State v Ambunop [2006] PGNC 182; N3864 (17 November 2006)

N3864

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1519 of 2006

THE STATE

v

WERI AMBUNOP

Tabubil: Kandakasi, J.
2006: 15th And 17th November

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Misappropriation – Motor traffic registry fees totaling K12, 000.00 – Prisoner prepare to restitute –Guilty plea – No prior convictions – No pre-sentence and means assessment report – Request and consideration of such reports – Means and pre-sentence report support orders for restitution and non custodial sentence – Four years less pretrial custody and fully suspended sentence on conditions imposed - Criminal Code Sections 383A (1)(a) and (b) and 19.

Cases cited:

The State v. Robert Lorou Sevese (unreported and unnumbered decision delivered on 23/10/06) CR NO. 250 of 2006
Acting Public Prosecutor v. Don Hale (27/08/98) SC564
The State v. Irox Winston (21/09/00) N2304
Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730
The State v Louise Paraka (24/01/02) N2317
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
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. Makeu Kig (21/06/01) N2177
The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082
The State v. Lucas Yovura (29/04/03) N2366
The State v. Livingston Haurahaela (unreported and yet to be numbered judgment delivered on 23/10/06) CR No. 363 of 2006
The State v. Donald Poni (22/09/04) N2663

Counsels:

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

17th November, 2006

1. KANDAKASI J: You pleaded guilty to a charge of misappropriation contrary to s.383A (1) (a) and (b) of the Criminal Code, presented by the State on 15th of this instant. Since your arrest, you spent two days in custody and thereafter you have been on a cash bail of K1,000 police bail and later a Court bail of K5,000 bringing the total to K6,000.

The Facts

2. The relevant facts as put to you during your arraignment and as they appear from the depositions are these. Between 11th April and 9th June 2000, you were employed by the Fly River Provincial Government with its Traffic Registry Office at Kiunga as its officer in charge. Your duties and or responsibilities were to collect, receipt and account for motor traffic related charges substantially under the Motor Traffic Act and the regulations thereunder. During the period in question, you collected a substantial amount of money. Out of that collection, you applied to your own use a sum of K12,000 and failed to deposit those funds into the relevant Fly River Provincial Government office account. An investigation in the operations of the motor traffic registry from the 24th to 31st October 2001 revealed your misappropriation of the funds. You tried to explain in terms of deciding to help yourself to those funds because your superiors were helping themselves to the funds you manage to collect and deposit in the relevant account, lending part of the funds to other fellow employees and purchase of goods for your office without any lawful authority.

Allocutus and Submissions

3. In your address on sentence, you said sorry for committing the offence and said you are prepared to repay the funds you misappropriated through salary deductions. You then pointed out that, you are married with 5 children of your own and a further 3 children of other people born out of wedlock. You concluded your address by informing the Court that, you are the only educated person in your family. The rest of your family members are subsistence style dwellers.

4. Your lawyer added by informing the Court that, you are 43 years old and come from Kokonda Village, Kiunga, Western Province. You father is still alive while your mother is deceased. You have 3 brothers and 4 sisters. Your lawyer further added that, you have been educated up to grade 10 formal education, and went onto an agriculture college. Presently, you are still employed with the Postal Agency of the Department of Finance and Treasury. You are now prepared to restitute the funds you misappropriated by a forfeiture of your bail money totaling K6,000 and the balance by salary deductions.

5. For the purposes of determining an appropriate sentence for you, your lawyer urged the Court to note in your favour your guilty plea, your preparedness to fully reimburse the monies you misappropriated, which is not as much as those misappropriated by people like Daniel Mapiria who misappropriated about K6 million. At the same time, your lawyer correctly pointed out the factors against you, namely, you committing the offence in breach of a trust placed in you and that the offence you committed is a prevalent one. He then submitted that, you should be given a fully suspended sentence of 2 years with orders for restitution. In support of that submission, your lawyer referred the Court to my recent decision in The State v. Robert Lorou Sevese (unreported and unnumbered decision delivered on 23/10/06) CR NO. 250 of 2006, where I imposed a custodial sentence of 2 years for misappropriation of K8,000.

6. You and your lawyer did not initially provide the Court with a pre-sentence report supporting a non custodial sentence and a means assessment report supporting the kind of sentence you argued for. The law is clear, unless such reports are before the Court and they support the kind of sentence you ask for, the Court cannot impose such a sentence. This has been made abundantly clear by the Supreme Court decision in Acting Public Prosecutor v. Don Hale (27/08/98) SC564, which I reiterated in my decision in The State v. Irox Winston (21/09/00) N2304 and more recently endorsed by the Supreme Court in its decision in Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730. Bearing these authorities in mind, I adjourned your case to yesterday afternoon to enable you to provide the kind of reports in question. In so doing, I bended backwards from what I said in the case of The State v Louise Paraka (24/01/02) N2317, where I said that if an offender is desirous of asking for the kind of sentence you asked for, he or she must first obtain the kind of reports in question and present it in Court before arguing for the kind of sentence you have asked for.

7. You have now managed to provide a means assessment report and a pre-sentence report. The first report states that, you have a formal employment with a fortnightly salary of K407. From that salary, you support your large family, to the extent that you have only K20 in your savings account. The only funds you may be entitled to are your bail monies of K6000 which you are prepared to have forfeited in part restitution of the funds you misappropriated. The report also states that, if you are given a period of 6 to 12 months you will repay the balance of the funds after allowing for a forfeiture of your bail money. You could do that with the help of your friends and relatives. The pre-sentence report gives more of your personal and family background and states that you are not a violent person. Sending you to prison will seriously affect your large family, including a baby that is soon to be born. Accordingly, the report recommends a non custodial sentence.

8. I said to you yesterday that, you need to provide the Court with a repayment schedule, the names of the people who will assist you, how much they are prepared to assist you with. I also said to you that you need to enter into an agreement with the persons who will assist. In the agreement, you shall acknowledge that, whatever assistance you get from them, will be a loan to you which you must repay within a specified period. I further said to you that, you need to provide the Court with a detailed community work schedule with confirmations of who is available to supervise you. Finally, I said to you that, unless you provide the Court with these further information, it may not be possible to impose a sentence of the type you argued for. You have not been able to provide me with the kind of information required.

The Offence, sentencing trend and tariffs

9. 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.""

10. I reviewed most of the cases on misappropriation in the case of The State v. Mahuva Jimmy and Uta Helisha.[1] I started that review with the Supreme Court decision in Wellington Belawa v. The State.[2] That case sets 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 reposed in him that should result in a higher sentence. Other factors such as the position of the offender and 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 I then noted that subsequent decisions of the Court imposed sentences between 18 months to say 3 years as in Lawi v. The State,[3] 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[4] and The State v. Bygonnes Tuse Nae,[5] for misappropriation of amounts exceeding K100, 000.00.

12. In recent times, there has been a development favoring suspension of sentences and giving of more time to an offender to repay the money or return the property, he or she misappropriated. The judgment of the Supreme Court in Doreen Liprin v. The State[6] 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).[7] 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 that, with respect, the Supreme Court''s decision does not provide any assistance as to determining appropriate sentences.

15. 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 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 deprivation of liberty ... 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 Dobi Ao (No 2) case, 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 Don Hale case, the Supreme Court said sentencing is a community responsibility. For the courts to exercise the power that belongs to the people by virtue of s. 158 (1) of the Constitution and 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[8] 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[9] 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.""

20. Also, 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.""[10]

21. Subsequently, the Supreme Court endorsed these views in its judgment in Edmund Gima v. The State & Siune Arnold v. The State.[11]

22. Taking the above views into account, I imposed wholly suspended sentence in The State v. Eric Emmanuel Vele;[12] The State v Louise Paraka[13] and The State v. Dobi Ao (No 2).[14] 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.[15] I add however, that, these kinds of sentences have been imposed because of good pre-sentence reports forming the foundation for them. Where there was no such report, I imposed custodial sentences. A recent example of that is Robert Lorou Sevese''s case.

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. In so doing, I note that the authorities dictate that, the personal and family concerns and needs should not be a factor in favour of offenders. The rational for this is simple; offenders should consider their personal and family backgrounds and needs before embarking upon the commission of an offence. It is a little too late to talk about these things after the commission of an offence.[16]

24. In order to properly arrive at a decision on your sentence, I need to consider and weigh the factors for and against you. I start that process first with a consideration of the factors in your aggravation. I accept your lawyer''s submission that the offence you committed is not that serious but it is a prevalent offence. This is 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.

25. Secondly, as I recently observed in the Robert Lorou Sevese, and the The State v. Livingston Haurahaela (unreported and yet to be numbered judgment delivered on 23/10/06) CR No. 363 of 2006, and The State v. Seilala Ipai (unreported and yet to be numbered judgment delivered on 23/10/06) CR No. 274 of 2006 cases, the kind of sentences that have been imposed have not increased in any significant way. That is so despite an increase in the offence of misappropriation of public and other people''s money or properties. The sentences to date have therefore failed to appropriately 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 closest government establishment which testifies to that. The Courts therefore have to carefully rethink, devise and impose sentences that are reflective of that fact.

26. Thirdly, again as I observed in the cases just cited, it would follow therefore that, you committed 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 misappropriate were funds entrusted into your hands on behalf of the people of this province and therefore this country which could ultimately be applied toward the improvement of public institutions and infrastructures. You have selfishly and dishonestly applied the funds to your own use. This is a factor in your aggravation.

27. Fourthly, unlike in the Robert Lorou Sevese case, I note that, you acted in a breach of a position of trust reposed in you. The Courts have said in clear terms that, anyone who commits an offence in breach of 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 that trust. This is why s.383A (2) (c) makes it a factor in aggravation. This alone calls for a consideration and application of a sentence up to 10 years. I am surprised that you are still in the employ of the State through the Department of Finance, based in Kiunga, particularly when you destroyed the trust placed in you by committing the offence and have shown yourself to be an untrustworthy person.

28. Fifthly, also unlike in the Robert Lorou Sevese case, you committed the offence over a period of time. That means this is not a one of offence. You tried to justify that by saying your superiors stole from the funds you collected and paid into the relevant account. You also said some of these funds were lent or borrowed out to other staff of the organization you were part of. These are not valid reasons for stealing the people''s monies entrusted in your hands. The commission of an offence by others does not justify the commission of an offence by you. There is no lawful authority for people employed in the public service to borrow from the public funds. If they want to borrow money they have to go to the banks.

29. Further, I note that you are a well educated and a mature man, well experienced with the government system. At the time of you 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 to your own advantage.

30. 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 for the 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.

31. Secondly, you are prepared to fully reimburse the funds you misappropriated, provided you are given time to satisfactorily attend to a reimbursement of the sum of K12, 000 less the bail money, which you wish to be forfeited to a part repayment of the funds you misappropriated and the balance by installment over a period of 6 to 12 months. This shows an acceptance of responsibility for committing the offence and taking the necessary steps to correct it. It demonstrates that your expression of remorse is genuine. This does not however, totally and fully exonerate you from your criminal responsibility.

32. Finally, I note that, you have no prior conviction. Hence this is your first ever offence. That means you have been a good law abiding citizen until the commission of the offence. The law usually, treats such offenders with leniency in appropriate cases.

33. Weighing the factors for and against you, I note that they seem to balance out. Then having regard to the kind of sentences other offenders have received in cases involving substantial amounts of money, some of which, I mentioned in the course of this judgment, I consider a sentence of 4 years appropriate and I impose it. Of that sentence, I order a deduction of your pre-trial period of 4 days. That should leave you with the balance of 3 years 11 months and 3 weeks and 3 days yet to serve. 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 non violent 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.

34 On your acceptance of the following terms and conditions, I would confirm a suspension of the sentence of 3 years 11 months, 3 weeks and 3 days:

(1) Immediately upon the handing down of this decision, you enter into a recognizance to keep the peace and be of good behaviour for the whole of the suspended period of 3 years, 11 months, 3 weeks and 3 days commencing today;

(2) You pay a fine of K1,000 by way of a forfeiture of that amount from your cash bail total of K6,000.

(3) The balance of your cash bail in the sum of K5,000 be forfeited forthwith to the State in part restitution of the K12,000 you misappropriated, leaving you with a balance of K7,000 yet to repay, which amount you shall restitute within a period of 12 months from today with at least one half of that repaid within 6 months and the remaining amounts by or before 17th of November 2007.

(4) Immediately, upon the handing down of this decision, you attend on the probation service here in Tabubil and settle with her a work schedule for free community service of 8 hours per week to a public institution in Kiunga for the Court''s endorsement.

(5) Upon the Court''s endorsement of the work schedule provided under term (4), you shall commence your community service orders under the supervision of a person appointed under term (6) below.

(6) For the purposes of term 4 above, the Probation Service shall within 14 days from today confirm the name of the person who will supervise you in relation to the performance of your community service orders and or otherwise oversee your observance of the terms of your suspended sentence;

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

(8) You shall reside only at your residence at Kiunga, Western Province and shall not leave Kiunga or the Western Province during the currency of your suspended sentence unless leave of this Court has been first sought and obtained;

(9) Any member of the Police in Kiunga or the country shall be at liberty to report to the Court and enforce any attempted or any actual breach of any of these terms.

(10) You will allow for and permit the Probation Services 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 she might consider appropriate either for a variation or an implementation of these terms;

(11) The Probation Service shall furnish a quarterly report to this Court of your performance and observance of these terms with the first being due by February 17th, 2007.

(12) If for whatever reason you breach any of these terms, you will serve the full suspended sentence of 3 years 11 months 3 weeks and 3 days in hard labour.

(10) 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 and 4 and the first part of term 3 above.

___________________________

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

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^[1] (02/09/04) N2632.
^[2] [1988-89] PNGLR 49.
^[3] [1987] PNGLR 183.
^[4] N1401.
^[5] (18/09/96) N1474.
^[6] (9/11/01) SC675.
^[7] (2002) N2247.
^[8] (21/09/00) N2304.
^[9] (25/03/04) N2555.
^[10] 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.
^[11] (03/10/03) SC730.
^[12] Ibid.
^[13] Ibid.
^[14] Opt cit. note 1.
^[15] (21/06/01) N2177.
^[16] The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082 and The State v. Lucas Yovura (29/04/03) N2366.