State v Posai [2004] PGNC 159; N2624 (21 June 2004)

N2624

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 597 of 1999

THE STATE

V.

ANDREW LUDWIG POSAI

Kimbe: Sevua, J
2004: 16th & 21st June

CRIMINAL LAW – Sentence – Misappropriation – Public funds – Money intended for Youth and community groups – Prisoner former Member of Parliament for Kandrian - Glouster electorate and Minister for Home Affairs and Youth – Money paid into private account and diverted to other use – Sentence must reflect seriousness of offence and punish leaders – Breach of trust situation - Mitigating factor – Prisoner charged under Leadership Code and dismissed from office over same matter – Suspended sentence appropriate in the circumstances. – Sentence of 2 years IHL with suspension and a fine.

Held:

(1) A Member of Parliament who misappropriates public funds must be given immediate punitive custodial sentence to demonstrate the seriousness of the crime, which impact on the public and public confidence and also reflects the breach of trust reposed on him as a leader in managing public funds intended for specific purposes.

(2) A member of Parliament who misappropriates public funds must be charged and

prosecuted in the first instance in a Court of law instead of being prosecuted under the Leadership Code.

Cases cited:
Tom Amaiu v. The State [1979] PNGLR 576
Robert Kaki Yabara v. The State [1984] PNGLR 378
Brian Kindid Lawi v. The State [1987] PNGLR 183
The State v. Esorom Burege, (CR 460/1992), unreported and unnumbered, October 1993
The State v. Napilye Kuri, N1209, unreported, 9th September 1994
The State v. Nobert Makmop, unreported an unnumbered, 25th October 1995.
The State v. Nobert Makmop, (CR 1526/2000) unreported and unnumbered, 15th May 2002
The State v. Yaip Joshua Avini & Anor, unreported and unnumbered, 14th November 1996
The State v. Nakikus Konga, (CR 32/2001) unreported and unnumbered, 24th May 2002
Wellington Belawa v The State [1988-89] PNGLR 496

Counsel:
F. Popeu for State
O. Oiveka for Prisoner

21stth June 2004

SEVUA, J: I convicted you on 16th June 2004, of one count of misappropriating the sum of K10, 000.00 and adjourned to today to consider what punishment should be imposed on you for this crime.

For purpose of sentence, let me briefly say this. The money, the subject of this indictment, was public funds intended for three youth groups and a women’s group in your electorate. You were the former Member of Parliament for Kandrian – Glouster in 1992, and were the former Minister for Home Affairs and Youth at the material time. The sum of K10, 000.00 were in the form of four cheques made payable to those four groups – Pasis Manua Youth Group –
K2, 000.00; Gumi Ranto Youth Group – K2, 000.00; West Arowe Youth Group – K2, 000.00 and Besse Community Service – K4, 000.00. You brought those cheques to Kimbe in October 1992, however you did not give the cheques to the recipients. Instead, you paid them into your private account at Wetspac Bank in Kimbe and diverted most of it to purposes not intended for.

I have heard you during allocutus and have taken into account the various matters you said and your remorse and plea for leniency with your undertaking to make restitution if given three months to do so. I have also taken into account the submissions your lawyer, Mr. Oiveka has made on your behalf. I have seriously considered the fact that you were dismissed as a Member of Parliament in 1995 over the same money. To my mind, that is a good mitigating factor in your favour. Not that it exculpate you from your crime and its consequences, but that you have already been dealt with over this matter, by a different tribunal from a different perspective of the law. Nevertheless, I consider that, your dismissal from office has made you lost the benefits that went with your position as a leader in the capacity of Member of Parliament.

I want to refer to some similar cases for the purpose of sentence to demonstrate the Court’s attitude to this offence, especially when it is committed by Members of Parliament. I believe this will enable the Court to come to a sentence that fits this crime.

The first of these cases is, Tom Amaiu v. The State [1979] PNGLR 576; which is a case of a former Member of Parliament for the Kompiam electorate in Enga. He was convicted of stealing a cheque for the sum of K10, 120.00 belonging to one Wagop Korowai, which was payment for timber royalties from the Government. He was sentenced to 5 years imprisonment in hard labour. Subsequently, he appealed against conviction and sentence, however the Supreme Court dismissed his appeal and confirmed the conviction and sentence. The Supreme Court said at 581:

"The appellant was a Member of Parliament who tricked his own people and stole their money. It is hard to imagine a worst case. This offence constitutes an instance of the educated and well placed preying on the uneducated and less well placed; and it is the duty of the court to impose such penalties in such cases as will be seen as fitting by the community, and which will act as a deterrence to other like minded persons ........."

In Robert Kaki Yabara v. The State [1984] PNGLR 378; the Supreme Court said at 384 -385:

"We are not dealing with a simple villager. Indeed we are dealing with someone who occupies a position which is called by many a "leader of the people". Perhaps nowhere else have politicians been so politely naively described.

Whatever the term used it is undoubtedly a fact that he is a member of a body which makes laws .............

The responsibility of a Member of Parliament is a great one. It is certainly an equally great evil to trample on that responsibility.

Of course the status and perquisites which the appellant enjoyed are now lost to him together with the respect for his position which is properly rendered to one whose service is for the good of the general public. However, any eminent person in our society would be in the same position if he had committed a similar offence be it a lawyer, doctor, accountant or public servant. The appellant’s fall is great and hard. That is simply a natural corollary of the privilege and prestige of his former high position. The stakes were very high, but it was himself who threw the dice – no one else – and he lost."

In Brian Kindi Lawi v. The State [1987] PNGLR 183; the appellant was a former Member of Parliament who received two cheques in public funds for K6, 000.00 and K10, 000.00 respectively for road and agriculture works and paid the moneys into his private account. There was no evidence that the moneys were expended on the projects the funds were intended for. He was convicted of two counts of misappropriation and sentenced to 2 IHL and 5 years IHL respectively with an order for the sentence for the second count to be reduced to 3 years if he repaid the sum of K10, 000.00 to the State. On appeal against conviction and sentence, the Supreme Court dismissed the appeal against conviction, but reduced the sentences. The sentence of 2 years for the first count was reduced to 18 months on the basis that the prisoner was a first offender, and had later applied the K6, 000.00 to Mt Giluwe Corporation for agriculture purposes. The sentence of 5 years for the second count was also considered excessive and reduced to 3 years if the prisoner repaid the sum of K10, 000.00 to the State. He had the money in his lawyer’s trust account and was ready to make restitution, but the trial Judge did not consider that.

In The State v Esorom Burege (CR 460/1992) unreported and unnumbered, the former MP for Gazelle Open was convicted of 15 counts of misappropriating public funds totalling K151,573.61 and sentenced to 5 years I think, in October 1993. I am unable to verify this sentence.

In The State v. Napilye Kuri, N1209, unreported, 9th September 1994; the Court said at page 6 of the judgment:

"The people of Papua New Guinea are entitled to expect some responsibility with the administration and spending of government resources and money. Public accountability of public monies demands proper appropriations and control of such monies. Public or government funds are not personal accounts into which those in control should have the right and power to dip into when they wished to ensure support or help their friends. So if people in control or leadership creates schemes for such an indiscriminate use of public monies, they are leaving themselves open to charges such as this one, misappropriation for their own ends, to help their friends rather than the proper management for the people as a whole and the nation."

In The State v. Nobert Makmop, unreported and unnumbered; the former Governor and Regional Member of Parliament for Western Province was convicted of two counts of misappropriating public funds totalling K13, 184.57 and sentenced to concurrent terms of 2 years on 25th October 1995. Again on 15th May 2002, in a different case, CR 1526 of 2000, unreported and unnumbered, he was sentenced to 18 months imprisonment with an order for a fine of K1, 000.00 and a partial suspension, in respect of the misuse of the sum of K2, 300.00 of public funds.

In The State v. Sylvanus Siembo & 2 Ors. (CR 1220/2000; CR 97/1999 & CR 722/1999) unreported and unnumbered, 30th May 2002, the first prisoner was the Member of Parliament and Governor of Oro. He was convicted with two others and they were sentenced to 6 years imprisonment over the misappropriation of K100, 000.00 with a partial suspension of 3 years. They appealed to the Supreme Court and it is not known what has happened to that appeal.

In The State v. Nakikus Konga (CR32/2001), unreported and unnumbered, the prisoner was the Member of Parliament for Gazelle Open Electorate and was convicted of misappropriating public funds totalling K50, 000.00. The Court on 24th May 2002, sentenced him to 5 years imprisonment suspended with conditions and a fine of K2, 000.00, and an order for restitution.

In The State v. Yaip Joshua Avini & Anor. unreported and unnumbered, the Court convicted the two prisoners of misappropriating K100, 000.00 and sentenced them to 8 years imprisonment on 14th November 1996. The first prisoner was the former Member of Parliament for Finschaffen Open Electorate.

In Wellington Belawa v. The State [1988-89] PNGLR 496; the Supreme Court established guidelines for sentencing in dishonesty offences. Some very useful and important considerations are set out at pp 500-501. These matters include the amount of money taken; the degree of trust placed in the offender, the period over which the offence was committed; the impact of the offence on the public and public confidence; the use of which the money was put; the effect on the victim; restitution; remorse; plea of guilty or not guilty; prior record of the offender; the effect of the offence on the offender himself, and finally, mitigating factors special to the offender.

In applying those principles to you, the amount of K10, 000.00 misappropriated is neither a substantial nor a minimal amount, but is a large amount by ordinary standards. The degree of trust placed on you was quite high. The important consideration therefore is that where the offender holds a senior position in the government or in a company, the higher the position of trust the greater the responsibility. The principle is that "from whom much is given, much is expected." There can be no doubt in any one’s mind that Members of Parliament are persons whom the public repose their trust and confidence in. They must therefore act honestly when it comes to the management of public funds. Unfortunately, the record speaks for itself. Some Parliamentarians are becoming dishonest when it comes to the management of public moneys. There appears to be an increasing trend now of misappropriation by some Members of Parliament that it is like a chronic ulcer in the country.

Some of the cases I have referred to in this judgment clearly demonstrate that some Parliamentarians cannot be trusted in the prudent management of public funds and other resources of the country, which suppose to benefit the community at large. These cases reveal that since the case of Tom Amaiu in 1979, the number of Parliamentarians convicted of misappropriating public funds is increasing. In my view the punishment of this category of offenders must also increase to take into account the prevalence of the offence and to act as a deterrence to other Parliamentarians. These cases show that the sentence imposed in each case depended on the sum misappropriated thus, the larger the amount, the heavier the penalty. Thus in these cases we see that the sums misappropriated ranged from K2, 300.00 to more than K151, 000.00 and the sentences ranged from a suspended sentence of 18 months together with a fine to 8 years imprisonment. Of course each case must be decided on its own circumstances, however the point to stress here is that these are cases involving Members of Parliament who are leaders of the country and lawmakers as well. The axe must come down hard on them.

The impact of the crime on the public and public confidence is a very important consideration. Members of Parliament are the political leaders of the country. One major role they play is they make laws for the country, they are legislators. They must therefore obey the laws which they make in Parliament. The public expects that much from them. Unfortunately, some Members of Parliament have become dishonest in the use and management of public funds. Instead of the people and the community at large benefiting, the benefits only go to themselves and their cronies, and this is a very bad reflection of their own integrity as both leaders and legislators. It presents a very bad image to the public and the international community as well. It is not a coincidence that this country has a very bad reputation of being a corrupt country because of this kind of conduct by political leaders. At the end of the day, the country becomes a laughing stock in the eyes of the international community. No wonder the Australian Government is now sending police officers and other officers to this country under the Enhanced Cooperation Package to help rid this country of corruption which is entrenched as a culture and way of life in government institutions in this country.

It is my view therefore that Members of Parliament who are guilty of misappropriation of public funds must be sentenced to immediate punitive custodial sentence to demonstrate the effect of their crime on the public, and to demonstrate the breach of trust by them. They must be expected to be punished more severely than ordinary citizens because of the higher office they hold and the greater responsibility and accountability they have. It is also my view that misappropriation of public funds by Members of Parliament should not be the subject of Leadership Code prosecution as it is a very serious crime under the Criminal Code and must be tried in the National Court. It becomes very unfair and a great injustice to the small people who languish in jail for stealing small amounts of money when the leaders walk free when they are dismissed from public office following a leadership tribunal conviction.

Therefore I consider that Members of Parliament who misappropriate public funds must therefore be charged under the Criminal Code in the first instance, and not referred to the Leadership Code. It makes a mockery of the criminal justice system in this country because it means the rich and wealthy, the educated and the well to do, walk free while the uneducated, less fortunate, under privileged and the poor languish in prison for the same offence. This is not social justice either.

You have expressed remorse and you have indicated that if given three months, you would be able to make restitution. I would like to seriously consider this, however I note too that this offence was committed a little over 10 years ago and presumably the government books and records of these moneys have closed and the administration and people have moved on. Other than that, the effect of this offence on you means that you lost your office as Minister for Home Affairs and Youth and you also lost your seat as a Member of Parliament after your dismissal by the Leadership Tribunal. People might well think that this punishment as a double punishment for you however, it is not correct to assume that because of the different laws and jurisdictions you have been subjected to. Nevertheless, I consider that your dismissal from office is a very serious consequence of this offence, which you and your family have suffered. I consider that the effect includes the sufferings you endured and the humiliation and disgrace you and your family must have suffered. This Court has therefore considered that your dismissal from public office is a strong mitigating factor.

You are about 45 years old and married with a young family of five children whose age range from 2½ months to 7 years. You have been an unemployed villager since you were dismissed as a Member of Parliament in 1995 by a leadership tribunal over the same matter. You are a first offender and have waited for your trial since 13th April 1999, which is the date you were committed to trial. Therefore you have waited for a little more than 5 years and in the meantime, things have moved on.

I have considered everything that you and your counsel have put forth. And while you have expressed remorse and offered to make restitution, you must appreciate that this is a serious offence. You were in a position of trust. You were a leader, not only of your people in Kandrian - Glouster, but the country too. The public put their trust in you. The public expect that as a leader you would act honestly and put the people’s interests first when it comes to the use of public funds. What the courts have said in the cases that I have cited here are indicative of the attitude of the Court in respect of people in leadership positions. You were no exception to the rule

I have also taken into account one aspect of the trial which I alluded to in my judgment on 16th June and that is, in the trial I gave you the benefit of the doubt and accepted that you had paid a sum of K4, 000.00 to Besse Community Service, although you did not produce any proof of that. I have considered that issue and I propose that the sentence and orders I make will reflect that.

Taking into account everything that have been said here and considering that you were dismissed from public office over the same money, and have waited more than five years to have your case heard, it is my view that a suspended sentence with conditions is not unreasonable and I intend to effect that consideration. However, in my view a term of imprisonment must be imposed to reflect what I have alluded to in this judgment, especially the prevalence of this offence and to deter other Parliamentarians from making the same mistake, although you are no longer a Member of Parliament. I am giving you this opportunity to redeem your self and I hope that you will.

It is the judgment of the Court therefore that you are sentenced 2 years imprisonment in hard labour. I order that 3 months pre-trial custody time be deducted leaving the balance of 1 year 9 months. I further order that the balance be suspended on the following conditions:-

1. You enter into a recognizance with a surety in the sum of K1, 000.00 (not cash) to keep the peace and be of good behaviour for a period of 2 years commencing today.
   
2. You repay the sum of K6, 000.00 to the State within 3 months, that is, by the 21st September 2004
   
3. You pay a fine of K1, 000.00 forthwith. It is ordered that your cash bail of K1, 000.00 be applied to the payment of fine.
   

Orders accordingly.

Lawyer for State : Public Solicitor
Lawyer fro Prisoner : Public Solicitor