State v Ao (No.2) [2002] PGLawRp 23; [2002] PNGLR 55 (1 May 2002)

[NATIONAL COURT OF JUSTICE]

THE STATE

v

DOBI AO (N0.2)

WAIGANI: KANDAKASI J

1 May 2002

Facts

The prisoner was convicted on counts of misappropriation under s 383A(1)(a) of the Criminal Code Act and one count of attempted misappropriation under s 383A and s 4 of the Criminal Code Act for having misappropriated K37,562.58 and attempting to misappropriate K5,980.70 of the property of the state. The prisoner through her lawyer, has sought a non-custodial sentence. The court then ordered a pre-sentence report and means assessment report pursuant to the Criminal Law (Compensation) Act 1991 to be prepared by Probation Officer and have them made available to the court to guide the court in sentencing. In this pre-sentence and means assessment reports, the immediate and extended families and friends and the community members of the prisoner undertook to assist the prisoner in full restitution of the full amount of money misappropriated and requested that the prisoner not be sent to jail but be given a non-custodial sentence.

Held

1. It is an important aspect in criminal law sentencing that sentencing tariffs must be considered to determine sentences in future cases if subsequent sentences are to have any relevance to the interests of society to appropriately deal with offenders. Usually, if past sentences fail to deter other would be offenders and there is evidence of the prevalence of the kind of offence under consideration, the sentence in the subsequent case may have to be increased to counter that, unless, the other purposes of sentencing are appropriate.

2. In view of the cost implications to the State, prisoners convicted of misappropriation of state funds should not be automatically sent to jail. Rather options in non-custodian sentences should be considered. But when alternatives to non-custodial sentences are considered, head sentences should not be drastically reduced. Rather there should be sterner head sentences and then such sentence can then be wholly or partially suspended or be made part custodial or part non-custodial to reflect the seriousness of the offence and to defer would be offenders.

3. A non-custodial sentence does not grant the offender immediate liberty. He is simply allowed to serve his penalty out of the prison system for reasons such as those noted in the above passage. Hence, the need to impose a head sentence and conditions for a suspended sentence that will make that clear to an offender.

4. Criminal sentencing should be a community responsibility because an offender may be better reformed through community participation. The onus is on a sentencing judge to devise a sentence that will meet the interests of society in punishing offenders and at the same time the interest of the offender to be fairly treated and to be given a chance to reform and become a better law-abiding citizen.

5. Again as was noted in the Oa Seseka (supra) case, any contribution the family or the community makes toward an offender's penalty may come with obligations upon the offender that might take years to discharge. That in itself might serve as an effective deterrent sanction at the family and community level for other would be offenders. After all, offenders come out of families and communities before they become offenders for whatever reason.

6. Taking into account all of the above, I consider no useful purpose will be served if you are sent to prison. You will be a strain on the State's limited financial resources in terms of looking after you in prison and feeding you. The State will incur further losses, which may be double or triple the amount you have misappropriated. Apart from not seeing you in your house and your community, the members of your family and community will not be able to see you serving your penalty. I therefore, consider a non-custodial sentence is appropriate but that has to be on strict terms.

7. Going by the tariffs in this kind of offences I consider a head sentence of 3 years in light labour appropriate. I would then have the whole of that sentence suspended on the following terms and conditions:

1. You repay the full amount of K37, 526.58 to Independent State of Papua New Guinea in the following way:

(a) The amount of K8,504.90 calculated to be due and owing to you from the Public Officers Superannuation Fund Board be immediately forfeited to the State by way of cheque for that amount being drawn by the POSF in favour of the State;

(b) The amount of K3,990.04 due and owing to you from the Department Education be immediately forfeited to the State;

(c) The sums of K4,920.00 and K4,040.00 being contributions from your relatives both from your own and that of your husband's side be paid into the National Court Registry before 12:00noon on Friday the 3rd of May 2002;

(d) The balance of K16,071.28 be paid in equal installments of K400 on the 1st working day of each month over a period of 24 months commencing 3rd of June 2002, from the Group led by Rev.Kukuna Kari and the group led by your husband Mr. Boge Ao until the balance is fully paid off.

(e) The payments order under (c) and (d) remains your responsibility in the event of a default or short fall;

2. You render three hours free community service each Monday and Wednesday excepting any public holidays to the St Michael's Primary School in Hanuabada and the kind of service shall be determined and directed by the principal of that school in close association with the Probation Service of the Department of Attorney General;

3. You render 2 hours free community services to the United Church in Hanuabada and the head of that church shall determine the kind of services you are to render in close consultation with the Probation Services of the Department of Attorney General;

4. You will allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to make such recommendations, as they consider appropriate either for a variation or an implementation of these terms;

5. The Probation Service will attend on you each quarter to do a comprehensive review and report to this court of your compliance of these terms.

6. If for whatever reason you breach any of these terms, you will serve the balance of the term of the suspended sentence of 3 years as at the time of the breach;

7. You will be at liberty to apply for a review and or variation of any of these terms supported by appropriate evidence or material.

8. You immediately enter into your own recognition to keep peace for the currency of your suspended sentence.

9. You accept that any member of your family or community will be at liberty to report to this Court of a failure to meet any of these conditions without any prior notice or warning to you.

I consider the sentence and the terms and conditions of the sentence proposed above sufficient to accommodate all of the comments and concerns raised in foregoing. Accordingly, I make orders in those terms.

Papua New Guinea cases cited

Acting Public Prosecutor v Don Hale (1998) unreported SC564.

Constitutional Reference No.1 of 1977 (Sch. 2.3) [1978] PNGLR 295.

Doreen Liprin v The State [2001] PNGLR 6.

Lawi v The State [1987] PNGLR 183.

The State v Abel Airi (2000) unreported N2007.

The State v Bygonnes Tuse Nae [1996] PNGLR 34.

The State v Paroa Kaia (1995) unreported & unpublished N1401.

The State v Henry Idab [2001] PNGLR 854.

The State v Jimmy Solomon (2001) unreported N2100.

The State v Micky John Lausi (2001) unreported N2073.

The State v Nickson Pari (No. 2) (2000) unreported N2033.

The State v Micky John Lausi (2001) unreported N2091.

The State v Oa Seseka (1990) unreported N921.

Wellington Belawa v The State [1988-89] PNGLR 49.

Counsel

J Pambel, for the State.
D Sakumai, for the accused.

1 April 2002

Kandakasi J. On the 12th of April 2002, I found you guilty after a trial on a total of eight charges of misappropriation contrary to section 383A (1)(a) and one count of attempted misappropriation contrary to s 383A in association with s 4 of the Criminal Code. You misappropriated a total of K37,526.58 and attempted to misappropriate a further K5, 980.70 from the State.

The Commission of the Offences

You committed these offences by raising a number of false schedules for a number of overseas contract and volunteer officers employed with the Department of Education. Cheques were then raised against those schedules. Out of that, you forged the signature of the named payees and had them cashed. You denied having cashed and applying the proceeds to your personal use. After the trial I found that your denial could not be sustained and I found you guilty as I did.

Now in your interview with the probation officer under my orders for a pre-sentencing report, you are reported as saying you committed the offences to meet some pressing family needs and some needs in the community. The proceeds of your offence were therefore applied toward meeting the family and community needs. None of the family and community members knew of your commission of the offences but they did benefit from the proceeds.

Address on Sentence

After having found you guilty, I asked you to address the Court on the kind of sentence the Court should give you. You decided to let your lawyer do that for you. Your lawyer asked for an order requiring you to repay the amounts you were found to have misappropriated from the State and a non-custodial sentence. Prior to that submission, I asked for a pre-sentencing report and a means assessment report as I consider those were required in anticipation of such a submission.

The pre-sentencing reports were furnished to me on 29th of April 2002, from the Probation Services. Yesterday, on 30th of April 2002, I heard submissions of both the parties on sentence. There is agreement from both the State and you that restitution with a non-custodial sentence on terms is appropriate. I also heard briefly from two of the community leaders Rev. D. Kwalahu Lohia and Rev. Udu Edea as to the communities preparedness to assist you and supervise your meeting of any terms this Court may impose against you, if it were to order a non-custodial sentence.

The Law

Section 383A (1)(a) and s 4 of the Criminal Code under which you have been found guilty, describe the offence and prescribe the penalty in relevant parts as follows:

"383A. Misappropriation of property.

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

(a) property belonging to another; or

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

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:—

(a) ...;

(b) 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.

(3) For the purposes of this section—

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and ..."

"4. Attempts to commit offences.

(1) When a person, intending to commit an offence—

(a) begins to put his intention into execution by means adapted to its fulfilment; and

(b) manifests his intention by some overt act,

but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence."

The Supreme Court in Wellington Belawa v The State [1988-89] PNGLR 496 set the sentencing guidelines for cases of misappropriation. In summary, the Supreme Court held that the lesser the amount of money involved the lesser the sentence terms should be. The converse of that is that, the higher the amount is the higher the sentence terms should be. The Court then held that the amount taken; the quality and degree of trust reposed in the offender including his rank; and the period over which the fraud or the thefts have been perpetrated are relevant factors for consideration. The Court included in that list, the use to which the money or property dishonestly taken was put; the effect upon the victim; the impact of the offences on the public and public confidence; and effect on fellow-employees or partners. Further the Court held that the effect on the offender himself; the offender's own history; restitution; and factors in mitigation such as illness; being placed under great strain by excessive responsibility or the like; and co-operating with the police are also factors relevant for consideration.

Since then cases have imposed sentences between 18 months for misappropriation of K6,000.00 and 3 years for misappropriations of K10,000.00 as in Lawi v The State [1987] PNGLR 183. Cases subsequent to that have imposed sentences of 4 years on a guilty plea with good mitigating factors for a misappropriation of K94, 478.31 as in The State v Paroa Kaia N1401 and The State v Bygonnes Tuse Nae (18/09/96) N1474, for misappropriation of amounts exceeding K100, 000.00.

A most recent Supreme Court judgement on this kind of cases is the case of Doreen Liprin v The State [2001] PNGLR 6. In that case, Liprin was convicted on one count each of forgery, uttering and misappropriation of a sum of K6, 000.00. She was given a sentence of one year each for the first two offences and 3 years for the misappropriation, all to be served concurrently. However, the sentences were suspended on the condition that she repay all of the monies she stole within a period of 2 months. She did not meet the condition for her suspended sentence and she was taken into custody to serve her sentence. Whilst in prison she lodged her appeal to the Supreme Court. Although her appeal was out of time, the Supreme Court in the exercise of its powers under s 155(2)(b) of the Constitution proceed to deal with the matter.

The Chief Justice dismissed the appellant's appeal against conviction but upheld her appeal against sentence. He had the sentence reduced to 18 months. With respect that sentence was arrived at, without having regard to the sentencing trend in this sort of cases. The Deputy Chief Justice and Justice Los did have regard to the relevant sentencing trends and concluded that the cumulative sentence of three years was appropriate as it was within the range. Despite his views on the sentence, Justice Los accepted the Chief Justice's proposal on sentence. With respect this does not provide any assistance as to determining appropriate sentences.

It is an important aspect in criminal law sentencing that sentencing tariffs must be considered to determine sentences in future cases if subsequent sentences are to have any relevance to the interests of society to appropriately deal with offenders. Usually, if past sentences fail to deter other would be offenders evidence by prevalence in the kind of offence under consideration, the sentence in the subsequent case may have to be increased to counter that, unless, the other purposes of sentencing is appropriate.

The Chief Justice's proposal in addition to reducing the sentence, proposed that Doreen Liprin be given more time to look for alternative employment to repay the amounts misappropriated and that the court make orders for free community services under the Probation Services supervision. The Chief Justice reasoned in these terms at p. 5 of the judgement:

"I believe it is time to consider seriously whether offences of misappropriation of amounts of the kind [K6,000.00] warrants custodial sentences. I do not believe so. I believe the Court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment...

The converse implications of a sentence of imprisonment is, whilst the immediate effect is that of declaration of liberty and does a punishment, the cost to the State and the community will exceed considerably the amount of money misappropriated. It would be of no benefit to society. The purpose of punishment can as easily be obtained in alternative orders to imprisonment. The offender is no (sic) threat to society."

I agree it is time now to seriously consider alternatives to sentencing in this type of cases. But that, with respect, does not necessarily mean head sentences be drastically reduced. Instead it means in my view that, there be sterner head sentences and then either have them wholly suspended or they be made part custodial and part non-custodial. This is to show the seriousness of the offence and to serve both the purposes of deterrence and rehabilitate an offender. It would also give the offender a consideration to faithfully meet any conditions that might be imposed for suspending either in part or in whole the head sentence. The absence of a sanction for failing to meet such conditions might give no reason to the offender to comply.

As I observed in the case of The State v Micky John Lausi (27/03/01) N2073 and cited in The State v Jimmy Solomon (6/7/01) N2100:

"It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such order is made in the community interest and is generally designed to prevent re-offending which a prison sentence, standing alone, seldom does. A person so released has an obvious incentive not to re-offend. Therefore, there should be no misconceptions as to what will occur if he does. From time to time, persons charged with more serious offences may be dealt with in this manner by reason of good character, the court's view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that a particular offender will be positively damaged by immediate incarceration."

With respect, therefore, a non-custodial sentence does not grant the offender immediate liberty. He is simply allowed to serve his penalty out of the prison system for reasons such as those noted in the above passage. Hence, the need to impose a head sentence and conditions for a suspended sentence that will make that clear to an offender.

I am not able to find any case providing some guidance on the kind of sentences to be imposed in the case of an attempted misappropriation. In the absence of any authority to the contrary, I am of the view that the guidelines set by the Supreme Court in the Wellington Belawa case as varied by the subsequent cases should apply with one modification. The sentencing judge has to bear in mind that, it is only a case of an attempt and not actual commission of the offence. At the same time, the Court should note that, actual misappropriation comes about when the offender has set in motion the steps necessary to commit the act of misappropriation but for an intervening cause that prevents an accomplishment of the act. The sentence should therefore, have to be lower than those imposed in actual misappropriation cases. The sentence must reflect how far the offender has gone to commit the offence. If he has well advanced to actual misappropriation, his sentence should be higher than one that has just started the process.

For the purpose of your sentence, I note that you are a 47-year-old women with no prior convictions. You are, therefore, a first time offender, that is to say you have never been in trouble with the law before. You come from Hanuabada village here in the National Capital District. You are married with a total of 9 children, four of your own and 5 of your husband's. You have been married to your current husband Mr. Boge Ao for the last 12 years. He is a retired public servant after having worked with the Department of Education before.

The commission of the offences you have been found guilty of and the prospect of you being given a custodial sentence has had a bad effect on your family but the family is working toward over coming that. The younger children of your marriage need you to attend to their daily needs. Of the older children however, two have permanent jobs and are assisting the family. Two of your daughters have married outside of the village and are living with their own families. The rest of the bigger children are doing part time jobs like fishing or selling food items to contribute to the subsistence of the family.

You have expressed remorse for committing the offences. You realize now that you have caused much pain and suffering to your family by committing the offences as it brings shame to your family and relatives and friends. Your relatives and members of the community are now prepared to assist you in meeting your penalty for the offences if the Court orders a full restitution with free community service orders.

According to the means assessment report, you have a total of K8, 504.90 due to you from the Public Officers Superannuation Fund Board with a 10% on that yet to be calculated and paid as part of the State's contribution to your superannuation. A further K3, 990.04 is due from the Education Department as your final termination or retirement entitlements. You are prepared to have these amounts paid to the State in part repayment of the amounts you misappropriated.

In addition, your elder brother and relatives from your side are prepared to contribute K4,920,00 with a further K4,040.00 from your husband's side. All these add to a total of K21,455.30 leaving you with a balance of K16,071.28. I note that, members of your community, which includes your relatives from both yourself and that of your husband's side are prepared to contribute toward repayment of that by an installment payment of K400.00 per month over a period of 24 months until the balance is paid off. They propose to make the payments on the 1st working day of each month.

The commitments of your relative and community is in two separate letters addressed to me and both dated the 25th of April 2002 which are in these terms:

"FAMILY MEMBER OF DOBI AO FINANCIAL CONTRIBUTIONS COMMITMENT TO OFFSET THE BALANCE OF RESTITUTION PAYMENT

We the undersigned are relatives and Family Members of Dobi Ao. We have all agreed to contribute in cash towards offsetting the balance of her Restitution Payment.

With our initial contribution of K4,920.00 plus K4,040.00 totals to K8,960.00 plus her POSF and final pay entitlements of K6,177.00 and K3,990.04 respectively, will provide a total amount of K19,021.13. However, her restitution payment of K37,454.09 less K19,021.13 will give an outstanding balance of K18,432.96.

Your Honour, we hereby commit ourselves to offsetting this outstanding balance by K400.00 per month for a period of twenty-four (24) months. In the event that there is a shortfall, every effort will be made to offset the balance of the Restitution payment monies by the very immediate family members. This payment will be made on the 1st working day of every month.

For your kind considerations please.

"CLANSMEN KIN, RELATIVES AND FRIENDS OF BOGE AO'S PLEDGE FOR SUPPLEMENTARY FINANCIAL CONTRIBUTIONS TOWARDS RESTITUTION PAYMENTS BY MRS DOBI AO

We the undersigned, the Kin, Clansmen, relatives and friends of the accused's Husband (Mr. Boge Ao) hereby pledge, undertake and make oath as follows:

1. To assist in making cash contributions towards supplementing the restitution payments of Mrs Dobi Ao towards the Independent State of Papua New Guinea. Our initial contributions being K4,040.04; and

2. We commit ourselves to making monthly contributions of K400.00. In the event that a short fall occurs, Mr. Boge Ao (our clansman and husband of the accused) and his immediate family shall make every effort to address the shortfall. This contribution shall be remitted 1st working day of every month.

For your kind consideration on compassionate and humanitarian grounds.

We are:

Yours sincerely,

I have asked both your lawyer and that of the State to assist me with any authority that says or could allow me to take into account your family and your community's contribution toward your penalty. I made that request after having expressed views as I did in cases like that of The State v Henry Idab (17/12/01) N2172, The State v Abel Airi (28/11/00) N2007 and The State v Nickson Pari (N0.2) (10/01/01) N2033 that only the offenders should be responsible for their offences. Accordingly, they alone should meet whatever the penalty a Court considers appropriate and imposes. This proceeds on the basis that our system of criminal justice is aimed at punishing offenders as opposed to his or her family and relatives who play no direct part in the commission of an offence.

These views were expressed in the context of the Criminal Law (Compensation) Act 1991 and not in the context of misappropriation cases like yours. However, in the Henry Idab (supra) case, I said:

"Nevertheless, there is room in my view to develop the law in the way suggested by counsel. That must be on the provision of sufficient evidence and therefore basis showing for example that the offender will be required to reimburse the relatives contribution toward any compensation either by providing free labour over a specified period and that they are in a position to ensure that happens. Also if there is evidence showing that the payment of compensation by family members or relatives will help rehabilitate an offender in a more meaningful and tangible manner, it may then be appropriate to take into account compensation payment by persons other than an offender."

That was in response to counsel's submission in that case, that the court should allow for the relatives of offenders to contribute or indeed pay for the wrongs of offenders who do not have the means to pay compensation to the victim of his offence.

Both of the lawyers in this case were not able to assist me with any authority on point. During the course of submissions I drew counsel's attention to the Supreme Court's comments in Acting Public Prosecutor v Don Hale (27/08/98) SC564 at p. 6 where the Supreme Court said:

"The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

That was in the context of the National Court failing to call for and consider a pre-sentencing report before imposing a wholly suspend sentence of 5 years for armed robbery on a guilty plea.

Your lawyer argued that criminal sentencing is a community responsibility. In a case like misappropriation where the proceeds of the offence are applied toward the benefit of the family or the community members, it is appropriate to order them to share in the penalty. If the penalty is one of restitution which is what is asked for here, they should be ordered to contribute toward the repayment of the amounts misappropriated. The State on the other hand submits that an offender like you in your case should be responsible for the penalty to the exclusion of relatives or community members. But if these people so wish, they could help you to meet the penalty. That is a matter for you and them to sort out and as such, it should not be featured in the Courts decision on sentence.

The arguments of the state are in line with the long established principle in criminal law that the law punishes an offender and not a third party. This concept has been imposed in our country as a result of us adopting the Western norms of criminal justice. Traditional or customary Papua New Guinea is more communal and family responsibility. Everyone affected by a problem in society contributes towards resolving it. Schedule 2.1 (1) of the Constitution adopts custom as part of our underlying law provided it is consistent with the Constitution, any statute and is not repugnant to the general principles of humanity. Parliament by legislation provided for the way in which custom may be pleaded in certain circumstances and for the resolution of any conflicts of customs.

The only known Act on the reception of custom is the Customs Recognition Act Chp.19. The Act ousts the strict rules of evidence in cases where there is a need for proof of a particular custom. It also empowers a Court to inform itself of a particular custom in whatever way it sees fit. The Supreme Court in Constitutional Reference No.1 of 1977 (Sch.2.3) [1978] PNGLR 295, held that in order for a custom to be adopted, it must be universal or it must be a custom that applies nation wide. Communal or collective family responsibility is a fact of live through out the country.

There can be no argument now that criminal sentencing is a community responsibility. To date, this has been restricted to the question of whether or not an offender should be released back to the community instead of serving his time or penalty in prison. The only case that I am able to find that has made some reference to the need to develop the underlying law as is argued for by Mr.Sakumai is the case of The State v Oa Seseka (19/10/90) N921. In that case the now Chief Justice (then Amet J) in the context of the relatives and members of the offender's clan rallying behind the offender said:

"I am much impressed by the clan rallying to the assistance of the prisoner and many being prepared to make the kind of commitment referred to help the prisoner. This demonstrates the kind of pride and commitment Mr. Avei spoke of and which I accepted. There was no direct evidence led of the kind of obligation that might be placed upon such an offender who was helped in the way the relatives have undertaken to help the prisoner. I do not think however that evidence is necessary to establish that some reciprocal obligation is placed upon the prisoner. There cannot be any doubt about that. I believe this is universal in the country. The extent, and duration may vary from area to area."

I am satisfied that such assistance with corresponding obligations over quite a number of years provide a form of sanction in themselves.

The value and place this kind of customary sanction has upon the punitive principles of sentence have not been fully considered in these courts. No real arguments have been presented and I do not wish to deal with it in any depth except to say in my own perception that it does have a place which will have to be explored and elaborated upon.

Much of the focus now is on the alternatives to criminal sentence. This has been highlighted in the recent conference on "Alternatives to Sentencing" held early this year. The Supreme Court echoed that in its recent judgement in the Doreen Liprin (supra) Court case. As was noted by the Supreme Court in the Don Hale (supra) case, this Court must be responsive to the wishes and aspirations of the people when charged with the duty to determine an appropriate penalty for an offender. I am therefore of the view that, when a call for restitution with a suspended sentence is made, the Court must first call upon the offender's immediate community through the Probation Service to respond to that. If the community is supportive of such a call, they must show the extent of such support. The Court must then carefully and seriously consider what the community is saying and if considered appropriate, devise a sentence that is in keeping with the wishes of the community even if it includes a commitment to assist the offender toward a full restitution of the amounts misappropriated.

As was noted in the Oa Seseka (supra) case, some of these offences are committed because of pressures exerted on the offender by the family and or his/her community. No doubt in some cases, the family and community up bringing leads an offender in the first place to offend. Also in some cases the family or the community benefit in some way, however, small that might be from the offences. It would therefore be only fair and equitable that they be ordered to share in the penalty. Again as was noted in the Oa Seseka (supra) case, any contribution the family or the community makes toward an offender's penalty may come with obligations upon the offender that might get years to discharge. That in itself might serve as an effective deterrent sanction at the family and community level for other would be offenders. After all offenders come out of families and communities before they become offenders for whatever reason. It is more the case than not that, families and communities are not assisting the police in identifying criminal elements in society. This is partly contributed to by the fact that families and communities are not being penalized for wrongs of the criminal elements in their family or the community. I am firmly of the view that the law and order situation in the country would improve considerably if the families and the immediate communities of offenders share in the penalties imposed on offenders.

It might be argued that such an approach to criminal sentencing might let offenders off the hook or that they might be made to avoid the full weight of their wrongs by reason of them being shared. The argument might be extended to say that, well-to-do or very forceful offenders might force their family or communities to bear the penalty and they themselves avoid it. The simple response to that is, prior to independence and even before that, the coming of the white man our people lived and continue to live in their respective societies without prisons and a police force to maintain law and order. Collective community or family responsibility prevailed. The situation is still the same through out the country today. Even at the international scene, though not strictly in relation to the subject under discussion, countries are desperately trying to form into bigger unions or communities because of the strength or the force collective responsibility brings as opposed to working alone. The chances of success at the community level are far greater than going through the prison system, because it becomes personalized as opposed to an imposed system and people just doing a job under the current criminal law justice system.

Only an effective sentence can bring about a real achievement of the aims or purposes of criminal sentencing. It is now well accepted that an offender may be better reformed through community participation. Indeed I have been told in the course of hearing submissions in this case, that two of my previous community-based sentences are doing well and a formal report is forth coming. When placed with such information, it is far better to get the community involved than not, if to do so will keep reform offenders whilst at the same time make them pay for their wrongs by rendering free service to the community rather that become a strain on the public purse. The onus is on a sentencing judge to device a sentence that will meet the interests of society in punishing offenders and at the same time the interest of the offender to be treated fairly and to be given a chance to reform and become a better law abiding citizen.

Your Sentence

Now to return to your case, I note in your favour that you are a first time offender. You are 47 years old and married with a total of 9 children, 5 from your current husband and 4 of your own. You are prepared to fully repay the State the amounts of money you have misappropriated, with the help of your family and the members of your community. Village and church leaders in your community have come forward and undertaken to this Court to assist you in every way they can to help you to rehabilitate and supervise your compliance of the terms of any community based sentence this Court may impose. Added to that is the acceptance by the Courts that, the kind of offences you committed are not violent and does not require a custodial sentence unless the circumstances are such that a custodial sentence is called for.

This is to be contrasted with the fact that, you committed the offences in total breach of the trust and confidence your employer, the State, through the Department of Education placed in you in the position of second in Charge of that Departments Overseas Staff Section. Offences were committed over a period of two months. The amount of money you stole or misappropriated is substantial. In the process of committing these offences, you committed other offences such as forgery and uttering as well though not charged and convicted of them.

Taking into account all of the above, I consider no useful purpose will be served if you are sent to prison. You will be a strain on the State's limited financial resources in terms of looking after you in prison and feeding you. The State will incur further losses, which may be double or triple the amount you have misappropriated. Apart from not seeing you in your house and your community, the members of your family and community will not be able to see you serving your penalty. I therefore, consider a non-custodial sentence is appropriate but it has to be on strict terms.

Going by the tariffs in this kind of offences I consider a head sentence of 3 years in hard light labour appropriate. I would then have the whole of that sentence suspended on the following terms and conditions:

1. You repay the full amount of K37, 526.58 to Independent State of Papua New Guinea in the following way:

(a) The amount of K8504.90 calculated to be due and owing to you from the Public Officers Superannuation Fund Board be immediately forfeited to the State by way of cheque for that amount being drawn by the POSF in favour of the State;

(b) The amount of K3990.04 due and owing to you from the Department Education be immediately forfeited to the State;

(c) The sums of K4920 and K4040 being contributions from your relatives both from your own and that of your husband's side be paid into the National Court Registry before 12:00 noon on Friday the 3rd May 2002;

(d) The balance of K16,071.28 be paid in equal installments of K400 on the 1st working day of each month over a period of 24 months commencing 3rd June 2002, from the Group led by Rev.Kukuna Kari and the group led by your husband Mr. Boge Ao until the balance is fully paid off.

(e) The payments order under (c) and (d) remains your responsibility in the event of a default or short fall;

2. You render three hours free community service each Monday and Wednesday excepting any public holidays to the St Michael's Primary School in Hanuabada and the kind of service shall be determined and directed by the principal of that school in close association with the Probation Service of the Department of Attorney General;

3. You render 2 hours free community services to the United Church in Hanuabada and the Head of that church shall determined the kind of services you are to render in close consultation with the Probation Services of the Department of Attorney General;

4. You will allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to make such recommendations, as they consider appropriate either for a variation or an implementation of these terms;
5. The Probation Service will attend on you each quarter to do a comprehensive review and report to this court of your compliance of these terms.

6. If for whatever reason you breach any of these terms, you will serve the balance of the term of the suspended sentence of 3 years as at the time of the breach;

7. You will be at liberty to apply for a review and or variation of any of these terms supported by appropriate evidence or material.

8. You immediately enter into your own recognition to keep the peace for the currency of your suspended sentence.

9. You accept that any member of your family or community will be at liberty to report to this Court of a failure to meet any of these conditions without any prior notice or warning to you.

I consider the sentence and the terms and conditions of the sentence proposed above sufficient to accommodate all of the comments and concerns raised in foregoing.

Accordingly, I make orders in those terms.

Lawyers for the State: Public Prosecutor.
Lawyers for the prisoner: Public Solicitor.