State v Tarsan [2011] PGNC 338; N4312 (16 June 2011)

N4312

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 70 OF 2011

THE STATE

V

ALEX TARSAN

Madang: Cannings J
2011: 18 April, 9, 16 June

SENTENCE

CRIMINAL LAW – sentence – Criminal Code, Subdivision VI.1.C (offences analogous to stealing) – Section 383A (misappropriation of property) – sentence on plea of guilty – K2,475.00 misappropriated – sentence of 18 months.

The head teacher of a primary school pleaded guilty to misappropriation of K2,475.00 of school funds.

Held:

(1) The maximum penalty for the amount misappropriated is ten years imprisonment.

(2) The starting point is 4 years imprisonment.

(3) Mitigating factors are: has repaid the money; pleaded guilty; genuine remorse; first-time offender.

(4) Aggravating factors are: multiple transactions committed over a long period; serious breach of trust; significant amount misappropriated.

(5) A sentence of 18 months imprisonment was imposed, which was fully suspended in view of a very favourable pre-sentence report.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Augustine Seckry CR 376/2005, 19.04.05
The State v Danny Yannam CR 68/2008, 22.02.08
The State v Graham Duk CR 150/2009, 15.07.09
The State v Joyce Gulum CR 1620/2005, 06.04.06
The State v Nancy Uviri CR 984/2007, 16.10.08
The State v Paul Taro CR 237/2006, 03.08.06
The State v Philip Wiamai CR 1031/2006, 18.10.07
The State v Rictor Naiab CR 387/2005, 08.09.05
The State v Scholar Zuvani (2004) N2641
The State v Steven Lasin CR 1631/2006, 17.08.07
The State v Wilfred Aisa CR 363/2008, 27.10.08
Wellington Belawa v The State [1988-89] PNGLR 496

SENTENCE

This was a judgment on sentence for misappropriation.

Counsel

S Collins, for the State
A Turi, for the offender

16 June, 2011

1. CANNINGS J: This is a decision on sentence for Alex Tarsan who pleaded guilty to one count of misappropriation contrary to Sections 383A(1)(a) and (2)(d) of the Criminal Code. In 2010 he was headmaster of Brahaim Primary School. Over a four-month period in the first half of the year he dishonestly applied K2,475.00 of school funds to his own use.

ANTECEDENTS

2. The offender has only a conviction for an unspecified traffic offence in 1984 against his name.

ALLOCUTUS

3. The offender was given the opportunity to address the court. He said:

I apologise sincerely for what I did. I thank the lawyers and everyone who has worked on my case. I feel that I am a victim of a system of administration that is not run well by the Division of Education in Madang, which needs to be much more supportive of head teachers and offer training in financial management. Head teachers, particularly those in remote areas, are often the subject of allegations, but they are not well trained in financial management and consequently can easily get into this sort of trouble.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). The most significant matter is that in April this year he repaid the money he misappropriated. This does not make him innocent but it is a major mitigating factor for sentencing purposes.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service.

Personal details of Alex Tarsan

Age : 54
Origin : Angoram, ESP
Upbringing : Village
Marital status : Married, with 3 children
Family : Both parents deceased, 4 siblings
Education : Goroka Teachers College, 1982
Employment : PNGDF 1973-1981; TSC 1983-2011
Occupation : Schoolteacher
Health : Sound
Religion : Catholic

Other aspects of the offender's life

6. Alex Tarsan has a stable marriage. He has been a teacher for almost 30 years, most of the time in Madang Province. He is well known and highly regarded in the communities within which he has lived and worked. He is highly recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Ms Turi highlighted that the offender has no prior convictions and he pleaded guilty. He has been a law abiding citizen for all of his life until very recently. He has repaid the money misappropriated. A sentence of 18 months imprisonment, fully suspended would be sufficient, Ms Turi submitted.

SUBMISSIONS BY THE STATE

8. Mr Collins stressed that the offender was given the opportunity by the police to repay the money but failed to live up to the promise that he made to do so – until very recently. He was guilty of an abuse of trust. A sentence of two years is warranted. The State did not oppose a suspended sentence.

DECISION MAKING PROCESS

9. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. As the amount of money misappropriated is more than K2,000.00 the maximum penalty under Section 383A(2)(d) is ten years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. The Supreme Court set out some starting point ranges in Wellington Belawa v The State [1988-89] PNGLR 496, depending on the amount of money misappropriated. Thus:

• K1.00 to K1,000.00 – a jail term should rarely be imposed;
• K1,000.00 to K10,000.00 – two years imprisonment;
• K10,000.00 to K40,000.00 – two to three years imprisonment;
• K40,000.00 to K150,000.00 – three to five years.
  

12. There is an enhanced level of community concern about corruption, dishonesty and misappropriation both in the public sector and in the private sector. In my view this should be reflected by doubling the tariffs suggested in Belawa. That is:

• K1.00 to K1,000.00 – suspended sentence usually appropriate;
• K1,000.00 to K10,000.00 – four years imprisonment;
• K10,000.00 to K40,000.00 – four to six years imprisonment;
• K40,000.00 to K150,000.00 and beyond – six to ten years.
  

13. The present case falls into the second category, which means the starting point range is four years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

14. Before I fix a sentence, I will consider some misappropriation sentences I have imposed in recent years as shown in the following table.

SENTENCES FOR MISAPPROPRIATION

No	Case	Details	Sentence
1	The State v Scholar Zuvani (2004) N2641, Wewak	Guilty plea – bank officer infiltrated two school bank accounts and transferred money to her sister's account, then withdrew money - applied monies to her own use – K22,000.00 misappropriated.	4 years
2	The State v Augustine Seckry CR 376/2005, 19.04.05, Kimbe	Guilty plea – offender employed as an accounts clerk by NBPOL – dishonestly cashed company cheques that were supposed to have been cancelled – applied monies to his own use – K18,000.00 misappropriated.	4 years
3	The State v Rictor Naiab CR 387/2005, 08.09.05, Kimbe	Guilty plea – cashed cheques in his custody as an accounts clerk, employed by Hargy Oil Palms – used the money in hotels – K2,000.00 misappropriated.	18 months
4	The State v Joyce Gulum CR 1620/2005, 06.04.06, Kimbe	Guilty plea – employed as accounts clerk by Hargy Oil Palms, deposited company cheques and cash into private bank account and applied to her own use – K14,000.00 misappropriated.	2 years
5	The State v Paul Taro CR 237/2006, 03.08.06, Kimbe	Guilty plea – over a period of three months monies paid in cash for hire vehicles were not receipted – offender was acting branch manager of Hertz Hire Car, Kimbe – K18,000.00 misappropriated.	4 years
6	The State v Steven Lasin CR 1631/2006, 17.08.07, Kimbe	Guilty plea – offender given custody of two cheques worth K10,888.00 intended for 28 individual electoral officers as allowances – cashed the cheques and applied the proceeds to his own use.	4 years
7	The State v Philip Wiamai CR 1031/2006, 18.10.07, Madang	Guilty plea – offender helped a friend, a retired schoolteacher, get his finish pay of K16,848.79, then put all the money into his own bank account and applied it to his own use.	4 years
8	The State v Danny Yannam CR 68/2008, 22.02.08, Madang	Guilty plea – offender got K800.00 in good faith from a family he had befriended on the pretext that he would buy them a TV – he took the money and never returned and never provided the goods.	1 year
9	The State v Nancy Uviri CR 984/2007, 16.10.08, Kimbe	Guilty plea – offender misappropriated K300,000.00 from her employer over an 18-month period – she engineered a scheme of presenting bogus invoices and obtaining cash.	7 years
10	The State v Wilfred Aisa CR 363/2008, 27.10.08, Madang	Guilty plea – offender was a ledger clerk with PNG Power – misappropriated K1,331.90 from his employer – also pleaded guilty to related false pretence charges.	1 year
11	The State v Graham Duk CR 150/2009, 15.07.09, Madang	Guilty plea – offender was an accountant with a bank – dishonestly obtained K32,800.00 in customers' deposits and applied it to his own use.	4 years

STEP 4: WHAT IS THE HEAD SENTENCE?

15. The head sentence will reflect the following mitigating and aggravating factors.

16. Mitigating factors:

• pleaded guilty;
• has repaid the money;
• genuine remorse;
• first-time offender;
• very good pre-sentence report, showing that the offence was out of character.
  

17. Aggravating factors are:

• multiple transactions committed over a four-month period;
• serious breach of trust;
• large amount lost, for a school.
  

18. After weighing all these factors, noting that there are more mitigating factors than aggravating factors and comparing this case with other misappropriation sentences I have imposed, the head sentence should be below the starting point. I uphold the defence counsel's submission and impose a head sentence of 18 months imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. There is nothing to deduct as the offender has spent no time in custody in connection with this matter.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20. In view of the very favourable pre-sentence report and the offender's long and hitherto unblemished record as a schoolteacher, I have decided that this is an appropriate case in which to impose a fully suspended sentence, subject to conditions, which are that the offender:

(a) must report to the Probation Office within three days after the date of sentence;

(b) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

(c) must not leave Madang Province without the written approval of the National Court;

(d) must perform at least two hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Parish Priest;

(e) must attend his local Church every weekend for service and worship and submit to counselling;

(f) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;

(g) must not consume alcohol or drugs;

(h) must keep the peace and be of good behaviour;

(i) must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody;

(j) if he breaches any one or more of the above conditions, shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

21. Alex Tarsan, having been convicted of one count of misappropriation contrary to Sections 383A(1)(a) and (2)(d) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	18 months
Pre-sentence period to be deducted	Nil
Resultant length of sentence to be served	18 months
Amount of sentence suspended	18 months
Time to be served in custody	Nil, subject to compliance with strict conditions of suspended part of sentence

Sentenced accordingly.
___________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender