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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 9 of 2004
THE STATE
GIBSON HAULAI
VANIMO: KANDAKASI, J.
2004: 9th, 19th and 25th March
CRIMINAL LAW – PRACTICE & PROCEDURE – Sentencing – Misappropriation – First time offender – Restitution and non-custodial sentence with community work orders possible sentences - Pre-sentencing report and means assessment reports must be called for – Community willing to contribute to supervision of community work orders – Appropriate to make orders to accommodate such preparedness as sentencing is a community responsibility.
CRIMINAL LAW – Sentencing – Misappropriation – Total amount stolen K27, 320.00 – First time adult offender –Pre-sentencing and means assessment reports called for and received – Such reports favouring restitution and non-custodial sentence with community work orders – Community prepared to contribute to restitution and supervision of community work orders – Sentencing a community responsibility - Orders for restitution of full amount stolen by the prisoner with relatives and community support - Non-custodial sentence with terms imposed.
Cases cited:
Wellington Belawa v. The State [1988-89] PNGLR 49.
Lawi v. The State [1987] PNGLR 183.
The State v. Paroa Kaia N1401.
The State v. Bygonnes Tuse Nae (18/09/96) N1474.
Doreen Liprin v. The State (9/11/01) SC675 (?).
The State v. Dobi Ao (No 2) (2002) N2247
The State v. Micky John Lausi (27/03/01) N2073.
The State v. Jimmy Solomon (6/7/01) N2100.
The State v. Eric Emmanuel Vele (24/07/02) N2252.
The State v Louise Paraka (24/01/02) N2317.
The State v. Makeu Kig (21/06/01) N2177.
The State v. Rex Rongo (20/12/00) N 2035.
The State v. Fredinand Naka Penge (24/05/02) N2244.
The State v Jamie Campbell Fereka (07/04/03) N2359.
Acting Public Prosecutor v. Don Hale (1998) SC564.
The State v. Oa Seseka (19/10/90) N921.
Counsel:
F. K. Popeu for the State
D. Kari for the Accused
DECISION ON SENTENCE
25th March 2004
KANDAKASI, J: On Tuesday, 9th March 2004, you pleaded guilty to one count of misappropriation of a total sum of K27, 320.00 belonging to Air Nuigini Ltd, Vanimo branch to your own benefit.
Relevant Facts
Between 8th April and 31st December 2002, you were in the employ of Air Nuigini as its Cargo Officer here in Vanimo. Your duties entailed the charging, collecting, depositing with the bank and accounting to your employer ticket and cargo sales. During this period, you collected various sums of money, ranging from K1, 266.10, the lowest to K17, 703.17 at the highest. Out of the sums you collected, you deposited only part of them in Air Nuigin’s account, kept the balance to yourself and applied them to your own personal use. This totalled K27, 320.00. To conceal your theft of this money, you falsified the customer’s copy of the deposit slips to make it look as if you deposited the full amounts collect on each of the relevant occasions.
During the year-end closing of Air Nuigini’s finances for the year 2002, internal audits showed that their records could not be reconciled with the bank account statements. This necessitated an investigation. The investigation revealed what you did. Air Nuigini, therefore reported you to the police.
After its own investigations, the police eventually arrested and charged you with misappropriation. In your record of interview conducted with police on 25th March 2003, you admitted to committing the offences and gave details of what you did including the application of the money to your own personal use.
Address on Sentence
Based on your guilty plea and after the Court satisfied itself on the material in evidence before it, per the District Court Deposition, the Court accepted your guilty plea. In your address before sentence, you said sorry for what you have done and asked the Court to direct Air Niugini to re-employ you so that you could repay what you stole from them. Your lawyer then asked for a pre-sentence report as well as a means assessment report. I directed the Probation Services to provide these reports by the 16th of this instant.
The Probation Service furnished the reports as required. At that time, the Court required further inputs as to the method of repayment. Those further inputs came in on the 19th of this month, when I received your lawyer’s submissions on sentence.
Your lawyer adopted the submissions or the contents of these reports. These reports give your personal details, your commission of the offence, your attitude to it, your means and the way in which you wish to repay Air Niugini the money you stole from it. The report contains inputs from the community as well as Air Niugini as to the kind of sentence you should receive. Ultimately, the report recommends a repayment of the money you stole to Air Niugini, which is what Air Niugini prefers as well as a non-custodial sentence on terms.
These recommendations proceed in view of your guilty plea, you being a first time offender and that you have the means to meet any order for restitution and that you will comply with any terms the Court imposes for any non-custodial sentence. In view of this, the State is making no submissions against the recommendations and has chosen to leave it to the discretion of the Court.
The Law
Section 383A (1)(a) of the Criminal Code under which you have been found guilty, creates the offence and prescribes the penalty in relevant parts as follows:
"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) ...;
(b) where the offender is an employee and the property dishonestly applied is the property of his employer;
(c) where the property dishonestly applied was subject to a trust, direction or condition;
(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 ..."
The Supreme Court in Wellington Belawa v. The State[1] set the sentencing guidelines for cases of misappropriation. There, the Court held that the lesser the amount of money involved, the lesser the sentence terms should be. The opposite of that should be the case in cases where the amount involved is high. The Court then held that the amount taken; the quality and degree of trust reposed in the offender including his rank and time taken to commit the offence are relevant factors for consideration. The Court included in that list, the use to which the money or property dishonestly taken was put; the effect upon the victim; the impact of the offences on the public and public confidence; the effect on fellow-employees or partners. Further, the Court held that the effect on the offender himself; the offender’s own history; restitution; and factors in mitigation such as illness; being placed under great strain by excessive responsibility or the like; co-operating with the police are also factors relevant for consideration.
Since then, cases have imposed sentences between 18 months for misappropriation of K6,000.00 and 3 years for misappropriations of K10,000.00 as in Lawi v. The State.[2] Cases subsequent to that have imposed sentences of 4 years on a guilty plea with good mitigating factors for a misappropriation of K94, 478.31 as in The State v. Paroa Kaia[3] and The State v. Bygonnes Tuse Nae,[4] for misappropriation of amounts exceeding K100, 000.00.
A most recent Supreme Court judgment on this kind of cases is the case of Doreen Liprin v. The State.[5] That was a case of conviction on one count each of forgery, uttering and misappropriation of a sum of K6, 000.00. The sentence imposed was one year each for the first 2 offences and 3 years for the misappropriation, all made concurrent. The Court however suspended the sentence on conditions of repayment of the stolen monies within a period of 2 months upon the prisoner’s request. That condition was not met resulting in the appellant’s incarceration to serve the sentence. Whilst in prison she lodged her appeal to the Supreme Court on both conviction and sentence. Although her appeal was out of time, the Supreme Court in the exercise of its powers under s. 155(2)(b) of the Constitution proceed to deal with the matter.
The then Chief Justice dismissed the appellant’s appeal against conviction but upheld her appeal against sentence. He had the sentence reduced to 18 months. With respect, as I noted in The State v. Dobi Ao (No 2),[6] that sentence was arrived at, without having regard to the sentencing trend in this sort of cases. The Deputy Chief Justice and Justice Los did have regard to the relevant sentencing trends and concluded that the cumulative sentence of three years was appropriate as it was within the range. Despite his views on the sentence, Justice Los however accepted the Chief Justice’s proposal on sentence. With respect, this does not provide any assistance as to determining appropriate sentences.
Further, as I noted in The State v. Dobi Ao (No 2),[7] it is an important aspect in criminal law sentencing that, sentencing tariffs must be considered to determine sentences in future cases if subsequent sentences are to have any relevance to the interests of society to appropriately deal with offenders. Usually, if past sentences fail to deter other would be offenders evidence by prevalence in the kind of offence under consideration, the sentence in the subsequent case may have to be increased to counter that, unless the other purposes of sentencing are considered appropriate.
The then Chief Justice’s proposal in addition to reducing the sentence, proposed that the appellant be given more time to look for alternative employment to repay the amounts misappropriated and that the Court make orders for free community services under the Probation Services supervision. His Honour’s reasons were:
"I believe it is time to consider seriously whether offences of misappropriation of amounts of the kind [K6,000.00] warrants custodial sentences. I do not believe the Court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment."
...
The converse implications of a sentence of imprisonment is, whilst the immediate effect is that of declaration of liberty and does a punishment, the cost to the State and the community will exceed considerably the amount of money misappropriated. It would be of no benefit to society. The purpose of punishment can as easily be obtained in alternative orders to imprisonment. The offender is now (sic) threat to society."
Again, in the case of, The State v. Dobi Ao (No 2),[8] I agreed it was time to seriously consider alternatives to sentencing in this type of cases and said:
"But, that with respect, does not necessarily mean head sentences be drastically reduced. Instead, it means, there be sterner head sentences and then either have them wholly suspended or it be made part custodial and part non-custodial. This is to show the seriousness of the offence and to serve both the purposes of deterrence and rehabilitate an offender. It would also give the offender a consideration to faithfully meet any conditions that might be imposed for suspending either in part or in whole the head sentence. The absence of a sanction for failing to meet such conditions might give no reason to the offender to comply."
To this, I now add that just ordering restitution without more in the form of a punishment would not serve any deterrence. Rather, it would encourage people with criminal minds to misappropriate monies belonging to other persons, apply them to their own use interest free and made to repay only the principle amount under a restitution order. People with means to repay would hence be encouraged to get way lightly and easily. That would encourage rather than deter offender from reoffending and others from offending. Hence, it is necessary that there be additional conditions attached to a restitution order to show the community’s abhorrence of the commission of such offences and to help deter other would be offenders.
I continue to subscribe to the view that:
"It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such order is made in the community interest and is generally designed to prevent re-offending which a prison sentence, standing alone, seldom does. A person so released as an obvious incentive not to re-offend. Therefore, there should be no misconceptions as to what will occur if he does. From time to time, persons charged with more serious offences may be dealt with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that a particular offender will be positively damaged by immediate incarceration."[9]
Certainly, in my view, a non-custodial sentence therefore does not grant the offender immediate liberty. Such sentences only allows the offender to serve his penalty outside the prison system for reasons such as those noted in the above passages. Hence, the need to impose a head sentence and conditions for a suspended sentence that will make that clear to an offender.
In a number of subsequent cases of misappropriation and or forgery and uttering, I imposed wholly suspended sentences bearing in mind the foregoing factors. Cases that readily come to mind are The State v. Eric Emmanuel Vele;[10] The State v Louise Paraka[11] and The State v. Dobi Ao (No 2),[12] itself. I note also that some of my brothers have imposed similar sentences, such as the one by Sawong J in The State v. Makeu Kig.[13]
In Your Case
For the purpose of your sentence, I note that you are about 40 years old. You are second in a family of seven children. As for your parents, your mother is still alive while your father is deceased. In terms of education, I note you have reached grade 8. Despite that, you have had a good working record initially with Douglas Airways from 1982 to 1990 and thereafter with Air Nuigini until your termination because of the offences, you committed against it. Your good employment record would have continued but for your own actions. Now you are living on subsistence farming. There is a possible job opening with MAF subject to a decision on your sentence. You have no debts and are fortunate to have credits owing to you from other persons and you own a number of real and other properties.
You have no prior convictions, so this is your first ever offence. You have therefore lived a good life in accordance with the laws of the land. The community vouched for this, including Air Niugini. They all speak of you being a very useful member in the community helping in resolution of problems in the community and demonstrating yourself to be a useful hand always willing to learn new skills and excel. Clearly, therefore, this offence was a departure from an otherwise very good record.
You attribute the commission of the offence to being frustrated over a lack of promotion. You now realize that, what you did is wrong. Therefore, you are prepared to make that right by repaying the money you stole and are prepared to do community work under supervision. I note also your undertaking not to repeat this offence or any other offence.
Further, I note that you are married with three children. One of your children is disabled and is dependant on you and the mother. If you are sent to prison, your family will face difficulties in looking after themselves. To avoid that from happening, I note that your wife, who is unemployed, is prepared to do what she can to help you to meet any restitution or compensation orders the Court might make against you.
Finally, I note that the offence you committed is not a violent one. You have no history of being violent. As such, you are no danger to the society.
In view of all of these, the Probation Service recommends both restitution and community work orders as you have the means to meet any order for restitution and are able to do community work.
In a number of cases, I have already expressed the view that a Court should only act on a well balance pre-sentencing report. In The State v. Rex Rongo,[14] I rejected a pre-sentencing report that had no input from independent members of the community. I did that because of the tendency in human beings to speak only in support of their relatives or friends especially, when they know that whatever they are going to say will affect the freedom of persons like you. In order for a pre-sentencing report to be truly reflective of the community’s position, there must be inputs from people having no personal interests in the sentence a prisoner should receive as well as inputs from family members and relatives who have such interests. A report without such inputs is therefore, unreliable in my view. That is why, I rejected the report in that case. I did the same for the same reason in The State v. Fredinand Naka Penge.[15]
In your case, I find your report well balanced in that, there are inputs from independent members of the community. This includes inputs from even the victim of your crime. I am therefore prepared to impose a sentence that reflects the wishes expressed by the community. This is because as I said in many cases before, sentencing is a community responsibility.[16] In so doing, I noted that the Supreme Court led in stating that concept in Acting Public Prosecutor v. Don Hale.[17] After all the Courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution.
The notion of criminal sentencing is a community responsibility has been, restricted to the question of returning an offender back to the society. The only cases suggesting an extension of this to getting the community not only to share in an offender’s rehabilitation but his penalty are the case of The State v. Oa Seseka[18] and The State v. Dobi Ao (No 2).[19]
In the first case, Amet J. (as he then was) said in the context of the relatives and members of the offender’s clan rallying behind the offender:
"I am much impressed by the clan rallying to the assistance of the prisoner and many being prepared to make the kind of commitment referred to help the prisoner. This demonstrates the kind of pride and commitment Mr. Avei spoke of and which I accepted. There was no direct evidence led of the kind of obligation that might be placed upon such an offender who was helped in the way the relatives have undertaken to help the prisoner. I do not think however that evidence is necessary to establish that some reciprocal obligation is placed upon the prisoner. There cannot be any doubt about that. I believe this is universal in the country. The extent, and duration may vary from area to area.
I am satisfied that such assistance with corresponding obligations over quite a number of years provide a form of sanction in themselves.
The value and place this kind of customary sanction has upon the punitive principles of sentence have not been fully considered in these courts. No real arguments have been presented and I do not wish to deal with it in any depth except to say in my own perception that it does have a place which will have to be explored and elaborated upon."
In the second case, I cited the above case and proceed to allow for relatives or the members of the offender’s family to contribute toward the prisoners restitution of the monies she misappropriated from the State. In so doing, I discussed both the arguments for and against such an approach. I need not repeat them here, suffice only to refer to it in the way I have just done. Then I note that, since that judgment, I have not seen any opinion to the contrary. I remain convinced that this approach is appropriate as it is more relevant to our culture and tradition.
Taking into account all of the above, I consider no useful purpose will be served if you are sent to prison. You will be a strain on the State’s limited financial resources in terms of looking after you in prison and feeding you. The State will incur further expenses, which may be double or triple the amount you have misappropriated. Apart from not seeing you in your house and your community, the members of your family and community will not be able to see you serving your penalty. I therefore, consider a non-custodial sentence is appropriate but that has to be on strict terms.
Going by the tariffs in this kind of offences, I consider a head sentence of 3 years in hard light labour appropriate. I would then have the whole of that sentence suspended on the following terms and conditions during the currency of your suspended sentence:
(a) The amount of K9, 306.48 calculated to be due and owing to you from the Nasfund be immediately forfeited to Air Nuigini by way of a cheque for that amount being drawn by the Nasfund in favour of Air Niugini;
(b) The amount of K5,187.81 due and owing to you from Air Niugini in final termination entitlements be immediately forfeited to Air Niugini;
(c) You immediately sell to your brother-in-law, Caspar Yamaingu for a sum of K500 in cash your Samsung Television set and have the proceeds paid over immediately to Air Niugini;
(d) You immediately sell to your other brother-in-law, Timothy Wakon your 2 wheel drive Toyota Hilux for a sum of K5,000.00 in cash and have the proceeds paid over immediately to Air Niugini;
(e) A sum of K7000.00 be paid to Air Niugini in cash on behalf of the prisoner by Daniel Wulakufe by or before the end of July 2004;
(f) The balance of K903.38 be paid on behalf of the prisoner by Luke Kalakle immediately to Air Niugini;
(g) The payments under orders (c) and (d) be made in any case, no later than the 2nd of April 2004 and the evidence of which, shall be furnished to the Court through the probation service by or before the 7th of April 2004;
(e) The payments order under (c), (d), (e) and (f) remains your responsibility to ensure all of these payments are made within two years from today and in the event of a default or shortfall, you shall sell your house to meet the shortfall from the proceeds of the sale;
I consider the sentence and the terms and conditions of the sentence proposed above sufficiently accommodate all of the comments and
concerns raised in the foregoing. Accordingly, I make orders in those terms.
_____________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor
[1] [1988-89] PNGLR 496.
[2] [1987] PNGLR 183.
[3] N1401.
[4] (18/09/96) N1474.
[5] (9/11/01) SC675 (?).
[6] (2002) N2247.
[7] Supra note 6.
[8] Supra note 6.
[9] The State v. Micky John Lausi (27/03/01) N2073, as cited in The State v. Jimmy Solomon (6/7/01) N2100.
[10] (24/07/02) N2252.
[11] (24/01/02) N2317.
[12] Supra note 6.
[13] (21/06/01) N2177.
[14] (20/12/00) N2035.
[15] (24/05/02) N2244.
[16] For an example see The State v Jamie Campbell Fereka (07/04/03) N2359.
[17] (1998) SC 564.
[18] (19/10/90) N921.
[19] Supra note 6.
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