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State v Warur [2018] PGNC 438; N7545 (26 October 2018)

N7545

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 185 OF 2018

THE STATE

V

SOLOMON JUNT WARUR

Waigani: Berrigan, J
2018: 19 September, 17 & 26 October

CRIMINAL LAW – Sentence – Misappropriation – Plea of guilty – No prior conviction – Serious offence – Position of trust – Impact on victim, public and public confidence – Plea of guilty to be taken into account on utilitarian grounds – Attributing plea of guilty with specific numerical or proportionate value - Section 383A(1)(a)2(d) of the Criminal Code.

Facts:

The prisoner pleaded guilty to one count of misappropriation of K811,969.53, the property of the State, whilst an employee of Correctional Services, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262.) (the Criminal Code). The State submitted that the prisoner was entitled to a substantial discount on sentence on the basis that he had pleaded guilty at an early stage following committal to the National Court. The State further submitted that the court should articulate the sentence that would have been applied but for the guilty plea.

Held:

(1) It is well established in this jurisdiction that a guilty plea is ordinarily a matter to be taken into account in mitigation on sentence. It may be indicative of remorse and a willingness to facilitate the course of justice on the part of the offender. It may also be taken into account on the separate utilitarian or objective ground that it has saved authorities and the court the time and expense of a trial and spared witnesses the inconvenience, and in some cases the distress, of testifying. In general terms, the earlier the plea the greater its weight and the more favourable it will be for the offender. In some cases a guilty plea when taken in combination with other relevant factors will be of little to no weight. Kalabus v The State [1988] PNLGR 193 applied. Signato v The Queen (1998) 194 CLR 656 considered.

(2) Whilst a plea of guilty may be taken into account in mitigation, a sentence must never be made more severe because a convicted person has insisted on his or her rights under ss. 37(4) and 37(5) of the Constitution, including the right under s. 37(4)(a) to have the charge proved according to law. SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122 considered.

(3) To single out a plea of guilty from the other factors to be taken into account on sentence and attribute it with a specific numerical or proportionate value is inconsistent with the proper approach to sentencing which requires the court to have regard to the aggregate effect of all the relevant considerations and then to determine the appropriate penalty for the particular offence. Rex Lialu v The State [1990] PNGRL 487; Lawrence Simbe v The State [1994] PNGLR 38; and Kumbamong v The State (2008) SC1017 applied. Markarian v R (2005) 228 CLR 357 and Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 considered.

(4) Sentence of 7 years’ imprisonment appropriate in all the circumstances.

Cases Cited
Papua New Guinea Cases

Goli Golu v The State [1979] PNGLR 663
SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122
Kalabus v The State [1988] PNGLR 193
Wellington Belawa v The State [1988-1989] PNGLR 496
Rex Lialu v The State [1990] PNGLR 487 at 489
Lawrence Simbe v The State [1994] PNGLR 38
The State v Daniel Mapiria, unreported, 7 September 2004
The State v Iori Veraga (2005) N2849
The State v Niso (No 2) (2005) N2930
The State v Aike (2006) N3455
Kumbamong v The State (2008) SC1017
The State v Tiensten (2014) N5563
The State v Lawrence Pukali (2014) N5695
The State v Seki (2014) N5847
The State v David Poholi (2016) N6214
The State v Christopher Hulape No 2 (2017) N7173
The State v Janet Oba (2016), unreported
The State v Paul Guli & Ors (2017) N6866
The State v Sakaponi (2017) PGNC 240 N6902
The State v Tracy Tiran (2018) N7336

Overseas Cases

R v Duncan [1983] 3 VR 208
R v Pantano (1990) 49 A Crim R 328
Signato v The Queen (1998) 194 CLR 656
Markarian v R (2005) 228 CLR 357
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Counsel

Ms Wilma Malo with Mr Tom McPhee, for the State
Mr Edward Sasingian, for the Prisoner

DECISION ON SENTENCE

26^th October, 2018

1. BERRIGAN J: INTRODUCTION: The prisoner, Solomon Junt Warur, pleaded guilty to one count of misappropriation, that he between 1 July 2010 and 12 March 2014 dishonestly applied to his own use and to the use of others K811,969.53, the property of the State, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262.) (the Criminal Code). The offence carries a maximum penalty of ten years’ imprisonment.
   

Facts

2. At the relevant time the prisoner was an officer with Correctional Services (CS) holding the rank of Sergeant. As a Communications Officer in its Information and Communication Technology (ICT) Section, he was responsible for the administration of telephone accounts and bills, supply of telicards for CS Headquarters, telephone line services and maintenance.
   
3. In 2010 the prisoner incorporated a company known as Merc-Tech Electronic Ltd (Merc-Tech) and opened a bank account with the Bank of South Pacific, Waigani Branch, in the name of the company, to which he was the sole signatory.
   
4. Between 1 July 2010 and 12 March 2014 the prisoner placed fictional orders on behalf of CS with the company for printer and copying equipment, toner and ink, batteries for radios and other radio equipment. On 66 occasions during the period the prisoner issued invoices to CS for amounts payable to Merc-Tech. In total a sum of K811,969.53 was paid to his company for which no goods or services were ever supplied to CS. Instead the prisoner dishonestly applied the funds in the company account for his own use or the use of others.
   

Sentencing Considerations

5. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:
   
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
       

Comparable Cases

6. In addition the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:
   
   1. K1 and K1000, a gaol term should rarely be imposed;
   2. K1000 and K10,000 a gaol term of up to two years is appropriate;
   100. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
   4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
      
7. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; The State v Tiensten (2014) N5563.
   
8. In this regard s. 383A of the Criminal Code was amended in 2013 to reflect community views that very high penalties should be imposed for misappropriation of amounts above K1 million: see the comments of Salika DCJ in The State v Guli (2017) N6866.
   
9. Moreover, guidelines like those in Belawa are just that, guidelines. They are not prescriptive: Kumbamong v The State (2008) SC1017.
   
10. Both counsel referred me to cases in support of their respective submissions. The defence cited The State v Niso (No 2) (2005) N2930 in which the prisoner was found guilty following trial of four counts relating to conspiracy, fraudulently uttering a false document and misappropriation of a sum of K500,000.00 belonging to her employer, the Bank of Papua New Guinea. The offences took place over a period of about 3 weeks. At the time she was the Senior Clerk and Supervisor in the General Ledgers Section. Gavara-Nanu J sentenced the prisoner to an effective term of 7 years’ 6 months’ imprisonment.
    
11. The State has helpfully referred me to a number of authorities, including the following which are most relevant:
    
    1. The State v Tracy Tiran (2018) N7336, Miviri AJ, in which the prisoner was convicted and sentenced to 6 years’ IHL following trial on one count of misappropriating K500,000.00, the property of the State. The prisoner dishonestly obtained monies for the purpose of establishing a coconut project through the office of the Minister for National Planning and Monitoring, which project which was never established;
       
    2. The State v Daniel Mapiria, unreported, 7 September 2004, Mogish J, in which the prisoner was convicted following trial of misappropriating K3.188m from the State whilst Chairman of the National Gaming Control Board by countersigning 41 cheques drawn payable to cash over a 10 month period and applying them to the benefit of another, namely the Registrar of the Board, rather than for the purposes of health, welfare and community. The sentence of 9 years’ was wholly suspended on conditions including restitution of K1m. In deciding to suspend the sentence, the court had regard to the severe medical circumstances of the prisoner which it found would cause an excessive degree of suffering in prison.
       
12. I have also had regard to the following which may provide guidance in determining sentence:
    
    1. The State v Paul Guli & Ors (2017) N6866, Salika DCJ, in which three prisoners were each found guilty of one count of misappropriating K473,575.00 the property of the State following a trial. Two prisoners, the District Accountant and District Administrator of what was then Western Highlands Province (now Jiwaka), made fraudulent payments into the account of the third prisoner, a local businessman. They were sentenced to 5 years’, 5 years’ and 2 years’ respectively;
       
    2. The State v David Poholi (2016) N6214, Salika DCJ, in which the prisoner pleaded guilty to one count of conspiracy to defraud and one count of misappropriation of K688,000.00 from BSP, his employer, whilst a Human Resource Benefits and Remuneration Officer, over a period 18 months and involving 134 transactions. He was sentenced to 3 and 5 years’ respectively on each count, to be served concurrently;
       
    100. The State v Paul Tiensten (2014) N5563, Salika DCJ, in which the prisoner was convicted of misappropriating K10m as the Minister for National Planning and Monitoring, following a trial. He was sentenced to 8 years’ imprisonment;
         
    4. The State v Lawrence Pukali (2014) N5695, Salika DCJ, in which the prisoner was convicted of one count of misappropriating K1.5m the property of the State for the purpose of rebuilding a church destroyed by volcano. He was sentenced to 7 years’ imprisonment following trial;
       
    5. The State v Janet Oba (2016), (refer to N6301 for decision on verdict), unreported, Salika DCJ, in which the prisoner was sentenced to 5 years’ imprisonment following trial. The prisoner, an Inspector of Police, uttered a forged court order directing BSP to release the sum of K1.2m to her company which she then misappropriated;
       
    6. The State v Iori Veraga (2005) N2849, Sakora J, in which the prisoner was found guilty following trial of conspiracy to defraud and misappropriation of K144,955 from the National Provident Fund as a result of inflated land valuations. He was sentenced to 7 years’ on the (4) conspiracy charges and 2 years’ on the corresponding misappropriation charges, to be served cumulatively, with an effective sentence of 6 years’ IHL; and
       
    7. The State v Christopher Hulape No 2 (2017) N7173, Koeget AJ, in which the prisoner was convicted following trial of one count of false pretence and one count of misappropriation of K1.6m of State monies provided for a village fishing project. He was sentenced on each count to 5 years’ to be served concurrently.
       
13. Whilst the above authorities are of assistance, the sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Nature and Circumstances of the Offence, including Matters of Aggravation

14. Having regard to Wellington Belawa, I consider the following matters.
    
15. It is well established that in general terms, the greater the amount involved the more serious the offence. In this case a very large amount of money, more than K800,000 was misappropriated.
    
16. At the time the quality and degree of trust reposed in the prisoner was high. Whilst not an elected official nor one of CS’ senior executive leaders, he was nevertheless a long serving and trusted officer. This was a position he held within an organisation responsible for performing the critical function of implementing prison sentences imposed by the country’s courts. The prisoner must have appreciated the seriousness of his offence.
    
17. Moreover, the offence was committed over an extended period of time: more than three and a half years. It involved a high degree of planning and ongoing and calculated efforts through no less than 66 false orders and invoices, for multiple products and services, purportedly for the benefit of CS’ operations across the country, demonstrating persistent and high levels of dishonesty.
    
18. There is no evidence as to the use to which the monies were put other than that they were for the benefit of the prisoner and others.
    
19. The misappropriation was from the State of Papua New Guinea and thus ultimately its people. The effect on the principal victim has been significant. The funds were allocated to CS, an organisation responsible for detaining, maintaining and rehabilitating the country’s prisoners. At a time when its challenges are well publicised, the capacity of CS to fulfil its obligations to its detainees, its officers and staff, and importantly, the broader community was necessarily diminished by the conduct of the prisoner.
    
20. I also have no doubt that the offence has had a serious effect upon the public and public confidence not only in CS but more broadly. The Commissioner, through one of his senior officers, has advised Probation Services, and I accept, that the offence has tarnished the reputation and integrity of his department.
    
21. At a time when government resources are limited and corruption cases continue to raise concerns within the community, and prompt the action of lawmakers discussed above, the exposure of such a sustained and significant offence must have had a serious effect on the public confidence in the administration of government services as a whole. The delivery of public services depends on officers holding positions like that of the prisoner to perform their duties with integrity. The fact that the offence was committed by a long serving member of an agency within the criminal justice system can only have served to compound the effect.
    

Personal Circumstances

22. The Prisoner is 47 years of age and comes from Rainau Village, Kokopo District in East New Britain Province. He resides at Kerepia Correctional Service Barracks at Bomana in the National Capital District and has done so for almost 30 years. He has two wives and six children, the latter of whom are all working except for his two youngest daughters who are in Grade 4 and 11 respectively.
    
23. The prisoner graduated with a Certificate in Clerical Studies from Rabaul Technical College. At the time of his arrest the prisoner had served with CS for almost 30 years and was its longest serving Communications Officer.
    

Matters in Mitigation

24. In mitigation this is the prisoner’s first offence. He is previously of good character and was a valued and trusted member of CS for many years. It was this position of trust, however, that provided him with the opportunity to conduct the offence.
    
25. I have no doubt that he and his family will suffer disgrace as a result of his conviction. It will be difficult for him to obtain employment in the future. The effect on his wives and children will be significant. The Pre-Sentence Report suggests that in the event a prison term is imposed, the family may need to separate with the prisoner’s second wife and some of their children returning to her home village in another province. His youngest child will be without a father during her formative years. These are all matters, however, which the prisoner should have considered during the three and a half years or more over which the offence took place.
    
26. I take into account that the prisoner pleaded guilty at an early stage following committal and has saved the State and the court the time and cost of a trial. On allocatus he expressed some remorse. No restitution has been made. There are no matters of mitigation special to the prisoner.
    

Discount on Guilty Plea

27. The State submits that the prisoner pleaded guilty at the earliest possible opportunity following committal and is therefore entitled to a significant discount on sentence.
    
28. The State also submits that this case involved what might be described as a “white collar” crime which, by its nature, is hard to detect, hard to investigate and hard to prosecute: R v Pantano (1990) 49 A Crim R 328 at 330. Further, that conduct by an accused person which lessons the effort required by investigative and prosecution authorities ought to be regarded as beneficial to the State.
    
29. On that basis the State initially submitted that having regard to the approach taken in jurisdictions like Victoria, Western Australia and Queensland, the court should provide a clear statement to the effect that:
    
    1. an offender who enters a guilty plea is entitled to a discount on sentence for facilitating the administration of justice;
    2. such a discount might range between 10% and 30%, the size of which is related to whether the plea was entered at the first reasonable opportunity; and
    100. in applying the above to this particular case, the court should clearly articulate the sentence which would have been applied but for the early plea.
         
30. The Public Prosecutor whilst maintaining that a plea of guilty is a matter to be taken into account on sentence has withdrawn the original submission. In my view that is the correct approach for the following reasons.
    
31. It is well established in this jurisdiction that the fact that an accused person has pleaded guilty is a matter to be taken into account in mitigation of his or her sentence as indicative of remorse and a willingness to facilitate the course of justice on the part of the offender. Per Kidu CJ in Kalabus v The State [1988] PNGLR 193 at 197:

“Remorse and contrition are factors weighed in the matter of sentence in favour of accused persons, particularly if they are manifested in a plea of guilty. Whether remorse or contrition are shown by a plea of guilty depends upon the time and circumstances in which the plea is advanced. The earlier the expression of remorse or contrition after the commission of the offence the more favourable it will be for the accused”.

32. It is also clear from the authorities that a guilty plea may be taken into account on the utilitarian or objective ground that it has saved authorities and the court the time and expense of a trial and spared witnesses the inconvenience, and in some cases the distress, of testifying. In some cases, however, a plea of guilty when balanced against the other facts and circumstances of the case will have little to no weight, particularly where the offence involved is a very serious one. See Kalabus v The State applying Aubuku v The State [1987] PNGLR 267. See also Mase and John v The State [1991] PNGLR 88. The utilitarian value of a plea has also been taken into account in more recent cases including The State v Aike (2006) N3455, The State v Seki (2014) N5847 and The State v Sakaponi (2017) PGNC 240 N6902.
    
33. The High Court of Australia in Signato v The Queen (1998) 194 CLR 656 at [22] expressed similar views:
    

"... a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case".

34. Whilst a plea of guilty may be taken into account in mitigation, a sentence must never be made more severe because a convicted person has insisted on his or her rights under ss. 37(4) and 37(5) of the Constitution, including the right under s. 37(4)(a) to have the charge proved according to law. See SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122 at 127 per Kidu CJ regarding the rights guaranteed under s. 37(4)(a). For similar reasons the mitigating effect of a guilty plea is referred to as a “discount” in some jurisdictions: R v Duncan [1983] 3 VR 208.
    
35. The Supreme Court has held on several occasions that there is no mathematical or scientific formula to be applied in undertaking the difficult task of fixing a particular sentence for any one particular case. Rather the sentencing judge must balance many different and conflicting factors to reach a sentence that is just in all of the circumstances. Per Kapi DCJ in Rex Lialu v The State [1990] PNGLR 487 at 489:
    

“The exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles”.

36. This approach was affirmed in Lawrence Simba and Kumbamong, supra.
    
37. Similarly, the High Court in Australia has expressed the view that the preferable approach to sentencing is to consider all relevant matters and to arrive at an “instinctive synthesis” in determining the appropriate sentence: Markarian v R (2005) 228 CLR 357. McHugh J at [51] described the approach as:
    

“...the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.”

38. This is to be contrasted with the “two-stage” approach to sentencing initially proposed by the State in this case, and described by McHugh J in the same case as:

“... the method of sentencing by which a judge first determines a sentence by reference to the ‘objective circumstances’ of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier”.

39. Like the Supreme Court in this jurisdiction, the High Court in Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 affirmed that sentencing is not a mathematical exercise, at [34]:

“Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentencing cannot, and should not, be broken down into some set of component parts... “[s]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform”.

40. It is the case that exception is made to this rule in several jurisdictions in Australia whereby a sentencing court specifies the extent to which a sentence has been reduced as a result of a plea of guilty, either through percentage terms or by identifying what the sentence would have been but for the early plea. For the most part the approach is taken in response to statutory provisions the purpose of which is to promote transparency and consistency in sentencing and encourage accused persons who are inclined to plead guilty to do so at an early stage. Similar regimes can be seen in the UK, New Zealand and Canada. Approaches vary across jurisdictions, however, and are the subject of much judicial and academic debate, often supported by extensive research^[1]. Consideration is also given to ensuring that vulnerable persons are not placed under undue pressure to plead guilty at an early stage.
    
41. There are no such legislative provisions in this jurisdiction and the Supreme Court authority is clear. To single out a plea of guilty from the other factors to be taken into account on sentence and attribute it with a specific numerical or proportionate value is inconsistent with the proper approach to sentencing which requires the court to have regard to the aggregate effect of all the relevant considerations and then to determine the appropriate penalty for the particular offence.
    

Sentence

42. Returning to the present case. The prisoner has been convicted of one count of misappropriation pursuant to s. 383A(1)(a)(2)(d) of the Criminal Code for which the maximum penalty is 10 years’ imprisonment. The maximum penalty should usually be reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 663. Whilst not in this category, the case does involve a very serious instance of the offence.
    
43. I have taken the mitigating factors in the prisoner’s favour into account but they are far outweighed by the aggravating factors in this case. The nature and quantum of the offence, the period over which it was conducted, the position of trust held by the prisoner and the impact on the victim, the public and public confidence all call for strong general and specific deterrence.
    
44. Taking into account all of the matters outlined above, I impose a sentence of 7 years’ imprisonment in hard labour.
    
45. Bail monies are to be refunded.
    
46. The Court orders accordingly.
    

___________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

^[1] For example, the UK Sentencing Guidelines are developed following extensive consultation, research and monitoring by the Sentencing Council pursuant to statute: https://www.sentencingcouncil.org.uk/analysis-and-research/; recent amendments to the Crimes (Sentencing Procedure) Act in NSW followed recommendations by the Law Reform Commission: https://www.parliament.nsw.gov.au/Hansard/Pages/HansardFull.aspx#/DateDisplay/HANSARD-1323879322-99200/HANSARD-1323879322-99199; and the Tasmanian Sentencing Advisory Council Consultation Paper, 2018 on the topic was produced in response to direction from the Attorney-General: https://www.sentencingcouncil.tas.gov.au/__data/assets/pdf_file/0020/412292/Final-SAC-Consultation-paper-Statutory-Sentencing-Discounts-for-Pleas-of-Guilty.pdf.