State v Gani [2008] PGNC 311; N4177 (23 October 2008)

N4177

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 125 OF 2006

STATE

V

STEVEN GANI

Lorengau: Manuhu, J.
2008: 9 & 23 October

CRIMINAL LAW – Misappropriation – Accused sold ship, deposited proceeds in personal account and applied to own use – Sentencing considerations – Crime prevalent and require deterrent sentence – Accountability and responsibility begins with leaders – 5 years IHL.

Case cited:
Wellington Belawa v The State [1988-89] PNGLR 496.

Counsel:
P. Kaluwin, for the State
S. Maliaki, for the Accused

SENTENCE

22nd October, 2008

1. MANUHU, J: Steven Gani has been convicted for dishonestly applying to his own use the sum of K35,000.00 the property of the State. I have received the means assessment report that was prepared for him. I must now sentence him.

2. Mr. Gani is 50 years old. He comes from Auna Village, Wuvula/Aua, Manus Province. His parents are deceased. He has 4 brothers and 6 sisters. He is the 4th born in the family. He has married twice. He has 5 children from the second wife.

3. He received adequate education which qualified him to join the Police Force in 1975. He has served as a policeman in Lae, Morobe Province. He then left the Police Force and became a salesman for 4 years at Wewak, East Sepik Province. He was elected President of Wuvulu/Aua LLG and served as such from 1997 to 2007. He is now unemployed. He is currently the chairman of the National Resources in the Province. Mr. Gani is a proud owner of 5 coconut plantations in the Village. He has a house valued at K10,000.00, a copra dryer, a 30 horse power, solar panel which cost about K15,000.00. All of these mean that Mr. Gani is not an average Manusian. He has sufficient means and he is a leader in his own right.

4. Mr. Gani was President of Wuvulu/Aua LLG in 1999 when the crime was committed. He arranged for the sale of MV Thomson, a boat belonging to Wuvulu/Aua LLG and after the sale, he deposited proceeds of K35,000.00 into his private bank account. Over a period of time, Mr. Gani applied the money to his own use. He has not been in Court before. His plea of guilty has saved the Court a lot of time and money it would have taken to run a trial. He has also expressed remorse.

5. In allocatus, Mr. Gani said he used the money to buy food, electricity bills and other expenses on his people who resided with him in Lorengau. He said he always had up to 40 people living with him. He was under pressure to look after his people. Mr. Gani should realize that the money did not belong to him and government funds are not supposed to be used for the purchase of food and electricity bills.

6. Mr. Gani also said that the ship was old, it sank and was in a state of decay when it was sold. Talks with the former governor and appropriate bodies resulted in no positive decision and action to save the ship. However, when he succeeded to sell the ship, he had no authority to place the proceeds in his private account and use it.

7. What Mr. Gani did is a serious breach of trust the people of Wuvulu/Aua entrusted him with as their President. He should have used the money to purchase a replacement vessel or for the people of Wuvulu/Aua to use. His misapplication has made the people who gave him their mandate suffer. The government may have failed in saving the ship but 2 wrongs do not make a right. Mr. Gani was wrong placing the money in his account and later using it. Mr. Gani appears to be blaming the Provincial Government and his people but it was him who made all the wrong choices. It was him that saw fit to bank the proceeds in his personal account and what happened thereafter is now history.

8. In the oft-cited case of Wellington Belawa v The State [1988-89] PNGLR 496, where the amount taken is between K10,000.00 and K40,000.00, a gaol term of two (2) to three (3) years is considered by the Supreme Court to be appropriate. It has been 20 years since then and the crime of misappropriation is still prevalent. Misappropriation appears to be committed in broad daylight and no one seems to care about it. Misuse of State assets, such as government vehicles, government houses and properties seems widespread. Misuse of funds is sometimes reported and are many times brushed under the carpet.

9. Since the decision in Wellington Belawa, sentences for armed robbery, rapes and robberies have increased significantly. On the other hand, white collar crimes like misappropriation have not attracted any significant increase even when the crime is widespread. It has been suggested elsewhere that persons convicted for misappropriation should be given community work orders rather than custodial sentence. When lenient sentences are imposed, the people are entitled to think that there are two sets of laws – one for the rich and one for the poor and the ordinary.

10. I am of the view that the Courts should change its approach in sentencing for misappropriation and related crimes involving people in leadership and high positions. Accountability starts from the top, it is said. Severe punishments must be dished out to leaders and top bureaucrats who are caught swindling State funds and property. This will serve as a strong deterrent to other leaders and bureaucrats to think twice before laying their hands on State property and funds. Accountability and responsibility begins with leaders, it does not begin with the poor.

11. I have read the Means Assessment Report. I thank Mr. Noel Awagalas in compiling a good report. Unfortunately, there are no primary materials evidencing Mr. Gani's investments and funds. In addition, the vessel was sold privately and may have been undervalued. I am not sufficiently persuaded that Mr. Gani will restore the State and the people of Wuvulu/Aua for his sale of MV Thomson and his misuse of K35,000.00.

12. In all the circumstances, I am of the view that a sentence of five (5) years would be appropriate and I impose it on Mr. Gani with hard labour. His bail money shall be refunded back to him.

________________
Lawyer for the State : J. Pambel, Acting Public Prosecutor
Lawyer for the Prisoner : F. Pitpit, Public Solicitor