State v Baik [1999] PGNC 91; N1930 (18 October 1999)

Unreported National Court Decisions

N1930

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1416 OF 1997
BETWEEN: THE STATE
AND: TONY BAIK

Madang

Injia J
18 October 1999

CRIMINAL LAW - Sentence - Misappropriation - Sheriff Officer of the National Judiciary - Monies (K1,139.00) paid in execution of process of the Court - Punitive and deterrent sentence appropriate - Custodial sentence - 12 months imprisonment - (part suspended) - Criminal Code (Ch. 262) - S.383 A(1).

Cases Cited

Wellington Belawa v. The State [1988 - 89] 497.

Counsel

J. Wala for the State

D. Sakumai for the Accused

18 October 1999

INJIA J: The accused is employed by the National Judiciary as a Sheriff Officer with the District Court and National Court at Madang. He is currently under suspension following commission of the present offence. He pleaded guilty to a charge that on 16 January 1998, he dishonestly applied to his own use the sum of K1,139.00, which was the property of Madang Wholesale. The money was part of K2,539.70 paid to him by J.B. Security Services in satisfaction of a District Court judgment entered in favour of Madang Wholesale. Instead of paying the money over to Madang Wholesale, he used the money for his own purposes. Since his arrest, he has repaid K490.00. He now asks this Court to give him one (1) month to repay the balance of K649.00.

The accused is a lawyer by profession. Having received his LLB degree from the University of PNG in 1989, he completed his practical legal training at the LTI in 1990. He was employed by the Judiciary in 1991 in various capacities before he was posted to Madang in 1997 where he worked as a Sheriff Officer until he committed this offence. He is married with 5 children.

Offences involving fraudulent theft and misappropriation of monies committed by persons employed by government, in positions of trust, is a serious and prevalent offence in this country. The maximum punishment for this offence is prescribed by S.383(A)(c) and it is 10 years imprisonment. This Court has imposed punitive and deterrent sentences in the form of custodial sentence in many cases but they appear to be having minimal impact on deterring this crime. In Wellington Belawa v. The State [1988 - 89] PNGLR 497, the Supreme Court suggested a goal sentence of a term of up to 2 years for misappropriation of amount between K1,000 to 10,000.00 which could then be adjusted upwards or downwards according to various factors which mitigate or aggravate the offence.

In favour of the accused, I take into account his excellent professional legal qualification and work background as a lawyer and employee of the judiciary. To obtain a law degree and pass out as a lawyer and to be employed in the judiciary in PNG is indeed a high achievement and a privilege. A profession in the legal profession and a profession in the judiciary are noble professions which entail high degree of leadership and trust in the community. I also take into account in his favour his past good character, his record of no prior convictions, his guilty plea, his co-operation with the police in readily admitting the offence, his expression of remorse in Court and steps taken in the past and promised in the future to repay the money in full to the owner. I also take into account his good family background.

Against this background, the two most important circumstance of aggravation are the quality and degree of trust reposed on the accused as a Sheriff Officer of the judiciary in Madang and the impact the offence has had in eroding public confidence in the judiciary as custodian of public monies paid to it in satisfaction of Court judgments. Monies received in trust by officers of the judiciary in the execution of process of the Court should be treated with high degree of care and sufficiently accounted for. Any officer who commits fraud on the monies received in trust by the judiciary cannot expect greater leniency of the Courts. The Courts will not hesitate to impose strong deterrent and punitive sentences, in the form of custodial sentence, irrespective of the amount involved and whether the sum misappropriated has been refunded to the owner or not. The offender's previous good character, his sound educational, employment and family background are relevant mitigating factors but they have little effect in reducing the seriousness of the breach of trust involved, and hence the ultimate sentence to be imposed.

For these reasons, I consider that a custodial sentence is appropriate in this case. However, some allowance would have to be made for the accused's offer to repay the outstanding balance and to allow the accused to reform his way of thinking. I sentence the accused to 1 year imprisonment. I suspend six (6) months of the sentence on the condition that he repay the balance of K649.00 within 6 months and that he promises to be of good behaviour for 6 months after he is released from prison after serving the first 6 months of his sentence. His bail money will be refunded to him.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor