N2632

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1035 and 1064 of 2003

THE STATE

-V-

MAHUVA JIMMY and UTA HELISHA

GOROKA:	KANDAKASI, J.
2004: 24th and 27th August
2nd September

CRIMINAL LAW – Sentencing – Misappropriation – Amount misappropriated K2, 000.00 – First time advanced aged offenders – Pre-sentencing and means assessment reports recommending restitution and community service orders - Prisoners not having means right away but will find means to repay amounts misappropriated - Community prepared to supervise community work and rehabilitation - Orders for restitution of full amount by the prisoners with relatives and community support and non-custodial sentence with terms imposed.

Cases cited:
Wellington Belawa V. The State [1988-89] PNGLR 49.
Lawi v. The State [1987] PNGLR 183.
The State v. Paroa Kaia N1401.
 The State v. Bygonnes Tuse Nae (18/09/96) N1474.
Doreen Liprin v. The State (9/11/01) SC675. 
The State v. Dobi Ao (No 2) (2002) N2247.
The State v. Gibson Haulai (25/03/04) N2555.
The State v. Micky John Lausi (27/03/01) N2073.
The State v. Jimmy Solomon (6/7/01) N2100.
The State v. Eric Emmanuel Vele (24/07/02) N2252.
The State v Louise Paraka (24/01/02) N2317.
The State v. Makeu Kig (21/06/01) N2177. 
Wellington Belawa v. The State.
James Mora Meaoa v. The State [1996] PNGLR 280. 
The State v Benson Likius (08/03/04) N2518.
The State v. Paroa Kaia (1995) N1401.
Acting Public Prosecutor v. Don Hale (1998) SC564.
The State v Jamie Campbell Fereka (07/04/03) N2359.
The State v. Oa Seseka (19/10/90) N921.

Counsel:
J. Kesan for the State 
T. Ohuma for Prisoners

Decision on Sentence

02nd September 2004

KANDAKASI, J:	Both of you pleaded guilty to one charge each of misappropriating K2, 000.00 belonging to Cliffy Moses on 3rd June 2002. After having satisfied myself independently from the depositions that your guilty pleas had the support of the evidence in the depositions, the Court accepted both of your guilty pleas. The Court then heard both of you in your allocutus and then your lawyers and reserved a decision on your sentence to today. This is the decision of the Court.

Facts

The relevant facts start with Jenny Moses coming to you Mahuva Jimmy on 27th July 2001, with a sum of K2, 000.00 and asking you if you could take it and keep it for her child, Cliffy Moses’ school fees. She did that to avoid herself using up the money if it remained in her hands. You agreed and Jenny Moses let the money with you, Mahuva Jimmy. 

On 03rd June 2002, one of your relatives died at the Goroka Base Hospital from an illness. Both of you however, suspected Jenny Moses, who is a daughter-in-law to you of sorcery. Therefore, you chased her and her husband, one of your sons and his family, out of his house and the village and had some of your other relatives’ burn down their house. They lost all of their properties through the burning down of their house. 

While Jenny and her family were out of the way, Mahuva Jimmy informed your brother, Uta Helisha about the money, you were keeping for Cliffy’s school fees. You, Uta Helisha then in need of money for the funeral expenses of your deceased son got the money from Mahuva Jimmy and used it all up for the funeral expenses. When you did that, you did not get any approval from Jenny Moses or her son, Cliffy Moses. 

The Law

Section 383A (1)(a) of the Criminal Code under which you have been found guilty, creates the offence and prescribes the penalty in relevant parts as follows:

"383A.	Misappropriation of property.

(1)	A person who dishonestly applies to his own use or to the use of another person—
(a)	property belonging to another; or
(b)	property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,
is guilty of the crime of misappropriation of property.

(2)	An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:—
(a)	…;
(b)	where the offender is an employee and the property dishonestly applied is the property of his employer;
(c)	where the property dishonestly applied was subject to a trust, direction or condition;
(d)	where the property dishonestly applied is of a value of K2,000.00 or upwards.

(3)	For the purposes of this section—
(a)	property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and …"

As earlier as the late 1980’s, the Supreme Court set guidelines for sentencing in this kinds of cases in Wellington Belawa v. The State. It clearly provided, depending on the amount of money or the value of property involved, the sentences could be lesser where the amount of money involved is lesser and higher if the amount of money or value of property involved is higher. Other factors such as degree of trust reposed in the offender, his position and time taken to commit the offence are also relevant. The application of the money stolen or misappropriated, its effect on the victim and the public, or fellow-employees or partners are also relevant considerations. At the same time, the Court held that, the effect of the offence on the offender himself, the offender’s own history; restitution; illness; being placed under great strain by excessive responsibility or the like and co-operating with the police are also relevant factors but in mitigation of the offender.

Cases subsequent to the Supreme Court judgment have imposed sentences between 18 months to say 3 years as in Lawi v. The State for misappropriations of K10,000.00. Others have imposed sentences of 4 years on a guilty plea with good mitigating factors for a misappropriation of K94, 478.31 as in The State v. Paroa Kaia and The State v. Bygonnes Tuse Nae, for misappropriation of amounts exceeding K100, 000.00.

This has then developed into a line of sentencing favouring suspension and giving of more time to an offender to repay the money or property, he or she misappropriated. The Supreme Court judgment in Doreen Liprin v. The State represents that. In that case, the National Court convicted the offender after a trial on one count each of forgery, uttering and misappropriation of a sum of K6, 000.00. It then imposed a sentence of one year each for the first 2 offences and 3 years for the misappropriation, all made concurrent. It then suspended the sentence on conditions of restitution within a period of 2 months on the prisoner’s request.

The offender did not meet the condition for her suspended sentence. That resulted in the offender’s imprisonment to serve the sentence. From prison, she lodged an appeal to the Supreme Court on both conviction and sentence. Although her appeal was out of time, the Supreme Court in the exercise of its powers under s. 155(2) (b) of the Constitution proceeded to deal with the matter.

The then Chief Justice dismissed the appellant’s appeal against conviction but upheld her appeal against sentence. He had the sentence reduced to 18 months. In The State v. Dobi Ao (No 2), I commented that, that sentence did not with respect have regard to the then prevailing sentencing trend in this sort of cases. The Deputy Chief Justice and Justice Los did have regard to the relevant sentencing trends and concluded that the cumulative sentence of three years was appropriate as it was within the range. Nevertheless, despite his views on the sentence, Justice Los accepted the Chief Justice’s proposal on sentence. I also commented in the case cited that with respect, the Supreme Court decision does not provide any assistance as to determining appropriate sentences.

The then Chief Justice’s proposal in addition to reducing the sentence, proposed that the appellant be given more time to look for alternative employment to repay the amounts misappropriated and that the Court make orders for free community services under the Probation Services supervision. His Honour’s reasons were:

"I believe it is time to consider seriously whether offences of misappropriation of amounts of the kind [K6,000.00] warrants custodial sentences. I do not believe the Court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment."
…
The converse implications of a sentence of imprisonment is, whilst the immediate effect is that of declaration of liberty and does a punishment, the cost to the State and the community will exceed considerably the amount of money misappropriated. It would be of no benefit to society. The purpose of punishment can as easily be obtained in alternative orders to imprisonment. The offender is now (sic) threat to society."

In The State v. Dobi Ao (No 2), I agreed it was time to seriously, consider alternatives to sentencing in this type of cases and said:

"But, that with respect, does not necessarily mean head sentences be drastically reduced. Instead, it means, there be sterner head sentences and then either have them wholly suspended or it be made part custodial and part non-custodial. This is to show the seriousness of the offence and to serve both the purposes of deterrence and rehabilitation an offender. It would also give the offender a consideration to faithfully meet any conditions that might be imposed for suspending either in part or in whole the head sentence. The absence of a sanction for failing to meet such conditions might give no reason to the offender to comply."

Then in March of this year in The State v. Gibson Haulai (25/03/04) N2555 I added:
 "…[J]ust ordering restitution without more in the form of a punishment would not serve any deterrence. Rather it would encourage people with criminal minds to misappropriate monies belonging to other persons, apply them to their own use interest free and made to repay only the principle amount under a restitution order. People with means to repay would hence be encouraged and get way with it. Hence, it is necessary that there be additional conditions attached to a restitution order to show the community’s abhorrence of the commission of such offences and to help deter other would be offenders."

I continue to subscribe to the view that:

"It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such order is made in the community interest and is generally designed to prevent re-offending which a prison sentence, standing alone, seldom does. A person so released as an obvious incentive not to re-offend. Therefore, there should be no misconceptions as to what will occur if he does. From time to time, persons charged with more serious offences may be dealt with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that a particular offender will be positively damaged by immediate incarceration."

Certainly, in my view, a non-custodial sentence therefore does not grant the offender immediate liberty. Such sentences only allow offenders to serve their penalty outside the prison system for reasons such as those noted in the above passages. Hence, the need to impose a head sentence and conditions for a suspended sentence that will make that clear to an offender.

In a number of subsequent cases of misappropriation and or forgery and uttering, I imposed wholly suspended sentences bearing in mind the foregoing factors. Cases that readily come to mind are The State v. Eric Emmanuel Vele; The State v Louise Paraka and The State v. Dobi Ao (No 2), itself. I note also that some of my brothers have imposed similar sentences, such as the one by Sawong J in The State v. Makeu Kig. 

In Your Case

In your case, the amount of money you two have misappropriated is K2,000.00. This attracts the application of s. 383A (1) (a) and (2) (c) and (d). Therefore, you are liable to a sentence of up to 10 years and not 5 years as your lawyer submitted. The question then is do you deserve that sentence or something less than that. 

It is settled law that the maximum sentence for any offence is for the worse category of the offence under consideration. Whether a case is worse or not is dependant on the circumstances surrounding the commission of the particular offence, and all the factors the Supreme Court set out in Wellington Belawa v. The State. So what are the factors in your case?

The amount of money involved is K2,000.00. Jenny Moses gave you, Mahuva Jimmy for save keeping for Cliffy Moses, a grand-child of yours for his school fees. When she brought the money to you, she trusted you. Mahuva Jimmy, you however, breached that trust and gave the money to your brother, Uta Helish for his own use without any authority or permission from Jenny Moses or Cliffy Moses. Uta Helisha, when you got that money you knew that, that money was not yours nor was it your sister, Mahuva Jimmy’s and did not have the authority of the real owner of the money, your daughter-in-law and your grandchild. People in this kind of relations trust each other. However, in your case you breached that trust. You went even further than that, apart from using up all of the money, you suspected Jenny Moses of sorcery and chased her and your own son, Jenny Moses’ husband and his family away from their family home and the village. Once they were out, you caused your other relatives to burn down their house resulting, in a total loss of their house and all of their properties.

The law allows for a higher penalty against people who commit offences in a breach of trust position. The Supreme Court endorsed that view in confirming a sentence of 14 years in James Mora Meaoa v. The State. That was in the case of a gang rape by operators of a small boat that capsized at sea and they rescued the victim, a person from the inland to the shore. The Court there held that, a breach of a position of trust is an aggravating factor. It also held that positions of trust are not limited and may extend to de facto situations such as a vehicle or boat operator and his passengers. In your case, your relationship with the victim was very close.

Indeed, the case of Wellington Belawa v. The State did, say the commission of the offence of misappropriation in a breach of trust is a factor in aggravation. Recently, my brother, Lenalia J., in The State v Benson Likius, in the context of misappropriation of over K68, 000.00 noted that there was an increase in the number of misappropriation cases appearing with amounts not only small but involving large sums of money. Therefore he noted that the case of The State v. Paroa Kaia suggested increases in the sentences to reflect that. Then on his part, he imposed a sentence of 2 years imprisonment less time already spent in custody.

Hence, the fact that you committed this offence in breach of the very close trust relationship you had with the victims of your offence is a factor against you. Another factor against you is the fact that you chased the victims out of their family and caused their house to be burnt down. That has resulted in further substantial loss to your victims. 

Further, I noted that you were encouraged to commit these offences against your own blood relatives because of a believe in sorcery. You both say you are Seventh Day Adventist Christians. That Church and other Christian churches teach against sorcery in relation to both it’s believe and practice. Therefore, you were either SDA Christians and if so, only in name or that you were not SDA Christians at all. Your church and all the other Christian churches teach against stealing or misappropriation going by the prohibition in the 10 Commandments, which your Church teaches. Further, your church and other Christian churches also teach forgiveness of people who do wrong against you. Jesus Christ the foundation of the Christian faith demonstrated that on Mt. Calvary when he said "Father forgive them for they know not what they do". If indeed, you had a good basis notwithstanding your claiming to be a SDA Christian to believe that your son’s wife was responsible for the death of your other son, you should have shown and acted in forgiveness but did not. 

A final factor against the two of you is the fact that people believing and acting on believes of sorcery is very prevalent in this province even by persons claiming to be Christians like you two. Similarly, the incidents of misappropriation in breach of trust positions are also prevalent. PNG used to be a country where there was respect and love for each other more than acts of dishonesty, selfishness and violence. Now those good things are gone. When older folks like you commit these kinds of offences, you are teaching a very bad lesson to your children and your community. Accordingly, sentences have to be increased from what have been imposed in the past to reflect that.

Against the above factors in aggravation, I note in your favour that, both of you are advanced in age. From your childhood up to the present, there is no record of you having broken the law. Hence, for more than 60 years both of you have lived and led a very good lives. The lack of a record of a conviction against the two of you confirms this.

The next thing in your favour is the fact that you have pleaded guilty to the charge against you. That saved the State extra time and costs in running a trial. Your guilty pleas have also meant less time for the Court to deal with your case.

Further, I note that the offence you committed was not one that was perpetrated over a period as in the case of an employee committing acts of misappropriation and or forgery over a period until found. This was a one off offence.

Furthermore, the amount of money involved is nowhere near to offences committed by leaders and people in high places running into hundreds of thousands of Kina. These people have gotten away with little as 2 years imprisonment as in The State v Benson Likius. Accordingly, I am of the view that, your sentence has to be lower than that.

In further mitigation, I note your respective family backgrounds and the recommendations of the pre-sentence report. From the pre-sentence report, I note that the victims of your offence prefer restitution or a repayment of the money misappropriated within two weeks. Failing that, they prefer that you go to prison. I note also that, you do not have the money right way but if given the time, you will raise it and repay what you misappropriated. The pre-sentence report recommends that you be given two months to raise the money and repay it. At the same time, the pre-sentence report recommends that you be given community based service orders to serve as part of your punishment for the offence you committed.

In Acting Public Prosecutor v. Don Hale the Supreme Court said sentencing is a community responsibility. After all, the Courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. I have endorsed and followed that view in many cases. I am therefore prepared to impose a sentence that reflects the wishes expressed by the community through the pre-sentence report. This I am prepared to do because I am of the view that, sending you to prison will not serve any useful purpose. You will be a strain on the State’s limited financial resources in terms of looking after you in prison and feeding you. There is also the risk of you falling sick, given your age and if you do fall sick, the State will have extra burdens. Hence, the State’s ultimate expenses may well double or triple the amount you have misappropriated. Apart from not seeing you in your house and your community, the members of your family and community will not be able to see you serving your penalty. I therefore, consider a non-custodial sentence is appropriate but that has to be on strict terms. 

Going by the tariffs in this kind of offences, I consider a head sentence of 18 months in light labour appropriate. I would then have the whole of that sentence suspended on the following terms and conditions during the currency of your suspended sentence:

1.	You repay the full amount of K2,000.00 to Jenny Moses in the following manner:
(a)	an immediate forfeiture and payment of your cash bail of K600.00 in total to her;
(b)	the balance of K1,400.00 within two months.

2.	You render four hours of free community service each Mondays, Tuesdays and Wednesdays excepting any public holidays to the Pikuri Siak SDA and Roman Catholic churches in your village under the supervision of your local church pastor in consultation with the Probation Service here in Goroka;

3.	You shall be home bound between the hours of 6:00pm and 6:00am each day.

4.	You shall not leave your village of Masumave and the town of Goroka and the province unless leave of this Court has been first sought and obtained; 

5.	You will allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to report with such recommendations as he might consider appropriate either for a variation or an implementation of these terms;

6.	The Probation Service shall furnish a bimonthly report to this Court with the first due by 2nd November 2004; 

7.	If for whatever reason you breach any of these terms, you will serve the balance of the term of the suspended sentence of 18 years as at the time of the breach;

8.	You will be at liberty to apply for a review and or variation of any of these terms including a lifting of any of these terms and conditions provided there has been substantial compliance, including a full repayment under term 1;

9.	You immediately enter into your own recognition to keep peace for the currency of your suspended sentence.

I consider the sentence and the terms and conditions of the sentence proposed above sufficiently accommodate all of the comments and concerns raised in the foregoing. Accordingly, I make orders in those terms.
____________________________________________________________
Lawyers for the State:				Public Prosecutor
Lawyers for the Prisoner:			Public Solicitor