State v Welford [1986] PGNC 58; [1986] PNGLR 253; N572 (22 December 1986)

N572

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

WELFORD

Goroka & Waigani
Wilson J
4 December 1986
22 December 1986

CRIMINAL LAW - Sentence - Misappropriation and stealing - Contract officer recruited from UK - Family returned to UK - Plea of guilty - Full restitution - Mitigating factors - Suspended sentence inappropriate where likelihood of leaving country - Sentence of eighteen months imprisonment - Criminal Code (Ch No 262), s 19(6).

CRIMINAL LAW - Sentence - Suspended sentence - Inappropriate where likelihood of leaving jurisdiction - Criminal Code (Ch No 262), s 19(6).

An accused pleaded guilty to one count of misappropriation of the sum of K2,860 from his employer and one count of stealing goods to the value of K1,520, the property of the State and requested that thirty other offences of a similar nature (involving in all K9,346) be taken into account. The accused was a Contract Officer recruited from the United Kingdom, where his family had returned; he pleaded guilty, co-operated fully with the authorities, made full restitution, could give no explanation for his conduct though it may have been partly attributable to his wife having been diagnosed as having cancer.

Held

In all the circumstances the defendant should be sentenced to eighteen months imprisonment with the five months, one week in custody to be taken into account.

The case was not one in which the provisions of the Criminal Code (Ch No 262), s 19(6), as to suspended sentences were appropriate because any aspect of a suspended sentence linked to a period of time imposed upon a recognisance to be of good behaviour would have no impact as the defendant would no doubt leave Papua New Guinea as soon as his sentence was completed.

Public Prosecutor v Tardrew [1986] PNGLR 91, applied.

Cases Cited

Public Prosecutor v Tardrew [1986] PNGLR 91, applied.

Sentence

On charges of misappropriation and stealing the accused pleaded guilty. The following judgment was delivered on sentence.

Counsel

D Lewis, for the State.
R Howard, for the defendant.
Cur adv vult

22 December 1986

WILSON J: In Goroka on 4 December 1986 William Peter Colin Welford (Welford) pleaded guilty to one count of misappropriation of the sum of K2,860 from his employer, the Post and Telecommunication Corporation (s 383(A)(1) of the Criminal Code (Ch No 262)) and one count of stealing goods to the value of K1,520.37, the property of the State (s 372(6)(b) of the Criminal Code).

Welford also asked that thirty other offences of a similar nature be taken into account in his sentence on these two counts. The total amount involved in all these offences is K9,346.

Welford was a contract officer recruited from the United Kingdom and he arrived to take up a position with the Post and Telecommunication Corporation (PTC) in Port Moresby on 17 March 1984. He worked in Port Moresby for approximately sixteen months and was then transferred to Goroka to take up the position of District Telecommunication Manager.

The offences for which Welford now faces his punishment all occurred during the period between 27 January 1986 and 28 April 1986.

A major component of the offences related to his setting up a private security firm. On arrival in Goroka he terminated the PTC contract with Madang Security Services and set up Goroka Security Services. He was not authorised to do this but the effect was that this business provided a vehicle for misappropriation.

Welford also diverted other funds of the PTC to his own use and sold property belonging to the PTC and kept the proceeds.

Over this period through what was quite a complex and sustained operation he misappropriated a total of K9,346 of which K7,670 was outstanding at the time of his plea. On his plea I was informed that K1,816 had been repaid and that the balance of K5,864 would be repaid.

The balance of funds to be repaid was to be obtained from the proceeds of a further mortgage being arranged on his domestic property in England.

I indicated to counsel that this was not a case in which the provisions of s 19(6) of the Criminal Code were appropriate because any aspect of a suspended sentence linked to a period of time imposed under a recognisance to be of good behaviour would have no impact as Welford would no doubt leave Papua New Guinea as soon as his sentence was completed. See Public Prosecutor v Tardrew [1986] PNGLR 91.

As restitution was to be relied on in mitigation I then agreed to adjourn the passing of sentence to allow the arrangements to be finalised whereby full restitution could be effected. This has now been done. It is an appropriate course to adjourn in such circumstances but it is important to indicate that such an adjournment was not granted to induce the prisoner to pay. Rather it was granted to meet the particular circumstances, so that when the prisoner faced sentence, the Court had evidence of the fact of restitution. An adjournment of sentence should never be used to entice restitution.

MITIGATION

Mr Howard presented a comprehensive and well considered plea in mitigation. The preparation and thoroughness of this submission was of great assistance in determining punishment.

(a) Arrest and Custody

When Welford became aware that he was being investigated, he instigated some elaborate plans under the guise "going finish" to escape detection. He was intercepted shortly before he was to leave Port Moresby.

From that stage he was questioned at length and arrested. He was allowed bail and complied with the conditions of bail.

He voluntarily placed himself in custody when it became apparent that he could no longer find accommodation.

During his period in detention he became depressed and once tried to take his life by cutting his wrists. The medical evidence was that this attempt was not in the serious category although the fact of his depressed condition is not disputed. Given his circumstances it is unfortunately a quite natural human response.

At the time of sentence he has served five (5) months and one (1) week which I will deduct from the sentence I will impose.

(b) Plea of Guilty

In a case such as this a plea of guilty is substantial mitigation. The proof of this case in a trial would have involved considerable time and effort and this has been saved by the prisoner’s plea.

The total of all charges involved two separate committals which were concluded as hand up briefs with the prisoner’s consent.

In respect of the second committal, the Police Department had no funds to transfer Welford from Port Moresby to Goroka and he flew to Goroka at his own expense.

(c) Personal Circumstances

The prisoner, Welford is forty-six years of age. He is married with dependant children. He has held a number of responsible positions in the United Kingdom and in other countries before coming to Papua New Guinea. He has not been in trouble with the law before.

In the middle of 1984 Welford’s wife was diagnosed as having cancer of the breast. She received surgical treatment and is receiving ongoing treatment for this condition. In October 1985 the family went on leave and during that time arranged to purchase a house. They returned to Goroka in November 1985. In March 1986 Welford’s family returned to the United Kingdom, where they presently reside. Welford’s wife is now looking after the children and has had to take on extra work to support them while arranging for the loan to repay the money Welford had stolen.

Apart from Welford’s concern for his wife’s health I have no doubt that the fate of his family is something which has placed great strain on him. While such factors attend most people who find themselves facing a sentence of imprisonment and the courts rightly take the view that these consequences are self induced and are such that offenders should consider them before committing offences, the particular circumstances of this case are such that I should give that some consideration in mitigation.

As an adjunct to this proposition the prisoner must also bear the burden of serving his sentence away from his family support and this no doubt places a slightly different character on his time in prison.

(d) Motive

The prisoner admitted on the allocutus that he was unable to fully explain his reasons for these offences and that he cannot even explain it to himself.

Without wandering too far into the realms of speculation, I think I am entitled to infer that he was under financial pressure because of his commitment to a loan to purchase a house and that the fact of his wife’s illness accounts for much of his behaviour, particularly at his time of life.

(e) Restitution

Full restitution has now been made. In my view, in cases such as this, the fact that restitution has been made is a significant factor in mitigation. It goes a long way to redressing the harm done and is indicative of genuine remorse and unqualified recognition of wrong doing.

AGGRAVATING CIRCUMSTANCES

The commission of these offences involved a substantial breach of trust. Welford was placed in a position of authority which he abused and turned to his personal gain. Further in the commission of these offences he involved some of his subordinates who unwillingly became involved in this criminal activity.

Such an abuse of trust and position will inevitably involve a custodial sentence.

The offences were carried out over a period of time, required a substantial amount of planning and were complex in execution. The prisoner has displayed a significant degree of deviousness and dishonesty in those activities.

These factors all operate against the prisoner in fixing his punishment.

DETERRENCE

In terms of personal deterrence I consider it unlikely that the prisoner will offend again. His experiences to date, together with the sentence I am going to impose should be sufficient to bring home to him, at a personal level, the realisation that there is no profit to be made in stealing and I am hopeful that this episode in his life is now completed.

It is usual in cases such as this to include a component in the sentence as a general deterrence to others who may be like minded. I consider detection of the offences and the attendant publicity the case has attracted, particularly in Goroka, go a long way in satisfying this aspect of my sentencing function.

In terms of the particular position of expatriate contract officers, I am firmly of the view that they are well aware that they will meet the full force of the law in this country.

The prisoner will no doubt leave Papua New Guinea as soon as his sentence is served. I believe that the State should not have the financial burden of maintaining him for any longer than is absolutely necessary. I consider that the element of general deterrence will be satisfied by the sentence I impose but I indicate that the foundation of my sentence is not principally the concept of general deterrence as I believe that there are other factors which must be given balanced consideration in the circumstances of this case.

SENTENCE

William Peter Colin Welford, I accept that you are sorry for what you did. I accept your expressed sentiment which you indicated to me that you are deeply ashamed of what you have done and that you have disgraced your family and your country.

You have abused your position of trust and responsibility for the purpose of personal gain.

I have outlined all the factors which I have seen appropriate to consider in determining your punishment.

You are sentenced to eighteen months in hard labour. You have already been in custody for five months, one week, which I deduct from your sentence. You have twelve months, three weeks left to serve.

Sentenced accordingly

_______________

Lawyer for the State: Acting Public Prosecutor.
Lawyer for Defendant: Warner Shand Wilson Donigi Reiner.

[1986] PNGLR 258 - The State v Wak Mond