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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CR No. 990 OF 2009
THE STATE
V
MORGAN BAE
Waigani: Kawi, J
2010: 03rd & 25th March
CRIMINAL LAW – Practice and Procedure- case of misappropriation section 383A (1)(a)(2)(b)- Plea of guilty-Sentencing Tariffs considered–sentencing tariffs in misappropriation cases discussed- sentencing range of 2-3 years appropriate-custodial sentence of two years imposed but wholly suspended- Good mitigating circumstances- Prisoner a person of good character and standing.- Prisoner youthful and first time offender- Prisoner ordered to undertake community work. Prisoner released to the custody of community Leaders.
Cases cited:
Wellington Belawa v. The State [1988-89] PNGLR 496
Brian Kindi Lawi v. The State [1987] PNGLR 183
The State v. Paroa Kaia, N1401
The State v. Bygonnes Tuse Nae (1996) N1474 (18/09/96)
Doreen Liprin v. The State, SC673
The State v. Dobi Ao (No.2) (2002) N2247
The State v. Gibson Haulai [2004] N2555
The State v. Sano Kurumo [1999] N1942
The State v. Ferdinand Naka Penge [2002] N2244
Counsel:
Ms. M. Zurenuoc & Ms. B. Gore, for the State
Mr. H. Kevau, for the Prisoner
DECISION ON SENTENCE
25 March, 2010
1. KAWI, J: The prisoner pleaded guilty to one count of misappropriating the amount of K 15, 625.14 which was money belonging to his former employer, Inter Oil Limited.
THE FACTS
2. The prisoner was the Credit Administrator–Cash Sales for Inter Oil Limited when the prisoner committed the offence. The offence is said to have taken place between 12th May 2008 and 18th November 2008, a period of about seven (7) months. The misappropriation consisted of the prisoner receiving money from customers made as payments for the use of Inter Oil products. The prisoner did make out the necessary receipts, but never gave the monies to the cashier for banking. A total of nineteen (19) payments totaling K 15, 625.14 were made by the customers during this period.
3. The prisoner dishonestly applied these monies for his own use after receiving them. During a routine company audit, it was discovered that K 15, 625.14 was unaccounted for. The prisoner was called in and when questioned he admitted to accepting the payments and also made receipts for the payments, but dishonestly applied the monies for his own use without giving them to the cashier for banking. Following this admission, the prisoner was arrested and charged.
4. The issue before me is what is the most appropriate sentence that the Court must impose on this particular prisoner?
THE LAW
5. Section 383A of the Criminal Code creates the offence with which you have been convicted of. In particular you have been convicted under Section 383A(1)(a)(2)(b). The relevant parts of this provision is stated in the following terms:
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) ............
(b) where the offender is an employee and the property dishonestly applied is the property of his employer;
6. In considering the appropriateness of the sentence that I intend to impose, I take as the starting point the Supreme Court decision in Wellington Belawa v. The State [1988-89] PNGLR 496, which sets out the sentencing guidelines for cases of misappropriation. In summary the Supreme Court held that the lesser, the amount of money involved the lesser the sentence terms should be. The flipside of this is that, the higher the amount of money dishonestly applied the higher the sentence terms should be. The Supreme Court also laid down the following additional guidelines:
7. Let me address these factors first before I come to the sentence:
(a) Amount of money taken.
You pleaded guilty to stealing K 15, 625.14 being the property of Inter Oil Limited.
(b) Period over which the thefts occurred.
This is not a one off theft. Rather the offence is said to have taken place between the 12th May 2008 and 18th November 2008. You perpetrated this offence over a period of about seven (7) months.
(c) The quality and degree of trust placed in the offender.
You were educated up to Grade 10 level. You then enrolled at the Institute of Business Studies and read for a Certificate in Accounting. You successfully completed this course and graduated with a Certificate in Accounting. This study was sponsored by your employer, Inter Oil Limited. You commenced employment with Inter Oil in 2002 as a casual and in 2003 you were appointed as the Credit Registrar and in just two short years you were promoted to Credit Administrator, the position you held at the time of committing the offense.
The Court finds that Inter Oil Limited placed a lot of trust and confidence upon you, first by sponsoring you to do an accounting course, then by promoting you to a senior position within just two short years. Despite the trust and confidence reposed upon you by the company, you abused and breached that trust and confidence by stealing from the very hand that was feeding you.
(d) The use to which the stolen money was put into.
You were forced into stealing these monies to pay medical bills for your father who has throat cancer. In addition, your first born son is suffering from some intestinal problems which necessitated surgery at the Port Moresby Hospital. Of course such medical operations come at a cost. The court finds that the money stolen was used to pay for medical expenses. The medical condition of your father and son placed you under great strain and excessive family responsibilities.
(e) The effect upon the victim
Inter Oil Limited maintained that what you did is wrong and so you should be given a custodial sentence as a deterrent to send a warning to others that stealing will not be tolerated. It also insists that if there is to be restitution the amount stolen should be re-paid in full in a once and for all repayment and not through periodic repayments.
(f) The effect on fellow employees and partners
You are no longer employed with Inter Oil Limited to assess the effects of what he did upon other employees. Your former employer wants a deterrent punishment to be imposed upon you so that it can send a message to other current employees from engaging in similar conduct again.
(g) The effect upon the offender
The prisoner was so ashamed and clearly embarrassed of his actions. He was also very remorseful.
(h) Restitution
The prisoner is now unemployed and hopes to find employment that will enable him to repay the money stolen. Given the difficulties of seeking employment, this Court cannot readily accept that restitution will be made by the prisoner. But The Court does acknowledge and accept that your brothers and sisters will help the prisoner make restitution. They have all rallied behind you and have proposed a schedule they intend to follow when making repayments.
ADDRESS ON SENTENCE
8. You pleaded guilty to the charge of misappropriation contrary to section 383A 1(a)(2)(b) of the Criminal Code. The Court entered a provisional plea of guilty and after reading the relevant court depositions, I confirmed your guilty plea. In your address before sentence you said you were sorry for what you did and you were remorseful. You requested that the Court imposes a non custodial sentence upon you. In his submission your lawyer also requested me to impose a non custodial sentence upon you. He referred me to and cited the decisions of His Honour Justice Kandakasi, in the cases of the State v. Dobi Ao (No 2.) [2002] N2247 and The State v. Gibson Haulai [2004] N2555.
9. In the Dobi Ao case, His Honour imposed a non - custodial sentence, where apart from orders to make restitution, His Honour also sentenced the prisoner to render free community service for a certain period of time and imposed other strict conditions. His Honour took a similar approach in the Gibson Haulai case. In that case, Gibson Haulai stole a total of K27, 320.00. His Honour imposed a head sentence of three (3) years which he then had it fully suspended. In Dobi Ao the amount stolen was K37, 526,58. His Honour imposed a head sentence of three (3) years in light labor which was then fully suspended.
10. In the State –v- Siba Kua, the amount stolen was K9,829.00. The prisoner pleaded guilty to the charge of misappropriation. Davani J imposed a head sentence of three (3) years in hard labour, but one year was fully suspended, allowing the prisoner to serve only two years in prison.
11. The sentencing tariffs show that for a misappropriation case such as the present case will attract a sentencing range of 2- 3 years imprisonment. The court then has the discretion to either fully suspend the head sentence as was done in the Dobi Ao and Gibson Haulai cases, or to suspend part of the head sentence and impose part custodial sentence as was done in the Siba Kua case. Similarly in Sano Kurumo the two years head sentence was wholly suspended and other condition including restitution was imposed.
12. The Table below shows a summary of some Supreme and National Courts decisions showing the amount stolen and the kind of sentence imposed. This is to give a picture of the sentencing tariffs being imposed by the courts so far in cases of misappropriation.
| Name of Case | Amount Stolen | Plea | Kind of sentence imposed |
| Wellington Belawa | K1979.00 | Not Guilty | Two years imprisonment |
| Brian Kindi Lawi | K10,000.00 | Not guilty | 3 years imprisonment |
| Paroa Kaia | K94,478 | Guilty | 4 years imprisonment |
| Bygonnes Tusa Nae | K100,000.00 | Guilty | 4 years imprisonment |
| Doreen Liprin | K6,000.00 | Guilty | 18 months imprisonment |
| Dobi Ao | K37, 526.58 | Not Guilty | 3 years sentence wholly suspended. Prisoner ordered to do community work on strict terms. |
| Gibson Haulai | K27,320.00 | Guilty | 3 years wholly suspended. Prisoner ordered to do community work on strict terms. |
| Siba Kua | K9,829.60 | Guilty | 3 years imprisonment 1 year wholly suspended. Prisoner served two years in prison. |
| Sano Kuromu | K9720.00 | Guilty | 2 years imprisonment wholly suspended |
13. In Wellington Belawa's case, the Supreme Court set the following scale of sentences which has since been accepted and used as providing a sentencing base to be adjusted either upwards or downwards according to the factors that I have already outlined above. Where the amount misappropriated is between:
| Amount misappropriated | Sentencing Range |
| K1.00 and K1,000.00 | Jail term to be rarely imposed |
| K1,000.00 and K10,000.00 | 2 years imprisonment |
| K10,000.00 and K40,000.00 | 2 to 3 years imprisonment |
| K40,000.00 and K150,000.00 | 3 to 5 years imprisonment |
14. The cases cited above and the sentencing range highlighted above demonstrates that misappropriation cases such as the one before me now is capable of attracting a sentencing range from two (2) to three (3) years imprisonment.
THE PRE SENTENCE REPORT AND THE MEANS ASSESSMENT REPORT
15. The Pre- Sentence Report and the Means Assessment Report was prepared by the Probation Service of the Department of Justice. This Report was also tendered into Court. Your lawyer also adopted some of the contents of the Report in his submission. The Report outlines your personal background, your commission of the offence, your attitude to it, your means and how you propose to repay Inter Oil Limited of the money you stole. The Report also contains inputs from leaders of the community, as well as the company, who say that restitution must be made, in a once and for all payment and that I also impose a custodial sentence which should be viewed as having a deterrent effect upon the community in general. Independent views were also sought from community leaders of Tubuserea village. This included leaders such as the two Pastors from the United Church, the Pastor from the Seventh Day Adventist Church, as well as the Tubuserea village Ward Councilor, and the Executive Officer for the Hiri Local level Government Council village Court Magistrate. Ultimately, the Pre Sentence Report contains a recommendation to impose a non custodial sentence. In order for a Pre Sentence Report to be truly reflective of the community's position, there must be inputs from people having no personal interests in the sentence a prisoner should receive as well as inputs from family members and relatives who do in fact have such interest. A Report without such inputs is therefore unreliable in my view and can be rejected by the court for these reasons. See for instance the State –v- Ferdinand Naka Penge [2002] N2244.
16. The Court does find that this particular Pre- Sentence Report did seek other independent views from certain community leaders, the victim Company as well as your relatives, and so I have no reason to reject it. The Court does find that it is a well balanced Report.
17. Learned Counsel for the State outlined sentencing tariffs in this kind of cases and than submitted that the most appropriate sentencing range would be in the vicinity of two (2) to three (3) years. I agree with learned counsel for the State that it is an important aspect of criminal law sentencing that sentencing tariffs must be considered to determine sentences in future cases if subsequent sentences, are to have any relevance to the interests of society to appropriately deal with offenders. In the State –v- Gibson Haulai Kandakasi J making references to past sentencing tariffs said:
" Usually if past sentences fail to deter other would be offenders, evidence by prevalence in the kind of offence under consideration, the sentence in the subsequent case, may have to be increased to counter that, unless the other purpose of sentencing are considered appropriate."
MITIGATING FACTORS
18. Both learned counsels submitted that I take into account the following factors in your favor when considering the most appropriate sentence to impose.
| Name of Person Pledging | Relationship to Offender | Amount (K) How much? | Date of Payment When? |
| 1. Hutuma Bae | Elder Brother | 5, 000.00 | 1st Week of April, 2010 |
| 2. Anie Bae | Sister | 2, 000.00 | 1st Week of April, 2010 |
| 3. Helalo Bae | Brother | 1, 500.00 | 1st Week of April, 2010 |
| 4. Dorcas Peruka & Family | Wife & family | 2, 000.00 | End of March, 2010 |
| 5. Jacob Jim | Friend | 500.00 | Cash on Hand |
| TOTAL = 11, 000.00 | |||
19. Judges have imposed sentences between 18 months for misappropriation of K 6, 000.00 and 3 years for misappropriation of K 10, 000.00 as in Brian Kindi Lawi v. The State [1987] PNGLR 183. Cases subsequent to that have imposed sentences of 4 years on a guilty plea with good mitigating factors for a misappropriation of K 94, 478.31 as in the case of The State v. Paroa Kaia N1401 and The State v. Bygonnes Tuse Nae (1996) N1474 (18/09/96) for misappropriation of amounts exceeding K 100, 000.00.
20. A Supreme Court decision of this kind of cases is that of Doreen Liprin v. The State, SC 673. In that case Doreen was convicted on one count each of forgery, uttering and misappropriation of a sum of K 6, 000.00. She was given a sentence of one year each for the first two offences and three years for the misappropriation, all to be served concurrently. However, the sentences were suspended on the condition that she repays all of the monies she stole within a period of 2 months. She failed to meet the condition for her suspended sentence and so was re-arrested and taken into custody to serve her sentence. Whilst in prison she lodged her appeal to the Supreme Court. Although her appeal was out of time, the Supreme Court proceeded under s.155(2)(b) of the Constitution to deal with the matter.
21. The Chief Justice then Sir Arnold Amet, dismissed the appellant's appeal against conviction; but upheld her appeal against sentence. He had the sentence reduced to 18 months. With respect, that sentence was arrived at, without having regard to the sentencing trend developed in this kind of cases. The Deputy Chief Justice then Sir Mari Kapi and Los, J did however consider the relevant sentencing trends and concluded that the cumulative sentence of three (3) years was appropriate as it was within the range of sentences imposed in similar kind of cases. Despite his views on sentences, Los J accepted the Chief Justice's views on sentence. With respect this does not provide any assistance as to determining appropriate sentences and the sentencing tariffs.
22. It is an important aspect in criminal law sentencing that, sentencing tariffs must be considered to determine sentences in future cases if subsequent sentences are to have any relevance to the interests of society to appropriately deal with offenders.
23. In the Doreen Liprin case, the then Chief Justice proposed that Doreen Liprin be given more time to look for alternative employment to make restitution by repaying the amount of money she misappropriated. The Chief Justice also stated that the Court should make orders for free community services under the supervision of the Probation Service. At page 5 of his judgment he said the following: -
"I believe it is time to consider seriously whether offences of misappropriation of amounts of this kind warrants custodial sentences. I do not believe so. I 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."
24. My brother Kandakasi, J expressed similar sentiments in the case of The State v. Dobi Ao (No.2) (2002) N2247.
25. In that case the accused was found guilty after a trial on a total of eight charges of misappropriation totaling K 37, 526.58 from the State. In considering an alternate sentence other than imposing a custodial sentence His Honour made the following pertinent remarks (at page 5):
"I agree it is time now to seriously consider alternatives to sentencing in this type of cases. But, that with respect, does not necessarily mean head sentences be drastically reduced. Instead it means in my view that, 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 rehabilitate 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."
YOUR SENTENCE
26. I note the following mitigating factors in your favour: -
(a) You are a first time offender;
(b) You are 30 years old and married with two infant children one of whom is a sick boy;
(c) The Court finds that you applied the monies you stole to cover for medical costs and expenses incurred in operating and treating your sick boy and your sick father;
(d) Added to all this is the acceptance by the Courts that, the kind of offences you committed are non-violent in nature and does not in my view require a custodial sentence unless the circumstances are such that a custodial sentence is called for; and
(e) Your lawyer has impressed upon me, and I also take into account that you are an active member of the Tubusereia United Church. The local United Church Minister the Rev. Rea Hulume spoke highly of you as an active member of the children's Ministry as a Sunday School Teacher. You are also a member of the Youth Ministry in the Church. Other people have also spoken very highly of you. This includes Rev. Rea Huluma himself, Rev. Taunao Vavia, the Superintendent Minister of the Kadeboro Circuit of the United Church, Rev. Robert Nana of the Tubusereia Seventh Day Adventist Church.
Community leaders such as the village Councilor, Mr. Vagi Morea and the Village Court Magistrate, Mr. Tatoi Hera, both described you as a young man of good Christian upbringing. Your father himself is a deacon of the United Church, and you grew up under his restraining influence, until the day you decided that you would no longer be influenced by this restraining influence, and hence you got yourself into trouble.
27. I ask myself, which of the sentencing trends as outlined above do I follow? If I follow the older tariffs starting with Wellington Belawa, Brian Kindi Lawi, Paroa Kaia, Bygoness Tuse Nae and Doreen Liprin then I will have to impose a term of custodial sentence upon you which will be in the range of 2-3 years as submitted by the counsel for the State. On the other hand if this court follows Siba Kua then it will impose a head sentence first, and then depending on your mitigating circumstances, the court will suspend part of the head sentence and you spend the balance serving a custodial sentence. Furthermore if the court follows Samo Kurumo it will impose a head sentence, and then have it wholly suspended and order restitution and impose other conditions. Similarly if this court follows Dobi Ao, Samo Kurumo and Gibson Haulai, it will impose a head sentence first and then suspend the whole of it and order you to do some community work. Going by this schedule there will be a short fall of some K 4, 625.14. Your friends and community members have pledged to assist you with fundraising activities in the village to raise this amount. The court accepts that.
28. These facts are to be contrasted with the fact that you committed the offences in total breach of the trust and confidence placed upon you by your then employer, Inter Oil Limited when it placed you in the position of Administrator Cash sales. The offences were committed by you over a period of seven (7) months. The amount of money you stole is quite substantial. It is K 15, 625.14.
29. In spite of your sins, none of your family members have condemned you and forsaken you to struggle on your own. Neither have your local community and church leaders. On the contrary, the court finds that in a true gesture of Melanesian family spirit, they have all rallied behind you to carry this burden with you. The court has taken into account how your family members wish to make restitution as proposed in the schedule of repayments. The court has also taken into account how your community leaders especially the church leaders, the village councilor and the village court magistrate, have all spoken very highly of your good character and standing. It is this good character and your standing and your good mitigating factors that has really convinced me that sending a young man like you to Bomana Jail to serve a term of imprisonment will not serve any useful purpose.
30. You in fact may be a strain on the State's limited financial resources in terms of looking after you and feeding you while you are in prison. The State will incur further losses, which may double or triple the amount you stole. Apart from not seeing you in your house and your community, the members of your community and your family will not be able to see you serve your punishment. This court is of the view that it is time that your family and community see how you serve your punishment. This in its view will have a more deterrent effect upon you than serving a term of imprisonment in jail.
31. More importantly sending you to prison is not the only way to rehabilitate a young offender like you. This court is of the view that the punishment it is about to impose can still achieve the purposes of retribution, restitution, deterrence and rehabilitation in a more effective way than imprisonment.
32. In the circumstances the court considers that a non-custodial sentence is appropriate to be imposed upon you, but this is to be on very strict terms.
33. Going by the sentencing tariffs in this kind of offenses especially in the Dobi Ao, Samo Kurumo, and the Gibson Haulai cases, where head sentences of 3 years were imposed and fully suspended, the court considers a head sentence of 2 years in hard labor is appropriate. It would then have the whole of that sentence suspended on the following strict terms and conditions: -
(a) You are ordered to repay the full amount of K 15, 625.14 to the Inter Oil Limited within five (5) months of this Order being entered. The repayment schedule will be as proposed by your brothers and sisters. That is to say that Hutuma Bae (elder brother) K 5, 000.00, Anie Bae (sister) K2, 000.00, Helalo Bae (brother) K1, 500.00, shall pay a combined amount of K8, 500.00 to Inter Oil Limited by Friday, the 9th of April 2010. Dorcas Peruka and her family shall make a payment of K 2, 000.00 to Inter Oil Limited by Tuesday the 6th April 2010. Your friend Mr. Jacob Jim is to pay K 500.00 to Inter Oil Limited also by Friday 9th April 2010. This would give the total paid at K 11, 000.00. Copies of the receipts from Inter Oil verifying these payments should be made available to my office on or before Wednesday the 14th April 2010.
As for the short fall of the K 4, 625.14, this amount should be paid by Monday the 31st May 2010 and no later.
(b) You are ordered to render six (6) hours free community service each Mondays, and excepting any public holidays to the Tubusereia Community School. The kind of free community service that you will render shall be determined and directed by the Headmaster of Tubusereia Primary school in close consultation with the Probation services of the Department of Justice and Attorney General. These services will be provided by you free of charge over a period of 12 months commencing Tuesday 9th April 2010 and ending on the 8th March 2012. Cleaning and maintaining teachers houses shall be included in this work program.
(c) You are ordered to render 6 hours every Tuesday to the Tubusereia United Church in Tubusereia village. The Head of the Kadeboro Circuit of the United Church in Tubusereia, Rev. Taunao Vavia and Rev. Rea Hulume shall determine the scope of work and the kind of services you are to provide to the church. These services will be provided by you over a period of 24 months.
(d) You are ordered to render 6 hours every Wednesday to the Tubusereia Seventh Day Adventist Church in Tubusereia Village. The Head of the SDA Church in Tubusereia, Rev. Robert Nana shall determine the scope of work and the kind of services you are to provide to the church. These services will be provided by you over with the head of the SDA Church over a period of 8 months.
(e) You are ordered to render 6 hours every Thursdays to the community of Tubusereia village. The Tubusereia village councillor, Mr Vagi Morea and Tubusereia Village Court magistrate, Mr Tatoi Hera shall identify and determine the scope of community work and the kind of services you are to provide free to the Tubusereia village community. These services will be provided by you over a period of 12 months.
(f) This court now releases you to the custody of the Tubusereia Village Community leaders comprising, the Village councillor, Mr Vagi Morea, the Tubusereia Village Court magistrate, Mr Tatoi Hera, The Head of the Tubusereia United Church Kadeboro Circuit, Rev. Taunao Vavia, and Rev. Hulume Rea and Rev. Robert Nana, the head of the Tubusereia SDA church. These five Community leaders shall meet regularly commencing on Tuesday 6th April to plan and draw up your work program in accordance with the terms of these orders. In their meeting these five community leaders shall also meet with and consult the Headmaster of Tubusereia Primary School to plan and identify a school work program for you to undertake. Apart from drawing up your works program, these five leaders shall also monitor and report to me your compliance with these orders.
(g) The five leaders identified above shall provide a monthly brief to my court on the works program being undertaken by you.
(h) You will also allow the Probation Services to visit your home on a regular basis to monitor your compliance with these orders and to make other recommendations as they consider appropriate.
(i) The Probation Services will attend to you every quarter to do a comprehensive review and report this to the Court of your compliance of these Orders.
(j) If for whatever reason, you breach any of these terms, you will be immediately re-arrested and sent to the Bomana jail to serve the balance of the term of the suspended sentence of the 2 years as at the time of the breach. There will be no more suspension of sentence. The five community leaders named above shall also be called upon to show cause as to why the Court should not impose sanctions upon them.
(k) You are also ordered not to touch any intoxicating liquor or other intoxicating substances for a period of two years while serving your community punishment.
__________________________________________
Public Prosecutor: Lawyer for the State
Warner Shand Lawyers: Lawyer for the Prisoner
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