State v Teka [2008] PGNC 154; N3509 (22 October 2008)

N3509

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1116 OF 2007

THE STATE

V

ELIZABETH TEKA

Mendi: Makail, AJ
2008: 8 October
: 14, 15 & 22 October

CRIMINAL LAW - Sentence - Misappropriation - Criminal Code - Section 383A (1)(a) - Maximum penalty of 10 years - Aggravating factors - Breach of trust - Victim an ordinary villager and relative of prisoner - Substantial amount of money - K37,000.00 - No restitution - Prevalence of offence - Mitigating factors - First offender - Early guilty plea - Remorseful - Pre sentence and Means Assessment Report recommended non custodial sentence - Ability to make restitution - Opportunity to make restitution to victim - Sentence of 5 years appropriate - personal deterrence - wholly suspended on strict conditions - Including full restitution within 4 months - Criminal Code - Sections 19 & 383A(1)&(2).

Cases cited:

Acting Public Prosecutor -v- Don Hale (27/08/98) SC564
Wellington Belawa -v- The State [1988-89] PNGLR 496
The State -v- Roslyne Wambie: CR No 1049 of 2005 (Unnumbered & Unreported Judgment of 26 March 2008)
The State -v- Dobi Ao (No 2) (2003) N2247
The State -v- Nakikus Konga: CR No 32 of 2001 (Unnumbered & Unreported Judgment of 24 May 2002)
The State -v- Daniel Mapiria: CR No 1118 of 2000 (Unnumbered & Unreported Judgment dated 1 October 2004)
Doreen Liprin -v- The State (2001) SC637

Counsel:

Mr J Kesan, for the State
Mr P Kumo, for the Prisoner

SENTENCE

22 October, 2008

1. MAKAIL AJ: On Tuesday 8 October 2008, the prisoner pleaded guilty to one count of misappropriation of K37,000.00, the property of one George Kaima contrary to section 338A(1)(a) of the Criminal Code.

2. After the arraignment and administration of allocutus of the prisoner, at the request of Mr Kumo of counsel for the prisoner, I adjourned the matter to 14 October 2008 at 9:30 am for further hearing pending the Probation Officer to provide to the Court a Pre Sentence Report and a Means Assessment Report for the Court to consider. On 14 October 2008 at 9:30 am, when the matter was called, the Probation Officer appeared and informed the Court that the two reports were not ready to be presented to the Court and requested a little more time to complete the reports. I further adjourned the matter to 15th October 2008 at 9:30 am to allow the Probation Officer to complete the reports.

3. On 15 October 2008, the Probation Officer provided the reports and I heard both counsel’s submissions and also considered the reports and adjourned to today for my decision. This is my decision.

RELEVANT FACTS

4. I now proceed to deal with the relevant facts in this case, which are straight forward as follows: The prisoner and the victim are from Kowagil village in Ialibu of the Southern Highlands Province. The victim lives in the village whilst the prisoner was then living in Mt Hagen. On 27th July 2006, the victim named George Kaima brought with him to Mt Hagen cash of K40,000.00 to purchase a PMV bus. The bus he wanted to buy is a toyota coaster but there was none in stock at Ela Motors in Mt Hagen. The victim approached the prisoner and gave her the money to keep until such time when the bus becomes available for sale at Ela Motors. Upon trusting her, the prisoner left the money with her but the prisoner returned K3,000.00 to the victim. She kept K37, 000.00 and deposited it into her bank account.

5. The prisoner then applied the money to her personal use by removing variable amounts from the bank account over a period of time until the entire money was depleted from the account. When she applied the money in that manner, the victim did not authorize her to do so, hence she acted in contravention of section 383A(1)(a) of the Criminal Code.

ALLOCUTUS

6. On allocutus, the prisoner says that she was an employee of Wamp Nga Group of Companies in Mt Hagen and held the position of Personal Assistant Executive Secretary to the Managing Director of that company.

7. She says that the victim is her brother in law. The victim gave her the money to keep but she told him that as it was a substantial amount, she will put it in her bank account. The victim agreed and she deposited the money into her bank account. After the victim returned to his village, she encountered a big problem. She says that she was attacked by a criminal in Mt Hagen and the police gave chase and shot dead the criminal. It was big news in town and she went into hiding.

8. After the death of the criminal, she feared for her life and that of her family. The relatives of the dead criminal might avenge the death of the criminal on her and her family. She sought permission of her employer to take time off work to sort the problem which was readily granted.

9. She paid compensation to the relatives of the dead criminal. The compensation payment was substantial. She used the money of the victim to buy pigs and gave to the relatives of the dead criminal. She also gave some money of the victim to the relatives of the dead criminal. After the compensation payment, she continued to use the rest of the money in the account for her personal use.

10. She further says that she is the sole bread winner of her family. Her husband is not working. Her family depends on her for a living. She also says that it was a temptation that she failed to resist and as a result she finds herself in this situation. She says that as the victim was a relative, she thought that it was well for her to use the money as she would repay it later.

11. She says sorry to God and to the Court for breaking the laws of Papua New Guinea. She also says sorry to the victim for offending him. She says sorry to the victim for not obtaining his permission before using the money. She says that she is willing to repay the money to the victim if given sufficient time by the Court. She also says that her employer is willing to assist her repay the money if she is given the opportunity to return to work.

12. Finally, she says that she went to Port Moresby to look for money to repay the money when she was arrested by the police and it was not her intention to run away from the Court.

THE RELEVANT LAW

13. The prisoner has been charged under section 383A(1)(a) of the Criminal Code, for misappropriating K37,000.00, money belonging to George Kaima which carries a maximum of 10 years imprisonment. The provision reads:

"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) where the offender is a director of a company and the property dishonestly applied is company property;

(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

(b) a person's application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property; and

(c) a person's application of property shall be taken not to be dishonest, except where the property came into his possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps; and

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender's application of the property, had control of it". (Emphasis is mine).

REASONS FOR DECISION

14. The prisoner acknowledges that the offence committed is serious. Her case falls under section 383A(1)(a),(2)(c)&(3)(a) of the Criminal Code. By that I mean, the money is the property of the victim and was given to the prisoner for a specific purpose and that is to purchase a toyota coaster bus. She was to hold the money in trust for the victim and to purchase the bus when one becomes available at Ela Motors.

15. As the prisoner has pleaded guilty and convicted on one count of misappropriation, by section 383A(2)(c), the sentence I am to impose on her shall automatically be above 5 years but not more than 10 years because she dishonestly applied the money whilst it was placed in her trust, upon a direction from the victim to purchase a toyota coaster bus as well as on condition, in that she was to use that money only when the toyota bus becomes available at Ela Motors.

16. Thus, the questions are:

1. what is the head sentence I shall impose on the prisoner?

2. should I suspend whole or part of the sentence?

3. if I suspend whole or part of the sentence, what kind of conditions should I impose on the prisoner?

What is the head sentence?

17. I consider that the head sentence should be between 5 and 10 years. In determining the appropriate sentence for the prisoner, I note that the prisoner is from Kowagil village in Ialibu of the Southern Highlands Province. She is 35 years old and a mother of 3 children. The first child is 11 years old, the second is 9 years old and the third one is 2 and half years old. She is educated to Grade 10 and attended St Paul’s Secretarial School in Mt Hagen and went on to obtain further training on computers at Tandy Computer Training Centre at Port Moresby.

18. She was employed by Investment Promotion Authority in Port Moresby for 7 years and then joined Wamp Nga Group of Companies as the Personal Assistant Executive Secretary to the General Manger until she left employment after the criminal attack.

19. In mitigation, I take into account that the prisoner is married and has 3 children. Her husband is unemployed, thus she is the sole bread winner of the family. Secondly, she freely pleaded guilty to the charge, thus saving the Court the time and money to run a full trial to determine her guilt and is also a sign of her accepting criminal responsibility for her actions.

20. Thirdly, I also take into account that she does not have any prior convictions and so therefore this is her first ever offence, hence a step out of line for the first time. Further, I take into account that the circumstances forced her to commit the offence, in that she was a victim of a criminal attack in Mt Hagen and when the criminal was killed by police, she was forced to make restitution to the relatives of the dead criminal. She used the money to buy 82 pigs, 3 cassowaries, 2 cows and 3 goats as well as K15,000.00 to the relatives of the dead criminal.

21. Finally I take into account her sincerity and expression of remorse to the Court, God and the victim.

22. Having regard to these factors, the prisoner asks for a wholly suspended sentence of 5 years. On the other hand, I must also pay close attention to the State’s argument and more so the aggravating factors against the prisoner.

23. First and foremost is the prevalence of this offence. I agree with Mr Kesan of counsel for the State that the offence of misappropriation is on the rise and this case is not an isolated one. Hence, I will hold this factor against the prisoner.

24. But I do note that the State does not vigorously contest a non custodial sentence. It prefers restitution but says that restitution must be made within a period of 4 months. These submissions are supported by a Pre-sentencing Report because it us important that the Court must have the views of the community before returning the offender to the community according to the clear dictates of the law as stated in Acting Public Prosecutor -v- Don Hale (27/08/98) SC564 where the Supreme Court stated at page 6 in these terms:

"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 punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment".

25. I also take into account and for convenient sake I wish to quote the factors that should be taken into account on sentence and the scale of sentences that were laid down by the Supreme Court in Wellington Belawa-v- The State [1988-89] PNGLR 496:

"The following scale of sentences may usefully be accepted as a base to be then adjusted upwards or downwards according to the various factors above:

(1) where the amount misappropriated is between K1 and K1,000, a gaol term should rarely be imposed;

(2) where the amount misappropriated is between K1,000 and K10,000, a gaol term of up to two years is appropriate;

(3) where the amount misappropriated is between K10,000 and K40,000, two to three years imprisonment is appropriate;

(4) where the amount misappropriated is between K40,000 and K150,000, three to five years imprisonment is appropriate."

26. Further the following factors are among those which should be taken into account on sentencing an offender for an offence involving dishonesty where the offender is in a position of trust and I apply them to the present case:

1. the amount taken is K37,000.00;

2. the quality and degree of trust reposed in the offender including his rank is that the prisoner is an in law of the victim and the victim is a villager with no formal education;

3. the period over which the fraud or the thefts have been perpetrated is that the money was given to the prisoner to keep but she used it over a period of time. From the Bank Statement, the prisoner deposited K26,000.00 into her account on 27th July 2006 and withdrew variable amounts from that time until 02nd November 2006;

4. the use to which the money or property dishonestly taken was put to paying compensation to the relatives of the dead criminal and also personal use;

5. the effect upon the victim is tremendous as he does not have money to buy a PMV bus and also support himself and his family back in the village;

6. the impact of the offences on the public and public confidence is also tremendous as despite the Court imposing hefty sentences to past offenders, offenders like the prisoner in this case have not learnt from others and continue to commit this type of offences;

7. the effect on fellow-employees or partners is something that the prisoner will have to find out herself as the offence was not committed against her employer, Wamp Nga Group of Companies but surely, there will be reservation by her fellow employees or partners after this incident;

8. the effect on the offender herself, I am sure is an experience she has regretted and will live with for a very long time as the impact of her actions is far reaching. Her children miss her as well as her husband and the extended family members;

9. the offender’s own history is pretty much straight forward. She is a mother of 3 children and married with a husband who is at the moment unemployed and goes to Revival Centers of PNG Church;

10. restitution is one thing she has failed to do whilst she was out on bail until she was arrested and detained for breaching her bail conditions; and

11. those matters of mitigation special to herself such as illness, being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with her dishonesty by his professional body or the police and the start of her trial; finally, any help given by her to the police do not apply here.

27. I also take into account the cases cited by both counsel in their submissions. First is the case of The State -v- Roslyne Wambie: CR No 1049 of 2005 (Unnumbered & Unreported Judgment of 26th March 2008) where the prisoner pleaded guilty to one count of stealing from her employer a sum of K17,000.00 over a period of time whilst working as an accounts clerk. His Honour David J, sentenced the prisoner to 3 years imprisonment and wholly suspended that sentence on condition inter alia that she repay the victim the K15,000.00 by instalments. The first instalment of K7,000.00 to be paid by or on 26th October 2008 and the second instalment of K7,000.00 by or on 26th March 2009.

28. I distinguish Roslyne Wambie’s case (supra) from the present case because first the amount stolen by Roslyne is less than the amount misappropriated in this case and secondly, Roslyne was charged with stealing under section 372(7) of the Criminal Code which carries a maximum penalty of 7 years imprisonment unlike this case of misappropriation which carries a maximum penalty of 10 years. Thus, the sentence I am to impose in this case should be higher than 3 years imprisonment.

29. The second case is The State -v- Dobi Ao (No 2) (2003) N2247, where the prisoner pleaded guilty to misappropriation of K37,526.58, the property of the State and was sentenced to 3 years imprisonment but the sentence was wholly suspended on condition inter alia that the prisoner repay the money to the State. His Honour Kandakasi J, wholly suspended the sentence because there was a Pre Sentence Report and also a Means Assessment Report which showed that the community supported a non custodial sentence and that the prisoner had the financial capacity to repay the money. Further, she had a young daughter to look after.

30. In the present case, as I said, I do not see anything in the both reports giving the views of the community and more so that leaders of the community supporting a non custodial sentence. The only sources of the reports are the prisoner and the victim. This is the difference between this case and that of Dobi Ao (supra). Though it might be considered an insignificant matter, to my mind, it is relevant to the assessment of sentence and so I will say that because the two reports did not contain views from the wider section of the community, it would be fair for me to say that they a biased to that extent. Thus, the sentence I am to impose must slightly be higher than 3 years imprisonment.

31. I am of the view that the prisoner’s case almost falls in the same boat as the case of The State -v- Nakikus Konga: CR No 32 of 2001 (Unnumbered & Unreported Judgment of 24th May 2002) except that the prisoner was a former member of the National Parliament and misappropriated K50,000.00, the property of the State. The Court sentenced the prisoner to 5 years imprisonment but wholly suspended the sentence on condition that the prisoner repaid the money to the State within 3 months.

32. The final case I wish to mention here is The State -v- Daniel Mapiria: CR No 1118 of 2000 (Unnumbered & Unreported Judgment dated 1 October 2004). In that case, the prisoner misappropriated an enormous sum of money amounting to K3,188,000,000, the property of National Gaming Control Board (NGCB). As Chairman of the Board, he was a signatory to the board’s operating account. He signed blank cheques and left them with the then Registrar of the board who was also one of the signatories. The cheques were filled out for various sums of money.

33. He was found guilty after a trial and sentenced to a term of 9 years imprisonment. However he was found to have been suffering from a medical condition of some sort. This resulted in the whole sentence being suspended. If he was sent to jail, his condition would have been worsened and life threatening. It is noted here that, that case had special mitigating circumstances. In fact the presiding judge commented in that case that it was a case with special mitigations.

34. From all these cases, it is clear to me that the Courts have been approaching misappropriation cases in a way where the prisoner is given some opportunity of making restitution to the victim as a part of the sentence. As well as that, the Courts have imposed sentences between 3 years and 5 years for misappropriation cases thus reminding the prisoner that suspending a sentence is not an act of leniency but an opportunity for the prisoner to make right the wrong through restitution.

35. This development on the sentencing powers of the Court favouring suspension of sentences and giving of more time to an offender to repay the money or return the property, he or she misappropriated is a result of the decision of the Supreme Court in Doreen Liprin -v- The State (2001) SC637. It 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 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.

36. In the present case, there is no dispute that the number of misappropriation cases or other acts of dishonesty had not declined. Instead they are on the increase. This means the past sentences have failed to deter possible offenders, which a sentence is supposed to do. Therefore, the sentences must be appropriately increased to counter the increase in the offences. It thus follows that sentences for misappropriation or such other offences should be increased. Of course the maximum prescribed limit of 10 years must be reserved for the worst kind. Cases meeting that category are cases in which large sums of money may be involved, there is a breached of trust, the offences have been perpetrate over a period of time, the offences have an adverse impact on the reputation and business of the victims of the offences. Having a prior disciplinary or conviction record may aggravate the case and strengthen the need for a higher penalty. A conviction after a trial may also eliminate any chances of leniency.

37. The opposite of that might be a one off offence committed by a person of good repute and standing in community, who freely admits to committing the offence and is truly remorseful for what he has done as in your case. There would then of course be cases falling in between these two extremes. No matter where ever a case may be placed, committing an offence of misappropriation is a serious offence. It deprives persons who are entitled to the properties either stolen or misappropriated of the use and enjoyment of them. State resources in terms of police, the courts and public lawyers are expanded and wasted in bringing them to justice. Therefore, the prisoner has to be punished appropriately to help deter others from committing similar offences. I therefore consider that a charge of misappropriation going past subsection (1) of section 383A of the Criminal Code should start at a term of 5 years. The actual sentence to be imposed should then be adjusted to a sentence between 5 years and the maximum prescribed under the relevant provisions as in this case 10 years under subsection (2).

38. And so, taking all the factors in the prisoner’s favour and the aggravating factors, I consider a sentence of 5 years imprisonment appropriate.

Should I suspend the sentence in part or wholly?

39. Then the next question is should I suspend the sentence in part or wholly? This in my view requires the Court to first ask and then consider and make a decision whether or not to impose a suspended sentence based on a Pre-Sentence Report and a Means Assessment Report. Such reports would contain the community’s wish in relation to how an offender should be dealt with and more importantly, whether an offender should be returned to the community.

40. In this case, the two reports provided by the Probation Officer strongly recommend a suspended sentence based on the following reasons:

1. The prisoner has the financial capacity to make restitution, and

2. The victim has agreed that the prisoner make restitution within 4 months.

41. However, as I said earlier, the reports did not say if the views of leaders in the prisoner’s community have been interviewed and what their views are. The information in the reports came from the prisoner and the victim. Nonetheless as the reports support a non custodial sentence and of course taking into account the State not vigorously opposing a non custodial sentence, I am prepared to give the prisoner the benefit of serving her sentence outside prison.

42. The next reason for me to give her a suspended sentence is that I find that, based on the pre-sentence report that the commission of the offence has brought upon the prisoner and her family great shame and stress. The prisoner is therefore very remorseful. I also find that she was forced into committing this offence due to the threat to her life and that of her family after the death of the criminal who attacked her in Mt Hagen.

43. The last reason is that, if I am to send the prisoner to prison, how will the victim recover the money from the prisoner? I consider that it is highly unlikely for him to recover that money if I am to do that. And so, for the benefit of the victim, I give the prisoner an opportunity to make right her wrong by suspending her sentence so that she can make restitution. At the same time, I believe, when there is restitution, the victim will be at ease after all the pain and trouble of trying to recover his money from the prisoner.

44. In the end, I consider that a wholly suspended sentence appropriate in the circumstances and I so order that the 5 years imprisonment sentence be wholly suspended.

If the sentence is suspended, what kind of conditions should I impose on the prisoner?

45. The two reports recommended that the prisoner should not be allowed to leave the Southern Highlands Province, in particular Mendi as she was a fugitive. The Police had a hard time trying to locate her and eventually arrested her and charged her for this offence.

46. I accept what the reports say of her in this respect because I also find from the evidence before me in the Statement of the victim and the Record of Interview of the prisoner with the police that she had been avoiding the victim when the victim asked for his money. I also find that she had been deceitful and dishonest to the victim. This is clear from the Statement of the victim because when he followed the victim to Lae, she promised in the presence of the police at Tent City Police Station that she would repay the money to the victim. She even signed a Statutory Declaration to that effect on that date which was 20 March 2007 which is also in evidence before me. Despite all these promises to the victim, she never did. After being caught and charged and standing before the Court, she now asks for leniency.

47. Finally, I do not accept her explanation that she went to Port Moresby to look for money to repay the money when she was arrested by the police and it was not her intention to run away from the Court. If she was on bail, she was required by the law to comply with her bail conditions and that included her not leaving the province unless with the leave of the Court. It is no wonder she was arrested and remanded in custody.

48. For these reasons, I consider that I should imposed stringent conditions of the suspended sentence to stop the prisoner from escaping or breaching her obligations to the Court and also the victim. I set out the conditions below as part of the orders of the Court.

ORDERS

49. As I have said, I consider a head sentence of 5 years appropriate. Then I suspend the whole of the sentence on the following conditions:

1. The prisoner shall repay the full amount of K37,000.00 to the victim within 4 months from today, such time shall expire on 25 February 2009.

2. The prisoner shall remain in the Southern Highlands Province until the K37,000.00 is paid in full to the victim.

3. The payment to the victim shall be witnessed by the Probation Officer who shall prepare and submit a report to the Court thereafter.

4. Thereafter, the prisoner shall immediately enter into her own recognition to keep the peace for the currency of the suspended sentence.

5. Further, the prisoner is at liberty to leave the Southern Highlands Province during the whole of the suspended sentence.

6. The prisoner shall allow for and permit the Probation Officer to visit her home at the end of each 6 months to monitor the compliance of these terms and to make such recommendations, as he considers appropriate either for a variation or an implementation of these terms.

7. The Probation Officer will attend on the prisoner at the end of each 6 months to do a comprehensive review and report to this Court of the prisoner’s compliance of these terms.

8. If for whatever reason the prisoner breaches any of these terms, she shall serve the balance of the term of the suspended sentence of 5 years as at the time of the breach;

50. I consider that this sentence and the terms and conditions of the sentence proposed sufficiently accommodate all of the comments and concerns raised in foregoing. Accordingly, I make orders in those terms.

_____________________________________

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