State v Oakiva [1997] PGDC 10; DC19 (25 September 1997)

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CRIMINAL LAW - Sentencing - False pretence - Intention to defraud - No prior conviction - Remorse shown.

ABISAI SPM:� The Prisoner pleaded guilty to, between 24th November 1996 and 28th January 1997, at Waigani Stop N Shop (Steamships) Trading Company, he did by false pretence, with intend to defraud, write valueless cheques and thereby obtained goods valued at Nine Hundred Twenty Nine Kina and twenty seven toea (K929.27).

The State laid an information charging the prisoner for False Pretence with intend to defraud under Section 404 (1)(a) of PNG Criminal Code Ch. No. 262.� The Section reads:

N2>�(1)�� A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intend to defraud:

(a)�� obtains from any other person any chattel, money or valuable security;

That between 24th November 1996 and 28th January 1997, between shopping hours the Prisoner knew that he didn�t have any money in his cheque book account, but� proceeded to obtain goods from Stop N Shop - Waigani valued at One Thousand Nine Hundred Fifty Three Kina and Sixty Six toea (K1,953.66).

The cheques were presented at Waigani family store where goods were obtained and Steamships Company took it to the bank to find out that there was no money in the account of the cheque book holder Allan Oakiva so the cheque were knocked back.

However, on 29th January 1997, the defendant was held by the security guards at Stop N Shop - Waigani drive when he tried to obtain goods by another cheque.

The defendant was taken to Boroko CID Office where he was further questioned on the alleged offence and he admitted that all the knocked back cheques were from his personal account cheque book and the signatures were his.

Defence counsel submitted that the prisoner has been jointly charged with four (4) counts of stealing contrary to Section 404 (1)(a) of CCA Chapter 262. It was alleged that between 18th October 1996 and 27th January 1997, approximately over 3 months period. The amount of money stolen was K1,953.66 toea said to be value of goods paid to Stop N Shop - Waigani Steamships main store and Liquor Barn Ela Beach of this amount only K28.24 toea was used for liquor, while the balance was for the purchase of goods like food stuff and family items S 404 (1)(a) of CCA Chapter 262 provides short appropriate penalty should be imprisonment for a term not exceeding 5 years.

The prisoner is 25 years old completed his grade 6 at Waigani Community School and in 1986 - 1989 attended Della Sale� High School Bomana where he completed grade 10. In 1990, he was employed as a Research Officer for Open Member for Kerema. Then, two years later he took up a job as an Administrator for Kerema Town Authority, then from 1994 - 1995 he became Village Court Officer with Village Court Secretariat, then in 1996, he was employed� as a Forestry Development Manager until the day of the said commissioned offence and was arrested on 27/01/97. As a result he was suspended without pay, eventually lost the job.

He has recently taken up the employment with Environment and Conservation as a Press Secretary to the Minister and he is paid a nett salary of K446.08 per fortnight. The commision of the said offences took place when a business consultant involved in buying gold, promise the prisoner that he would be depositing his share of money from the sale of gold, into the prisoners cheque account.

The prisoner during that time was writing cheques to Steamships who was their regular customers, with an honest believe that his partner honour his promise, to deposit the money into his account. The cheque were written after 3 months lapse as agreed upon by his partner.

At that time his account was not looking very good, this promise of deposit never eventuated and as a result the prisoner found himself being arrested and charged for obtaining goods and writing valueless cheques to Steamships Trading Company.

The prisoner during the 3 months period enquired at numerous diplomatic mission offices including the United States Embassy, and the result was that, the prisoner was dealing with a professional conman.

N1>(1)�� The Prisoner has pleaded guilty to all four (4) counts, this saves this Honourable Courts time, public money and also demonstrate the remorse of prisoner.

N1>(2)�� The Prisoner co-operated with the Police during the cause of investigation.

N1>(3)�� The prisoner is married with a very young family with 3 children. 1st born 6 years old male 2nd born 4 years old male 3rd born 10 months old female.

The Prisoner only recently being employed and holds the responsible position in the Ministry of Environment and Conversation at the time of his arrest, until now have arranged three (3) dialogue with the complain and, through one at their officer compiling facts and figures for this case (Mrs. Margaret) that prisoner is willing to repay what he has stolen from the company, by way of fortnightly direct deduction from his account for a period of time.

Margaret Asee has confirmed with me over the phone last week, 28th day of August 1997, that they were willing to accept what the prisoner has proposed to them. The cheques which have been stolen totaling to K1,953.66. Only K28.34 was not beneficiary for his family, only used by prisoner, which K1,925.45 used to obtain food stuff and other family items for his family use.

Finally, Prisoner has No Prior conviction. On the question of sentence, the defence considers the offence is a serious offence and attracts a custodial sentence for up to 5 years imprisonment. We therefore submit apart from consideration given in mitigation, we asked that the Court consider imposing a non custodial sentence and we refer to the case of Wellington Beleva -v- The State on p. 496, where sentence guide line were given and I quoted� Where the amount misappropriated is between K1� -� K1,000.00 a term of imprisonment should rarely be imposed. Secondly, where amount misappropriated K1,000 and K10,000 a good term of up to two years appropriate.� In this case if I can refer you to judgment of Justice Barnett at page 505. His honour took account of the following factors. �The amount taken in this case was K2,000.00, the quality and degree of trust reposed in his rank. The offender was Secretary in Provincial Department and therefore he clearly agreed and I quote clearly greater degree of trust and higher rank makes the offence more serious, there is less supervision over a top and trusted man, and consequently more opportunity to be dishonest to avoid punishment, this is a factor calling for heavier punishment as a deterrent to such top people.�

In the prisoner�s case we submit that it differs greatly from the consideration highlighted by his honour Justice Barnett, we submit there is a Balance in terms of control on both the part of prisoner and the Complainant; whilst we consider that prisoners account was not looking good; the Complainant also have facilities at his disposal to stop the prisoner who was his regular customer from continuing writing the valueless cheque.

The next consideration is the period over which the fraud on theft perpetrated. In this case it took period of nearly two (2) years before the offender was tried and found guilty, in this case only 3 months. This consideration was how the money was used, his honour simply to meet customary obligation, this case the prisoners used the money for immediate family needs.

The impact of the offence upon the public and public confidence. His honour considered large amount� taken from public funds, public also suffers for loss of confidence, especially in the offender, was high and trusted public employee. I quote� This is an aggravating factor calling for higher penalty on sentence.� we respectfully submit in our case it does not apply.

Finally, the consideration of the offender himself, we ask that of the Court imposes custodial sentence to serve a term in Bomana would destroy him as a person, and lose his employment, his family will suffer, and he may not have the opportunity to be re-employed upon his release. This is an offence under schedule of 1A offences to be trial summarily and thus classified as simple offence, we humbly asked Court to use it�s discretion to impose non custodial sentence as provided under S132 of District Court Act Chapter 44 SS1 paragraph (e) conditional release etc. or Section 601 CCA, SS (8) conditional four (4) got 2 other brothers and sister. Parents, father deceased, mother lives with the rest of the family at Hanuabada village NCDC,� prisoner is married to Hanuabada woman.

The defendant Allan Oakiva charged of 4 counts of False Pretences under S 404 (1)(a) of CCA. It is a clear submission made from defence counsel, he has no money in his bank account, yet he went a head wrote cheques obtaining substantive amount of goods from Steamships Company dated 18/11/96 till 18/01/97. The amount totaling to K1,953.66. In question of gold buying by his USA friend was an illegal deal.

The defendant is well educated man he should have checked his account before writing his cheques. In the case of Wellington Beleva -v- The State. Court should take into account the factors in handing down it�s decision:

N2>(2)�� The degree of quality and trust imposed upon the defendant according to his rank; and

To apply to the case cited by the lawyer or defence counsel is simply an ILPOC obtaining a dingy, while the accuse was a Secretary for West New Britain Provincial Government, and that particular person was transferred to Alotau and later charged for writing and using the ILPOC to buy dingy at Ela Motors, Kimbe.

I therefore submit that the present case is different from the case cited by the defence counsel. The defendant was charged for writing valueless cheques to obtain goods. The definition of money under schedule 1 CCA.� �Money� �indicates bank notes, bank drafts, cheques and any other orders, warrants, authorities or request for the payment of money.

Section 601 CCA the defendant should pay back the money to the company if the Court sees fit. Since the defendant earning K446.08 per fortnight, the deduction should be made at 150.00 per fortnight to Steamships Trading Company, lastly I would like the reporting conditions be imposed or applied to the defendant so that we may know where his about.

In considering what is the appropriate punishment to be imposed on the prisoner. I have taken into consideration, the seriousness of the offence, prevalence of the offence, determine what the prisoner said in his allocatus, what the lawyer and the prosecutor told the Court plus other factors.

The prisoners pleaded guilty No Prior convictions recorded against him. His counsel has informed this Court that his client is willing to repay the money to Steamships Trading Company by way of deduction through his fortnightly pay, This indicates good response from the prisoner himself. Although the prisoner used most of the money for his family needs, but that does not mean that he will be excused from custodial sentence.

The offence of white collar crime seems to be increasing at an alarming pace. People of various high authorities or positions seem to be the privilege lot, yet they turn to abuse that privilege. In the case of Buaki Singere v Francis Muguia No 789 . In reference Supreme Court Reference No: 1 of 1980 [1981] PNGRL p. 28 and I quote �where a person basis his belief that a cheque he posses will be paid in full by a bank when presented, the grounds of his belief are the facts as to the operation of the bank account in question including any arrangement as to the payment of overdrawn cheques. The Court will consider that these are facts which are peculiarly within the knowledge of the person paying the cheque, or would he if he excused reasonable care as provided under S 37 (4) of the constitution.

(a)�� shall be presumed innocent until proven guilty� according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge.�

In this case the burden o proof is shifted from prosecution to the defence or prisoner to prove that at that time he had reasonable believe there was money in his bank account. It is not sufficient to say that he has been assured by his so called partner in gold trade to deposit his share in his cheque account, and without checking or enquiring in the bank, went ahead and wrote cheques. The responsibility of checking prisoners account lies on him to check whether his share been paid into his account or not.

It is not the responsibility of Steamships Trading Company to enquire on prisoners account. The bank by laws does not allow another person to have access to other persons account. He as the account owner is the sole responsible to check hiss account before passing cheques. In some areas of law burden of proof is shifted from prosecution to defence, and where the offence alleged is one created by statue, the burden of proof may in some cases be with the accused. In this case the defence must prove that at the time of passing cheques the defendant must consider other factors before passing or writing cheques.

Believing on mere words does not prove anything, facts must be established in order to convince this Court to believe that the defendant had taken all the necessary steps before writing cheques. However this did not happen.

Therefore, this Court found defendant guilty on all four counts of passing valueless cheques with false pretence to obtain goods.

In deciding what is appropriate in the prisoner�s case I take into account of what is for and against prisoner. Having worked with many different Department with a very clean record. Defendant also willing to repay Steamships Company by way of salary deduction.

In my view the appropriate sentence should be suspended sentence with conditions.

On the first count prisoner�s sentence to 6 months in hard labour (IHL) at CIS Bomana. Sentence be served cumulatively upon 1st charge imposed by Grade Five Court at Waigani.

Third Count prisoner sentence to Bomana for a term of 4 months in hard labour (IHL) at Bomana.

Fourth Count prisoner sentence to Bomana for a term of 4 months in hard labour (IHL) at Bomana CIS total of 20 months in hard labour (IHL).

Third and Fourth counts be served concurrently upon the 1st & 2nd charges imposed by Waigani Grade Five (5) Courts.

I further order that 2 months be deducted for pleading guilty and total of 18 months be wholly suspended on prisoner entering into his own recognizance on the following conditions:

N2>1)�� The prisoner enter into his own recognizance with surety of K250.00 to pay forthwith.

N2>2)�� Promise to keep the peace and good behaviour for 12 months commencing today 3-10-97 - 3-10-98.

N2>3)�� He is to repay Steamship Companies money to the sum of K150.00 per fortnight by way of deduction direct from his pay towards Steamships Company.

N2>4)�� To show the receipts to the Grade Five (5) Clerk at Waigani after payment of companies money.

N2>5)�� To attend church services at Hanuabada St Michael Church services, unless he is called on duty.

N2>6)�� To report to the Clerk of Grade Five (5) Court at Waigani once a month on every last� Friday of each month from 8 - 12 noon until the sum of K1,953.66 is fully settled.

N2>7.�� If any of the above recognizance are not complied with the prisoner to be brought back to this Court to be dealt with accordingly.

N2>8.�� The Court further orders that his bail (prisoner), bail money sum of K250.00 converted to his surety.

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Papua New Guinea District Court

State v Oakiva [1997] PGDC 10; DC19 (25 September 1997)

Unreported District Court Decisions