State v Kamuta [1990] PGNC 73; N952 (14 December 1990)

Unreported National Court Decisions

N952

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR623/89
THE STATE
V
AUTO KAMUTA

Goroka

Brunton J
14 December 1990

CRIMINAL LAW - Criminal Code s383A - misappropriation - sentencing - public servant - K9044 misappropriated - Probation Act - Community work order - compensation order - restriction of movement order - s18 Probation Act applied.

Sentence:

Two years imprisonment in light labour, suspended under s16(1)(a) of the Probation Act, and released on probation for two years. Orders under s18 of the Probation Act.

· not to leave her village

· to pay compensation at the rate of K30 per fortnight.

· to perform community work at the Goroka Base Hospital on every Saturday, Sunday and Public Holiday for two years.

Cases Cited:

Wellington Belawa -v- The State [1989] Unreported Judgement, SC.375.

Rex Lialu -v- The State [1990] Unreported Judgement

Barrick [1985] 81 Cr App R

Statutes cited:

Criminal Code s19, 383A

Probation Act 16(2)(a), 17(1), 18

Counsel:

Mrs C Ashton Lewis: For the State

Mr C Inkisopo: For the Prisoner

JUDGEMENT ON SENTENCE

BRUNTON J: The prisoner pleaded guilty to an indictment laid under s383A of the Criminal Code, alleging the misappropriation of K9044 from her employer the Eastern Highlands Provincial Government.

The prisoner was the cashier with the Provincial Government responsible for collecting monies from the public for motor vehicle licences and registration. She acknowledged 187 separate acts of dishonesty over a twelve month period. What she did was to pocket the money paid in by the public and then either cancel or destroy the receipts.

The sentencing principles for an offence of dishonesty have been set out by the Supreme Court in Wellington Belawa -v- The State [1989] Unreported Judgement SC375. At page 6 of the Unreported Judgement, Bredmeyer.J indicated that a two year sentence would be appropriate for an offence involving property of about K10,000.

More recently the Supreme Court has said it would not encourage courts to prescribe a term of sentences for categories of the same offence, and it seems that the approach of Bredmeyer.J is not appropriate. The Supreme Court, referred more positively to the judgements of Barnett and Woods.JJ which adopted only principles without any prescribed penalty for each of the different categories See Rex Lialu -v- The State [1990] Unreported Judgement SC401 per Kapi DCJ, pp.12-13.

Accordingly, following the approach of Woods and Barnett.JJ in Wellington Belawa, which in turn applied the principles in Barrick [1985] 81 Cr AppR, the following factors are taken into account for the purposes of sentencing.

1. LEVEL OF TRUST

The prisoner was a cashier and relatively junior in the public service hierarchy. It is apparent that she got away with her activities because no regular checks were made on her work.

2. PERIOD OVER WHICH THE OFFENCE WAS COMMITTED

The offence, constituted by 187 separate acts of dishonesty, took place over a twelve month period. This is quite a long-time. It goes against the prisoner, because it shows she adopted a totally dishonest attitude towards her relationship with her employer and her employer’s property.

3. THE USE TO WHICH THE MONEY WAS PUT

The pre-sentence report showed that the prisoner was well-regarded in her village as a kind, helpful and generous person. The money was used to support her aged mother, improve her family life, to please her relatives, and to live-up to her reputation in the village as a generous and helpful person.

4. THE EFFECT OF THE LOSS ON THE VICTIM

K9000 is a lot of money, even to a Provincial Government. It is a significant sum, but it will not bankrupt the Government, although it could mean that the province may have to forgo something, like the salary of a teacher or an extension officer.

5. THE IMPACT UPON PUBLIC CONFIDENCE

The public have become all too familiar with stories of public service embezzlement and rip-offs. This type of offence promotes cynicism.

6. EFFECT ON FELLOW-EMPLOYEES

Fellow employees are likely to think that in the short-term this type of offence would not be detected, but that in the long-term the chances are offenders will be caught, loose their jobs, and have to face the Courts. The fall of a relatively long-serving and respected fellow employee does have a salutory impact institutionally. The fact that Auto Kamuta was caught, probably outweighs the fact that she was dishonest, as far as fellow employees are concerned.

7. EFFECT ON OFFENDER HERSELF

In the short-term she made life easier for herself and her family with access to additional cash. She was able to buy a car and increase or maintain her status in the village. In the long-term she lost her job and ruined her career.

8. THE PRISONERS OWN HISTORY

Auto Kamuta, so the pre-sentence report shows, as a girl was treasured by her parents. She was well - brought up; well-known in the village for her kindness and concern for others. She was regarded as being helpful, respected, and a hardworker. She completed her secondary education and went on to a school of nursing. But her father died, and she dropped out of her nursing, taking a position with the Bureau of Management Services, Goroka, in 1978. She married and had a child. The marriage was not a success and ended in a divorce.

9. MATTERS OF SPECIAL MITIGATION

She is a single-parent with a four year old child, and an old mother to look after. The dependency of her child and mother is a significant matter.

10. THE AMOUNT TAKEN

The amount taken is relatively large, over K9000.

11. THE DEGREE OF TRUST

As a cashier she was a low level employee, who should have been subject to supervision, internal audit, and independent audit. The fact that she was able to get away with her crime for so long, in my view reflects as much on the employer, as it does on the prisoner. Papua New Guinean workers are not highly paid in relation to the high cost structure of the society in which they live. Consequently, lowly paid workers, in positions of trust, with access to cash, but with little or no supervision, or no regular spot checks, or audits, are more open to temptation, than they would be if they were subjected to a rigorous system of supervision and audit. Subjectively they are trusted - objectively little is done to ensure trust.

THE SENTENCE

This is a moderately bad case of dishonesty. It is not amongst the worst cases. The 187 separate acts of dishonesty, and the long period of time over which the offences were committed calls for a prison sentence to be imposed. But there are matters which run in favour of the prisoner. The lack of adequate supervision and auditing, her family background, her work-record, her standing in the village community point towards other options than imprisonment.

Sentencing is not just a matter of a straight choice between custodial and non-custodial options. The options, are not “either”, “or”. That approach completely misconstrues the Criminal Code s19 and the Probation Act. The custodial and non-custodial options are in fact integrated into a whole legislative package which together amount to a sentence, or to punishment. To impose a sentence of imprisonment on its own is just one of the options available to a Court, and in my view it is the last option.

Papua New Guinea, in the past has been too willing to put people into jail. As a country it has one of the highest, if not the highest propensity to imprisonment in Asia or the Pacific, with more people in jail per 100,000 persons than any other country in the region. This is a reflection on colonial history, sentencing practices, and community attitudes. Imprisonment is a punishment and it is oppressive. The resources available within the Corrective Institutions are so meagre that the chances of rehabilitation are not good, even though rehabilitation is the dominant philosophy of the system. It is more realistic to look at immediate imprisonment as a punishment rather than to rationalise it in terms of rehabilitation, and to keep it for those cases in which there really is no viable non-custodial alternative. This view is in the public interest because socially, non-custodial treatment is likely to be a more effective way of dealing with first offenders, and it is also less of an impact on the public purse. In many cases the Court is dealing with first offenders, where violence has not been a crucial part of the offence, here the Court needs to examine the non-custodial options first.

Accordingly in this case, I will proceed by way of the Probation Act s16(2)(a).

The prisoner is sentenced to two years in light labour, less the five days she has spent on remand since she pleaded guilty. She is placed on probation for two years. Under s17(1) of the Probation Act she is to

(a) remain in custody until contacted by her Probation Officer;

(b) to report to her Probation Officer once a fortnight;

(c) to keep the peace and be of good behaviour for a period of two years;

(d) not to alter her place of abode without giving reasonable notice to her Probation Officer;

(e) comply with s17(1)(e) of the Probation Act;

(f) allow her Probation Officer to enter her home at reasonable times.

Under section 18 of the Probation Act, the following additional conditions are imposed on her.

She is:-

(a) not to leave the Goroka District without the permission of her Probation Officer;

(b) to pay to the Eastern Highlands Provincial Government K30 a fortnight as compensation, for the next two years;

(c) to perform community work under the direction of the medical superintendent of the Goroka Base Hospital, Dr Kaupa, or his successor, for a period of two years, on every Saturday and Sunday, and on every public holiday between the hours of 7.45am and 4.06pm, or such other normal shift hours as are in accordance with the normal running of the hospital. Her work-sheets are to be signed by the Medical Superintendent once a month and collected by the Probation Officer, who will show them to the State Prosecutor in Goroka.

If she defaults on any of these conditions she will have to serve two years in jail.

Lawyer for the State: The Public Prosecutor

Lawyer for the prisoner: The Public Solicitor