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Maith v Pundu [1997] PGNC 93; N1592 (4 August 1997)

Unreported National Court Decisions

N1592

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP. NO. 132 OF 1997
PATRICK MAITH - Appellant
V
THOMAS PUNDU - Respondent

Mount Hagen

Lenalia AJ
10 June 1997
4 August 1997

CRIMINAL LAW - Appeal - Appeal from District Court - Only ground of excessiveness - Sentencing guidelines in theft and dishonest offences in the District and Local Courts not only guided but bound by principles and guidelines set by the National and Supreme Courts.

Held:

(1) On sentence on any offences the District and Local Courts are not only to be guided but are bound by decisions of National and Supreme Courts.

(2) Thus in theft and related dishonest offences the appropriate sentencing guidelines are those set by the Supreme Court in the case of Wellington Belawa v The State [1988-89] PNGLR 496.

Cases Cited:

The following cases are cited in the judgement:

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

Counsel:

A Yer for the Appellant

J Kesan for the Respondent

17 June 1997

LENALIA AJ: The appellant was convicted on his plea by the Kundiawa District Court on 30th May, 1997 and sentenced to a term of six (6) months imprisonment with hard labour. He was further recommended to be dismissed from the Papua New Guinea constabulary. He was at the time of the offence a police detective with the rank of a senior constable. The maximum penalty prescribed under S. 372 (1) which section the appellant was charged under is three (3) years imprisonment.

The facts of the case appended to the information before his worship were as follows. The complainant of the matter is Kongo Coffee lodged a complaint with the Kundiawa police about one of their client by the name of Goga Wawi alleging that Wawi had had an outstanding debt with the Kongo Coffee which had been advanced to Wawi for purchase of coffee and that the police should assist to retrieve the money. Upon receipt of this complaint, the appellant confiscated Wawi’s vehicle at a nearby bus stop and demanded Wawi to pay the outstanding debt or else the vehicle would not be returned. The relatives of the said coffee buyer collected a sum of K2,200.00 and Wawi requested the appellant to go to Kongo Coffee to deliver the money to the management. The appellant made an undertaking to deliver the money to Kongo Coffee. He only handed over K1,300.00 to the complainant and withheld the sum alleged to have been stolen. On perusal of the matter, it was found out that the appellant had taken the sum of K900.00 and applied it to his own use. He was then charged pursuant to S. 372 (1) of the Criminal Code.

There is only one ground of appeal which alleges that in all the circumstances of the case the sentence was and is manifestly excessive. The same ground further alleges that the District Court failed to take into account mitigating factors that were submitted by the defence on behalf of the appellant on sentence.

Mr Yer for the appellant briefly submitted that the sentence imposed was manifestly excessive and that his worship did not actually take into consideration all mitigating factors that were raised on behalf of the appellant before sentence. The mitigating factors put before his worship prior to sentence by the Counsel for the appellant are that the appellant was then a first offender and that he co-operated well with the police. Secondly that he pleaded guilty and that the money was spent on a genuine reason. The reason advanced by the appellant on his allocutus as to how he used the money was that he used the K900.00 to travel to Nonga Hospital in Rabaul to attend to his sick father. It may seem there was no evidence to support the allegation that the appellant’s father was actually sick. It was also mentioned as a mitigating factor that the appellant had made arrangement with Police Headquarters to repay the money from his salary with fortnightly deductions of K50.00 and was to be effected from 6th of June, 1997.

The aggravating factors submitted by the prosecutor to his worship before sentence appearing from his worship’s hand-written transcript were that the appellant was a police detective with the rank of a senior constable at the time of the offence. Secondly that the appellant was in the position of trust and the complainant’s client trusted the policemen to deliver the money to Kongo Coffee. Thirdly that it was a breach of the trust and thus it was a bad image in the eyes of the general public. The appellant never attempted to repay the money to the complainants since October 1995 until January 1997 when he was formally charged. The appellant was also recommended to be dismissed from the Police Force pursuant to S. 57 of the Police Force Act.

I am hampered by two factors. First this appeal does not have any reasons for judgement as required by S. 224 (1) (b) of the District Courts Act (Ch. No. 40). Secondly on observation of his worship’s hand written transcript, no notation was made as to which factors in mitigation or aggravation were ever considered making it hard for this Court to conclude if the mitigating factors were considered at all, or whether his worship was more convinced by the aggravation put before him by the prosecutor but failed to have them noted on the transcript. It is advisable to make notes of which mitigation and which aggravation were considered just after allocutus and before sentence so that when a magistrate comes to writing the reason for his judgement, he has his notes to work from. There was no such notation on this appeal transcript. It is even more difficult where like in this appeal the appellate Court does not have the reasons for judgement coupled with no mention of which factors were considered on mitigation and which on aggravation. In any event a presiding magistrate is required by S. 225 (2) of the District Courts Act to forward to the Registrar of the National Court a written report setting out his reasons for whatever order he made. This was not complied with. This is the third appeal I have dealt with from Kundiawa District Court which have no reasons. I have often said that the District Court is the creature of the statute and judicial officers of that Court must comply with the law stated therein and in particular, the requirements under PART XI of the Act that governs appeal from District Courts.

Without reasons and without any specific notations as to which factors were taken into consideration on either mitigation or aggravation on sentence, I must assume from the sentence that his worship merely considered aggravating factors put to him by the prosecutor before sentence. That being the case I must also conclude that those mitigating factors mentioned on behalf of the appellant were not noted and therefore equally were not considered.

By looking at the facts of the case, it was a stealing by conversion. The appellant took the money from the coffee buyer lawfully then paid the total he paid to Kongo Coffee, but kept the portion and thereafter converted it to his own use with the intention of may be refunding the K900.00. Certainly there were a number of mitigation mentioned in favour of the appellant. Factors such as the appellant’s past record with no previous convictions. He was certainly a first offender but not a youth. The appellant’s arrangement with the department of Police to have a K50.00 fortnightly deductions toward repayment. The appellant after using the money, came back from Rabaul and told the owner of the money being Kongo Coffee that he had used the money and would repay them. It was also submitted in mitigation that Kongo Coffee being the owners did not suffer any great damage. All these factors were undisputed mitigation in favour of the appellant. As shown by his worship’s had written transcript, these were not considered and therefore, I must uphold the only ground of appeal being the sentence was and is manifestly excessive.

The appeal being a case of theft, it would serve the purpose of the learning process in the lower judiciary to re-state some of the sentencing guidelines stated in the case of Wellington Belawa v The State [1988-89] PNGLR 496. These principles can be useful in guiding a sentencer and I have found them to be really convenient in my short stay in the National Court. By the principle of “stare decisis” the principles stated by the Supreme Court in Belawa’s case in relation to theft and dishonest offences are binding both in the National, District and Local Courts.

For convenient sake I wish to quote the factors that should be taken into account on sentence and the scale of sentences that were laid down by the Supreme Court in Belawa’s case: see at 496.

“The following scale of sentences may usefully be accepted as a base to be then adjusted upwards or downwards according to the various factors above:

(1) where the amount misappropriated is between K1 and K1,000, a gaol term should rarely be imposed;

(2) where the amount misappropriated is between K1,000 and K10,000, a gaol term of up to two years is appropriate;

(3) where the amount misappropriated is between K10,000 and K40,000, two to three years imprisonment is appropriate;

(4) where the amount misappropriated is between K40,000 and K150,000, three to five years imprisonment is appropriate.”

The following factors are among those which should be taken into account on sentencing an offender for an offence involving dishonesty were the offender is in a position of trust:

(1) the amount taken;

(2) the quality and degree of trust reposed in the offender including his rank;

(3) the period over which the fraud or the thefts have been perpetrated;

(4) the use to which the money or property dishonestly taken was put;

(5) the effect upon the victim;

(6) the impact of the offences on the public and public confidence;

(7) the effect on fellow-employees or partners;

(8) the effect on the offender himself;

(9) the offender’s own history;

(10) restitution; and

(11) those matters of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.

1. THE AMOUNT TAKEN

What is envisaged under this principle is that the larger the amount stolen the greater should be the punishment. I agree generally with the suggested guideline there that for a theft involving between K1.00 and K1,000.00 a gaol term should rarely be imposed. The amount involved in the current appeal was K900.00. This amount may not be so large as compared to sums exceeding K1,000.00. The amount taken and used by the Appellant was certainly less than K1,000.00.

2. THE DEGREE OF TRUST REPOSED ON THE PRISONER

The higher the position of trust, the greater the responsibility. Certainly the appellant in this appeal was in such a position by virtue of his office as a policeman. He was in the rank of a Senior Constable performing detective duties. Normally a policeman is not required by the terms of his employment to collect monies except as require by law. Examples would be collection of monies from spot fines in motor traffic offences or motor traffic and firearms registries or in cases where monies come to his possession by virtue of his employment as a detective officer.

3. THE PERIOD OVER WHICH THE THEFT WAS PERPETRATED

The principle is that in a case that involves a series of dishonest acts over a long period indicates a more confirmed state of guilty mind. It is and may be more serous than the situation where an offender committed only one “spur of the moment” criminal act. The case of the Appellant could be categorized under the second category under this principle. What is evident from the facts of this appeal is that the money in question came into his possession lawfully. The appellant gave some of the money to the owner but kept the balance. He converted the K900.00 to his own use with the hope of repayment. After he returned from Rabaul he immediately informed Kongo Coffee about the amount he spent. The complainant was well aware of the amount that was used by the Appellant.

4. THE USE TO WHICH THE MONEY WAS PUT

The Supreme Court said in Wellington Belawa’s case that where the money is used to maintain an offender’s desperately impoverished family or other worthwhile purposes it can be a mitigating factor. The appellant said in allocutus that he used the money to travel to Rabaul to attend to his sick father at the Nonga Base Hospital. This may have been worthwhile spending in a desperate situation. This is evident from the facts stated to his worship in which the appellant after returning informed Kongo coffee that he owes them K900.00.

5. RESTITUTION

Where restitution or repayment of the money is made is always a mitigating factor because it restores the victim to the position he or she was in before the commission of the offence. Where restitution is undertaken on the eve of sentence, it may not be considered as mitigation. In the appeal before me, it was put before his worship on mitigation that the appellant had arranged with police headquarters to have a fortnightly deduction of K50.00. It was to be effective from 6th of June 1997. Apparently there was no restitution prior to sentence.

6. REMORSE

The fact that restitution is made may or may not show remorse depending on the circumstances of each case. If remorse is made after the commission of the offence or after detection the more clearly it demonstrates remorse. If it is made on the eve of the trial or immediately after conviction or if it is being undertaken in the plea as basis for leniency, it does not obviously show remorse. The facts put before his worship were that after returning from Rabaul, the appellant immediately informed Kongo Coffee about the amount he had spent and undertook to repay it. This was even before the appellant was charged. In my view that was remorse.

7. A GUILTY PLEA

A guilty plea is always a mitigating factor: The State v Peter Kaudik [1987] PNGLR 201. A plea of guilty should normally result in some reduction from what would be the appropriate sentence. If after detection on offences was honest and confessed and co-operated with the police at the outset to pleading guilty that demonstrates remorse. The appellant was in this situation. In fact he upon returned immediately informed the complainant about the outstanding balance. This factor in my view could have been considered as mitigation on behalf of the appellant.

8. THE EFFECT ON THE VICTIM

The principle factor is to consider whether the offender has lost his job and whether he is likely to obtain another job. In the case of the appellant, he was recommended to be dismissed from the Police Force. That recommendation is subject to the Police Commissioner’s deliberations. More often than not the Police Commissioner will act upon such recommendation and decide whether an officer would be dismissed or not. This was the most severe impact on the life of the appellant particularly if he lost his job ontop the direct sentence of six (6) months imprisonment. The facts of this appeal shows that the appellant had been employed with the police department for twelve (12) years.

9. PREVIOUS CONVICTIONS

Bredmeyer J said in Wellington Belawa’s case that absence of any previous record of criminal offence is of little relevance in any serious theft cases. The appellant before his worship had no priors. As the facts in this appeal shows, it was not a serious theft and as I have alluded to, this case is a classic example of stealing by conversion. There was no intention by the appellant to steal. He converted the balance charged in the information to apply it to his own use in the way and manner in which the money was used. There was no real intention to steal in the strict definition of stealing.

10. THE IMPACT ON THE PUBLIC AND PUBLIC CONFIDENCE

I agree that this case created a bad image for the police department. This fact alone weighed against other mitigating factors would not have warranted a direct imprisonment coupled with the recommendation for his dismissal meant possible loss of the appellant’s job.

11. PERSONAL MITIGATION

According to Belawa’s case illness is included as mitigation. Apparently the appellant was not sick however but he was certainly under strain. One of the mitigating factors mentioned by the defence counsel before sentencing the appellant was that the appellant used the money which he converted to his use for the purpose of purchasing tickets to travel to Rabaul to attend to his sick father. A host of other mitigating matters were mentioned like, the appellant being a first offender and that he pleaded guilty. There was no previous conviction recorded against the appellant. The fact that he had been a policeman for the last 12 years. The nature of the offence would not certainly have attracted a direct imprisonment. The fact that the appellant informed the complainant that he owed them the balance of K900.00. This was a case where it would have been proceeded by way of a civil summons rather than resorting to criminal proceedings.

Having mentioned all these factors and on weighing all mitigation against the aggravating factors that were put before his worship I would uphold the appeal. I am empowered by S. 230 of the District Courts Act to mitigate or increase a penalty. I am also empowered to affirm, quash or vary a conviction substitute a sentence or order that could have been made by the Court. I affirm the conviction and vary the sentence in the following terms. The appellant shall pay a fine of K200.00 in default of payment he shall be imprisoned for a term of four (4) months in hard labour. This fine shall be paid within fourteen (14) days from today. It is also ordered that the appellant shall make restitution within a period of two (2) months. The Assistant Registrar in the Mount Hagen Registry Office shall be notified of such payments with inclusion of receipt numbers and the date on which such fine and restitution orders are made. The parties shall meet their own costs.

Lawyer for the Appellant: Alphonse Yer Lawyers

Lawyer for the Respondent: The Public Prosecutor