The State v William Chilen of Loniu Village, Lorengau, Manus Province (2008) N3549

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 10 October 2008
• Citation: (2008) N3549
• Docket Number: CR 1282 OF 2006
• Year: 2008

Full Title: CR 1282 OF 2006; The State v William Chilen of Loniu Village, Lorengau, Manus Province (2008) N3549

National Court: Davani J

Judgment Delivered: 10 October 2008

SENTENCE – Criminal Law – Misappropriation – K65,000.00 – s383(A) (1)(2) of Criminal Code Act

SENTENCE – Guilty plea– creation of bank accounts– application of proceeds to personal use – breach of trust – 4 years

Facts

As representative of a church group, and on behalf of that group, the prisoner applied to the National Gaming Board (‘NGCB’) for funding to build a church in his village. The NGCB approved funding and paid to the church group a cheque of K65,000.00. The prisoner collected this cheque then opened a new bank account in his name and with 3 others, deposited the cheque after which he made several withdrawals.

The cheque of K65,000.00 was never applied towards the building of the church.

Issue

- What is an appropriate sentence?

Held

A short, sharp sentence of 4 years.

Cases cited

State v Zimma Munduai (2000) N2036

State v Scott Lalio (2006) N2967

SENTENCE

1. DAVANI .J: On 9th October, 2008, William Chilen of Loniu Village, Lorengau, Manus Province (the ‘prisoner’) pleaded guilty to one count of misappropriation, charge laid under s383(A) (1)(2) of the Criminal Code Act (‘CCA’). The provision reads;

“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

(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; 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 fulfill 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.”

Evidence

2. The evidence or circumstances under which the prisoner pleaded guilty to are as outlined in a statement handed up to me by Mr. Ai for the State. These are facts that Defence counsel accepts as being the evidence on which their client could be convicted.

3. The evidence is that in March 2000, the Lolak Local Catholic Church of Manus (‘LLCM’) prepared a proposal for submission to the National Gaming and Control Board (‘NGCB’) seeking financial assistance for the completion of the Loniu Lolak Local Catholic Church. The amount sought was K28,000.00. The prisoner took this submission to Port Moresby for presentation to the NGCB. Thereafter, a cheque dated 4 August, 2000 in the sum of K65,000.00, cheque no. 603856, was raised by the NGCB for the Lolak Catholic Church. The prisoner uplifted this cheque. On 15th August, 2000, he deposited this cheque into an account with the PNGBC Boroko Branch in the name of the Lolak Catholic Church, Account No. 201-6065769. Withdrawals of K25,000.00 and K31,000.00 were then made from those accounts following the deposit.

4. On 20th December, 2000, a deposit of K28,000.00 was paid into the Lolak Catholic Church, Account No. 304-6244793, a PNGBC account held in Madang.

5. The Lolak Catholic...