N6039

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 893 of 2013

BETWEEN:

THE STATE

AND:

PETER TOKUNAI

Waigani: Salika, DCJ
2014: 7th, 16th April; 02th June; 9th, 13th October; 19th November; 23th December
2015: 19th February, 18th June

CRIMINAL PRACTICE AND PROCEDURE – what is an appropriate sentence in a misappropriation case – sentencing is a discretion of the Court – prisoner misappropriated K1.5 million.

Cases cited:
Papua New Guinea Cases

Belawa v The State (1988-89) PNGLR 496
State v Stanley Haru (2014) N5660 
The State v Jimmy Kendi (2007) N3131 
The State v Lawrence Pukali (2014) N5695
Uname Aumane v The State (1980) PNGLR 510

Overseas Cases

Makarian v R (2005) 228 CLR 357

Counsel:

Miss T Aihi, for the State
Mr F Lunge, for the Defence

18th June, 2015

1. SALIKA DCJ: Introduction: I convicted the prisoner on one count of dishonestly applying K1, 500,000.00 to his own use, property belonging to the State.

2. What happened in this case is that the prisoner sent in a project proposal for K1, 500,000.00 for the reconstruction of the Malaguna Catholic Church to the Department of National Planning and Monitoring for funding. The proposal is that the prisoner's private company Islands Energy Limited would be the project Manager. Funding for the project was approved by the Department of National Planning and Monitoring and a cheque for K1, 500,000 was issued in favour of Islands Energy Limited. The cheque was numbered 000228 and dated 14 April 2011.

3. After the prisoner and his company received the K1,500,000.00 he applied most of that money for his own use and use of others and the Catholic Church at Malaguna remains to be reconstructed.

Issue

4. After convicting the prisoner the next question for the court to consider is the appropriate sentence to impose on the prisoner.

The Law

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)	where the offender is a director of a company and the property dishonestly applied is company property; or

(b)	where the offender is an employee and the property dishonestly applied is the property of his employer; or

(c)	where the property dishonestly applied was subject to a trust, direction or condition; or

(d)	where the property dishonestly applied is of a value of K2, 000.00 or uupwards.

Case Precedents

5. The Supreme Court in Belawa v The State (1988-89) PNGLR 496 attempted to set a standard sentencing tariffs by saying that:

Between K1-00 and K1, 000.00; a jail term should rarely be imposed.
K1, 000.00 – K10, 000.00; a jail term of 2 years is appropriate.
K10, 000.00 – K40, 000.00; 2-3 years imprisonment
K40, 000.00 and K150, 000.00; 3 to 5 years imprisonment is appropriate.

6. In the State v Paul Tiensten case the Court said that it may not be a good idea to formulate a sentencing formula based on amounts misappropriated. This was because using the Belawa formula in cases where K10, 000,000.00 is dishonestly applied one will find that one needs to impose a higher penalty than the penalty allowed by law. To do that is prohibited. One can only impose a sentence prescribed by law. See Uname Aumane v The State (1980) PNGLR 510.

7. In Makarian v R (2005) 228 CLR 357, the Court there said that the sentencing Court should avoid taking a mathematical approach, as this would depart from the principle that there are many conflicting and contradictory elements that bear upon sentencing an accused person. That is what Belawa earlier tried to do: have a mathematical approach.

8. Sentencing is a discretionary matter for the courts. The case precedents help a judge to be consistent in sentencing tariffs. There may however be differences in sentencing depending on the nature and circumstances the offence was committed.

9. In the State v Stanley Haru the prisoner was sentenced to 8 years imprisonment for misappropriation of K2.6 million. In The State v Jimmy Kendi (2007) N3131 the prisoner was sentenced to 9 years imprisonment for misappropriation of K4.298 million from the State. In The State v Lawrence Pukali (2014) N5695 this court sentenced him to 5 years imprisonment for misappropriation of K405, 600.00. These are just some of the case precedents which are taken into account in assisting the court now to come to a decision on the appropriate term.

Relevant Factors

(a)	Amount taken

Altogether K1, 500,000.00 was given to the prisoner. He used K110, 413.00 on the project, K1, 389,587.50 was used by the prisoner for his own use and purpose.

(b)	Degree of trust held by the offender

The Malaguna villagers who worship in the Catholic Church placed trust on him as their own son to do an honest thing. The Department of National Planning and Monitoring trusted him to apply the money for the project. He abused that trust.

(c)	Period over which the offence was committed.

The offence was committed over a period of 6 months.

(d)	The use to which the money was put to.

Only K110, 413.00 was used on the project. The other K1, 389,587.90 was dishonestly applied.

(e)	The effect on the victim

The victims are the parishioners of the Malaguna Catholic Church. They do not have a proper place to worship their God. The State is also a victim and has lost K1, 500,000.00

(f)	The effect on the offender

The prisoner will suffer shame and ridicule. Unfortunately his actions will also affect his wife and children. They may all have without their knowledge benefitted from the monies. His company is also now broke.

(g)	Whether restitution has been made to the victim.

No restitution has been paid. The prisoner is in no position to restitute the K1, 500,000.00

Mitigating Factors

10. The prisoner misused K1.4 million which is a lot of money. He robbed his own people and his own church of the money. To date he is not in any position to repay. The people's money has been misused and there is no development. Only a few people benefitted from the K1.4 million rather than the whole community as was the intention.

Sentence

11.	Considering all the circumstances of the case, I sentence the prisoner to 7 years imprisonment with hard labour. He has served 5 months in custody awaiting this sentence. The 5 months is taken off the 7 years. The prisoner will serve 6 years 7 months imprisonment with hard labour.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Fredrick Lunge & Associates: Lawyer for the Defence