Pakou v Mou [1998] PGDC 5; DC28 (28 May 1998)

Unreported District Court Decisions

[1998] PNGDC 6 - CLEMENT PAKOU V FELIX MOU

[1998] PNGDC 6

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

GFC NO 28 OF 1997

PARTIES:  CLEMENT PAKOU

INFORMANT

V

FELIX MOU

DEFENDANT

Kimbe

S Lenalia PM

25 May 1998

28 May 1998

CRIMINAL LAW - Stealing - Plea - Sentence - Criminal Code (Chapter 262) s372(9)(b).

CRIMINAL LAW - Sentence - Matters for consideration - Sentencing should be guided by well established principles: Wellington Belawa v The State [1988-89] PNGLR 496 - followed.

The accused pleaded guilty to one count of stealing a cash sum of K1,400.00 whilst being employed as President of the Garua/Bileki Local-level Government. The facts of the case are well stated in the judgement.

Held

N1>(1)      A sentence of imprisonment is warranted despite a strong plea in mitigation but should be suspended with stringent conditions for restitution.

N1>(2)      Deterrence and public interest in this type of dishonest offences should be the prime consideration.

Cases Cited

Wellington Belawa v The State [1988-89] PNGLR 496

Representation

Counsel/Representative:

Informant:  Sergeant J Turan

Defendant:  Accused in person

Lawyers/Representative:

Informant:  Police Prosecution Division

Defendant:  Accused in person

28 May 1998

S LENALIA PM:

N1>[1]      The Defendant pleaded guilty to one count of stealing, that on 2 June 1997, he being the president of Garua/Bileki Community Government stole a cash sum of K1,400.00, the property of the Hoskins Local-level Government which money had then been received by him in his capacity as president and with direction that such money be paid toward salaries and allowances of Ward Development Committees and Village Recorders. This is an offence contrary to s372(9)(b) of the Criminal Code (Ch262).

N1>[2]      The facts of the case say that the Defendant was then the president of the Garua/Bileki Community Government when he committed the offence. Various witnesses made statements in relation to how the Defendant stole the sum stated in the Information. Mr Leonard Maki the then Vice President of the Garua/Bileki Community Government stated that the Defendant signed for a Cheque No 58608 on the date the offence was committed which cheque contained a total sum of K9,000.00 being wages for Ward Committees and Village Recorders. Out of that amount the Accused helped himself to a sum of K1,400.00 then handed over the remaining amount of K7,600.00 to the Executive Officer of the Hoskins Local-level Government.

N1>[3]      The matter came to light when frustrated Ward Committee Members waited anxiously to receive their salaries and allowances for the months of March, April and May of that year. When these members met at the Hoskins Local-level Government office they were informed that the Defendant had signed for their cheque and had taken or stolen the amount charged. When questioned by the Executive Officer about the stolen amount the Defendant readily admitted that he had taken such sum.

N1>[4]      The Defendant was asked in allocutus if he had anything to say before he would be sentenced. In response the Defendant said that before the cheque was prepared, he had asked the Executive Officer to approve and grant him an advance of K1,500.00. He was to use this amount for maintaining the children of his second marriage. However, the Executive Officer did not approve such request. At the same time he was surprised to see that Village Recorders had been included in the payroll whereas in his term, as president, Village Recorders were not budgeted for. The Defendant further stated that a week after the matter came to light, he offered to make restitution but the Executive Officer refused saying, the matter had been reported to the Police. That previously, other officers have taken out money by advance.

N1>[5]      The Accused says that he is married with five (5) children, the sixth from his second marriage. He further says he is very sorry for not co-operating with police during the Record of Interview. He now says he is very sorry for committing this offence and now realises that his good name has been tarnished. He has indicated he will accept any decisions given by the court.

N1>[6]      May I say at this juncture, that the Accused's excuse that there existed a practice in the Office of Hoskins Local-level Government whereby officers would request advances and be readily granted them, cannot be accepted by this court. In genuine cases an employee may have resort to obtaining an advance payment provided it is approved by Financial Authorities and only in extreme cases such as when somebody is resuming from leave. In my view, by the Accused requesting an amount of K1,500.00, he treated the Treasury Department as a financial institution, and I doubt if the Executive Officer could approve this request. Let the court mention in passing that nobody should treat governmental institutions as lending institutions such as the commercial banks. The offence you committed is quite serious and punishable by imprisonment for a term of seven (7) years.

N1>[7]      This offence involves a sum of K1,400.00. It is quite a large amount of money. For the purposes of sentencing you, I wish to restate a number of factors stated by the Supreme Court in the case of Wellington Belawa v The State [1988-89] PNGLR 496. It was said there that the larger the amount is, the greater will be the punishment. It was also suggested there that for a serious theft or misappropriation by servants involving amounts between K1.00 and K1,000 a gaol term should rarely be imposed. Then from K1,000 to K10,000 a term of two years should be appropriate. The Defendant's case falls with the second category. The principle simply is that the larger the amount the greater should be the punishment. The principles set out in Belawa's case are guides to a sentencer to determine an appropriate penalty: the sentence will depend on the amount stolen or misappropriated and the eleven various factors that were set in that case.

N1>[8]      An important factor that I need to consider in this case is the degree of trust placed on the Defendant as the President of Garua/Bileki Community Government. In your community you held a very important position of trust in that you were elected by the people to represent them. What you did is you betrayed their trust. I thought a person of your calibre should have shown more understanding in dealing with the State finances. In fact you had taken out advances prior to this occasion. While other community government members also have also done so, that practice does not alleviate anyone from criminal culpability. There may be administrative arrangements to take out advances, but that can only be accepted if it is provided for by law. In your case nobody approved your request. In any event you should have gone to a commercial bank and taken out a loan to service whatever requirement you were faced with.

N1>[9]      Whilst it may be said that your action could be a "spur of the moment theft" in that it was committed on the date you drew the cheque, it could also be argued that you already had a confirmed state of mind to steal because you had applied for an advance and you were anticipating some K1,500.00 in advance. I have alluded to the fact that government institutions cannot be treated as banking institutions with lending facilities and where people go to borrow money. Local-level Government Offices operate independently from the public funds and such money must be properly utilised as intended.

N1>[10]    In sentencing you I take the following mitigating factors in your favour. You pleaded guilty to the charge. It is often said that a guilty plea is a "genuine credit". You are a first offender but not a youth. You had no previous convictions. Right after you were found out you offered to make restitution. To this court that showed your willingness to make restitution.

N1>[11]    Aggravating factors relative to your case are that you betrayed the trust your people had in you, being the president of your community government.

N1>[12]    You have not made any restitution as yet. Even if you had, it would not bar the police from prosecuting you. You did not spend the money for any useful purposes such as payment of school fees or for doing something worthwhile. You said you used the money to maintain children, but I cannot accept that as it is your own responsibility to maintain your family from your own pocket. At least to prove yourself as a man, you must learn to rely on your own resources in making provision for your wives and children. Having said this I consider that a term of imprisonment is appropriate in your case with ancillary orders.

N1>[13]    You are sentenced to a term of twelve (12) months imprisonment with hard labour.

N1>[14]    I further order that this sentence is suspended on the following conditions:

N2>1        You shall enter into a recognisance to keep the peace and be of good behaviour for a period of two (2) years with surety of K100.00 cash forthwith.

N2>2        That within fourteen (14) days from today, you shall make restitution in full in the sum of one thousand and four hundred kina (K1,400.00).

N2>3        That you shall produce to the Grade 5 Clerk a receipt of such payment.

N1>[15]    Orders Accordingly.