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State v Guai [1990] PGNC 99; [1990] PNGLR 162; N837 (30 April 1990)

N837

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

GUAI

Goroka
Brunton J

5 April 1990
30 April 1990

CRIMINAL LAW - Sentence - Misappropriation of property of State - Public servant - Sentencing of - Mandatory dismissal of for indictable offence - Procedure on sentence - Presumption of dismissal - Misappropriation of K100.00 - Senior public servant - Fine of K650.00.

The Public Service General Orders, Order 8.10, provides:

"Where an officer is convicted of a criminal offence which relates to the duties of his office, he shall be dismissed from the Public Service by the Departmental Head on Form 8.2."

The Commander of the Bihute Corrective Institution, an officer of the Public Service, pleaded guilty to and was convicted of misappropriation of K100, the property of the State contrary to s 383a of the Criminal Code (Ch No 262).

Held:

(1) On a plea of guilty by an officer to whom Order 8.10 of the Public Service General Orders applies, the court should first convict, and proceed to sentence only after evidence is given that the officer has been dismissed from the Public Service: in the absence of such evidence the presumption of regularity binds the court and the court should proceed as if the prisoner had been, or would be, dismissed.

(2) In the circumstances a fine of K650, in default of two months imprisonment, should be imposed.

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

Cases Cited

The following case is the only case cited in the judgment:

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

Judgment on sentence

The following reasons for sentence were delivered on an adjourned plea of guilty to one charge of misappropriation under s 383a(2)(b) of the Criminal Code (Ch No 262).

Counsel:

D Ashton-Lewis, for the State.
D Umba, for the prisoner.

30 April 1990

BRUNTON J.: The prisoner has pleaded guilty to one charge of misappropriation under s 383a(2)(b) of the Criminal Code (Ch No 262). The amount alleged was K100. The money was part of the funds allocated by Corrective Institutions for the expenses arising for detainees studying with the College of Extension Studies.

The sentencing principles for an offence of this sort were recently discussed by the Supreme Court in Wellington Belawa v The State [1988-89] PNGLR 496. For offences in which the amount of money stolen or misappropriated is under K1000 a gaol sentence should rarely be imposed; by Bredmeyer J, at 500. This tariff was generally agreed to by the other members of the Supreme Court (Woods J, at 502, Barnett J, at 505).

However the tariff is not immutable. In cases where the position of a prisoner is such that he or she occupies a strategic place in the state system, deterrence may well outweigh the quantum of the sum misappropriated and previous good character, because of the impact of the loss of public confidence and also the loss of confidence of those within the institutions of state wherein the offence took place.

This prisoner, apparently had a good work record. That is invariably so in cases like this. The Acting Commissioner for Corrective Institutions, Mr Michael Mondia, OBE, has completed a statutory declaration.

Mr Mondia lists the prisoner’s qualities and finds that he:

· [Is] very diligent and dedicated. He has an incredible capacity, which is indeed a rare feature in we National Officers;

· Reasonably thorough;

· [He] has shown by dint of hard work and application a positive improvement in the Bihute Corrective Institution;

· Has displayed a flair to liase easily with departments related to the Correctional Services.

· Strives for improvement at all times;

· Enjoys the confidence of his superiors and the respect of his subordinates;

· Has a lot of drive, intelligence and initiative;

· Has a very pleasant personality and gets along with most people. He is modest and humble in his dealings with people;

· Can work under pressure and withstand provocation;

· Enjoys his family life and spends most of his leisure hours with them;

· Is God fearing;

The facts of this case are that the prisoner took money that was not his and used it to play the poker-machines. So there is a contradiction between the opinion of Mr Mondia and the undisputed acts of the prisoner.

The amount alleged on the indictment was not large. It was said to be a single offence. I will return to this later. Mr Mondia described it as "one of those rare slips", and that "he has been indiscrete".

But against this there was a high degree of trust placed in the prisoner. Within Bihute Corrective Institution he was answerable to no one. As Jail Commander both warders and detainees looked to him as a role-model. He could not be questioned by anyone within Bihute because of the nature of the discipline that is held over detainees, and the nature of the discipline within the Corrective Institutions Service.

The prisoner had complete control over the funds allocated for the purposes of purchasing materials to enable detainees to study with the College of Extension Studies. During the period 15 June 1988 to 29 September 1988 he made a number of withdrawals from the passbook kept for those purposes. At times, he admitted, he withdrew more money than was required. This spare money he kept in the safe. He admitted one act of misappropriation in a record of interview with senior officers and to the police.

The money obtained in the misappropriation was used to play poker machines. This does not reflect well on the prisoner.

The State will not be financially crippled by the loss of K100. There is some evidence the money was repaid. But the impact of the offence on Corrective Institutions Services personnel serving under the prisoner can be inferred. Within a disciplined hierarchy dishonesty of superiors breeds cynicism amongst subordinates.

Junior staff become disenchanted, discipline may drop-off, officers begin to conspire; NCO’s become resentful. Although there is no evidence before me that these things did happen, I can infer that dishonest practices at the top of an institution do seriously threaten the integrity of an institution.

It is particularly important that detainees have a clear role model from senior Corrective Institutions Services officers. One of the purposes of imprisonment is to rehabilitate, or to reform. Even though the reformation and rehabilitation of detainees may be problematic, corruption amongst the Corrective Institutions Services officer cadre cannot but have a negative impact upon the detainee’s view of their own predicament.

Mr Mondia says of the prisoner:

"His conviction will automatically render him to dismissal which is mandatory and provided for in Section 8.10 Public Service General Orders."

Order 8.10 of the General Orders reads:

"Where an officer is convicted of a criminal offence which relates to the duties of his office, he shall be dismissed from the Public Service by the Departmental Head on Form 8.2."

Well, the prisoner was convicted of an offence which related to his duties on 4 April 1990 and that fact was conveyed to the Commissioner. There is no statement from the Acting Commissioner that the prisoner has been dismissed. I cannot understand why the prisoner has not been dismissed from the Public Service in accordance with the General Orders.

So I adjourned this case after conviction specifically to see what action would be taken, so that I could take the matter into account on sentence.

The proper procedure, in my view, in a case like this, is for the Public Service delegate to take whatever action is necessary following conviction, and for the State Prosecutor to prepare an affidavit accordingly.

In this case, Mr Mondia in his letter of 11 April 1990 to the State Prosecutor says: "I am genuinely concerned that we may lose out on a very productive unit by virtue of his conviction."

This statement seems to raise some doubts about whether the prisoner is to be dismissed. The impression it gives is that the Acting Commissioner would like to retain the services of the prisoner.

Can there be any doubt? By law the prisoner must be dismissed.

What the prisoner did was disgraceful. He abused his position of trust. His acts are likely to impact detrimentally on the confidence of warders and detainees within the Corrective Services Institution.

The Service cannot afford to keep those convicted of crimes of dishonesty. In those circumstances the General Orders are quite correct; after conviction of an offence which relates to the duties of office — dismissal.

If it was not otherwise, I would impose a sentence of two months imprisonment on the prisoner, as I consider deterrence to be the prime objective when dealing with leaders who go bad.

But the law says he is to loose his job and I think that binds me because there is a presumption of regularity. In the circumstances, that is a heavy burden for one who has a good record. So I will not imprison him. I fine him K650 to be paid within 14 days, in default two months imprisonment.

Fine of K650 imposed

_____________

Lawyer for the State: Public Prosecutor.
Lawyer for the prisoner: D Umba.