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State v Lasin [2007] PGNC 221; N5052 (17 August 2007)

N5052

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1631 0F 2006

THE STATE

V

STEVEN LASIN

Kimbe: Cannings J
2007: 17 July, 14, 17 August

CRIMINAL LAW – sentence – Criminal Code, Subdivision VI.1.C (offences analogous to stealing) – Section 383A (misappropriation of property) – sentence on plea of guilty – manager of local-level government put in charge of electoral awareness program, misappropriated allowances of officers– two cheques totalling K10,888.00.

A man pleaded guilty to misappropriation. He was the manager of a local-level government put in charge of an electoral awareness program. He was given custody of two cheques worth K10,888.00 intended for 28 individual officers as their allowances for taking part in the program. He cashed the cheques and applied the proceeds to his own purposes. This is the judgment on sentence.

Held:

(1) The starting point range for sentencing for the amount misappropriated is four to six years imprisonment.

(2) Mitigating factors are: transactions committed over short period; co-operated with police; apology and repayment of some of the money; pleaded guilty; remorse; first-time offender.

(3) Aggravating factors are: large amount of money; held a position of trust; money not put to good use; large adverse effect on other persons; large adverse effect on public confidence in the provincial public service; did not give himself up; educated and intelligent man who should have known better.

(4) A sentence of four years was imposed. The pre-sentence period in custody was deducted and 30 months of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Augustine Seckry CR 376 of 2005
The State v Joyce Gulum CR 1620 of 2005
The State v Paul Taro CR 237 of 2006
The State v Rictor Naiab CR 387 of 2005
Wellington Belawa v The State [1988-89] PNGLR 496

SENTENCE

This was a judgment on sentence for misappropriation.

Counsel

F Popeu, for the State
R Beli, for the offender

17th August, 2007

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of misappropriation arising from the following facts. In 2006 the offender was the Gasmata Local-level Government Manager. He was appointed co-ordinator by the Provincial Electoral Office of its awareness exercise regarding the new voting system. The Electoral Office appointed a number of other officers to assist the offender in conducting the exercise. He came to Kimbe in his capacity as co-ordinator of the exercise and went to the Provincial Electoral Office to pick up two cheques with a total value of K10,888.00. These cheques were intended to be allowances for the twenty-eight officers taking part in the exercise. Upon picking up the cheques he took them to BSP Kimbe and cashed them. He put the proceeds to his own use, from 8 to 12 July 2006. The officers realised that something was wrong when by the third week of July they had not received their allowances and reported the matter to police. The application by the offender of the money was dishonest. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted Steven Lasin of misappropriation.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender said:

I am very sorry for what I have done. I have never done this before. I was subject to outside influences. I have already extended my apology in an open letter to all the officers and to the Provincial Electoral Office. I have also apologised to the Electoral Steering Committee, the West New Britain Provincial Government, the Kandrian District Administrator, the Gasmata Local-level Government and all others concerned. I intend to repay all this money as soon as I am able to. I will never practice this again. I have already made some repayments of about K2,600.00. I ask the court to give me time to repay all the money. I am the only one working in my family. My parents died in the Bougainville Crisis. I am married with six children and my wife is not working. I have school fees and clothing for the children to pay for. I ask for leniency. I am willing to sacrifice my personal money to make good what I have done. I sincerely apologise again and I will never repeat this.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). He eventually co-operated with the police, after first lying to them about losing the money. He made admissions in his police interview. He has repaid K2,632.00.

PRE-SENTENCE REPORT

5. To help me make a decision on the appropriate sentence I considered a pre-sentence report prepared by the Kimbe office of the Community Corrections and Rehabilitation Service. A summary of the report follows:

STEVEN LASIN: male, aged 38 years.
Residence: Lives at Laleki, Kimbe, in a rented house – has been living there since April 2007 – prior to that he was living at Gasmata.
Family background: He is from Lontis village, Bougainville – third born in family of six – parents died during the Crisis.
Marital status: Married to a woman from Central Province, Margareth – both offender and his wife have previous marriages and children from previous marriages, a total of six – happily married.
Education: Grade 10, Hutjena High School, Bougainville, 1984 – Popondetta, Certificate in Agriculture, 1985-86 – Diploma in Tropical Agriculture, University of Vudal, 1995.
Employment: Came to WNBP to work in 1996 with the Kandrian-Gloucester Integrated Development Project – then joined the Division of Primary Industry and worked with them from 1987 –1993 at Gasmata – appointed acting LLG Manager of Gasmata in 2004 and worked in that capacity until 2006 – suspended in September 2006 to the present date due to commission of the offence – now under suspension with full pay.
Employer's attitude: The president of Gasmata LLG, Stanis Julias, speaks highly of the offender who is regarded as an outstanding and resourceful officer – likewise the acting Kandrian District Administrator, Isaac Mesulam Ave, spoke highly of the offender and has accepted the open apology he has given to authorities and individuals concerned.
Health: Excellent.
Financial status: Depends on salary.
Plans: Continue to work in West New Britain – at some stage he would like to pursue his degree course at University of Vudal.
Offender's family's attitude: His wife is supportive – he has an uncle, Alois Romanu, working at Malama Hardware, who also speaks highly of him.
Community Record: Good – has established good public relations with locals through his job.
Assessment: Not considered a threat to anybody.
Recommendation: suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Beli submitted a head sentence of five years would be appropriate all of which should be suspended in view of the apology made by the offender and his concerted effort to repay the money.

SUBMISSIONS BY THE STATE

7. Mr Popeu agreed that the head sentence should be five years but only a portion of the sentence should be suspended. There was some serious aggravating factors especially the high degree of trust that was placed in him and the fact that the money misappropriated was intended for individual officers who were not in a position to carry those loses. The money was meant for individuals: it was their pay that he deprived them of. It is more serious than other misappropriation cases dealt with recently in the province where the money was misappropriated from large corporations.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. As the amount of money misappropriated is more than K2,000.00 the maximum penalty under Section 383A(2)(d) is ten years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. The Supreme Court set out some starting point ranges in Wellington Belawa v The State [1988-89] PNGLR 496, depending on the amount of money misappropriated. Thus:

• K1.00 to K1,000.00 – a jail term should rarely be imposed;
• K1,000.00 to K10,000.00 – two years imprisonment;
• K10,000.00 to K40,000.00 – two to three years imprisonment;
• K40,000.00 to K150,000.00 – three to five years.
  

11. However, since that case, circumstances in Papua New Guinea have changed. There is an enhanced level of community concern about corruption, dishonesty and misappropriation both in the public sector and in the private sector. In my view this should be reflected by doubling the tariffs suggested in Belawa. That is:

• K1.00 to K1,000.00 – suspended sentence usually appropriate;
• K1,000.00 to K10,000.00 – four years imprisonment;
• K10,000.00 to K40,000.00 – four to six years imprisonment;
• K40,000.00 to K150,000.00 and beyond – six to ten years.
  

12. The present case falls into the third category, which means a range of four to six years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY IN WEST NEW BRITAIN FOR EQUIVALENT OFFENCES?

13. Before I fix a sentence, I will consider other misappropriation sentences I have handed down recently in West New Britain. These cases are shown in the table below.

SENTENCES FOR MISAPPROPRIATION, WEST NEW BRITAIN 2005-2007

STEP 4: WHAT IS THE HEAD SENTENCE?

14. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be 'strongly mitigating'. Others may be 'mildly mitigating'. The same goes for aggravating factors. Three sorts of considerations are listed. Numbers 1 to 7 focus on the circumstances of the incident. Numbers 8 to 12 focus on what the offender has done since the incident and how he has conducted himself. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Was only a small amount of money misappropriated? No, it was a large amount of money, especially from the point of view of the victims.
   
2. Was the offender in no special position of trust? No.
   
3. Did the transactions take place over a short period? Yes.
   
4. Was the money that was misappropriated applied to a good use? No.
   
5. Did the offender's actions have only a small adverse effect on other persons? No.
   
6. Did the offender's actions have only a small adverse effect on public confidence in the integrity of the public sector, the banking system or the private sector or a company? No.
   
7. Has the offender and his family already paid a heavy price for his actions? Neutral. He has been suspended from his job but is still on the payroll.
   
8. Did the offender give himself up before being detected? No.
   
9. Did the offender cooperate with the police in their investigations? Yes.
   
10. Has the offender done anything tangible towards repairing his wrong, eg repaying the money misappropriated or making a serious attempt to do so, personally or publicly apologising for what he did? Yes, he has apologised profusely and paid back about 25% of the misappropriated money.
    
11. Has the offender pleaded guilty? Yes.
    
12. Has the offender genuinely expressed remorse? Yes.
    
13. Is this his first offence? Yes.
    
14. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? No, he is an educated and intelligent man and he should have known better.
    
15. Are there any other circumstances of the misappropriation or the offender that warrant mitigation of the head sentence? Neutral.
    

15. After weighing all these factors and bearing in mind that there are six mitigating factors and seven aggravating factors, the head sentence should be within the starting point range. I impose a head sentence of four years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. Yes, but I am informed the offender has not yet spent time in custody. There is nothing to be deducted.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

17. The offender has received a favourable pre-sentence report. In fact the government officers he works with and answer to, have given him glowing references, which shows he is well regarded in the community, despite the offence he committed. Two and a half years of the sentence will be suspended on the following conditions:

(a) must reside at Laleki and nowhere else except with the written approval of the National Court;

(b) must not leave WNB Province without the written approval of the National Court;

(c) must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(d) must attend a church to be approved by the National Court every week for service and worship and assist the church in its community activities;

(e) must report to the senior Probation Officer at Kimbe on the first Monday of each month between 9.00 am and 3.00 pm;

(f) must not consume alcohol or drugs;

(g) must keep the peace and be of good behaviour;

(h) must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;

(i) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

18. Steven Lasin, having been convicted of one count of misappropriation, is sentenced as follows:

Sentenced accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender