall not be punished twice for the same act or omission.

12. This is only the third time an accused has been prosecuted for money laundering in this jurisdiction. The charge was brought pursuant to s. 508B(1), which was inserted into the Criminal Code by the Criminal Code (Money Laundering and Terrorist Financing) Amendment Act, 2015.

13. In the circumstances the parties were given an opportunity to make submissions on the law and the State was asked to provide a schedule setting out in detail the transactions underpinning each of the alleged offences with page references in the depositions to facilitate the process. The provision of such schedules on arraignment would greatly facilitate the conduct of all matters like this one, involving multiple offences, numerous financial transactions and large amounts of money, regardless of whether or not the matter is intended to proceed by way of trial or guilty plea.

Obtaining by false pretence, contrary to s. 404(1)(a) of the Criminal Code

14. It was the State’s case on the alleged facts that the accused obtained monies by false pretence when the loans were approved. Section 404(1)(a) of the Criminal Code provides, for our purposes, that a person who by false pretence “obtains from any other person any chattel, money or...