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State v Pasliu [2014] PGNC 253; N5696 (25 July 2014)

N5696

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 738 OF 2013

BETWEEN:

THE STATE

AND

ZACHERY PASLIU

Waigani: Salika DCJ
2014: 12 June; 15 & 25 July

PRACTICE and PROCEDURE – Criminal Law – sentence – Dishonesty Offence – Stealing – s.372(7) and (10) of Criminal Code – Police officer in position of trust – police officer in position of command and control.
PRACTICE and PROCEDURE – sentence – police officer stealing court exhibit in the form of cash money – amount stolen K4,200.00

Cases Cited:

Belawa v the State [1988-89] PNGLR 496
State v Eliakim N3190
State v Johnson Bale N2626
State v Neville Miria N5102
State v Timothy Tio N2265
State v Pongowen Popei and Mark Regione, CR 659 and 660 of 2012 Unreported and Unnumbered
Goli Golu v The State (1979) PNGLR 653
State v Paul Tienstein N5563
The State v Mark Mauludu N5566

Counsel:

Ms C Tarube, for the State
Ms M Ainui, for the Defense

25th July, 2014

1. SALIKA DCJ: The prisoner pleaded guilty to one count of stealing, an offence created by s. 272(1) and (6)(b) and (10) of the Criminal Code.
   
2. On 23 December 2011, K4,200 was given to the Constable Walter Sini for safe keeping as an exhibit to be used as evidence in another matter. The prisoner was the Constable's supervisor. The prisoner instead of keeping the money safe and returning it, stole the money and used it himself. The prisoner was asked to return the money but never did and to date has never returned it.
   
3. The court now has to determine what penalty to impose on the prisoner.
   
4. The maximum penalty provided under s.372(6)(b) is 7 years imprisonment subject to s.19 of the Criminal Code which provides that a lesser penalty may be imposed at the discretion of the court.
   

Case Precedents

5. The Supreme Court in the Belawa v the State [1988-89] PNGLR 496 confirmed a sentence of 2 years imprisonment for misappropriation. In that case the prisoner misappropriated K1,979.00 and had the money fully reimbursed but the court said the 2 years imprisonment was not excessive.
   
6. In The State v Eliakim N3190 the prisoner pleaded guilty to one count of conspiracy to defraud and one count of stealing K3,360.01. He was sentenced to 18 months imprisonment for submitting ghost names as employees and obtained cheques for those ghost employees. He did this for 3 months before he was caught.
   
7. In The State v Johnson Bale N2626 the prisoner was sentenced to 4 years imprisonment for stealing K78,074.03 from his employer. The prisoner was in a position of trust and he abused that trust.
   
8. In The State v Neville Miria N5102 the prisoner was sentenced to 4 years imprisonment for stealing K100,000 from his employer the Bank South Pacific. He had premeditated the crime before executing it.
   
9. In The State v Timothy Tio N2265 the prisoner there was sentenced to 5 years imprisonment for stealing a chain saw valued at K8,000 from his employer and then sold it to a third party for K3,000.00
   
10. In the recent cases of The State v Pongowen Popei and Mark Regione, CR 659 and 660 of 2012 Unreported and Unnumbered judgement given on 14 April 2014 the court sentenced the two men to 3 years to conspiracy to defraud and 4 years for stealing with both sentences to be served concurrently.
    
11. By the foregoing and other numerous unmentioned case precedents the National Court is consistently imposing stern punishments to offenders with no sign of those sentences having any deterrent effect on prospective offenders. It is also evident from the number of stealing and misappropriation cases listed in our Crimes Track cases. There are 3 crime courts in Waigani. One of those crime tracks is this track which is the Fraud Cases Track. This track is the heaviest of the 3 courts. The track is even heavier that the other 2 crimes track put together. This trend shows that more and more fraud and dishonesty cases are committed than the other crimes. What lessons can we draw from this trend. I think I will leave that to each and every one of us to seriously ponder over. It is food for thought for the moment.
    
12. The Supreme Court in Goli Golu v The State (1979) PNGLR 653 said that the maximum sentence should be reserved for the worst case in relation to a particular case and that the seriousness of each case depends on its own peculiar facts and circumstances. This principle has been and is still accepted as a proper principle of the sentencing law and in this case I accept that to be a proper principle and will not depart from that.
    
13. In Belawa v The State [1988-89] PNGLR 496, the Supreme Court laid down some guide as to the range of sentence to impose where money was misapplied or stolen. It said that when the amount misappropriated is between:
    
    1. K1-00 and K1,000-00 a jail term should not be imposed.
    2. K1,000-00 – K10,000-00 a sentence of 2 years imprisonment was appropriate.
    3. K10,000-00 – K40,000-00 a sentence of 2 to 3 years imprisonment was appropriate.
    4. K40,000-00 – K150,000-00 a sentence of 4 to 5 years imprisonment was appropriate.
       
14. While the guide by the Supreme Court was a good and reasonable guide at the time in 1989 and 1990, the prevalence and the amount of money being stolen at this time makes the guide look out of date. The case of the State v Paul Tiensten N5563 discusses these points. With respect, I do not think the Supreme Court in the Belawa case ever thought that misappropriation or stealing would involve millions of Kina.
    
15. The Belawa case precedent also stated that the relevant factors the sentencing counts should take into account when considering appropriate sentences for misappropriating of property or stealing offences are:
    
    • - Amount taken
    • - Degree of trust held by the offender
    • - Period offence was committed
    • - Use to which the stolen money was put
    • - Effect on the victims
    • - Impact of offence on public and public confidence
    • - Offenders history
    • - Effect on the offender himself
    • - Restitution
      

(a) Amount taken

16. In this case the amount taken was K4,200

(b) Degree of trust held by the offender

17. The prisoner is a Sergeant of Police with over 30 years of Police experience. He was the supervising police officer to the Constable who gave him the money for safe keeping. He was the supervisor of other Constables as well. A senior Sergeant of police is a very responsible rank. The fact that he was the supervisor and the Constable gave him the K4,200 for safe keeping is a clear indication that the prisoner was in a position of trust. Not only that but the prisoner was in a position of command and control and in a influential position.

(c) Period offence was committed

18. The offence was committed in the Christmas period. The K4200 was given to the prisoner on about 23 December 2011. He was asked for the return of the money several times without any success.

(d) Use to which the money was put to.

19. There is no evidence as to what the money was used for. However the prisoner appears to maintain his story that he put the money in his cupboard and that it went missing from there. It simply shows how irresponsible h e was for keeping the money in his house. He ought to have returned the money to the police station the next day for safe keeping. However, this story is conflicting with another part of his story where he says he gave the K4,200 to his nephew at Holiday Inn for safe keeping but he says only K700 went missing from his cupboard. He does not say what happened to the K3,500.00.

(e) Effect on the victim

20. The victims in this case are landowners of Komo in the Hela Province. The K4,200 was the balance remaining of money that was misappropriated from a total of about K59,000. The K4,200 was brought to the Police as an exhibit for safe keeping. In the end the landowners lost all the K59,000.

(f) Impact of offence on public and public confidence.

21. There is no evidence of any impact on the public as a result of this offence. However public confidence and trust in the police force will further diminish the trust and respect for the police which is not in their interest,

(g) Offender's history

22. The prisoner is 52 years old and has served over 30 years in the Police Force. His over 30 years in the force has been fruitful in that he rose to the rank of a Senior Sergeant. However the 30 years can also be counted against him because one can say that in the 30 years he did not teach himself properly in terms of discipline and honesty.

(h) Effect on the offender himself.

23. The effect of the crime on the offender is going to be adversely enormous. The prisoner will probably lose his job as a policeman. All his over 30 years will probably see him dishonourably discharged from the Police Force with no pension. It is rather disappointing for such a person of his calibre to end up like this. One could say it is unfair on him but the truth and reality of the matter is that he has brought this predicament upon himself and his family.

(i) Restitution
(ii)

24. No restitution has been made but is being offered at this very late stage. The memos from the Officer In Charge CID, NCD Acting Superintendent Mark Yangen clearly indicated that the complainants would withdraw their complaint if the prisoner repaid the K4,200.00 as soon as possible. The memo is date 31 January 2012. The Record of Interview was conducted on 24 September 2012. The prisoner was in my respectful opinion given a lot of time to try and raise the K4,200 to repay the complainants before that date. The offer of restitution at this late stage is in my respectful opinion too little too late in that, it will only go towards restoring K4200 to the victims but in terms of his own and his family's welfare it brings little comfort.

Mitigating Factors

25. The factors taken into account in his favour are that:

- He pleaded guilty to the charge.
- He is a first time offender with no prior convictions.
- He has served the people of this country as a policeman for over 30 years and has no disciplinary record under his name.
- The amount taken is only K4,200.00 which is quite low compared to the current trend in dishonesty cases involving stealing and misappropriation of properties.

Aggravating Factors

26. The factors taken into account against him are:-

- He is a police officer with over 30 years experience and he ought to have known better.
- This was a serious breach of trust as a law enforcement officer.
- There is no evidence of any real attempts to repay the money before and when the case began from 23 December 2011 up to and including 24 September 2012 and up todate.
- The victims have lost out completely unless restitution is made soon.
- The K4,200.00 was entrusted to him for safekeeping as a senior non-commissioned officer.
- The K4,200.00 was a court exhibit, to be used as evidence in court; that evidence was destroyed by the prisoner.
- Such police behaviour has the effect of loss of public confidence in the police force as an institution.

Sentence

27. I consider this offence to be a very serious offence for the reason that firstly the offender is a senior non-commissioned police officer and he was a supervisor of all policemen and women working under his command; secondly the money he was given was not just any money but it was money given to him for safekeeping to be used later as a court exhibit. The taking of the money amounts to tampering and destroying of evidence in my respectful opinion which makes the offence more serious.

28. Both the Counsel for the prisoner and the State submitted that the prisoner be sentenced to between 2 to 4 years imprisonment and that part of the term be suspended on the condition that he restitute the whole amount. I have considered that sentencing option given the fact that he has served his country and people for over 30 years.

29. I have decided not to give him the benefit of that sentencing option first of all because as a senior non-commissioned police officer he has not led by example to the men and women who work under him. Secondly, he has shown no real remorse for his actions to try and replace the K4,200.00

30. The stark contrast between this case and the recently completed case of The State v Mark Mauludu N5566 a case of misappropriation of some K32,895.30 by the offender Mauludu. Mauludu was Deputy Secretary for the Department of Health. He wrongly claimed overtime and on call allowances and airfares for his adult children totalling about K33,000.00. Mauludu pleaded not guilty and ran a trial on the defence of an honest claim. I found him guilty of misappropriating the money. He immediately repaid the entire amount owing to the State. To me that act of restitution is a show of a demonstration of a man who was truly remorseful for his wrongful actions.

31. I sentenced him to 3 years imprisonment but suspended the entire term because of his real remorse and because he had fully repaid what he stole from the State, also for the reason that the matter could have been resolved administratively.

32. In this case the prisoner has not paid anything. Instead he is asking for time to make restitution. This is not good enough. He must lead by example as a person in command of other persons. I sentence the prisoner to 2 years imprisonment. I will not and I refuse to suspend any of the time for the above reasons that I have highlighted. I am mindful of s.33(2) of the Police Act and its application to the prisoner in that now that he is convicted and sentenced he automatically becomes dismissed from the Police Force by virtue of that provision. That unfortunately is the price and the dire consequence for such a crime. Honesty is a virtue of human character which we all must strive to attain maintain and refrain from the earliest development stages of our lives through to adulthood and for the rest of our lives on earth. If we as humans do not have this character trait in us we are lesser beings and as lesser beings we will not be able to discern wrong from right. In your case you failed miserably to take appropriate steps to have the money kept in a safe place as an exhibit for an alleged offence. Moreover you were asked to repay the money administratively but you failed to take heed. Your case is a demonstration of a seriousness dereliction of duty and a serious lapse in discipline and a serious breakdown of command and control in the Police Force. Police Station Commanders have a wider responsibility to protect their officers from their own actions. Each Police Station should have its own exhibit office or a safe to keep all court exhibits to store such exhibits in to prevent officers taking such items with them to their homes. Firm policing should be put in place to strengthen this area of police work. All this will boost public confidence in the work of police.

33. The orders of the Court are that the prisoner is sentenced to 2 years imprisonment with hard labour.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner