Unreported National Court Decisions
N1942
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR NO. 884 OF 1998
THE STATE
AGAINST
FANO KUROMU
Goroka
Kirriwom J
14 October 1999
18 November 1999
CRIMINAL LAW – Sentence – Plea of guilty - Dishonestly applied cheque proceeds contrary to specific purpose for which received – Legal owner not suffered loss in strict sense – Third party victim beneficial owner - Incarceration wholly inappropriate - Restitutive justice paramount – Non custodial sentence – Probation order – Probation Act.
Prisoner pleaded guilty to one count of misappropriation of a cheque valued at K9,720 raised in his name but for someone else which he used for other purposes including on himself but had taken steps to pay money to whom it was intended.
Sentenced to two years imprisonment and ordered to serve the sentence on probation on condition that he makes full restitution within six months.
Detailed facts are in the judgment.
Cases Cited
Tom Amaiu v The State [1979] PNGLR 576
Brian Kindi Lawi v The State [1987] PNGLR 183
The State v Jack Oroko Tepol (Cr. No. 682/99 – Unreported Judgment – Oct. 99)
Wellington Belawa v The State [1988-89] PNGLR 496
The State v Rapola (No.1) [1988-89] PNGLR 487
The State v Rapola (No.2) [1990] PNGLR 347
Counsel
Mrs Christine Ashton-Lewis for the State
Mr Michael Apie’e for the Accused
18 November 1999
KIRRIWOM J: The accused appeared before me on 14/10/99 charged with one count of misappropriation or dishonestly applying to his own use a sum of K9,720, the property of Burns Philp Trading (PNG) Limited, trading as ELA MOTORS - Madang Branch. The offence was allegedly committed on or about 7th April 1997. The case was proceeded with by way of ex-officio indictment, power available to the Public Prosecutor under section 526 of the Criminal Code.
What was originally foreshadowed and scheduled to be a short trial turned out to be a plea, the accused opting to admit the charge on arraignment. In the event that this may have been the result of a misunderstanding I allowed defence counsel time to speak to his client. Upon resumption counsel advised that the plea was in order so I proceeded to read the depositions. I then administered the allocatus and the accused gave a long statement explaining what happened in this transaction. I will revert to that later in my judgment.
But the factual background of the case goes like this. The accused is a career policeman of fourteen years service in the Force, the last ten years with the Highway Patrol based in Henganoffi where he has been since.
In the course of his employment on the highway the accused was responsible for the recovery of a stolen motor vehicle a Toyota Hilux single cab, acting upon advice received from the Madang Police. The vehicle was sighted in the possession of one Benson Bire and seized and detained at the Henganoffi Police Station. Benson Bire was charged with being in possession of motor vehicle allegedly stolen. While this case was pending before the District Court in Kainantu the accused informed Ela Motors in Madang, the owner, of the recovery of the vehicle. They insisted on the return of the vehicle even before the case against Benson Bire was completed. He advised them to contact the Provincial Police Commander, as he had no power to accede to their request. And they did, so the vehicle was released on direction from Mr. Titus Pamben, the then Provincial Police Commander. Meanwhile the case against Benson Bire was dismissed when the prosecution failed to produce any evidence. Consequently the Court ordered the vehicle to be returned to Benson Bire. The Court order was served on the accused but the vehicle was gone. Consequently Benson Bire commenced civil action for the return of the vehicle or its monetary value against the accused and the State. This action was not defended and an award was made in favour of the Plaintiff Benson Bire for the sum of K9, 720.00. This order was served on the accused who contacted Ela Motors Madang and advised them of what had happened. But the vehicle had since been sold and the Manager, presumably out of sympathy for the accused who had helped recover the vehicle and accepting their responsibility for contributing to what had ultimately transpired whilst the said vehicle was subject to a continuing court hearing agreed to help him settle the judgment debt owing to Benson Bire.
On 6/3/97 the accused travelled to Madang and collected a cheque from Ela Motors for the sum of K9, 720.00 to settle the court order. The cheque was made out in his name and he opened an account with PNGBC under his own name to which he deposited that cheque. It was never disputed at the outset that the accused received the cheque from the Branch Manager of Ela Motors Madang. The cheque was made payable to him. Upon his return he opened an account with PNGBC and he deposited the cheque into that account. It is also not disputed that over a period of time he withdrew the monies in the account and used them as it suited him, including paying those informants who helped him with information to recover stolen cars. Amongst the beneficiaries were two policemen who accompanied him to Madang who received K300 each. He said he was under enormous pressure from the informants, who wanted payments for information given to him, which, according to the practice that existed he said, were satisfied from assistance given by private companies.
This is a clear case of breach of trust. The accused was trusted as a policeman and a law enforcer who was caught in a difficult situation by a civil debt and all because of Ela Motor’s fault. As the vehicle was not there and that it was the lack of cooperation from the witnesses from Ela Motors had resulted in the judgement against the accused, the cheque payment was made in sympathy to assist the accused to settle that debt. But once he got the cheque the accused had better ideas. The person who was actually deprived of the benefits accruing to him from this cheque was Benson Bire. Thus, if anyone had suffered any loss, it was not Burns Philip (PNG) Ltd trading as Ela Motors - Madang Branch but Benson Bire, the judgement creditor under a Court Order. However, this point is not relevant before me now because by opting to plead guilty the accused had waived his right to pursue his case on this defence except that he is entitled to raise this point as a mitigating factor in his favour. In sentencing the court allows some discount for plea of guilty particularly where the accused foregoes a technical defence he could legitimately raise but chose to plead guilty instead. In cases like this in my view the Court plays the balancing task in expressing an opinion as to whether the plea must remain as taken or it must be vacated so that the accused is given the opportunity to raise the defence properly in the trial. In a recent case of the State v Jack Oroko Tepol –Cr. No.682 of 1999, I vacated a plea of guilty to a charge of manslaughter under provocation because my subsequent reading of the depositions showed that the defence of aiding in self-defence was available and if successfully raised meant complete exculpation of the accused from the offence charged. While the Court must be impartial in its deliberations by not unduly descending into the arena it must also be seen to be doing justice to all who come before it. And in my view to afford a person a fair trial includes allowing him the chance to take advantage of the defence legitimately available that he may not be aware of or he may have over-looked. In that case the accused saw his wife about to be raped by the deceased and he saved his wife in the nick of time. The deceased who was under influence of drink assaulted the accused and there was a struggle when the accused stabbed the deceased who died later due to loss of blood and other complications. At the outset in that case the State conceded to provocation as defence and indicted the accused for killing on provocation, section 303. But there was also a defence under section 271 - aiding in self-defence - that could have been invoked, even in a charge of homicide under section 303, however, neither counsel had considered that. This is not one of those defences commonly raised in homicide or assault cases and this was the compelling ground for the Court to intervene in the case despite the fact that the accused was represented by counsel.
The accused in this case maintained throughout the conduct of the record of interview that ‘he was authorised by the Branch Manager - Ela Motors Madang to deposit the cheque into his own account and use it as he saw fit’. If the trial were run, this would have been the hotly contested issue because the accused maintained that Benson Bire was not the only one in his mind when he got the cheque, he also had his informants he felt ought to benefit from the cheque. But he chose to brush aside the fact that he was given the cheque with the specific purpose to settle the debt owing to Benson Bire under the Court Order for the specified amount. Thus, it is arguable that under the principles of Tom Amaiu v The State [1979] PNGLR 576 and Brian Kindi Lawi v The State [1987] PNGLR 183, the accused would still be liable if the Court disbelieved the suggestion that the Branch Manager of Ela Motors - Madang had authorised him to apply the money to his own use. 
He personally knew what the money was for. He ought to have known that to use the money for purposes other than what it was for was wrong. Others had acted on the bona fide belief that the plea was genuine and sincere and responded to bail him out of his difficult situation. This is an important aspect to bear in mind.
Punishment for misappropriation is provided for under section 383A(2) of the Criminal Code ie, imprisonment for a term not exceeding five years and more but not exceeding ten years where -
(a)      the offender is a director of a company and the property dishonestly applied is company property;
(b)      the offender is an employee and the property dishonestly applied is company property;
(c)      the property dishonestly applied was subject to trust, direction or condition;
(d)      the property dishonestly applied is of value of K2,000 or upwards.
In this case the accused is liable to go to prison up to ten years because the amount of money dishonestly applied is beyond K2, 000 and moreso, the money was subject of a trust or direction. It was paid to the accused for a specific purpose which the accused by pleading guilty to the charge accepted this to be so.
There are established guidelines to sentencing offenders in dishonesty offences set out in Welling Belawa v The State [1988-89] PNGLR 496. The head-note to the case summarises the relevant matters that the court may take into consideration when it determines an appropriate penalty for an offender charged with an offence involving dishonesty and the offender is in a position of trust, and they include - 
(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 thefts have been perpetrated;
(4)      use to which the money or property dishonestly taken was put;
(5)      effect upon the victim;
(6)      the impact of the offence on the public and public confidence;
(7)      the effect on fellow employees or partners;
(8)      the effect on the offender himself;
(9)      the offenders 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 darl of his trial; finally, any help given to him to the Police.
The guidelines alluded to above in Wellington Belawa set the scale of sentences that can be adjusted either upward or downwards according to those factors mentioned above. Where the amount misappropriated is between K1, 000 and K10,000, a gaol term of up to two years is appropriate. Thus if I am to apply the Belawa guideline the accused is already looking at the maximum of two years imprisonment as the amount involved is K9, 720.00. But I must consider this case in the light of its own peculiar circumstances and determine the sentence taking into account those factors set out above in Belawa’s case. In this case, it is extremely necessary to do so because of the seriousness of the offence, the amount of money involved, the position of the prisoner and the aspect of prevalence of such dishonesty offences. I therefore intend to examine some of these factors individually as they apply to this case and the prisoner.
THE AMOUNT.
The amount involved here is quite substantial and it must take a lot of nerve for anyone with dishonest mind to use such an amount without any regard of its ramification. But then one must not readily get onto the offensive without actually looking at the case from the accused’s perspective. The amount alone therefore must not be the determinative factor for sentence consideration.
PRISONER’S POSITION AND DEGREE OF TRUST PLACED UPON HIM.
Prisoner is a fairly experienced policeman who spent most of his service years in the Force with the Highway Patrol. He says approximately ten years. In those years he played key roles in Highway Patrol duties one of which is identifying and recovering stolen motor vehicles. Over the years he had established a good network of informants along the Okuk Highway through whose assistance he was able to track down and locate vehicles reported missing by their owners. This fact was not disputed and Ela Motors - Madang Branch was one of the firsts to admit and was therefore moved by his sincerity to assist him quite apart from contributing to the default judgement.
THE PERIOD OVER WHICH THE FRAUD OR THEFT WAS PERPETRATED.
This is a one-off incident of straight theft. There was a single cheque that the accused was entrusted with to settle the debt owed to Benson Bire. However he spent the money over a period of time because it was a substantial sum. In my view the length of time it took him to exhaust the money that he had already decided to apply and use at his discretion is immaterial. The conversion of the money took place at the time he decided that he was not going to use the money for which it was given to him but for his own purpose and at his discretion.
THE USE TO WHICH MONEY OR PROPERTY DISHONESTLY TAKEN WAS PUT.
It is not disputed that some of the money was used to pay the informants who assisted him in the recovery of the vehicle concerned and other vehicles in the past, some to friends including two policemen who accompanied him to Madang to collect the cheque from Ela Motors and the rest he simply spent at his pleasure. It shows clearly that the accused had decided to apply the money to his own use, not necessarily to fix his informants. He was already won over by temptation to apply the money at his own discretion because the cheque was made out in his own name and to pay his informants was only a secondary consideration although a primary concern. This is what I don’t understand because if Ela Motors intended the cheque for settlement of the judgment debt, the cheque ought to have been raised in favour and in the name of the judgment creditor, namely Benson Bire. But that did not happen. Be that as it may, the accused said he was under pressure from informants to pay them something for the information they supplied him to do his work. And he did pay them some of that money. 
THE EFFECT UPON THE VICTIM.
The victim in this case is Burns Philp Trading (PNG) Ltd. trading as Ela Motors-Madang Branch. This is an offence in a technical sense in that the owner of the cheque who is purportedly the victim did not suffer any immediate unintended loss in that the cheque was given to the accused with no consequential benefits expected to be flowing back to it from that payment. Thus as to how the money was spent once it left the custody of the drawer which is Ela Motors Madang was of no direct significance or concern to it. The only person who might claim to have been affected is Benson Bire, the beneficial owner. There is no direct evidence that he was made aware of this payment coming from Ela Motors apart from the hearsay material in his committal deposition.
THE IMPACT OF THE OFFENCE ON THE PUBLIC AND PUBLIC CONFIDENCE.
The public looks to police as law enforcers to lead by example. This is a case involving a substantial sum of money, which was gratuitously paid, on request and for a specific purpose. The Manager of Ela Motors was entitled to expect the money to be used for the purpose it was requested, albeit, he was not aware that it was used contrary to the purpose for which he paid the money to the accused. No doubt it would cast serious doubt on the sincerity and honesty of policemen generally. It lowers the image of policemen generally as untrustworthy when dealing with money received in trust.
EFFECT ON FELLOW EMPLOYEES AND THE OFFENDER HIMSELF.
The accused is a first offender and what he did can have a negative effect on other members of the Force to whom the public look upon to help them in situation like this. 
RESTITUTION
This is an important aspect that the court must consider on the question of determining penalty. The prisoner here has realised that he had faulted and had taken steps to correct that mistake when he entered into an arrangement for restitution with Benson Bire. A payment of K5, 000 had been made thus leaving a balance of K4, 720.00 yet to be paid. I was urged to give the prisoner an opportunity to pay the money to Benson Bire. The essence of restitutive justice is that compensating the victim is just as important as incarcerating the offender. The justice that cries out in this case is that the victim must be given every opportunity to get the money it is owed by the offender and if there is a window of hope for that to be achieved, the court must heave towards facilitating that result.
SENTENCE
I have considered all those matters advanced on behalf of the prisoner particularly his community background at his Reto village Lufa where he is spoken very highly of and the fact that he comes from a well-disciplined family. No doubt with someone in his category falling out of line does have adverse impact on those who are immediate to him such as his wife and children as well as his own parents who are responsible for his upbringing. It is a shame that they bear as well. Both parents are alive and well. His wife and three children are dependent on him and he dedicates his free times to them when he is not at work. These people are affected by his conduct.
I accept that he is genuinely sorry for what he did as he had already taken steps to pay to Benson Bire what is owed to him. He needs time to pay the balance of K4720. He is still employed with the Police Force and a member of the Police Savings and Loan Society from which he intends to seek loan to settle the balance.
While the court has a duty to be firm and consistent in imposing punishment on wrongdoers, it must be guided by the public perception of what is right and wrong. If the offence concerned requires strong deterrent sentence from both legal and moral point of view then so be it. Where the circumstances of the offence are such that custodial sentence is not wholly appropriate, the court must not act against the current or tide of common sense and justice. In this regard I agree with counsel for the prisoner that the person who is greatly affected by this offence is Benson Bire, not Ela Motors in Madang. Benson Bire wants his money and the prisoner is willing to pay him that money so long as he is given the time to do so. And he had already demonstrated his sincerity by paying over half the amount. The court must not act in isolation of the victim’s interest. Punishment is not just sending wrong doers to prison to show that the public does not flout the law at will. Victim-offender reconciliation is the best result that the law can achieve through the formal court process. And the pre-sentence report submitted by the probation officer strongly suggests that the prisoner is already well advanced in his efforts to achieve that reconciliation and a probation sentence would ensure that restitution is accomplished under supervision sanctioned by a probation order. In the circumstances I consider that the appropriate sentence for you is two years imprisonment in hard labour which I order you to serve on probation but subject to the condition that you make full restitution of the money owed to Benson Bire within six (6) months from the date of this decision. I am mindful of the decision in The State v Rapola (No.1) [1988-89] PNGLR 487 where a similar probation order was made but was breached and as the consequence the probationer was called up by the court after the time period stipulated for her to repay the money stolen expired without the condition being fulfilled to explain her way out or serve her sentence. As it turned out those people who had initially promised and undertook to help her repay the money never came good with their promises. But the court is powerless to compel those persons to help her when such offers were made out of the willingness of their own to help their friend or relative. Consequently she had to go to prison to serve the balance of her term (see The State v Rapola (No.2) [1990] PNGLR 347). I mention this case of Evelyn Rapola because in this case similar gestures are abound with a guarantee letter from Dr. Kristoffa Robert Ninkama of Mountain and Valley Medicals which was handed up to the court after the court had been in recess for some weeks deliberating on the sentence. Whilst I express dissatisfaction to counsel on such casual practice, there was no vigorous objection to the court receiving the letter promising to pay the balance of K4720 outstanding if the prisoner could not meet the payment. This is a generous offer made by someone willing to help another in dire need, which the court has no legal authority to compel enforcement of that promise in the event of breach by the prisoner. The situation here is unlike in a bail guarantee scheme where the guarantor promises to pay or forfeits to the State money pledged or lodged with the court in the event that the accused breaches his bail conditions. Once convicted the prisoner carries his burden alone although others may express willingness to share his weight with him. He can only hope for their sincerity to live up to their pledges and the court has no power over them but he himself cannot ignore his responsibility under the sentence by relying on others to bail him out. This is the lesson drawn out in the Rapola case.
But I am confident that the prisoner here will do everything within his capacity to comply with the condition of his probation order. I must also add that the final restitution must be appropriately witnessed by an officer from the Probation and Parole Office here in Goroka and a report submitted to this court for the discharge of the probation order. 
Sentence of the court is that you are imprisoned for two years in hard labour which I order you to serve on probation on the condition that you pay the money you dishonestly applied in full, that is, K9, 720.00 less payment already made and acknowledged, to Benson Bire within six (6) months from the date of this order, which expires on Wednesday 17 May 2000. This sentence does not take into account what consequences that may flow from your conviction in so far as disciplinary action is concerned. This matter is exclusively within the prerogative of the Commissioner of Police under the new Police Force Act 1999. The court’s discretionary power under the repealed Act had been removed in the new Act and the Commissioner has wide powers to exercise regarding what further proceedings lie after conviction.
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor