State v Ipai [2006] PGNC 138; N3169 (23 October 2006)

N3169

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 274 OF 2006

THE STATE

v

SEILALA IPAI

Kerema: Kandakasi, J.
2006: 19 and 23 October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Misappropriation – Cashing cheque meant for public expenditure by president of a local level government – Applying proceeds of K2,000 to personal use – Guilty plea – First time offender – Prisoner willing to restitute and has means to do so - Pre-sentence report supportive of community based sentence – 3 years fully suspended sentence on conditions imposed - Criminal Code Sections 383A (1)(a) and (b) and 19.

Cases cited:

The State v. Robert Lorou Sevese (CR No. 250 of 2006) delivered 23rd October 2006.
The State v. Mahuva Jimmy and Uta Helisha, (02/09/04) N2632.
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.
Acting Public Prosecutor v. Don Hale (27/08/98) SC564.
The State v. Irox Winston (21/09/00) N2304.
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.
Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730.
The State v. Makeu Kig (21/06/01) N2177.
The State v. Lucas Yovura (29/04/03) N2366.
The State v. Donald Poni (22/09/04) N2663.

Counsels:

Mr. D. Mark, for the State.
Mr. P.Kapi, for the Prisoner.

23 October, 2006

1. KANDAKASI, J: You pleaded guilty to one charge of misappropriation contrary to s.383A (1) (a) and (b) of the Criminal Code, presented by the State on the 19th of this instant. Since your arrest, you have been on a cash bail of K500.

The Facts

2. The relevant facts as put to you during your arraignment and as they appear from the depositions are these. In 2005, you were the president of Baimuru Local –Level Government. Between 18th and 21st March of that year, you were on leave and whilst on leave, you picked up a cheque for K2000 from the Gulf Provincial Administration. Your then vice president, Hon. Solomon Lae was the payee named on the cheque. You argued with the officers of the Provincial Administration, saying the cheque should have been made out in your name and not Hon. Solomon Lae, knowing at the relevant time that you were on leave and that the money was intended for refreshments for officials of the Electoral Boundaries Commission visiting Baimuru on 18 March 2005.

3. After taking delivery of the cheque, you went with it to Port Moresby and presented it at the Teri Trading at Gordons and had it cashed and purchased some store goods worth K300. You presented yourself as the payee of the cheque, Hon. Solomon Lae. You indicated in Court that you are now prepared to restitute the funds you misappropriated.

Allocutus and Submissions

4. In your address on sentence, you said sorry for committing the offence and promised not to do it again. You also said you are now prepared to reimburse the money you misappropriated. You wish to do that by an immediate payment of K500 and a forfeiture of your cash bail of K500. You propose to have the balance paid within 3 months. Additionally, you asked the Court to take into account the fact that you pleaded guilty and that this is your first ever offence. Further, you outlined your family background, in terms of you being married to 3 wives and a total of 10 children, 4 of whom have been adopted. Most of your children are attending various educational institutions from high schools and vocational schools. Finally, you ended your address by asking for good behaviour bond.

5. Your lawyer added by drawing the Court’s attention to the pre-sentence report which outlines more of your personal and family backgrounds. That outline reveals your educational, work, personal and family backgrounds. Most notably, it reveals that, until the commission of the offence and consequently being voted out, you were the President of the Baimuru Local-level Government, by reason of which you were also a member of the Gulf Provincial Assembly. The pre-sentence report also highlights that you are the only bread winner for your large and extended family. Sending you to prison will result in serious hardship for the members of your family. Finally, the report also shows that you have some assets such as dinghy and outboard motors and so on from which you could generate some income to repay the balance of the monies you misappropriated. This is in addition to one of your daughters who is willing to assist you.

6. Also, your lawyer urged the Court to note in your favour, your guilty plea, your preparedness to fully reimburse the monies you misappropriated, that the amounts of money you misappropriated are no where near the kinds of money misappropriated by people like Daniel Mapiria running into millions of Kina and yet allowed out on a mere six years sentence with orders for restitution. At the same time, your lawyer correctly pointed out the factors against you, namely, the fact that, as an elected leader, you were in a position of more trust, you committed an offence in breach of the trust placed in you and that the offence you committed is a prevalent one. Weighing the factors for and against you, he submitted that your case warrants a non custodial sentence of 3 years suspended on conditions. Counsel for the State endorsed these submissions.

7. The question before me now is, does this mean that I must accept your lawyer’s submissions with the endorsement of the State and impose a non custodial sentence of 3 years fully suspended on conditions? An answer to that question is dependant on a consideration of the particular facts of your case, the sentencing guidelines and tariffs. Hence, I turn to those aspects now commencing with the sentencing trend and tariffs.

The Offence, Sentencing Trend and Tariffs

8. The offence of misappropriation is prescribed by s. 383A (1) and (2) of the Criminal Code. This provision states in relevant parts:

"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) ...
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) ...; or

(b) where the offender is an employee and the property dishonestly applied is the property of his employer; or

(c) where the property dishonestly applied was subject to a trust, direction or condition; or

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards."

9. As I just mention in the decisions I have just handed down in The State v. Robert Lorou Sevese,[1] I reviewed most of the cases on misappropriation in my earlier decision in the case of The State v. Mahuva Jimmy and Uta Helisha,[2] which I wish not to repeat in any detail, suffices only to do so in a summary manner.

10. The Supreme Court in Wellington Belawa v. The State[3] set the relevant guidelines for sentencing in misappropriation cases. It held that, where the amount of money or the value of property involved is lesser, the sentences should be lesser and where the amount of money or value of property involved is higher, the sentence should be higher. Where a person commits the offence in breach of some trust placed in him, his sentence should be higher. Other factors such as the position of the offender and the time taken to commit the offence are also relevant. Further, 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 further relevant factors in mitigation of the offender.

11. Subsequently, the courts imposed sentences between 18 months to say 3 years as in Lawi v. The State,[4] for misappropriations of K10,000, bearing the Wellington Bellawa guidelines. 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[5] and The State v. Bygonnes Tuse Nae,[6] for misappropriation of amounts exceeding K100, 000.00.

12. In recent times, there has been a development favouring suspension of sentences and giving of more time to an offender to repay the money or return the property, he or she misappropriated. The Supreme Court decision in Doreen Liprin v. The State[7] is the authority responsible for that trend. 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.

13. 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.

14. 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).[8] 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.

15. The proposal of the then Chief Justice in addition to reducing the sentence was for the appellant to be given more time to look for alternative employment to repay the amounts misappropriated and for her to render 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 ... 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 no ... threat to society."

16. In The State v. Dobi Ao (No 2),[9] 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 of 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."

17. Earlier in Acting Public Prosecutor v. Don Hale,[10] the Supreme Court said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. The Supreme Court in that case said:

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

18. Going by the authority of the above Supreme Court decision, I held in The State v. Irox Winston[11] that:

"...[I]f the Court is minded to give a lenient sentence because of tender age or other good mitigating factors, it must first have before it a pre-sentence report supporting such a sentence. This is because criminal sentencing is a community response to an offence and has to reflect the community’s view of the kind of sentence an offender should receive. Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court can not arrive at such a sentence."
19. Then in The State v. Gibson Haulai[12] 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 away 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."

20. I have expressed the view in a number of cases already and I continued 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."[13]

21. The Supreme Court endorsed these views in its judgment in Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730.

22. Taking the above views into account, I imposed wholly suspended sentence in The State v. Eric Emmanuel Vele;[14] The State v Louise Paraka[15] and The State v. Dobi Ao (No 2).[16] 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.[17] I add however, that these kinds of sentences have been imposed because of good pre-sentence reports forming the foundation for them.

Your Sentence

23. In order to determine an appropriate sentence for you, I take into account your family and personal background as noted in the pre-sentence report and as I outlined in the foregoing. I accept your lawyer’s submission that the offence you committed is not serious by reference to the amounts of money involved especially when compared with the kind of money that have been misappropriated by members of Parliament and other people in responsible positions. As would be apparent from the foregoing discussion on the sentencing trend and tariffs, most of the sentences have hovered around 3 and 4 years.

24. The kind of sentences that have been imposed have not increased in any significant way even though the offence of misappropriation of public and other peoples money or properties have been on the increase. The sentences to date fail to appreciate and reflect the fact that, it is this offence that has contributed heavily to the lack of any new development and maintenance of existing public goods, services and infrastructure. One need not go any further than the Kerema Township which testifies to that. The courts therefore have to carefully rethink and devise and impose sentences that are reflective of that fact.

25. It would follow therefore that you did commit a very serious offence in that you have contributed to the already poor state of affairs and lack of public service infrastructure and development due to misappropriation of public funds. Indeed the money you misappropriated were intended for the refreshment of officials carrying out an important Constitutional function that would form the foundation for determining political boundaries for the better delivery of goods and service. Instead of appreciating the benefits of such work, you applied the funds to your own and selfish use. This is a factor in your aggravation.

26. Secondly, I note that you acted in breach of the trust placed in you. The courts have said in clear terms that, anyone who commits an offence in breach of a trust must be dealt with more severely than one who is not. This is because breaching the trust placed in a person by the trusted person amounts to a betrayal of the trust. This is why s.383A s. (2) (c) makes it a factor in aggravation. This alone calls for a consideration and application of a sentence up to 10 years. In your case, you are a councillor elected by your people and eventually elected by other councillors to be the president of the Baimuru LLG because they had confidence and trust in you. Fortunately, you committed an offence closer to the next election and the people will have to decide whether to let you have a second chance of leading them or not. You should consider yourself lucky in that, the amounts of money you stole through the illegal means you employed are small and that, you pleaded guilty to the crime. Had it not been for this, I would have looked at imposing a sterner custodial sentence, setting the trend for increased and sterner sentences in misappropriations by elected leaders in respectable positions.

27. Finally, I note that you are a well educated, well spoken, respected and matured man. At the time of your committing the offence, you were in a responsible position and a position of trust. You were therefore in a better position to appreciate and act in accordance with the trust and responsibilities placed on you. Instead, you abused that position for your own selfish desires using unlawful means in the process to get to the relevant funds.

28. Against the factors in your aggravation, I note that you pleaded guilty to the offence. That saved the State the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need to call relevant witnesses to come to Court and testify against you which would have been an inconvenience forced upon them by your unlawful conduct at the first place.

29. Secondly, you have the means and are prepared to fully reimburse the amounts of money you misappropriated. Whilst this will mean that the Gulf Provincial Administration has not totally lost out on the funds, you frustrated its intended purpose. Also this does not however totally and fully, exonerate you from your criminal responsibility.

30. Finally, whilst I note your passionate plea for a consideration of your families’ needs and background, this cannot be a factor in your mitigation. It is clear law now that an offender should carefully consider his personal background and needs as well as that of his family before committing an offence. A commission of an offence necessarily entails in most case a period of imprisonment. This may deprive a family of the presence and usefulness of a father, an uncle, aunt or a close relative. This is the natural consequences of a criminal activity. The courts have now refused to take such factors into account in favour of an offender.[18]

31. Weighing the factors for and against you, I note that they seem to balance out. Then having regard to the kind of sentence other offenders have received in case involving substantial amounts of money some of which I mentioned in the course of this judgment, I accept your lawyer’s submission for a sentence of 3 years as appropriate and I impose it. At the same time, I consider it appropriate that I should suspend the whole of that sentence on terms. This is warranted in my view in the light of the pre-sentence report’s recommendation, the factors in your mitigation, the nature of the offence which is a non violent offence and my believe that you would be better punished and reformed outside the prison system considering the terms of the suspension I am just about to outline.

36. On your acceptance of the following terms and conditions, I would confirm a suspension of the sentence of 3 years:

(1) You fully reimburse the sum of K2,000 you misappropriated either in full or in instalments commencing tomorrow until the full amount is paid within a period of 3 months from today;

(2) Immediately upon the handing down of this decision, you attend on Mr. Joseph Frank, the Volunteer Probation Officer, who is with the Catholic Mission here and settle with him a supervised 8 hours per week community work schedule commencing 6th November week for a period of 12 months and have that schedule delivered to the Court later today or no later than 9:00 am tomorrow for the Court’s approval;

(3) Once the Court approves the schedule, you start working in accordance with that schedule from the 6 November 2006;

(4) You immediately enter into a recognizance to keep the peace and be of good behaviour for the whole of the suspended period of 18 months commencing today;

(5) Pay a fine of K500 by allowing a conversion of your cash bail of K500 into Court fine;

(6) You be home bound between the hours of 6:00 pm and 6:00 am each day;

(7) You shall reside only at your residence in Baimuru and with leave of the Volunteer Probation Officer, Kerema town and you shall not leave these two places or the Province during the currency of your suspended sentence unless leave of this Court has been first sought and obtained;

(8) Any member of the Police in Baimuru or here in Kerema or the country shall be at liberty to report to the Court and enforce any attempted or any actual breach of any of the terms of the suspension of sentence.

(9) You will allow for and permit Mr. Joseph Frank to visit your home on a regular basis at your costs 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;

(10) The Probation Service shall furnish a quarterly report to this Court with the first being due by January 6, 2007.

(11) If for whatever reason you breach any of these terms, you will serve the full suspended sentence of 3 years from the date of the breach; and

(12) 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, which shall include a full compliance of terms 1, 2, 3 and 4 above.

___________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Public Solicitor

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^[1] (CR No. 250 of 2006) delivered 23^rd October 2006.
^[2] (02/09/04) N2632.
^[3] [1988-89] PNGLR 49.
^[4] [1987] PNGLR 183.
^[5] N1401.
^[6] (18/09/96) N1474.
^[7] (9/11/01) SC675.
^[8] (2002) N2247.
^[9] Ibid.
^[10] (27/08/98) SC564.
^[11] (21/09/00) N2304.
^[12] (25/03/04) N2555.
^[13] A position I took in the cases of 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 and The State v Louise Paraka (24/01/02) N2317.
^[14] Ibid.
^[15] Ibid.
^[16] Opt cit. note 1.
^[17] (21/06/01) N2177.
^[18] See for example, The State v. Lucas Yovura (29/04/03) N2366 and The State v. Donald Poni (22/09/04) N2663.