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

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

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

N3549

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1282 OF 2006

THE STATE

V

WILLIAM CHILEN

Of

LONIU VILLAGE, LORENGAU, MANUS PROVINCE

Prisoner

Waigani: Davani .J

2008: 9th, 10th October

SENTENCE – Criminal Law – Misappropriation – K65,000.00 – s.383(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

Counsel:

T. Ai and P. Yaku, for the State

L. Simingi and N. Yawip, for the Prisoner

SENTENCE

10 October, 2008

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 s.383(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 Church Committee of Manus noted this deposit and assumed that these were the funds from the NGCB. However, they later learnt that the NGCB had paid a sum of K65,000.00 for the project. Inquiries were then made, and a complaint lodged with the Police. Investigations revealed that in reality, instead of a request to the NGCB for K28,000.00, the prisoner had submitted a proposal for K65,000.00. It was further revealed that the prisoner had opened the Account No. 201-6065769 at the BSP Boroko on 14th August, 2000, a day before the deposit of the cheque of K65,000.00 from NGCB. The signatories to that account were the prisoner as the Chairman, Mary Chilen, his wife as the treasurer and James So’on, a relative as the secretary. From the Account No. 201-6065769, the prisoner withdrew the sum of K37,000.00, monies belonging to the NGCB, and applied it to his own use.

Aggravating factors

6. The aggravating factors in this case are the following;

i. The prisoner was in a position of trust when he took the proposal for fundraising to the NGCB.

ii. He did not advise the other committee members or the villagers that he had received K65,000.00 from the NGCB.

iii. He opened an account in Port Moresby without the knowledge of the villagers and there, deposited the NGCB’s cheque of K65,000.00. He then dealt with the monies without authorization from the Church Committee.

Mitigating factors

7. The mitigating factors are;

i. He admitted to having applied the monies to his own use.

ii. This is his first offence. He does not have any prior convictions.

Existing bank accounts;

The documentation on the Court file also shows that there were three submissions prepared to the value of K28,000.00, K50,000.00 and K65,000.00. These were submitted respectively to the Chairman, Catholic Church of PNG, the Chairman of Law and Order Committee and the National Gaming Control Board. This is contained in the prisoner’s affidavit sworn on 16th August, 2006 and filed in the District Court Waigani as CR 382 of 2002 between the State and William Chilen. The affidavit deposes further that he delivered the proposal for K65,000.00 in his capacity as the Chairman of the Port Moresby branch of the Fundraising Committee of the building of the Lolak Catholic Church. The submission of K28,000.00 was delivered by Mr. Karol Minas in his capacity as the Chairman of the Lolak Catholic Church. Karol Minas also took delivery of the submission for K50,000.00 to the Bishop of the New Guinea Islands and the Port Moresby members of the Catholic Church of PNG. In that affidavit, the prisoner deposes that the Committee had requested a sum of K83,000.00 from the NGCB, but only K65,000.00 was approved.

He deposes that upon receipt of the cheque of K65,000.00 on 1st August, 2000, that he, together with James So-on as the Secretary, Mary Chilen as the Treasurer and he, as Chairman, opened a bank account with the PNGBC Boroko Branch, Account No. 201-6065769. On 15th August, 2000, the cheque of K65,000.00 was deposited into that account.

A copy of the National Gaming Control Board’s cheque shows that it is dated 4th August, 2000, cheque no. 603856 made payable to “Lolak Local Catholic Church”, the sum of K65,000.00.

8. The evidence is that there were several bank accounts in operation in the name of the “Lolak Local Catholic Church”, before the cheque of K65,000.00 was deposited, after it was deposited and during the period, the several transactions referred to above were conducted. I set out below the name and description of these accounts and the transactions that were carried out on these accounts. These accounts are;

i. Account No. 100043078 in the names of William Chilen and Mary Chilen of P O Box 487, Boroko, NCD.

· On 30th October, 2000, a sum of K15,000.00 was transferred to this account from Account No. 201-6065769.

ii. Account No. 304-62447 held at the BSP Madang in the name of Lolak Local Catholic Church care of the Patron, Mr. Paul Pokolou, Lolak Local Catholic Church, P O Box 37, Lorengau 641.

· On 20th December 2000, a sum of K28,000.00 was deposited into this account from Account No. 201-6065769.

iii. Account No. 201-6065769 was opened on 8th August, 2006 at the BSP Boroko Branch, in the name of “Lolak...