The State v Jimmy Kendi (No 2) (2007) N3131

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J
• Judgment Date: 17 April 2007
• Court: National Court
• Docket Number: CR. NO 1274 OF 2003
• Judgement Number: N3131

Full Title: CR. NO 1274 OF 2003; The State v Jimmy Kendi (No 2) (2007) N3131

National Court: Lenalia, J

Judgment Delivered: 17 April 2007

N3131

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1274 OF 2003

THE STATE

V

JIMMY KENDI (N0.2)

Kokopo: Lenalia, J

2006: 4th July

2007: 15th February & 17th April

CRIMINAL LAW – Particular offences – Obtaining goods by false

pretence – Charge of – Criminal Code s.404, Ch.No.262.

CRIMINAL LAW – Particular offence – Misappropriation on monies

obtain by false pretences or by fraudulent means – Misappropriation – Criminal Code s.383A (1) (a).

CRIMINAL LAW – Misappropriation by a private citizen – No breach of

trust involved – Sentencing principles – Offences of misappropriation & False pretences – Cumulative and concurrent sentences – Custodial sentences appropriate.

Cases cited

Taiba Maima v Ben Hambakon Sma [1971-1972] PNGLR 49

Goli Golu v The State [1979] PNGLR 653

Acting Public Prosecutor v Konis Haha [1981] PNGLR.205

Avia Aihi v The State (N0.3) [1982] PNGLR 92

The State v Tardrew [1986] PNGLR 91

Brian Kindi Lawi v The State [1987] PNGLR 183

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

Mase v The State [1991] PNGLR 88

The State v Napilye Kuri [1994] PNGLR 371

The State v Bygoness Tuse Nae (1996) N1474

Joshua Yaip & Or v The State (1997) SC533

The State v Vurmete (2000) N2008

The State v Nakikus Konga (2002) CR.N0.32 of 2001

The State v Sylvanus Siembo & 2 Others (2002) CR.N0. 1220 of 2000, CR.N0S.97 & 722 of 1999

The State v Louise Paraka (2004) N2317

The State v Benson Likius (2004) N2618

The State v Lukeson Olewale (2004) N2758

The State v Shirely Tainoli (2004) N

The State v Ben Wafia & 3 Others (2004) N2547

The State v Iori Verega (2005) N292

The State v Jack Oseketal Metz (2005) N2824

Counsel

C. Sambua, for the State

H.Namani, for Accused

17 April, 2007

1. LENALIA, J: On 4 July 2006, the prisoner was found guilty on two counts - one for obtaining monies by false pretence and the second one for misappropriation of the monies obtained from the first offence. These offences are contrary to Sections 383A (1) (a) and 404 of the Criminal Code. The total amount involved in the two charges was Four million, two hundred and ninety – eight thousand, thirty seven kina and thirty – three toea (K4, 298, 037.33), being the property of the State.

Finding of Facts.

2. Between 1983 and 1987, the prisoner operated an earth moving company in Arawa on what it used to be North Solomons Province now the Autonomous Region of Bougainville. The name of that company was JIMENDI Enterprises Limited. A part from the machineries the company had, it leased a number of machineries and equipment from Credit Corporation (PNG) Limited for purposes of road construction and maintenance.

3. In 1987, the prisoner’s company ran into difficulties due to its inability and failure to comply and keep up with its monthly rentals for all equipments and machineries leased. The result was that Credit Corporation (PNG) Limited repossessed its machineries and left them on site. In order to complete the road project, North Solomons Provincial Government entered into an agreement with Credit Corporation to complete the uncompleted work left by the prisoner’s company.

4. After the road and the building of a bridge were completed, Credit Corporation appointed a Receiver Manager to manage the affairs of the machineries on the island of Bougainville until all machineries and equipment were shipped across to Port Moresby where they were refurbished and sold.

5. About twelve years later (1999), on 14 December the prisoner wrote a letter to the then Acting Defence Force Secretary claiming that the Defence Force maritime and infantry elements which were present on Bougainville during the crisis period had unlawfully used his machinery and equipment on Loloho and Torauto Island during the Bougainville crisis from 1993 to 1997. On his letter to the Defence Secretary the prisoner said, defence force personals had used two of his machines during the operation in Bougainville. He referred to one of those two machines as 1 Caterpillar D6C Bulldozer, Serial No. 10K 11209, engine No.3306.

6. The second machine referred to was a Komatsu W180 Bucket Loader, Serial No.50120 and the model number was KWA05-8. The accused calculated the amount owing to him to be two million, three hundred and eighty-four thousand, eight hundred and eighty-three kina and ninety-five toea (K2, 384, 883. 95), including all accumulated interests.

7. According to the State’s case, the total amount obtained by false pretence which was paid to the prisoner was four million, two hundred and ninety-eight thousand, and thirty seven kina, thirty three toea (K4, 298, 037.33).

Brief of Evidence on what transpired on trial. .

8. The evidence from which the prisoner was convicted is that, between 1986 and 1988, the accused operated a construction company in Arawa, North Solomons Province. That company whose proprietor was the prisoner, operated under its business name “JIMENDI ENTERPRISES LIMITED” (herein under referred to as JEL).

9. In 1986, the prisoner’s company was awarded a contract by the North Solomons Province to carry out work on the Pitpit Bridge on Inus area in Bougainville. When the prisoner’s earth-moving company was wound up in 1987, he had no more machinery on site except for one bulldozer, one fork-loader two trucks and two Toyota Hilux 2 wheel drive utilities, but these machines were located on Buin District on the southern tip of Bougainville.

10. The evidence adduced on trial revealed that, after the prisoner submitted his fraudulent claim, with the assistance of some corrupt officers from the Department of Finance & Treasury and the Department of Defence assisted in pushing the claim through all authorities concern resulting in such fraudulent claim being processed by Finance & Treasury Department.

11. The result of such illegal action was that the Department of Finance and Treasury drew a cheque made payable to Bakanovi Transport Pty. Ltd in the sum of K4, 298, 037. 33 on Cheque No.632311 dated 14 November 2000.

12. It was proved by evidence that Mr. Kendi and his wife Norma Kendi were the proprietors of the said Bakanovi Transport Pty Ltd when in fact the said company never owned any machinery or equipment during the period which the prisoner had claimed for.

13. The evidence of all the five (5) witnesses who gave sworn testimony including all the documentary evidence (refer to my Judgment on verdict dated 4 July, 2006) show that, by 1987 when the prisoner’s company wound up its operations in Bougainville, the prisoner did not have any other machines left on site either at Arawa, Loloho, Torato island or even on Buka island. According to the defence evidence, the prisoner had one machine plus a truck and two utilities, but they were located on the southern tip of Bougainville, in Buin District. There was no evidence to show any of such vehicles or the machine were ever used in the area where the Defence Force elements were based

14. When the prisoner wrote to the Secretary of the Department of Defence on 14 December claiming that his caterpillar D6C Bulldozer Serial N0-10K 11209 was used at Loloho and a Komatsu WA 180 Bucket Loader which Serial N0 was -50120 Model KWAOS – 8 used on Torato island between 1993 and 1997 he knew that the presentation he made on that letter was totally baseless and fraudulent with the intention to defraud the State.

15. Two Bougainvillean witnesses Tony Busu and John Felix testified that as far as they knew, between 1993 and 1997, the prisoner did not have any more machinery on Bougainville.

16. Evidence by John Felix showed that when he was working with the Defence Force element in 1997, he being a mechanic he fixed the two machines a D6C Caterpillar Serial N0.10K11209 and a Komatsu Bucket Loader Serial N0.50120.

17. Tony Busu said those two machines were previously owned by a company which operated on the island whose proprietor was Mr. Peter Goodenough. John named the company as Torutoru Pty Ltd. He said such company was wound up after the civil unrest commenced in Bougainville.

18. According to this witness, the two machines were partly burnt and John said that the claim lodged by the prisoner to the Defence Force hierarchy was fraudulent as the prisoner knew that, he did not have any more machines on Bougainville or if he had any, there was no evidence to support such claim.

19. When the court connected the above evidence to that by another witness, Mr. Eruel Pital an employee of Hastings Deering said in his evidence on oath that, a caterpillar bulldozer with the same description given above was sold by Hastings to Itakara Plant Hire, a company operating in Arawa at that time. Eruel Pital said in evidence that a caterpillar bulldozer Serial No.10K 11209 Engine N0.3N29121 was sold by Hastings Deering to the above company.

20. One will note from the evidence of the two Bougainvillean witnesses that, the prisoner’s earth moving company ceased operation in 1987. Tony Busu in his testimony said, after that year, the prisoner did not have any more machines left on Bougainville. If he had any machines left, they would have been engaged to complete the work on the Pitpit bridge.

21. On the defence evidence, the prisoner maintained that he owned certain machineries on the island. He said the Defence Force soldiers had used his machines and so he had to claim for the period the machines were used.

22. Henry...