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State v Popon [2017] PGNC 57; N6679 (22 March 2017)

N6679

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 277 OF 2016

STATE

V

WARI POPON

Mendi: Ipang, J
2017: 10, 17 & 22^nd March

CRIMINAL LAW – Sentence - Criminal Code Act – Section 383A – Misappropriation of School subsidies – sum of K29, 950.00 – Prisoner being Board Chairman of the School and one of the signatories forged other signatures to the School bank account and withdrawal various amounts of money at different times.

Cases cited:
State-v-Belawa [1988-89] PNGLR 496
State-v-Etami (2012) PGNC 96; N4769
State-v-Iralu (2008) PGNC 241; N3710
State-v-Severe [2006] PGNC 101; N3453

Counsel:
J. Waine, for the State
C. Koek, for the Prisoner

DECISION ON SENTENCE

22^nd March, 2017

1. IPANG J: The prisoner pleaded guilty to one (1) count of dishonestly applying to his own use the sum of twenty-nine thousand nine hundred and fifty kina money belonging to Kelapul Elementary School which was in his control on account of Kelapul Elementary School contrary to Section 383 A (1) (b) (2) (c) & (d) of the Criminal Code Act.
   
2. The prisoner was the Board Chairman of Kelapul Elementary School, Upper Mendi at the relevant time. Between 01^st January, 2011 and 31^st May, 2016, the prisoner forged signatures of the other signatories to the School bank account and withdrew money at different times and for various amounts over the period of time. The total amount withdrawn and used for his benefit to May, 2016 was twenty-nine thousand nine hundred and fifty kina (K29, 950.00). This money belonged to Kelapul Elementary School which was school subsidies from the Government over the years.

3. The offence to which the prisoner was charged with reads:
   

“383 A Misappropriation of Property

(1) A person who dishonestly applies to his own use or to the use of another person

(b) Property belonging to him which is in his possession or control [either solely or conjointly with other person] subject to her a trust, direction or condition or on account of any other person is guilty of the crime of misappropriation of property.

(2) 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.

Penalty: Imprisonment for a term not exceeding ten (10) years.”

4. The antecedent report presented revealed no prior conviction (s) against the prisoner. In administering his allocutus the prisoner said he is sorry that he has done the wrong thing already. He said sorry to God, to this Court and the Lawyers. He said sorry to the Elementary School. He asks this Court to have mercy on him.
   
5. The Pre Sentence Report revealed that the prisoner has no financial capacity but yet recommended that the prisoner be given time to repay the amount of money dishonestly applied to his own use. The Pre Sentence Report recommends the prisoner to be a suitable candidate for probation supervision. He is married and has children of school ages.
   
6. Prisoner is 40 years old and comes from Kelapul village, Mendi, Southern Highlands Province. He is the fourth born out of four (4) children. Both his parents are deceased. He is a member of the Lutheran Church. He is married with six (6) children. His children are between the ages of six (6) to eighteen (18) years. Prisoner has never been formally educated. He is a subsistence farmer. Prisoner says if given four (4) to five (5) years he will be able to repay the money. He is a first time offender. He was since his arrest, detained for two (2) months, two (2) weeks before released on K1, 000.00 bail and his two (2) guarantors paid K100.00 each as sureties.
   
7. In mitigation, I find the prisoner has pleaded guilty thus saves time and money for the State to put up a trial. This is the prisoner’s first offence committed. He has expressed remorse to God, the Court and the victim school. He is a family man. He was removed as the Chairman of the School Board. In aggravation, he has not made restitution. He was in a position of trust and has breached that trust. The offence of misappropriation has now become prevalent.
   
8. Koek for the prisoner submitted that the Court should show mercy when considering the prisoner’s sentence. Prisoner has pleaded guilty and expressed remorse. Counsel submitted that Court also takes into account the mitigating factors, antecedent report and prisoner’s personal particulars and consider section 19 of the Criminal Code Act and impose a lesser sentence. This is despite the fact that the offence of misappropriation is serious and prevalent and carries a maximum penalty of up to ten (10) years imprisonment. Mr. Waine for the State submitted that this is typical case of dishonestly and comes under the likes of white collar crime. The victim is the Elementary school kids. Mr. Waine submitted for two (2) years custodial sentence and to be part suspended. Koek for the prisoner also submitted for two (2) years custodial sentence to be wholly suspended with conditions.
   

Case Precedents

9. In State-v-Belawa [1988-89] PNGLR 496, it was held that where the amount misappropriated is between K10, 000.00 and K40, 000.00, two (2) to three (3) years imprisonment is appropriated. That particular sentencing category would apply to this case as the amount misappropriated totals up to K29, 950.00. This case would warrant a sentencing term of two (2) to three (3) years.
   
10. In State-v-Iralu (2008) PGNC 241, N3710, the prisoner pleaded guilty to a charge upon an indictment that between 26^th July, 2006 and 21^st December, 2006 at Mt. Hagen, Western Highlands Province, whilst employed by Niugini Oil Company (her former employer she misappropriated the sum of K9, 000.00 the property of her former employer contrary to Section 383 A (1) a (2) (b) of the Criminal Code. The brief facts of the case are as follows, the prisoner was employed for a total period of five (5) years by her former employer which she is based at Kagamuga, Mt. Hagen. She was the office manageress from 2003 to 2006 whose duties and responsibilities included keeping records of her former’s accounts banking of takings and was also involved in the sale of fuel. Between 26^th July and 21^st December 2006, the prisoner dishonestly applied to her own use a total sum of K9, 000.00, the property of her former employer. She did this by altering the cash sales figures on the yellow copies of the invoices in respect of 36 transactions to amounts less than what were actually stated. She would then go to the bank, do the deposits but keep the differences of each of those transactions and used the monies for her own benefit. The amounts of monies which the prisoner took on each occasion ranged from the first transaction of K552.57 to the last transaction of K481.56. The prisoner was suspended and subsequently terminated sometime in January of 2007 because of the allegation. Three (3) years sentence was awarded, time spent in custody was deducted and the rest was wholly suspended with conditions. That case was similar to this case as the prisoner was employed as a cashier and was also in charge of banking the money from ticket sales; however, she misappropriated the money instead of banking them. She breached a high position of trust.
    
11. In State-v-Etami (2012) PGNC 96; N4769, the prisoner plead guilty to the charge of misappropriation money belong to employer, a total of a substantial amount. The court noted the following; the high level of trust, offence was committed over a period of time three (3) months, prisoner a sophisticated well educated professional accountant, prior good character, welfare of family treated with caution. Four (4) years imprisonment was imposed, time spent in custody before being imposed on bail deducted and the rest wholly suspended with conditions.
    
12. In State-v-Severe (2006) PGNC 101; N345, the offender pleaded guilty to the charge of misappropriation of K8, 000.00. Offender was the elementary school chairman. Two (2) years was imposed. Time spent in custody deducted and the rest to be served in custody.

13. Considering all the circumstances of this case, I consider the case does not fall under worst types of cases to warrant imposition of a maximum penalty of ten (10) years imprisonment. I will therefore consider Section 19 of the Criminal Code Act and impose a lesser sentence.
    
14. This is not to under rate the offence of misappropriation or dishonestly applying monies for one’s own benefit or for the benefit of others. The offence of misappropriation is prevalent and been of a concern for people of this country. Upon hearing their cries, the Government have increased the penalty for value of property misappropriated between K1 million upwards to K10 million a sentence of 50 years without remission and without parole. Refer Criminal Code (Amendment) Act, 2013 (No. 6 of 2013).
    
15. The student of Kelapul Elementary School and the School itself are the victims who are deprived of the money the prisoner dishonestly applied to his own use. Prisoner has demonstrated that he has no respect and care for future generations. He held the position of trust as Chairman of the School Board and has breached that trust.
    
16. Given all the circumstances of this case, and applying the Belawa case (supra) the instant case attract a two (2) years imprisonment term. I will therefore sentence the prisoner to two (2) years imprisonment. I wholly suspended the two (2) years imprisonment (custodial) sentence and placed the prisoner on two (2) years probation supervision with the following conditions;
    

1. Within the first twelve (12) months or one (1) year of his two (2) years probation, he must fully restitute the sum of K29, 950.00 belonging to Kelapul Elementary School.

2. By or before 22^nd March, 2018 the sum of K29, 950.00 be fully restituted if not the two (2) years imprisonment sentence will be uplifted.

3. Within the two (2) years probation period the prisoner shall do 60 hours of community work in and around the Kelapul Community including Kelapul Elementary School.

4. He shall not consume any form of alcohol drinks.

5. He shall not take dangerous drugs like marijuana.

6. He must attend regular church services and church counselling.

7. His K1, 000.00 bail will go towards repayment of money dishonestly applied.

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner