State v Satuheni [2013] PGNC 337; N5554 (20 July 2013)

N5554

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 98 of 2013

THE STATE

-v-

MABLI SATUHENI

Maprik: Geita AJ
2013: July 20

CRIMINAL LAW – Guilty Plea – Misappropriation- Ganba Westbrook Technical School monies totalling K3356.40 – Need for transparency & accountability

CRIMINAL LAW – Guilty Plea - Criminal Code Section 383A (1) (a) & 2 (b) - Need to present expenditure report to the Board of Management - Manager/Teachers fails duty to acquit – Manager/Teacher in Charge owe a duty to Parents & BOM over school matters/monies.

Cases cited:

The State v Wellington Balewa v [1988-89] PNGLR 496
The State v Sevese (2006) N3453
Doreen Liprin v The State (2001) SC 673
The State v Bill Saun Daniel (2005) N3502
The State v Joe Zuvani (2013) N5117

Counsel:

Mr. Francis Popeu, for the State
Mr. Francis Fingu, for the accused

DECISION ON SENTENCE
20 July, 2013

1. GEITA AJ: The prisoner Mabli Satuheni aged 47 years comes from Sowam village, West Coast Wewak, East Sepik Province. He was charge for misappropriation contrary to s.383A (1) (a) & 2 (b) of the Criminal Code. Upon arraignment the prisoner pleaded guilty and after having confirmed his plea with his lawyer I entered a confirmed guilty plea on his behalf.

Brief Facts

2. The facts reveal that between 31 January and 10 February 2012 at Maprik you dishonestly applied to your own use K3, 356.40, monies belonging to Ganba Westbrook Technical High School. Prior to the amalgamation of Hayfield Vocational Centre and the Ganba Westbrook School you were employed as the Manager and a signatory to the school account. On 31 January 2013 the school received its annual subsidy of K39, 394.98 which was paid into the school account. Soon after the deposit you used your office and withdrew K19, 394.98 to pay for services and goods rendered to the school. When the new school board learnt of the huge withdrawals they demanded explanations and acquittals from you. Save for the amount alleged to be misappropriated K3, 356.40 the rest of the monies were accounted for hence the charge against you.

3. The Law on misappropriation under Section 383A is as follows:

(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 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 five years except in any of the following cases when he is liable to imprisonment for ten years –

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

Evidence

4. The States' evidence is inclusive of the depositions handed up during trial. Having read the depositions and satisfied myself there is evidence supporting the charge I than recorded a guilty plea referred to above.

The standard of proof

5. The State has the burden of establishing beyond reasonable doubt the accused's guilt. It has to prove that the accused:

1. dishonestly;

2. applied to his own use or use of another;

3. property belonging to another.

Allocutus

6. In his allocutus the prisoner said he is married with three school age children and is the only breadwinner. I asked for leniency and indicated his willingness to repay all the monies misused. This was his first time in court after an unblemished working record of 20 years. Showed remorse and apologised to the school and to his family.

Submissions

7. In his submissions to the court Mr. Fingu submitted on behalf of the prisoner that the offence was not committed under dubious circumstances. The monies were withdrawn for genuine school related expenses save for the alleged amount which he misapplied and not accounted for. He submitted that this case was not the worst type and referred me to the lead case of Wellington Balewa v The State [1988-89] PNGLR 496. It is no secret that the sentencing range in this case is outdated and no longer appropriate due to the frequency and the prevalence of misappropriation cases. The cases of The State v Sevese (2006) N3453; The State v Doreen (2001) SC 673 and The State v Bill Saun Daniel (2005) N3502 were also referred to me. They all deal with like cases with sentencing ranging between 2-3 years with suspended sentences. In the same vein Mr. Fingu submitted that a sentence of three years with suspensions be considered.

8. The State's lawyer Mr. Francis Popeu rightly pointed to court that the Balewa case was outdated. Although he agreed with Mr Fingu's three year heard sentence he differed with any orders for suspension. Mr Popeu reasoned that this case was one of serious breach of trust in which the school and particularly students denied of their monies. The high breach of trust and the position occupied at the time the crime was committed is reflected in the maximum ten years (10) custodial sentence.

Remarks

9. I feel obliged to quote from a misappropriation case I did in Wewak involving a teacher, the parents and the Boards of management and emphasise the need for transparency and accountability by those in authority of school funds. (The State v Joe Zuvani (2013) 5117. I quote:

"It could be suggested that this was a "nothing case" and the accused unnecessarily dragged to court. The converse of that suggestion is equally important and that the accused had dismally failed in his duty to report all expenditures to the parents at regular intervals. Had he cooperated with all persons, especially the parents who had an interest in this matter and produced his report now made available to court, after all it was their hard earned money paid into the school for their children, in school fees and projects, the matter would not have come this far as intimated by Mr Mark. They needed that report more than the court. As it is the parents together with all interested and affected parties were denied this report until today, after more than 3 years. Under the circumstances I ask myself what has become of the accused's sense of duty as a teacher in charge and his responsibilities to the parents. The accused has failed the parents to his own detriment in my view.

I have deliberately detailed these concerns with the hope that teachers and Boards of Managements of Schools having carriage of school monies owe a duty to parents of those schools and must produce timely reports for purposes of accountability and transparency.") Emphasis mine.

10. Although the prisoner's crime is bordering on breach of trust, the amount misapplied is not substantial which could easily be recovered and returned to the school. Nonetheless the sentiments expressed above are adopted and applied in this case.

Sentence

11. Having considered all the information before me including the prisoner's mitigation factors favourable to him I consider a head sentence of three (3) years to be appropriate under the circumstances.

I will maintain the sentence; however wholly suspend it on the following conditions:

a) The amount of K3, 356.40 misapplied be repaid to Ganba Westbrook Technical School with one (1) month from today in default distress:

b) The prisoner is placed on Good Behaviour.

c) The prisoner's bail of K500 be refunded to him upon production of a copy of official receipt.

Ordered accordingly
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused