State v Nagong [1980] PGNC 2; N225 (13 March 1980)

Unreported National Court Decisions

N225

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
KEPUTONG NAGONG

Lae

Kapi J
13 March 1980

SENTENCE - principles of sentence - prevalence of offence - need to balance the interest of the accused in the circumstances of the case - imposition of fine - the deterrent effect of fine in the customary or traditional way of life where the relatives contribute towards the payment of fine.

Cases Referred To

Paulus Mandatititip and Anor. v. The State (1978) P.N.G.L.R. 128

The Queen v. Radich (1954) N.Z.L.R. 86

Reg. v. Jim Kaupa (Unreported) judgment No.765 of 25 Sept 1973, Wilson,A.J.

R. v. Austin (1964) Crim. L.R. 730

SENTENCE AND REASONS FOR SENTENCE

KAPI J: The accused is aged 33 years and he comes from Butibum Village in the Morobe Province. At the time of the commission of this offence he was the headmaster of Milfordhaven Community School near Lae. He had only been a teacn this school for 12 monthsonths up to the time of the commission of this offence. By virtue of his position as headmaster, he became the chairman of the Board of Management of the school. Amongst other responsibilities, he was responsible for collecting school fees, banking these fees and operating a cheque account opened on behalf of the school. The accused has admitted to this court that during this time he used a sum of K200 from the school funds to purchase a refrigerator for his own use in the house in which he was living. On allocutus he stated that when he got the money he had every intention of paying it back to the school. In fact, he did pay back the money. It is significant that he paid this money back approximately two months after he used it and about four or five months before any complaints or investigations were carried out or made by the Board of Management of the school. However, the use of the money was not authorised by the Board. I should point out that one of the members of the Board, namely Leana Gari, has previously borrowed a sum of K90 from the school funds to pay his electricity bill. There is evidence which shows that he did this with the approval of the Board.

It is apparent that, despite his committal for trial to the National Court on 7th February 1980 on this charge, the accused has been employed as headmaster of Bubia Community School, also near Lae. This school comes under the control of the Lutheran Church School Agency. Mr Titi Solomon has given evidence on behalf of the accused. He is the Provincial Education Secretary of the Lutheran Church School Agency in the Morobe Province. Bubia Community School comes under Mr. Solomon’s control. Mr. Solomon has known the accused for 12 years. Mr. Solomon, in his evidence in court, spoke very highly of the accused. It appears that wherever the accused has served as a teacher he has been highly regarded, not only by the teachers with whom he has worked, but also the community leaders amongst whom he has lived. He stated that if the accused is not given a gaol term he will be able to retain his position as headmaster of the school. He said he is willing to recommend this because of the accused’s experience and capabilities, and the good character he has. This, to me, is a reflection of the quality of the accused as a teacher and as a leader, and the need to retain his services regardless of this offence.

A letter was also tendered by consent which was written by Mr. Allan Isoaimo, the Divisional Head of the Division of Education Services in the Morobe Provincial Education Office. Mr. Isoaimo, in his letter, stated that he has known the accused since 1976. He also spoke very highly of the accused’s work as a teacher. He stated that the accused has commanded the respect of his office in his capacity as a member of the Provincial Education Board for the Morobe Province. He has also stated that as a schoolteacher and headmaster he is well respected by the Board and the school inspectors.

There is no doubt in my mind from this evidence that the accused is a man of excellent character, a valued teacher and a man of some standing in the community.

The accused has been found guilty under s.384(5) of the Criminal Code Act. Under this provision, the maximum penalty for this offence is seven years’ imprisonment in hard labour. Under s.19 of the Code, the court has a wide discretion to impose any punishment ranging from a bond or imprisonment of up to seven years in hard labour.

In considering the appropriate punishment for the accused I must bear in mind the need to balance the need for public protection, that is, protecting public property from people who steal, and on the other hand the protection of the rights and liberties of the individual such as this case where I must give due weight to proper considerations to matters which are in favour of the accused. In considering these matters I must be guided by proper legal principles. The offence of stealing as a servant is a very serious crime. This is because there is a breach of trust which is entrusted to the offender. It is also significant that there has been an increasing number of people committing this crime both in the Public Service and in the private sector in this country. It is known to all that thousands of kina are lost through servants stealing. The prevalence of the offence is a significant consideration on sentence and it has been held by the Supreme Court in this country that where an offence is prevalent the courts must be severe in their punishment; see Paulus Mandatititip and Anor. v. The StateN225.html#_edn189" title="">[clxxxix]¹. The courts in this country have been severe on this type of offenders and normally impose a custodial sentence. This is done with the aim of deterring the offender and potential offenders in the future. This is a proper principle and I take this into account.

Should I approach this case with a view to imposing a uniform sentence that has been imposed for this type of offence, or is there a special reason why I should depart from the usual sentence given for this offence? In the case of The Queen v. RadichN225.html#_edn190" title="">[cxc]², the Court of Appeal in New Zealand set out the general principles on the subject of sentence and I refer to the following passage on p.87:

“... one of the main purposes of punishment, which is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilized countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration ...” (Underlining m

In m>In my view this passage correctly states the correct principles or considerations that must be balanced in sentencing. That is to say, that in sentg, the court must take into account the notion of general dral deterrence on the one hand, and on the other, it must weigh the particular facts of the individual case before it. While there is a need to maintain uniformity of sentence for a particular offence having regard to the notion of deterrence, it must not be forgotten that the court should not hesitate to depart from this uniformity of sentence where the particular facts of an individual case demand it. If due weight is not given to such special circumstances or considerations, then the punishment imposed which reflects the uniformity of sentence for the particular offence may result in injustice to the accused. A similar approach to sentence was adopted by Wilson, A.J. (as he then was) in the case of Reg. v. Jim KaupaN225.html#_edn191" title="">[cxci]³.

In this case I regard the following matters which would require leniency or set this case apart from the usual sentence for this type of offence:

1. &ـ A6 the the time time the accused took the money he had every intention of paying it back. He paid back this money in full, well before any complaints were made or investigations carried out regarding the use of the money. It appears from the depositions that the investigations were carried out into other missing monies and it was during the course of these investigations that the accused admitted using the money in this manner. There is no behaviour on his part to conceal what he did. He was honest about what he did.

2. ;ټ I find find this ahis accused is a man of high ability as a teacher and as a leader in his own community and I consider his experience in the whole of these proceedings has been a verbling and e this this into into accouaccount as a form of punishment. The question of shame associated with disclosure to the family and relatives, and publicity to his friends, are matters to be taken into account as a form of punishment. See R. v. AustinN225.html#_edn192" title="">[cxcii]⁴

3. ҈ T60; The Lutheran C urcholchool Agency is prepared to give the accused another opportunity as headmaster of Bubia Community School despit know thats prey facing this charge. It seem seems to me that the Lutheran Church is p is preparrepared toed to give this man an opportunity is an indication that it has faith in him that he will not repeat what he has done in the previous school. I find it difficult for this court to send the accused to gaol when the Church is prepared to give him this opportunity. This may well be the only appropriate way of correcting the accused without having to deprive him of his liberty. The accused in his allocutus stated that he was truly sorry for what he has done and that he will not do this again, and I believe him when he says this.

Having regard to these matters, I am prepared to be more lenient towards the accused in sentence. Whilst I am prepared to be lenient towards the accused for the above reasons, and therefore will not give him a custodial sentence, I believe that he should not go without some form of alternative punishment provided for in the Code. I believe that in the circumstances an appropriate form of punishment would be the imposition of a fine. Imposition of fines in this jurisdiction has been criticised by some of the judges. One of the criticisms of the fine is that in the traditional society of Papua New Guinea the offender does not himself contribute towards the fine, but all the relatives contribute towards this fine. They argue that by doing this, there is no deterrent effect on the accused personally as he does not carry the burder of providing the fine. With respect to those who hold this view, very little recognition is given to the deterrent effect of relatives contributing towards a fine in the traditional or customary sense. That is to say, where an offender contributes his own money towards the penalty, he himself bears the weight, and the real weight is only in relation to the money he loses. However, in my understanding of the traditional effect of deterrence where relatives contribute towards raising money for a penalty, this has a more deterrent effect in the sense that the accused brings upon the relatives the weight of his wrong-doing. With, respect, this kind of fine-paying has a more deterrent effect in that the accused will be deterred from repeating this type of offence which would bring upon his own relatives the same burden of contributing towards the fine, and he will ensure that he will not bring upon himself and his relatives this type of thing again.

In the circumstances of this case, I impose a fine of K500 and, in addition, that the accused shall enter into an oral recognizance that he will keep the good order and peace for a period of 12 months.

Solicitor for the State: C. Maino-Aoae, Public Prosecutor

Counsel: B.J. Cassells with L.R. Henao

Solicitor for the Accused: D.J. McDermott, A/Public Solicitor

Counsel: K.R. Roddenby

N225.html#_ednref189" title="">[clxxxix]^{(1978) P.N.G.L.R. 128.}

N225.html#_ednref190" title="">[cxc]^{(1954) N.Z.L.}

N225.html#_ednref191" title="">[cxci]^{(Unreported) judgment No. 765 of 25 Sept. 1973}

N225.html#_ednref192" title="">[cxcii] ^{(1964) Crim. L.R. 730}