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State v Poga [2021] PGNC 19; N8769 (17 February 2021)

N8769

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 354 & 355 of 2017

THE STATE

v

BETTY POGA

Mt Hagen: Salika CJ
2021: 17^th February

CRIMINAL LAW – Practice and Procedure – Charges of Misappropriation – Section 383A (2) b – Being Police Officer comes heavy trust and responsibility – Sections 33 and 34 of Police Act considered.

Cases Cited:

Wellington Belawa v The State (1988-89) PNGLR 496
State v Nancy Uviri (2008) N5468
State v Paul Tiensten N5563

Counsel:

Mr F Popeu, for the State
Mr Pepson, for the Accused

17^th February, 2021

1. SALIKA CJ: Betty Poga was a police officer with the rank of Inspector. She was at the material time the Officer In Charge of Traffic Section based at Mt Hagen Police Station. She also was in charge of the Police Safety Division in terms of command and control of the members of the Police force and logistics.
   
2. On 2 September 2014, she wrote a letter to Western Highlands Provincial Government (WHPG) seeking funding for Police Traffic operations for the coming Christmas at hand. She had the paperwork done with all the costings. She requested K70,000. Of that, K10,000 was for supply of fuel while K60,000 was for risk allowances for the police personnel to be engaged at the operation.
   
3. The WHPG responded positively and allocated K70,000.00 for the Operation. The K60,000 was delivered and deposited into the personal BSP Branch account of Betty Poga in Mt Hagen.
   
4. She would draw out the monies in cash from her account and pay the risk allowances to policemen who worked during the police operations. The operation prematurely came to a halt in January 2015. Some policemen complained of not being paid their allowances for work during the operation.
   
5. By then Betty Poga had depleted the funds put in her personal bank account. She also went to the supplier of the fuel and took K1000 from the fuel supplier. She admitted using K5,000 of the K60,000.00 for her own personal use and K1,000 of the K10,000 for fuel.
   
6. On that basis, she was charged for dishonestly applying the total amount of K6,000.00, money belonging to the WHPG.
   
7. She pleaded guilty to the two counts of misappropriation.
   

Issue

8. Having pleaded guilty, the Court’s task at this point in time is to consider the appropriate sentence to impose on her.
   

The Law

9. Section 383A (1) (a) creates the offence of misappropriation and (2) (d) provides for the penalties. The maximum penalty it prescribes is 10 years imprisonment.
   

Case Precedents

10. The Supreme Court in Wellington Belawa v The State (1988-89) PNGLR 496 made some suggestions in the following way in relation to amounts misappropriated:
    

K1 - K1000 - a jail term not to be imposed.

K1,000 - K10,000 - 2 years jail term.

K10,000 - K40,000 - 2 to 3 years imprisonment.

K40,000 - K150,000 - 3 to 5 years imprisonment

11. In the case of the State v Nancy Leah Uviri (2008) N5468, Cannings J took a similar approach but increased the tariffs because he said: “circumstances in PNG has changed. There is an enhanced level of community concern about corruption, dishonesty and misappropriation both in the public sector and the private sector”. His suggestion was:
    

K1 - K1000 - suspended sentence be imposed.

K1,000 - K10,000 - 4 years imprisonment.

K10,000 – K40,000 - 4 to 6 years imprisonment.

K40,000 – K150,000

and beyond - 6 to 10 years imprisonment.

12. While the Belawa case and the Nancy Uviri case attempt to provide a guide for Judges and Magistrates in considering appropriate sentences on matters before them, they (Judges and Magistrates), with respect, should not be restricted to what the Supreme Court said in the Belawa case in relation to what appropriate sentence to impose. With respect, in my view, the Courts should avoid taking a mathematical or scientific approach as suggested in the Belawa and Uviri cases. Sentencing in my respectful view should always remain in the realm of judicial discretion and the Supreme Court should not be perceived to be or seen to be dictating to a judge or magistrate what sentence to impose. In other words, the sentencing discretion of the Judge or a Magistrate should not be eroded into oblivion by the Supreme Court. In the State v Paul Tiensten N5563, I expressed the same sentiments in relation to the sentencing discretion of the Court. At the time of the Belawa decision, the National Courts were imposing sentences up to 10 years the maximum. The sentencing law, ie; the Criminal Code s. 383A (2) was amended and sentences are now different.
    
13. The Belawa sentencing considerations namely:
    
    1. amounts taken;
    2. degree of trust held by the prisoner;
    100. period on which offence was committed;
    4. the use to which the money was put to;
    5. the impact on the victim;
    6. the impact on the public, and public confidence;
    7. the impact on the wrongdoer;
    8. restitution;
       

are still relevant considerations. In this case, I take into account all those factors.

14. The amount misappropriated is a total of K6,000.00. The degree of trust reposed on the prisoner is that she was a police officer entrusted with the job of ensuring that the laws of the country are obeyed. This case is a demonstration of the fact that the rule of law is maintained and that no one is above the law and below it. The law applies to everyone, whether you are a law enforcer or not. The law equally applies to everyone regardless.
    
15. The degree of trust reposed on the prisoner is such that first of all she is a policewoman. Just being a police officer comes a heavy trust and responsibility. Issue of trust and responsibility comes with the position of just being a police officer.
    
16. The other is she applied for the funds from the WHPG for a purpose. WHPG trusted her and gave her the money. She abused the trust the WHPG bestowed on her. She knew the money was public money and was to pay for officers working under her. Instead, she used it herself and not on the officers below her.
    
17. Much of the money was used for the intended purpose but the offence was committed within a month or so.
    
18. The first victims are the policemen working under her command. They did not get paid their allowances and they complained. The WHPG is the other victim but there is no evidence concerning their impact.
    
19. No evidence from the view of public confidence.
    
20. The offender is going to be affected adversely. She has lost her job. Section 33 of the Police Act of 1988 says subject to s. 34, no person who has been convicted in any Court of an offence involving dishonesty or for which a term of imprisonment is imposed shall be appointed or reappointed to the Force.
    

Section 33 of the Police Act says:

1. PERSON CONVICTED OF CRIMINAL OFFENCE.

(1) Subject to Section 34, no person who has been convicted in any court of an offence involving dishonesty or for which a term of imprisonment is imposed shall be appointed or reappointed to the Force.

(2) A member who is convicted of an offence involving dishonesty of for which a term of imprisonment is imposed shall be dismissed forthwith from the Force.

Section 34 says:

34. RE-APPOINTMENT, ETC., OF CERTAIN CONVICTED PERSONS.

(1) This section applies where–

(a) a person has been dismissed from the Force or reduced to a lower rank as a result of having been convicted of a criminal offence; and

(b) subsequently–

(i) the conviction is quashed; or

(ii) the person receives a pardon; or

(iii) the conviction is otherwise nullified; or

(iv) the person is released from prison as a result of an inquiry into the conviction.

(2) A person to whom this section applies may be re-appointed to the Force or re-instated in the Force by the Commissioner–

(a) in the rank equivalent to the rank which he held immediately before his dismissal or reduction in rank; or

(b) in the case of a person who has been reduced in salary alone, and subject to Subsection (8)–at the rate of salary to which he was entitled immediately before his reduction in salary.

(3) A person may be re-appointed under this section without being required to undergo any medical examination.

(4) A person may be re-appointed under this section without probation where the Commissioner thinks it desirable to do so.

(5) A person re-appointed under this section is deemed to have continued in the Force as if that person had not been dismissed but had been on leave of absence without pay during the period from the day on which his dismissal became effective to and including the day on which he was re-appointed.

(6) The period referred to in Subsection (5) forms part of the member’s period of service for all purposes.

(7) A person re-instated in rank under this section has the same seniority in the rank in which he is re-instated and is entitled to the same salary as if he had not been reduced in rank.

(8) A person re-instated in salary under this section is entitled to the same salary as if he had not been reduced in salary.

21. The most likely scenario for the offender is that she will lose her job. She will have to pick up the pieces and move on in life and do something else to sustain herself and her family.
    
22. In relation to restitution, she has not made any restitution although she has had plenty of opportunity to do so.
    

Sentence

23. The offender here misused K6,000.00. The amount may not sound much. It is the principle of honesty and dishonesty that matters. It is not material that the offender intended to repay the money. It is too late to come to the Court and ask to make restitution. The circumstances of this case while dishonest, involves only K6,000. That amount can be reimbursed to those police officers who are owed the money because they worked and must be paid for their work.
    
24. I take into account your allocutus statement and your expression of remorse. Your personal particulars are also taken into account as well as the fact that you are a mother and a father to your children. You were to be the role model for officers working under your command and control but you failed them. You also failed your children. The offence you committed is an offence of dishonesty and is serious. Taking into account everything, I sentence you to 2 years imprisonment on both counts to be served concurrently. However, all is suspended upon you to repay the K6,000.00 in 6 months time on your own promise. On 18 August 2021, you must have paid the K6,000.00; failing that will mean you will serve the two years.
    

Orders accordingly.

____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused