State v Boas [2004] PGNC 144; N2608 (10 May 2004)

N2608

PAPUA NEW GUINEA
[National Court of Justice]

CR 424 of 2004

THE STATE

v.

NERRIUS BOAS

Kavieng: Sevua, J
7th & 10th May 2004

CRIMINAL LAW – Sentence – Misappropriation – Public servant – Cheque payable to British Petroleum for zoom – No authority to collect cheque – Negotiated cheque and used proceeds for personal use – Full restitution through payroll deduction – Whether suspended sentence appropriate in the circumstances.

Criminal Code; s. 383A (2) (b)

Cases cited:
Wellington Belawa v. The State [1988-89] PNGLR 496
The State v. Joseph Guai [1990] PNGLR 162

Counsel:
L. Rangan for State
A. Turi for Accused

10th May 2004

SEVUA, J: The accused pleaded guilty to one count of misappropriating the sum of K1,373.59 contrary to s. 383A (2) (b) of the Criminal Code.

The facts were that the Kavieng Club Manageress had requested financial assistance from the New Ireland Provincial Administration to buy fuel to provide sea transport for a cultural group from one of the islands to come and perform at the New Ireland Golf Tournament. The Deputy Provincial Administrator Corporate Services, Mr. Simon Passingan then approved that request and made available a cheque for the sum of K1, 373.59 for that purpose. The cheque was supposed to have been paid to British Petroleum however, the accused went and collected it and later negotiated it for cash at the Kavieng Hotel then spent the money for his own use.

In his allocutus, the accused said he has worked with the Department of New Ireland for twenty two (22) years. After the offence was discovered, he arranged for the money to be recovered from his salary through payroll deductions. He has repaid the amount in full, but continued to be on suspension without pay. He complained that other officers who had committed similar offences have not been placed in the same situation as him. He admitted that what he did was wrong but it was his own stupidity that led him to commit this offence. He regretted his action and said sorry for what he did.

His counsel, Ms. Turi, adopted the statement of her client during allocutus in her submissions and further submitted that this is the first offence committed by the accused in his forty one (41) years of service to the State, twenty two (22) of which were spent in the Provincial Administration here. Until then, he had been a loyal public servant

It was further submitted that the accused was still in suspension without pay, but had made full restitution. His plea of guilty is consistent with his admissions and that he is sorry for what he did. Counsel also submitted that the maximum penalty under s. 383A (2) (b) is five (5) years imprisonment however since full restitution has been made, it was submitted that a sentence of between 12 to 18 months to be suspended using the Court’s discretion under s. 19 of the Criminal Code, and a release on a good behaviour bond would be an appropriate punishment for her client.

Having heard the accused in allocutus and her counsel, and after reading the District Court depositions containing the evidence in this case including the accused’s admissions, the Court is of the view that there was no justification at all for the accused’s wrong doing. He was employed as the Executive Officer to the Deputy Provincial Administrator - Corporate Services, a position of responsibility and trust. Therefore, I consider that he was a very senior officer within the Department of New Ireland. I would assume also that he earned a good salary than most public servants in lower designations in the province.

Most importantly, the Court considers that the accused was in a position of trust and he betrayed that trust. That alone weighs heavily against him. The money was intended to bring some village people into town to display the rich cultural heritage that New Ireland Province, like all other provinces, are famous for, but the accused denied them that opportunity because, as he said, his own stupidity made him commit this crime and frankly, the Court has no sympathy at all for a person of the accused’s standing both in the Provincial Administration and the community here. He just displayed greed, selfishness, dishonesty, irresponsibility and a breach of trust, and in my view, he must be punished for his crime to make him learn that crime does not pay.

The accused is a first offender and I accept his counsel’s submission that up to the time of the commission of this offence, the accused had been a loyal public servant, having faithfully served the State and its instrumentalities for 41 years, out of which he served 22 years in this province. But that experience and the length of time he had been in the service of the State through the Provincial Administration would have given him the maturity and the responsibility that went with the office he held, to guard against this kind of conduct. Really there was no reason why he stole this money. He was in a full time paid employment so it was not as if he needed to steal this money to survive.

In my view, there is nothing much that can be said in favour of this accused apart from all that I have alluded to earlier. There was no need for him to steal that money. He was not struggling to meet financial commitments or if he was, there is no evidence of that. His family was not suffering from hunger or anything like that. The accused has not even informed the Court what he spent the money on, but since he had negotiated the cheque for cash at Kavieng Hotel, the Court can assume that he used the money on food and alcohol at the hotel and not on his family’s needs.

The Court has considered everything that the accused and his lawyer said last Friday and those matters that are in his favour have been given due consideration and taken into account. I still think though that the breach of trust aspect of this case far outweighs the mitigating factors. All other public servants, and the public especially, must be able to trust senior public servants in the discharge of their duties as servants of the public in bringing goods and services to the community, however this trust can be easily eroded when senior public servants, in position of trust like this accused, abuse that trust and steals from the very people they suppose to assist. This in turn leads to mistrust and the community at large having no faith in the government through its agencies like the Department of New Ireland and the New Ireland Provincial Administration. That is where the people will lose hope in a system of good governance.

Whilst the accused’s plea of guilty and the fact that he has effected full restitution of the money he misappropriated weigh in his favour, he failed to advance any reason for misappropriating the money. Under the guidelines suggested by the Supreme Court in Wellington Belawa v. The State [1988-89] PNGLR 496; this offence falls into the second category where the tariff is up to two years imprisonment. In a subsequent National Court case, The State v. Joseph Guai [1990] PNGLR 162 where the Court was dealing with a CIS Officer pleading guilty to stealing the sum of K100.00, the Court, in citing Wellington Belawa (supra) said at 163:

"However the tariff is immutable. In case where the prisoner is such that he or she occupies a strategic place in the state system, deterrence may well out-weigh the quantum of the sum misappropriated and the prisoner’s good character, because of the impact of the loss of confidence of those within the institutions of state wherein the offence took place."

That statement summarizes what I have tried to say in this judgment. To my mind, the previous good character and the sum of money involved in this offence are outweighed by the fact that the accused was in a position of trust and abused that position. Besides, it creates a situation where the public can lose confidence in the State through its instrumentalities. The crime of misappropriation is very prevalent through out the country today. The government and business houses lose thousands of kina through this kind of criminal conduct by employees that despite incarceration of many offenders, imprisonment does not seem to make people learn. Perhaps it is time the law makers thought about another form of punishment to deter offenders. In my view, due to the prevalence of this crime the offender should be imprisoned for this offence. However, since he has made full restitution of the money he stole, I consider that a suspended sentence with conditions will be appropriate in this case, together with a bond to bind the prisoner so that he does not commit any further mischief during the period of bond. I hope that this will not be seen as the rich buying off their prison terms because it will mean that the poor will languish in jail while the rich walk free. The punishment in this case is not intended that way, but to give the accused the opportunity to realize his mistake and to give him another chance to redeem himself, although the Court does not condone this kind of behaviour by senior public servants.

Taking all that have been said in favour of the accused, the Court considers that a suspended sentence and a fine will be appropriate in the circumstances. The order of the Court is therefore that the accused is convicted and sentenced to 18 months imprisonment with hard labour suspended on the conditions that he pays a fine of K500.00 within two days, and further that, he enters into his own recognizance to keep the peace and be of good behaviour for two years commencing today. The Court further orders that the cash bail in the sum of K100.00 be applied as part payment of the fine.

Lawyer for State Public Prosecutor
Counsel L. Rangan
Lawyer for Accused Public Solicitor
Counsel A. Turi