N9746

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 106 OF 2021

THE STATE

V

JOEL MINAFI

Goroka:  Miviri, J
2022:  09th May, 30th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – First Count Stealing s.372 (1) CCA – Second Count Uttering Section 463 (2)CCA  – Plea x 2 Counts – Guilty x 2 Counts – PSR MAR Ordered – Favourable to Prisoner – First Offender – 20 Foot Container & 40 Foot Container of Bailey Bridge Materials Valued at K 482, 823. 19 – State Properties Recovered – Reverted Back to Provincial Government – Educated Professional – Purposes Of Sentencing – Retribution – Non Custodial Sentence Appropriate.

Fact

Accused presented a forged document securing delivery of a 20 foot and 40-foot container containing Bailey Bridge Materials valued at K 482, 823.19. without consent of the State to himself. 

Held

Plea.
First Offender.
PSR MAR favourable.
Concurrent Sentences
Strong deterrent Sentence

Cases Cited: 

State v Moripi [2017] PGNC 202; N6867 
Public Prosecutor v Bruce Tardrew [1986] PNGLR 91 
Wellington Balewa v The State [1988-89] PNGLR 496
State v Thomas Jim Nori [2016] N6467
State v Eric Emmanuel Vele [2002] PGNC 93; N2252.
Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC564 
State v Zuvani [2004] PGNC 127; N2641 
Acting Public Prosecutor v Haha [1981] PNGLR 205
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85

Counsel:

C. Langtry & J. Noma, for the State
G. Apa, for the Defendant

SENTENCE
30th June, 2022

1.	MIVIRI J: This is the sentence of the Project Engineer of the Eastern Highlands Provincial Government who pleaded guilty that he uttered a forged document that released two containers containing Bailey Bridge materials into his custody without authorization by the State and the Eastern Highlands Provincial Government.

2.	Prisoner was employed as Project Engineer with the Department of Eastern Highlands Provincial Government between the 31st day of July 2017 and the 09th day of February 2019, he presented a forged letter that purported to be from the Eastern Highlands Provincial Transport and Works Director Nick Kopave, for release of one 20-foot container and a 40-foot container both containing Bailey Bridge materials to the value of K482,823. 19 the Property of the Eastern Highlands Provincial Government held at Markham Culverts Limited in Lae. Both containers were released to him. He did not have any rights to both containers with their contents. After complaint was lodged with Police, investigations led to his arrest and the recovery of the containers in Lae. Both have since being reverted back to the Eastern Highlands Provincial Government. 

3.	He was indicted with two counts under the Criminal Code, firstly pursuant to section 372 (1) “A person who steals anything capable of being stolen is guilty of a crime. Penalty: Subject to this section, imprisonment for a term not exceeding three years.” 

4.	And secondly, contrary to section 463 of the Code of uttering a forged document which read as follows: “Uttering False Documents and Counterfeit Seals. 

(1) In this section, “fraudulently” means with an intention–

(a) that the thing in question shall be used or acted on as genuine, whether in Papua New Guinea or elsewhere, to the prejudice of some person, whether a particular person or not; or

(b) that some person, whether a particular person or not, will, in the belief that the thing in question is genuine, be induced to do or refrain from doing some act, whether in Papua New Guinea or elsewhere.

(2) A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.

(3) It is immaterial whether the false document or writing, or counterfeit seal, was made in Papua New Guinea or elsewhere.

5.	The Accused entered guilty pleas to both counts on the presentation of the Indictment. On the tender of the depositions after the plea it was confirmed on the read of all the evidence therein that he was indeed guilty as indicted confirming his plea. And he was convicted accordingly of both charges as laid out. When the Antecedent report was tendered, it was confirmed that he had no prior convictions known to the law. He was a first offender. In his allocutus he had the following, “I am very sorry to the court. I thought what I did was right. I ask the mercy of the Court to place me on Probation.”

6.	That prompted the application from Counsel for presentence and means assessment reports which was granted. The matter was adjourned pending to the 18th May 2022. It did not proceed as the Court did not sit until the 28th June 2022. Both the presentence and the means assessment reports are now before me in the consideration of the sentence. He is 32 years old now originally from Yanofi village, Ungai Bena Eastern Highlands Province. At the time when he was arrested, he was employed with Ok Tedi Mining Limited in Tabubil Western Province as a Maintenance Engineer for one year nine months. Previously he was employed with Puma Energy at Port Moresby as Project Engineer. And previously he was employed at the Eastern Highlands Provincial Transport and Civil works Division. He holds a degree in mechanical and structural engineering from the University of Technology in Lae. He has no prior convictions known to the law.

7.	He is married and the wife is also a graduate this year in Architecture also from the University of Technology. Both have a female child aged 2 years 2 months. Both are unemployed. 

8.	He was arrested for the subject offence and charged with it on the 30th September 2020. Bail was granted on the 16th October 2020. And he had spent 2 weeks 2 days in custody on remand. He pleaded guilty to both charges that were laid out against him. Thereby saving time and logistics in the running of trial in the matter. He admitted his wrongdoing and pleaded for mercy to be exercised the sentence that was given. What he has set out to get by the crime has been returned in full to the State and the subject is no longer outstanding. Effectively that is return of K482,823. 19 the Property of the Eastern Highlands Provincial Government. The people have not missed out on the use of the baily Bridge materials that were in the subject containers. And photographs show that the bridge over the Kaveve was constructed. Which is taken as of the 19th December 2019 clearing that the subject bridge has been in operation and serving what it was intended to do. There is coupled the status of the bridge before being repaired with the recovered bailey Bridge materials. Coupled also are 16 photographs evidencing the recovery of both containers with the baily bridge materials inside. Effectively what has been lost has been recovered and the State through the Eastern Highlands Provincial Administration has recouped and is no longer at a loss.

9.	There is also reason set out by the evidence on file of witness John Morena who is a shareholder and managing director of Bafo Construction, who was approached in Lae by the Prisoner, in his capacity then as the Project Engineer with the Eastern Highlands Provincial Government Transport and Civil Works Department, for the Kaveve Bridge project. Because they had a qualified and reputable civil engineer who was specialized in structure such as bridges, the prisoner was impressed, and invited his company to scope existing bridge site at Kaveve and provide a detailed bill of quality. And that was done when he travelled from Lae to Goroka, did the site inspection and provided the prisoner the same on the 28th March 2017. Which was followed up with a minor works agreement form affixed with their common seal, as evidence of a legal engagement with both parties. And which led to the purchase and acquisition of the bailey Bridge materials. Including a letter of authorization by the Director Nick Kopave following accountable procedures to attain to implement the agreement. But that did not eventuate as there was administrative impasse between the provincial Administrator then Solomon Tato and Samson Akunaii, that sidelined both the prisoner and director then Nick Kopave.

10.	As a result, the project was placed on hold, and I was advised by Mr. Joel Minafi not to pass the bridge materials to anyone, until the new Provincial Transport and Works Director comes looking for it, as the public service system was deeply rooted with corrupt officers. If the bridge ended up in the wrong hands, it might get sold, and project will never eventuate for the Kaveve People. Bafo Construction and I nor any of its officers have any intention to steal, or defraud the Eastern Highlands Provincial Government, and deprive the People of Kaveve the Project. Our approach was purely commercial. I now learnt that all procurement procedures and close tender documents signed/executed were never administratively processed to authorize work for the bridge as initially advice Bafo Construction and I.”

11.	This evidence supports that the bailey Bridge materials were not there as action to deprive the owner of that property. It has been recovered in full and the bridge has been set up and now used by the People of Kaveve. Which gives independent support for the reason as to why the offence was committed. And the reason for the commission of the offence has materialized. All that was taken then and remained has been put to the use it was intended. No one has lost because of the actions of the Prisoner. His intention to keep the property intact has been realized with now Kaveve Bridge serving the People there. It was criminal Act committed to benefit the people not to fuel a criminal enterprise, selling the materials and making money depriving the people. That is not the case here. It gives credence to what is asserted in the presentence report. And evidence that was in the court file that the State could have used to process the matter then. This confirmation is in the presentence and means assessment report. That the subject baily bridge materials contained in the containers have been recovered and the subject bridge at Kaveve is up and operational. It means no loss has been suffered by the State through the Department of Eastern Highlands. To top that off the prisoner has pleaded guilty to the charges. He has saved the State in so doing in the running of a trial on the matter. In the light of this fact on 28th June 2022 Counsel has urged for a non-custodial sentence with conditions on probation order. These are the essence of the filed submissions on the record of the proceedings to stress their cases for an appropriate sentence upon the prisoner. 

12.	The State has urged that the offence is well executed and was sophisticated. It was carefully planned with the eventual outcome, that both containers were successfully taken into the custody of the prisoner and accomplices. In so doing there was very serious breach of trust by the Prisoner having been employed by the State through the Eastern Highlands Provincial Administrator as its Project Engineer and a public servant. What he did added the expenses incurred by the State on top of the materials to be able to provide the services called to the people. He had secured employment in Kiunga Western Province where he was apprehended and taken into custody. Educated to the University of Technology Lae as a Mechanical engineer. He ought to have known it was wrong in what he did. He gave no reasons to why he acted as he did. And it was the same in the record of interview conducted with police on the 02nd November 2020. He admitted in preparing paperwork to secure the delivery of the containers to himself but did not explain why he did what did. It seems the explanation has come out in the evidence of the witness set out above. And is confirmed by the evidence of yet another witness acting director Nick Kopave that the subject property was indeed on the budget and the working of the Eastern Highlands Provincial Administration. And he confirms the administrative impasse in the Provincial Administration that also affected him. This evidence gives credence to the presentence and means assessment reports in favour of the prisoner for a non-custodial term on probation order.

13.	The conviction he has sustained draws imprisonment not exceeding three years. That is stealing simplicitor and as with all other criminal offences that is the maximum penalty for that offence. It is not compounded by the State invoking the aggravating features within that section. So, he is not looking at a term beyond that prescribed as the maximum is always reserved for the worst offence of its kind within. Here obviously a determinate term is in view. And although a serious offence it is not as serious because the materials the subject of the charge has been recovered and the subject bridge at Kaveve has been put up since the 19th December 2019. Photographs that depict evidence in favour of the prisoner particulars set out above. There is recovery and coupled with the evidence set out above of witness John Morena who is a shareholder and managing director of Bafo Construction, it is clear that this is not the worst offence of its kind. The intent of the prisoner has been realized and the subject bridge has benefited the people of Kaveve. This is not just real means of recovery of the subject property stolen observed in State v Moripi [2017] PGNC 202; N6867 (31 July 2017), but recovery has been made even before the matter has come into Court. And purpose intended has been realized. With his plea and this fact established his case falls on all fours with Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91 (2 April 1986) that, "suspension of sentence pursuant to section 19 (6) of the criminal code is, or maybe appropriate in three broad categories. The categories are not exhaustive (1) where suspension will promote the personal deterrence, reformation, or rehabilitation of the offender; (2) Where suspension will promote the repayment or restitution of the Stolen money or goods; (3) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or health."

14.	In my view imprisonment will cause more harm to him. It would be disproportionate given the material and the evidence set out above. Even further imprisonment and placed on a probation order in my view will not equate the observation made in Wellington Balewa [1988-89] PNGLR 496. Because the charging section gives the maximum sentence for Stealing simplicitor as imprisonment not exceeding three (3) years. To draw the maximum sentence there for a prisoner who has pleaded guilty, materials worth K482,823. 19 the Property of the Eastern Highlands Provincial Government recovered as he intended, returned put to the use as projected and for which budget was allocated, what purpose would it serve in sentencing the prisoner to imprisonment? Let alone placing the prisoner on a probation order emanating? 

15.	He is a university graduate with a degree in Mechanical and Civil Engineering that can benefit the Province, the State, and the Country. Why is he being imprisoned when all that he has set out in the way he has now being attained. The People of Kaveve are using that Bridge composed by the materials intact. Should he be imprisoned given that fact? And if seen out with like cases that have been dealt with in similar given, for instance in State v Thomas Jim Nori [2016] N6467 sentence of 2 years IHL suspended on payment of a fine of K10,000.00 was imposed. And yet another in State v Eric Emmanuel Vele [2002] PGNC 93; N2252 Prisoner there took the initiative to make repayment of K11,091.23 even before the formal orders of court and had a balance remaining of K4,008.77 to settle the money stolen from the Port Moresby Westpac Bank Limited where he was employed as Supervisor international Bank centre. And the presentence report recommended probation with community supervision which the court acceded to in view of that being so in the light of Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC 564 (27 August 1998), that criminal sentencing is a community responsibility. The Sentence there was 2 and a half years suspended on very strict conditions of Probation.

16.	Yet in another illustration State v Zuvani [2004] PGNC 127; N2641 (25 August 2004) prisoner pleaded guilty to transferring paperless K22,685.43 over a period of time property of her employer Bank of South Pacific Limited into a relatives account where she used the save card withdraw and used the money. She had almost made complete and full restitution of that money back to the bank. The court considered and imposed 4 years wholly suspended on seven conditions on probation attaching.

17.	Here prisoner has effectively returned all that was taken and the bridge at Kaveve that depended on the materials in both containers have been completed and the People there are using it, benefitting out of it. Had it been sold by corrupt officers; it would not be up and serving even now. That is also not the evidence against him warranting custodial term. It is the reason an educated elite as he committed the offence. That purpose has been realized. It was criminal offence strictly but attained positively for all. He has pleaded guilty and is a first offender. He was prepared to take responsibility for his actions evidenced by his guilty plea. Even if it meant time in jail and loss of his job. It is my view given these facts that he is already a reformed person which is supported by all material particulars which I have set out above. Further incarceration or imprisonment will not lead to recovery of the property. It is already there recovered put to the use budgeted and intended for with the skills and professional duties that the Prisoner exerted. The aggregate proportionate of all is that I sentence the prisoner to 2 years imprisonment in hard Labour for the crime of stealing pursuant to section 372 (1) of the Code. That would be served concurrently with that sentence of Uttering. 

18.	The offence of Uttering was the means that made it possible through the letter that was presented to entice the delivery of the subject materials for the bridge in the two containers. It is my view given that it is a one transaction and applicable within Acting Public Prosecutor v Haha [1981] PGSC 6; [1981] PNGLR 205 (2 July 1981) in particular the principles of cumulative and concurrent sentences. Which is illuminated in this way, “Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative. When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total,” Kerua and Kerua, Public Prosecutor v [1985] PGSC 8; [1985] PNGLR 85 (1 April 1985). 

19.	The sentence is imprisonment not exceeding three years for the crime of uttering pursuant to section 463, the same penalty as in forgery. Because it facilitated the stealing it is no different. It arises out of the one transaction and so will draw concurrent rather than cumulative. Therefore, considering that the maximum is reserved for the worst case of its kind, the proportionate sentence in the aggregate is 1-year IHL for the crime of uttering pursuant to section 463 of the Code. And I so impose that upon the prisoner. 

20.	Because of the reasons I set out above it will be concurrently served with the two years imprisonment imposed for stealing. So, the effective sentence upon the prisoner is 2 years IHL. But in the exercise of my discretion drawing from all the reasons I set out above, that is suspended on 2 years GBB on the condition that the prisoner is fined K600.00 forthwith. In this regard his bail money in the sum of K600.00 is refunded forthwith and maybe converted to that fine. He will be released upon receipt filed into court.

21.	The sentence of the Court is 2 years imprisonment in hard Labour but suspended fully on a 2-year Good Behaviour Bond on the condition that he is fined K600.00 to be paid forthwith. Bail is refunded forthwith.

Ordered Accordingly.

Public Prosecutor:  Lawyer for the State
Public Solicitor:  Lawyer for the Defendant