Maith v Pundu [1997] PGNC 93; N1592 (4 August 1997)

Unreported National Court Decisions

N1592

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP. NO. 132 OF 1997
PATRICK MAITH - Appellant
V
THOMAS PUNDU - Respondent

Mount Hagen

Lenalia AJ
10 June 1997
4 August 1997

CRIMINAL LAW - Appeal - Appeal from District Court - Only ground of excessiveness - Sentencing guidelines in theft and dishonest offences in the District and Local Courts not only guided but bound by principles and guidelines set by the National and Supreme Courts.

Held:

(1) &#1n sentence on any offencffences the District and Local Courts are not only to be guided but are bound by decisions of National and Supreme Courts.

(2) ـ Thus inttheft and rand related dishonest offences the appropriate sentencing guidelines are those set by the Supreme Court in the case of Wellington Belawa v The State [1988-89] PNGLR 496.

Cite>

Thep>The foll following cases are cited in the judgement:

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

Counsel:

A Yer for the Appellant

J Kesan for the Respondent

17 June 1997

LENALIA AJ: The appellant was convicted on his plea by the Kundiawa District Court on 30th May, 1997 and sentenced to a term of six (6) months imprisonment with hard labour. He was fr recommended to b to be dismissed from the Papua New Guinea constabulary. He was at the time o offenoffence a police detective with the rank of a senior constable. The maximum penprescribedrunder S. 372 (1)2 (1) which section the appellant was charged under is three (3) years imprisonment.

The facts of the capended to the information before his worship were as follows. Tmplainant of the the mate matter is Kongo Coffee lodged a complaint with the Kundiawa police about one of their client by the name of Goga Wawi alleging that Wawi had had an outstanding debt the Kongo Coffee which had had been advanced to Wawi for purchase of coffee and that the police should assist to retrieve the money. Upon receipt of this comp,aint, the appellant confiscated Wawi’s vehicle at a nearby bus stop and demanded Wawi to pay the outstanding debt or else the vehicle would not be returned. The relatives of the said coffee buyer collected a sum of K2,200.00 and Wawi requested the appellant to go to Kongo Coffee to deliver the money to the management. The appellant madendert tong to deliver the money to Kongo Coffee. He o He only handed K1,3001,300.00 to the complainant and withheld the sum allto have been stolen. On perusal of ttter, it wait was found out that the appellant hant had taken the sum of K900.00 and applieto his own use. He waHe was then chapursuaursuant to S. 372 (1) of the Criminal Code.

There is only one ground of appeal which alleges that in all the circumstances of the case the sentence was and is manifestly excessive. The same ground further alleges that the District Court failed to take into account mitigating factors that were submitted by the defence on behalf of the apnt on sentence.

Mr Yer for the appellant briefly submitted that the sentence imposedposed was manifestly excessive and that his worship did not actually take into consideration all mitigating factors that were raised on behalf of the appellant before sentence. The mitigating factut befo before his worship prior to sentence by the Counsel for the appellant are that the appellant was then a first offender and that he co-operated well with the police. Secondly that he pd guiltyuilty and that the money was spent on a genuine reason. The reason advanced by the appellant on his allocutus as to how he used the money was thatsed the K900.00 to travel to Nonga Hospital in Rabaul to atto attend to his sick father. It may seeme was no evidenvidence to st the allegation that the athe appellant’s father was actually sick. It was also mentioned as i mitigating factor that thellant had made arrangement with Police Headquarters to repo repay the money from his salary with fortnightly deductions of K50.00 an to be effected from 6th of June, 1997.

The aggravatravating factors submitted by the prosecutor to his worship before sentence appearing from his worship’s hand-written transcript were that the appellant was a police detective with the rank of a senior constable at the time of the offence. Secondly that ppellant wast was in the position of trust and the complainant’s client trusted the policemen to deliver the money to Kongo Coffee. Thirdly that it was ach ofch of the trust and th was a bad image in the eyee eyes of the general public. The appellaver attempted tted to repay the money to the complainants sOctober 1995 until January 1997 when he was formally chargeharged. Tpellant was also recommenommended to be dismissed from the e Force pursuant to S. 57 o 57 of the Police Force Act.

I am hampered by two factors. First tppeal does not have have ansons for judgement as requirequired by S. 224 (1) (b) of the District Courts Act (Ch. No. 40). Seconn observation of his his wp’s hand written transcript, no notation was made as e as to which factors in mitigation or aggravation were ever considered mait hard for this Court to conclude if the mitigating factoractors were considered at all, or whether his worship was more convinced by the aggravation put before him by the prosecutor but failed to have them noted on the transcript. It is advisable to makes otes of which mitigation and which aggravation were considered just after allocutus and before sentence so that when a magistcomes to writing the reason for his judgement, he has his notesork from. T60; T60; There was nh noth notation on this appeal transcript. It is even more diff wherewhere like in this appeal the appellate Court does not have the reasons for judg coupith no mention ofon of which factors were considered on mitn mitigation and which on aggravation. Inevent a presiding magistagistrate is required by S. 225 (2) of the District Courts Act to forward to the Registrar of the National Court a written report settin his reasons for whatever order he made. This was nots not compwith with. This is the third apI have have dealt with from Kundiawa District Court which have no reasons. I have often said the Dist District Court is the creature of the statute adiciaicers of that Cout Court must comply with the law stated thed therein and in particular, the requirements under PART XI of the Act thverns appeal from District rict Courts.

Without reasons and without any specific notations as to which factors were taken into consideration on either mitigation or aggravation on sentence, I must assume from the sentence that his worship merely considered aggravating factors put to him by the prosecutor before sentence. That being the case I also also conclude that those mitigating factors mentioned on behalf of the appellant were not noted and therefore equally were not considered.

By looki the facts of the case, it was a stealing by conversion.&#1n. Tpellant took the money frey from the coffee buyer lawfully then paid the total he paid to Kongo Coffee, but kept the portion and thereafter converted it to his own use with the intention of marefunding the K900.00.&#160 Cery there were a number ober of mitigation mentioned in favour of the appellant. Factors such as ppellant&#ant’s past record with no previous convictions. He was certainly a first offender but not a youth. Tpellant&#8 arrangement wint with the department of Police to have a K50.00 fortnightly dedu deductions toward repayment. The apnt afsing oney, came came back from Rabaul and told thld the owner of the money being Kongo Coff Coffee that he had used the money and woupay them. It was also submitteditigaitigation that Kongo Coffee being the owners did did not suffer any great damage. All thectors were undisputisputed mitigation in favour of the appellant. As shown by his worship’s had written transcript, were not considered and therefore, I must uphold the only ground of appeal being the sentesentence was and is manifestly excessive.

The appeal being a case of theft, it would serve the purp purpose of the learning process in the lower judiciary to re-state some of the sentencing guidelines stated in the case of Wellington Belawa v The State [1988-89] PNGLR 496. These principles can eful eful in guiding a sentencer and I have found them to be really convenient in my short stay in the National Court. By rincif “stare dece decisis” the principles stated by the Supreme Court in BelawBelawa’s case in relation to theft ashonest offences are binding both in the National, District and Local Courts.

For coor convenient sake I wish to quote the factors that should be taken into account on sentence and the scale of sentences that were laid down by the Supreme Court in Belawa’s case: see at 496.

“The following scale of sentences may usefully be accepted as a base to be then adjusted upwards or downwards according to the various factors above:

(1) ; where the amoint misapproappropriated is between K1 and K1,000, a gaol term should rarely be imposed;

(2) where the amornappised K en K and K10,000, a gaol term of m of up toup to two two yearsyears is appropriate;

(3) where the a misariawebet000,000K40,000, two to thro three yeee years iars imprismprisonmenonment is appropriate;

(4) where the t maspritw be00 0,00 K150,000, three toee to five five year years imps imprisonrisonment is appropriate.”

The following factors are among thhich d be intount otencing an offenderender for for an ofan offencefence invo involving dishonesty were the offender is in a position of trust:

(1) &#160 amoent taken;

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(2) ټ tae qu aity and degd degree of trust reposed in the offender including his rank;

(3) ټ&#the pere period ovod over which the fraud or the thefts have been perpetrate>

160;& &160; the use to whic which the the money or property dishonestly taken was put;

(5) ټ&#thect uect uhe vi

(6) the impact of the offences ones on the the publipublic and public confidence;

(7)&##160;; the effect on feempl-yees yees or p or partneartners;

(8) &#the effect on the offendefender himself;

(9)҈& the offender7;s own historistory;

(10) ҈ rest restitutiitutiitution; and

(11) e mmiioniapeco h to himselfmselfmself such as illness, being placed under great strain by excessive responesponsibilsibility or the like; where, as sometimes happehere een a delay, say over two years, between hisn his bein being cong confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.

1. ;ټ < < THE T TAKEN

Whap>What is envisaged under this principle is that the larger the amount stolen the greater s be tnishm#160;ree glly whe suggesuggested gted guideline there that for a theft involinvolving ving betwebetween K1en K1.00 and K1,000.00 a gaol term should rarely be imposed. The amonvolved in the curr current appeal was K900.00. This amount maybe so largelarge as compared to sums exceeding K1,000.00. The a taken and used by thby the Appellant was certainly less than K1,000.00.

2. ; ҈& &160; T60; THE DEGREE OF TRUST RUST REPOSED ON THE PRISONER

The higher the position of trust, the gr the nsibility. Certainly the appellant in this appeal was in such a positpos bion by virtue ofue of his offs a policeman.&#160 He was in tnk of a Senior nior Constable performing detective duties. Norma policeman is not reqt required by the terms of mployto co moniesonies except as require by law. Exam Examples would be collection of monies fres from spot fines in motor traffic offenc motor traffic and firearmsearms registries or in cases where monies come to his possession by virtue of his employment as a detectivicer.

3. &##160;; < THE PERVED OHIC WTHE THEFTTHEFT WAS PERPETRATED

The principle is that in a case that involves a series of dishonest acts over a long period indicates a more confirmed state of guilty mind.; It d mayore sere serous tous than than the situation where an offender committed only one “spur of the moment” criminal act. The case of the Appellant could be categorized under the second category under this principle. What is evident from the facts of this appeal is that the money in question came into his possession lawfully. The appellant some of the the money to tner but kept the balance. He converte K900.00 to hiso his own use with the hope of reof repayment. he returned fromul he imme immediately informed Kongo Coffee about the amount hent he spent. Tmplainant was well aware ware of the amount that was used b Appellant.

4. ;&#1660 THE USE TUSE TO WHIC WHICH THE MONEY WAS PUT

The Supreurt said in Wellington Bela Belawa’s case that where the money is used to maintain an offender’s desperately impoverished family or other worthwhirposes it can be a mitigatiigating factor. The appellant said iocutuscutus that he used the money to travel to Rabaul to attend to his sick father at the Nonga Base Hospital. This may have borthwhile sile spending in a desperate situation. Thievident fre facts stat stat stated to his worship in which the appellant after returning informed Kongo coffee that he owes them K900/p> <5. ټ RESTITUTION

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Where restitestitution or repayment of the money is made is always a mitigating factor because it restores the victim to the position he or she was in before the commission of the offence. Where restitution160; unde undertaken on the eve of sentence, it may not be considered as mitigation. In the appefore me, it wast was put b his worship on mitigation that the appellant had arranged with police headquarters to have have a fortnightly deduction of K50.00.&#It was to be effective from 6th of June 1997. Apparenparently twas no reno restitution prior to sentence.

6. &##160;; < < REMORSE

T

7. ټ < A GUILTYA guilty plty plea is always a mitigating factor: The State v Peter Kaudik [1987] PNGLR 201R 201. a of guilty should normallrmally r in seductrom what wbe thropriate sentence.&nce. #160; If a Ifr fter detecdetecdetection on offences was honest and confessedco-opeo-operated with olice at the outset to plea pleading guilty that demonstrates remorse. Thellant was in this situasituation. In fact he upon red immediately informed the complainant about the outstandinanding balance. This factor in my view could have been considered asgatiobehalf of the appe appellant.

8. &##60;&<; 160; TH0 EFFE EFFECT ON THE VICTIM

Tinciple factor is to consider whether the offender has lost lost his job and whether he is likely to obtain another job. In the of tpellae was recommendedended to b to be dise dismissed from the Police Force. That rendation is subject ject to the Police Commissioner’sberations. More often than not the P lice Commissioner will act upoh recomrecommendation aion and decide whether an officuld be dismissed or not.&#1t. This was tht severe impactmpact on the life of the appellant particularly if he lost his job ontop thect sentence of six (6) mont months imprisonment. The facts of this a shows hows that the appellant had been employed with the police department for twelve (12) years.

9. ټ&##60;&< P60; PREVIOUS CONVICTIONS//b>

eyer J said in Wellington Bton Belawa’s case that absence of any previous record of criminal offence is of little relevance in eriouft ca#160; The aphe appellapellant before his worship had no priors.&ors. As the facts in this appeal shows, it was not a serious theft and as I have alluded to, this case is a classic example of stealing by conversion. There was nontion by the athe appellantteal. He converted the balance charged in the informaformation to apply it to his own use in the way and manner in which the&#1oney was used. There was no real intn to n to steal ieal in the strict definition of stealing.

10. ـʔ THE IMPACT ONCT ON THE PUBLIC AND PUBLIC CONFIDENCE

I agree that this case created a bad image for the policartme160; fact weighed against other mitigating factors would not have warr warrantedanted a di a direct rect imprisonment coupled with the recommendation for his dismissal meant possible loss of the appellant’s job.

11. & < PERSONAL MITIGATION

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According to Belawa’s case illness is included as mitigation. Apparently the aps ick hr k hr butas cely untrain.&#1n. One of the mitigating fa mors mens mentionetioned by d by the dthe defencefence counsel before sentencing the appelwas that the appellant used the money which he converted toed to his use for the purpose of purchasing tickets to travel to Rabaul to attend to his sick father. A hf other mitigating matt matters were mentioned like, the appellant being a first offender and that he pleaded guilty. There wasrevious convictioiction recorded against the appellant. The fact he had been been a policeman for the last 12 years. The natu the offence wouldwould not certainly have attracted a direct imprisonment. The that ppellant ied the the complainant that he owed thed them the balance of K900.00. This This was a case whe w it would have been proceby way of a civil summons rather than resorting to criminal proceedings.

Having ment mentioned all these factors and on weighil mitigation against the aggravating factors that were put put before his worship I would uphold the appeal. I am empowered by30 of thef the District Courts Act to mitigate or increase a penalty. I am also empowered to af irm, quash or vary a convi substitute a sentence or order that could have been made by the Court. I affirm the the conviction and vary the sentence in tllowing terms. The appellant shall pfine fine of K200 K200.00 in default of payment he shall be imprisoned for a term of four (nths in hard labour. This fine shallaid within thin fhin fourteen (14) days from today. It is ordehat that the appe appellant shall make restitution within a period of two (2) months. ThesAssi Registrar in the the Mount Hagen Registry Officll befied of such payments with inclusion of receipt nipt numberumbers and the date on which such fine and restitution orders are made.&#1he pa shall meet theirtheir own own costs.

Lawyer for the Appellant: Alphonse Yer Lawyers

Lawyer for the Respondent: The Public Prosecutor