State v Potape [2015] PGNC 18; N5921 (19 January 2015)

N5921

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 36 OF 2012

BETWEEN

THE STATE

AND:

FRANCIS POTAPE

Waigani: Salika, DCJ
2014: 24, 25 April, 18, 19 August, 4 September,
16 October, 1 December
2015: 19 January

CRIMINAL LAW - Practice and Procedure – sentence – Charges of Conspiracy – dishonestly applying money – s.407 & 383A of Criminal Code – Member of Parliament – position of trust

Cases cited:

Brian Kindi Lawi v The State (1987) PNGLR 183
The State v Yaip Joshua Avini & Parido Ninoi Acosta
Unreported and Un-numbered National Court decision.
The State v Nakikus Konga Unreported National Court decision
The State v Paul Tiensten - Unreported National Court decision
Wellington Belawa v The State [1988-89] PNGLR 496

Counsel:

Mr P Tusais, for the State
Mr J Haiara with Mr Mamu, for the Prisoner

19th January, 2015

1. SALIKA DCJ: Introduction: The prisoner was convicted of the following charges:

1. Francis Potape of Huluma village, Komo Magarima District, Hela Province stands charged that he between the 1st day of November 2010, at Tari in Papua New Guinea conspired with Frank Ank, Tumbi Yari and others to defraud the Independent State of Papua New Guinea by fraudulently passing a resolution to approve inflated payments to themselves as JDP & BPC Sitting Allowance.
   
2. And also the said Francis Potape stands charged that he between the 1st day of November 2010 at Mendi in Papua New Guinea dishonestly applied to his own use the sum of Sixty Thousand Kina (K60,000.00) the property of the Independent State of Papua New Guinea.
   
3. And also the said Francis Potape stands charged that he between the 1st day of November 2010 at Mendi in Papua New Guinea dishonestly applied to the use of Thomas Potape, Eric Yawas, Hape Marale, Denis Libe, Francis Keara, Dorica Pole, Keven J Solomon, Francis Ank and Tumbi Yari, monis in the sum of Two Hundred Seventy Thousand Kina (K270,000.00) the property of the Independent State of Papua New Guinea.
   

The first charge contravening s.407(1)(b) of the Criminal Code while the second and third charges contravene s383A(1)(a) of the same code.

2. The prisoner is a serving Member of Parliament now and when the offences were committed. He was then and still is the Member for Komo Magarima Open Seat. He first won the seat in 2007 National Election. He was unseated by an Election petition which ordered a by election. He again contested the seat in the by election and won. He won the seat again in the 2012 National Election.

Facts

3. The charges arose out of a Joint District Planning and Budget Priorities Committee Meeting resolution made on 22 December 2010 to pay the prisoner and other members of the committee and advisors allowances of K5,000 per meeting for the chairman and K2,500 for other members and advisors. In other words they decided to pay themselves those allowances for the meetings of the Committee for 2009 and 2010. In 2009 and 2010 the committee held 12 meetings altogether.

4. I found that when Komo Magarima JDP & BPC members resolved to pay themselves and their advisors meeting costs and allowances for meetings held in 2009 and 2010 in the absence of receipts for services rendered to them by the service providers, they conspired to pay themselves those monies. I also found that they unlawfully paid themselves the monies and allowances.

ISSUE

5. Having found him guilty of the 3 counts I am now going to consider the appropriate penalty to impose on him. The issue for the court now is what is the appropriate penalty.

PENALTY PROVISION UNDER CRIMINAL CODE

6. As the prisoner was found guilty to all the counts charged it is necessary to spell out the penalties prescribed under s.407 and s.383A. Firstly, s.407 prescribes maximum penalty for Conspiracy to defraud to a term of imprisonment not exceeding 7 years.

7. I was reminded by the State that the penalty provisions under S383A has been amended. I have checked the amendment and confirm that the Criminal Code Amendment Act No 6 of 2013 was passed on 28 May 2013 and certified on 18 September 2013 and is now in operation. Section 383A with its latest amendment provides:

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.

(1A) Notwithstanding Subsection (2), an offender guilty of the crime of misappropriation shall be sentenced —

(a) to imprisonment for a term of 50 years without remission and without parole, if the property misappropriated is of a value of K1 million or upwards, but does not exceed K10 million; and

(b) to life imprisonment if the property misappropriated is of a value of K10 million or upwards.

(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; or

(b) where the offender is an employee and the property dishonestly applied is the property of his employer; or

(c) where the property dishonestly applied was subject to a trust, direction or condition; or

(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.

8. In relation to the amendment to S383A i t is to be noted that the new material amendment is now s.383A(1A) and it is to be noted that it is not applicable to the prisoner firstly because the offence was committed in 2010. The amendment was passed on 28 May 2013 and certified by the speaker on 18 September 2013 which is much later than when the offence was committed. Secondly the amounts in this case are much less than that covered under the amended law.

9. The relevance though of the amendment is that Parliament views fraud and stealing offences very seriously especially when millions of kina are fraudulently and dishonestly misappropriated or stolen. Parliament has therefore increased the penalties where millions of kina is stolen or misapplied. The prisoner being a Member of Parliament in the current term of parliament would have been a party to the passing of the amendment to the Criminal Code on 28 May 2013. He therefore should know the reasons for the amendment of the penalty provision of S383A of the Criminal Code.

10. What then should be the appropriate sentence in this case. In considering the issue I will go straight to his personal particulars.

PERSONAL PARTICULARS

11. The prisoner is 41 years old, married and has 5 children the oldest being 14 years of age and the youngest is just 3 months old. He has had 3 other previous marriages but those failed and is now in a 4th marriage. Three of the children are from the first 3 failed marriages and two from the current one. Two of the children are living with their mothers but the prisoner maintains them by providing for them through their mothers.

12. The prisoner's parents are both deceased but he has two other siblings, a brother and a sister.

EDUCATIONAL BACKGROUND

13. The prisoner attended Aiyura National High School from 1991-1992 where he obtained his grade 12 certificate. He was accepted to the University of Technology in 1993 where he did a foundation year in Mining Engineering. From 1994-1999 he studied at the Wollongong University in Australia where he obtained a Bachelors Degree in Mining Engineering with honours. He is therefore a very well educated person.

WORK HISTORY

14. After obtaining his degree in Australia he worked in Australia for a couple of months with Peak Downs Coal Mine in Mackay, Queensland Australia before heading back home to PNG when he could not secure a work visa in Australia. For a short time he lectured at the Lae Technical College and then moved to Porgera for about a year where he served as Mining and Blasting Engineer.

15. He worked for some time as Second Secretary in the Ministry of Environment and Conservation and also as Acting First Secretary in the Mining and Petroleum Ministry up to 2007. In 2007 he contested and won the Komo Magarima Seat. He won again in 2012 elections and is still a Member of Parliament.

16. In Parliament he has served as Minister for Climate Change, Minister for Transport and as Minister for Petroleum and Energy. The prisoner is therefore an experienced and well educated person.

FACTORS IN MITIGATION

17. The prisoner cooperated with the police in that he voluntarily supplied information and documents to police, the subject of the charges to explain the payment he received. He supplied the minutes of the meetings of the JDP & BPC which led to his arrest and the charges laid.

18. The prisoner has no prior convictions and never been in court before for any criminal acts.

19. He has expressed remorse for his actions and has apologised to the court, to his family, his community, electorate and the public. He is not likely to commit any such offence.

20. He has made full restitution of the K60,000 paid to him and has also paid the full K330,000 which was received by the other members of the Committee and advisors. His decision to restitute the entire amount is a matter entirely up to him. He has to explain why he took full responsibility to repay the money. It may be that as the elected leader and as chairman of the JDP & BPC it was his responsibility to put things right.

21. The prisoner is said to suffer from ill health in that he has a high risk of having a heart attack. He is said to require regular medical checks to monitor his heart condition. He needs to do that abroad. It was submitted on his behalf that if incarcerated he is likely to suffer heart attack. These assertions however are not supported by expert medical advice from known specialists in that field or cardiologists. The only medical evidence is from the Chief Emergency Physician. Moreover, while the doctor says he has managed the prisoner for several months, there is only the doctors statement dated 20 November 2014 and a biochemistry report dated the same day, 20 Nov 2014. These are only recent reports. Where are the other reports for those "several months" when he is said to have managed him. With respect to the Chief Emergency Physician, I would have expected reports from the time he managed him to the present. When patients report to the emergency unit they should be referred to the relevant sections of the hospital that specialises in the type of illness the patient has. For instance if the patient complained of chest pains he or she should be referred to the cardiologists at the Sir Buri Kidu Heart Institute at the Port Moresby General Hospital for further tests,. The report in this case is only from the Emergency Physician.

22. The prisoner has been on bail and he ought to have undergone some coronary tests to confirm if he has a coronary problem. Those tests are done at the Sir Buri Kidu Heart Institute or other private medical service providers in that field of expertise.

23. Moreover belatedly only last Friday the 16th of January 2015, the prisoner filed an affidavit deposing that he was examined by a physician Ma Rosselle Cainto-Bayona MD. As of 12 January 2014 the prisoner went through further tests and the results will not be known until later. The court acknowledges the tests and examination the prisoner is going through at this time and that he has health issues to deal with regarding his health. Leaders must take account of their health when performing duties. For instance the prisoner has only now taken serious notice of his health and has taken steps to address them. There is no evidence he addressed them earlier before the commission of this offence or during the trial. The reports should not be seen as a report before the sentence is imposed.

24. The medical reports the prisoner presents before the court are acknowledged. In general I accept that he has heart or coronary issues that need to be monitored constantly. He will have to make those arrangements with the relevant authorities from now on. In the meantime the government through the Health Department should see the needs of the ever increasing coronary or heart patients and purchase an angiogram machine or unit and have it installed in Port Moresby so that our leaders and people need not go overseas for their heart checks.

ALLOCATUS STATEMENT

25. The following is a prepared statement the prisoner read in on his allocatus:

"Statement on allocatus.

Your Honour, thank you for giving me the opportunity to address the Court and in doing so ask the Court the kind of penalty or punishment that I wish should be imposed upon me and the reasons of such a penalty

Your Honour, I humbly request the Court to exercise leniency on me and impose non-custodial sentence for the following reasons

1. Your Honour, I humbly ask the Court to understand that I pleaded not guilty in the beginning of the trial because my conscience was clear that I, together with the rest of my JDPBPC members, had no motive and intention to misappropriate state funds or any of that matter. Your Honour, JDPBPC is NOT a procurement authority. We only make decisions in the form of resolutions and it is the job of the public servants to make sure all necessary and relevant documents are attached and all necessary and relevant steps are followed to effect payments based upon JDPBPC resolutions. If the JDPBPC decisions are flawed or inconsistent with Law then the public servants, especially the Section 32 Officer, who is the Provincial Administrator, has the power to reject it and ask the JDPBPC to rectify it. In this situation they have not done so and I am standing in your Honour's presence Your Honour, I humbly ask the Court to understand that I pleaded not guilty in the beginning of the trial because my conscience was clear that I, together with the rest of my JDPBPC members, had no motive and intention to misappropriate state funds or any of that matter. Your Honour, JDPBPC is NOT a procurement authority. We only make decisions in the form of resolutions and it is the job of the public servants to make sure all necessary and relevant documents are attached and all necessary and relevant steps are followed to effect payments based upon JDPBPC resolutions. If the JDPBPC decisions are flawed or inconsistent with Law then the public servants, especially the Section 32 Officer, who is the Provincial Administrator, has the power to reject it and ask the JDPBPC to rectify it. In this situation they have not done so and I am standing in your Honour's presence.
   
2. Your Honour, I have never appeared in a Court before, even at the village level. It is my very first time to appear before the Court without prior record of conviction and I have unblemished record of conduct both in my personal walk of life and political career. Your Honour, I am "humbled by this case especially by sitting in the dock and eventually being found guilty.
   
3. Your Honour, I am a son of an uneducated, village based Seventh-Day Adventist Pastor who preached the Word of God through scrolls. We built the first SDA church on our land at Kondomapu when I was 7 years old and next week Thursday, 11th December 2014, it will be ordained as an Organised Church. I will be the guest speaker and main helper to the erection of a new building. My primary and high schooling has been beneficial to my family because I could help my father read morning watches and daily lessons before going to school every morning. Your Honour, I have been raised in a Christian home and have never done anything wrong in my life. The good and Godliness in me has not been seen by my people yet and I ask for leniency.
   
4. Your Honour, upon completion of Grade 10 at Tari High School (now its secondary) in 1990, I attended Aiyura National High School. In 1993 I was accepted at University of Technology, Lae to do engineering studies. In 1994 I was selected by the Australian High Commission to study engineering at the University of Wollongong in the south coast of New South Wales. I graduated with Honours Degree in Mining Engineering in 1999 and worked for couple of months at Peak Downs Coal mine in Mackay, Queensland. Your Honour, I was unable to secure a job visa in Australia so I returned home and worked at Porgera Gold Mine as a Mining Engineer. In 2003 I worked in the Ministry of Environment & Conservation as Second Secretary and advised the then Minister Hon. William Duma until 2007 when I contested and won the Komo/Magarima Seat. Your Honour, unlike past Komo/Magarima MPs I am well educated and trained to contribute meaningfully to PNG. I am doing just that and I ask for leniency.
   
5. Your Honour, I have always been a leader since school days. Whilst at Tari High School from Grade 7 to 10, I have been a Class Captain. Whilst at Aiyura National High School, I have been a Class Captain for two full years and a member of the Students Representative Council (SRC) for full two years as well. I was also the Head Prefect in Grade 12 and President of the Southern Highlands Student Association. I won the Komo/Magarima Seat at the first attempt due to my leadership qualities. Your Honour, Papua New Guineans are fed up leaders and civil servants who are corrupt and the war against corruption is on but I am not a corrupt person or leader. I am a genuine leader with unblemished records who is unfortunately suffering as a result of actions of incompetent public servants.
   
6. Your Honour, the Father of the Nation and the then Prime Minister Grand Chief Sir Michael Somare, saw my leadership qualities and appointed me as Minister of State in 2009. This was a remarkable achievement when it is not easy to be appointed a State Minister. In fact, I became the first Komo/Magarima MP to be appointed as a Minister. The portfolios I held were Climate Change, Transport, Minister Assisting Prime Minister, and finally I was promoted to an economic ministry, Petroleum & Energy. On the 2 August 20ll, Somare Government was overthrown and I lost my Job since then. Otherwise, I believe I will still be a Minister today and contribute meaningfully towards the development of this nation. Your Honour, I have a lot to offer to my people and to PNG and I ask for your Honour's leniency.
   
7. Your Honor, I am terribly sorry for receiving such a payment of K60,000 in November 2010 as outstanding JDPBPC allowances and other associated costs and expenses incurred for 2009 & 2010 based on poor and incompetent advice and incomplete paperwork by the public servants. I, together with rest of JDPBPC members, would have definitely complied and rectified the resolution if proper and correct advice was given by the public servants. I am being punished and have suffered for the inaction of public servants.
   
8. Your Honour, the public servants in the district are not recruited or selected by me. In fact they were on the ground serving my predecessor, late Balus Libe. Administrators are selected by the Department of Personnel Management whilst Treasurers are employees of the Department of Finance. Their Trainings on how to process payments from district funds are done by the Department of Finance. It is therefore the duty of public servants to serve, advice and guide MPs and LLG presidents on how to spend public monies.
   
9. Your Honour, although the JDPBPC decision to pay the allowances and other associated costs and expenses was a collective one and not a one man decision by me as the Chairman, I have been singled out and brought to Court and the other -members are left to run scot-free. In the end I was found guilty. This is unfair but I have repaid the K60,000 that I received for my personal use and also painfully repaid K270,000 that was paid to others for their benefit. Thus a restitution payment in the sum of K330,000 was paid to the National Court Registrar's Trust Account. As a result the State is fully reimbursed and suffers no loss. I believe that I have been adequately punished so far and a non-custodial sentence would be a fair punishment.
   
10. Your Honour, I have done so much for my people of Komo/Magarima district but more needs to be done in a land where delivery of government services is non-existent since Independence. I have initiated and implemented several major projects in my district and these have touched and changed the lives of my people and have also changed the landscape of my district. Some of these projects are mentioned in the Probation Report. My continued leadership is needed to fully implement my projects and to initiate numerous new ones.
    
11. Your Honour, Komo/Magarima District is a resource rich district as it hosts the Hides 1, Hides 4, and some parts of Angore gas fields, Moran, Northwest Moran and South East Mananda Oil fields. Although the district contributes immensely to the nation's coffers through these resource projects, the return to the district and Hela as a Province is little. Through my election as MP I am beginning to turn this around. The people see me as their beacon of hope and elected me three times and will continue' to do so in the coming elections. A custodial sentence will diminish their hopes for better lives and fair go in this nation.
    
12. Your Honour, as Member of Parliament representing the multi-billion kina PNG LNG Project hosting district, I played key roles to ensure that the PNG LNG Project became a reality. We had our own issues on the ground but I realized that this Project was of national importance so I had to step up to ensure that the project was delivered. From the days of negotiations to various landowner forums in Kokopo and at home to construction phase, my leadership was required as the Bridge between National Government, developer (Exxon Mobil) and landowners. We have just delivered the first gas to our customers and I travelled with Prime Minister Peter O'neil, Governors Hon. Anderson Agiru (Hela Province) and Hon. William Powi (SHP) and two other Hela MPs (Hon. James Marabe & Hon. Philip Undialu) to witness the unloading of first gas from the Spirit of Hela to our Japanese customer, TEPCO (Japan Electric Power Company). Your Honour, a custodial sentence would remove the Bridge that exists between the State, Developer and the people and my people would be the worst affected.
    
13. Your Honour, I co-operated well with police at all levels in relation to this matter. I never evaded police or concealed any documents from them because I have nothing to hide. In fact the evidence police and prosecution relied upon were those supplied by myself.
    
14. Your Honour, I believe it is important for the people of Komo Magarima district to have an uninterrupted representation on the floor of National Parliament especially when a lot of ground work needs to be done in relation to the PNG LNG Project and rising of lawlessness in the land. It was based on this believe that when your Honour ruled my 2007 election as a Member of Parliament null and void in May 2008 by upholding an election petition in Tari, I accepted and respected your Honour's decision and requested for the bi-election to be conducted at the earliest opportunity. Your Honour would recall that I was facing two election petitions at that time and in both petitions no allegations were labelled against me. All allegations were against Electoral Commission and its agents and servants who failed to conduct the elections properly. As a result of failure of others I lost the seat and the people lost leadership and representation in the National Parliament. Your Honour, I see that the same is repeating here where I may pay the ultimatum price at the failure of others and your Honour being the same distinguished Judge, is in a better position to understand my situation and the struggle after struggle that I face as an MP.
    
15. Your Honour, I got re-elected in December 2008 but lots of opportunities for the district slipped away during the leadership vacuum of 7 months. Your Honour, a custodial sentence will see my people deprived of leadership and slipping fast back to the dark days when government services were not reaching them.
    
16. Your Honour, I would like the Court to know that I have suffered a lot already whilst going through Court on this matter which has affected leadership and service delivery to my people. Number of key projects like Komo-Hulia and Komo-Bosavi roads, which were launched recently, requires my continued leadership.
    
17. Your Honour, my health has deteriorated since and just recently I was diagnosed of essential hypertension, a condition that indicates significant risk of having heart attack. A custodial sentence possesses even greater risk.
    
18. Your Honour, my leadership is never shattered or destroyed by this Case. 99.99% of the Komo/Magarima people are behind me. As can be seen from the Probation Report, remarkable character references for me have been written by very prominent and senior people within the PNG community. Notable ones came from Hon. Patrick Pruaitch MP (Treasurer of PNG), Hon. Anderson Agiru (Hela Governor), Hon. Francis Aweisa MP (Works Minister), and Peter Graham (Managing Director for Esso Highlands Ltd -PNG LNG Project), Dairi Vele (Treasury Secretary), Jeffery Nape (Former Speaker of National Parliament), Mark Yangen (Provincial Police Commander, Hela) and Steven Yasang (Contingent Commander of PNG Defence Force guiding PNG LNG Project in Hela). Your Honour, I am a good man and need a second chance in life through a non-custodial sentence.
    
19. Your Honour, I am a head of young family of 9 children. My eldest is 14 and youngest is 4 months old. My wife is unemployed and depends totally on me. Their lives will be greatly affected if I am sent to prison. I therefore ask the Court for leniency and mercy for the sake of my wife and kids as well.
    

Your Honour, in conclusion I want to thank the Court, the prosecution and my lawyer for their time in dealing with this matter which involves me.

Your Honour, i want to thank the people of Komo/Magarima District who believe in me and mandated me three times under difficult circumstances in a land where leaders are not easily elected. I thank them, my friends and supporters throughout Hela and PNG for all their best wishes and prayers.

Your Honour, finally i thank my family, my witnesses and relatives for supporting me throughout this case. I also thank them for helping me meet the restitution payment of K330,000 and other legal bills.

Your Honour, with the reasons stated so far, I assure the Court that I have learnt a hard, painful and yet valuable lessons which will make me become a better, wiser and determined leader for my people, my province and my country Papua New Guinea. I will make sure that such mistakes are not repeated by the public servants because I do not want to go through such again.

Your Honour, I plead for mercy from this Honourable Court by humbly asking your Honour to invoke the powers vested in your Honour under Section 19 of the Criminal Code Act Chapter 262 to impose a non-custodial sentence upon me."

26. In paragraphs 7 and 8 of his allocatus statement the prisoner blames the public servants for incompetency for allowing the payment to go through and for allowing a resolution by the JDP & BPC to be implemented. However he had the benefit of two very senior public servants in the district who were present and who are also recipients of K30,000 each. They could have been asked for advice. Two very senior officers may have been compromised as they were also beneficiaries of the Committee decision.

27. The officers in Mendi were not in any better position to advise otherwise. But with respect, to put the blame on the public servants is uncalled for. As a leader he must take full responsibility and not blame his public servants for his own misdeeds. He was the Chairman of the meeting that decided or resolved to make the illegal payment. Furthermore the major part of the whole transaction was the decision by the committee to pay themselves the allowances. The public servants were there to implement the committees decision. If any advise was to be given it should have come from the District Administrator and the District Treasurer but there is no evidence the Committee sought advice from the two very senior advisors concerning the resolutions to pay the members of the Committee and the two advisors.

28. Moreover there is no evidence that the committee sought further advice from the Provincial Administrator and Provincial Treasurer relating to the payment of their allowances. The public servants were merely doing their job. They were implementing the decision of a very powerful committee in the District.

29. The prisoner also submitted on his allocatus that the decision to pay themselves was a collective one and that he is the only one who was charged. That is a matter for the proper authorities, the Royal PNG Constabulary to pursue. It is not too late for them to do this in the light of this case. The police are urged to go after the others and have them charged as well.

30. The purported extenuating circumstances raised by the prisoner are rebutted by what I have just stated in the above several paragraphs. The prisoner's culpability in the making of the decisions for the payment of the allowances and the usage of the allowances in my respectful opinion is not diminished for the reason that the public servants did not advise him properly.

AGGRAVATING FACTORS

31. The prisoner is a well educated person. He is the Chairman of Komo Magarima JDP & BPC. The committee is a powerful committee in terms of where or how the District finances should be spent. Being a well educated person he ought to have known that only the SRC can determine the allowances for him and the Local Level Government Members and not the Committee and that the Committees powers do not extend to determine payment of allowances to themselves.

32. A lot of money K330,000 was spent on paying allowances to themselves when the money could have been used for developmental projects that will raise the standard of living for our people in the Komo Magarima electorate.

33. The prisoners actions could and may have adverse effects on public confidence in the prisoners integrity and the integrity of the Southern Highlands Provincial Government and its administration and the Komo Magarima District Public Service and its administration.

34. The prisoner was in a high position of trust. As the local Member of Parliament and therefore a leader he is expected to demonstrate good leadership. The misusing of public funds for personal gain with respect does not demonstrate good leadership.

35. The state was put to the test to prove its case and a full trial was run. The state successfully discharged its duty to have the prisoner convicted.

CASE PRECEDENTS

36. The court in determining an appropriate sentence will usually compare previous sentences imposed in other similar cases to help it arrive at an appropriate sentence because there is no sentencing formula to guide the courts. Case precedents are therefore an important guide source to help the court to come to an appropriate sentence.

37. In that regard I refer to the following relevant case precedents cited by both counsel:

They are:

1. Brian Kindi Lawi v The State [1987] PNGLR 183
   

Kindi Lawi as a Member of Parliament for the Western Highlands Regional Seat. He was given two cheques for specific projects in his electorate. He deposited the cheques into his personal accounts but the monies were not spent on the projects. The total amount of money misused was K10,000.00 Kindi Lawi was sentenced to 2 years and 5 years to be served concurrently by the National Court. On appeal the sentence was reduced to 18 months and 3 years. 18 months of the 3 years was suspended upon the repayment of the total K10,000.00.

38. It is to be noted that in the Kindi Lawi case that even in 1987 the Supreme Court viewed misuse of trust monies by the trustees quite seriously and imposed a custodial sentence and only some of that custodial sentence was suspended.

2. The State v Yaip Joshua Avini and Parido Nonoi Acosta
   

Unreported and un-numbered National Court Judgment 1996. Avini was a Member of Parliament for Finschhafen Open. He was given K100,000 under the Rural Transport Development Program for two road projects. The money was used for other purposes other than on the road projects. He was sentenced to 8 years imprisonment. The court reiterated the call for imposition of stiffer penalties for those in high positions of trust. Avini was in a high position of trust. In that case even for K100,000 the court imposed a staff punishment.

100. The State v Sylvester Sylvanus Siembo & Ors

Siembo was a Member of Parliament for the Northern Province Regional Seat and Governor of that Province. In that case Siembo and others received K100,000.00 from the State to construct a road from Bareji to Safia in the Ijivitari Electorate of the Oro Province. The money was misused. The National Court after a trial found Siembo and others guilty and sentenced him and others to 6 years imprisonment. Three years of that was suspended while the other 3 years were served.

4. The State V Nakikus Konga – Unreported and Un-numbered National Court decision.

The prisoner in that matter was a Member of Parliament. He received K50,000 for community projects from the National Gaming Board. Instead he used the money to renovate his two houses. He was sentenced to 5 years imprisonment but all that was suspended if the K50,000 was restituted within 3 months. He also allowed police to live in the two houses rent and rate free.

5. The State V Paul Tiensten – (A National Court decision)

The prisoner directed his Department Secretary to facilitate release of K10,000,000.00. The money was released and paid to Travel Air. The money was not used for the purpose it was given. It was instead used to start up Travel Air. He was sentenced to 9 years imprisonment, 4 years was suspended if the K10 million was restituted within 4 years. This decision is now under appeal.

39. The above case precedents are consistently giving or portraying a sentencing trend. The courts have been tough and rightly so in my respectful opinion. Members of Parliament are mandated by their people to serve them and their interests. Any diversion or deviation from those responsibilities has its own dire consequences and the Courts must not shy away from meting out those consequences with severity.

40. The sentencing trend from case precedents shows that those convicted served time in jail except in the case of The State v Nakikus Konga. Otherwise the courts have been consistent in the sentencing pattern on imprisonment or part imprisonment. The question is should the courts deviate from this trend?

41. In the State v Andrew Posai (2004) N2624 the National Court per Sevua J said:

"A Member of Parliament who misappropriates public funds must be given immediate punitive custodial sentence to demonstrate the seriousness of the crime, which impact on the public and public confidence and also reflects the breach of trust reposed on him as a leader in managing public funds intended for specific purposes.

A member of Parliament who misappropriates public funds must be charged and prosecuted in the first instance in a Court of law instead of being prosecuted under the Leadership Code."

42. I agree with this statement by the late Sevua J. Members of Parliament make laws and they must abide by the very laws they make. It is no use for Members of Parliament to call on others to obey the laws when they themselves do the total opposite and flout the law. Members of Parliament have a high responsibility to live by the trust people have placed on them. When they abuse that trust then I agree with Sevua J on his statement cited above.

43. The need for general deterrence is ever so pressing at this stage of the country's development. The sentence in this case must reflect that aspect and I intend to do that in this case. Punitive and deterrent sentences have been imposed in the past in the form of custodial sentences being imposed with little or no success in deterring other public officials. The jails appear not to deter public officials including Members of Parliament. All it has done is deter repeat offending by those same offenders. This country has a lot of precious natural resources that everyone should benefit from. The natural resources are generating a lot of income for the country and its people. Everyone should benefit from this income. In order for everyone to benefit our leadership must be committed to honesty to ensure this happens.

44. I take into account the decision of the Supreme Court in Wellington Belawa v The State [1988-89] PNGLR 493. This is the leading case authority in misappropriation cases. In that case Belawa the Secretary of the Department of West New Britain dishonestly applied to his own use a mere K1,979.00 the property of the State. He was sentenced to 2 years imprisonment. The amount involved in this case is very much higher than the amount involved in the Belawa case. The Supreme Court in the Belawa case set out the relevant sentencing considerations such as:-

(a) Amount taken
(b) Period over which the offence is committed
(c) The use for which the money was put to
(d) The effect on the victim
(e) The effect on the offender himself
(f) Whether restitution has been made.

45. The amount taken in this case was a total of K330,000.00. The prisoner himself benefitted with K60,000. By PNG standards that's a lot of money.

46. The period over which the offence was committed was a one off thing, that is, a decision was made and money was obtained or paid.

47. The prisoner used the money on himself and his family. There is no evidence that he squandered it.

48. The effect of the prisoners conduct has not been felt and is not visible in that there is not much complaint from the constituency. In fact there is a lot of community support for him in his own electorate in that they helped raise the money for restitution. They appear to continue to regard him highly.

49. The crime and the conviction on the prisoner has had a negative effect. Firstly his medical condition may have been adversely affected by this conviction. He may be liable to be subjected to charges under the Leadership Code.

50. The fact that the prisoner has made restitution is good and is in his favour. However on the other hand it should not be seen by others as "paying his way out of jail". Leaders and persons with money convicted of crimes should not "pay" or be seen to pay their way out after conviction of a crime.

51. I acknowledge the developments initiated by the prisoner in his electorate and commend him for these initiatives and for bringing development to his people. That is why he was elected - to serve them. He has brought education services, health services and roads and bridges to the people. He is breaking new grounds in bringing about these previously unheard of developments. Under his watch he is opening a new road to Bosavi from Komo. This is what should be happening right throughout the country.

52. I also acknowledge the various character references that have been submitted on his behalf from senior Public Servants, company executives, politicians, community leaders, villagers, from the clergy and other leaders. Reading the references most of them agree that the prisoner has what it takes to be a good leader. He has the intelligence, ability, the energy, the desire and other attributes to be a good leader. However in order to be a model leader one must have integrity – the quality of being honest and having strong moral values and principles when no one is around or when no one is looking. We will never achieve our development goals and visions if we leaders have all the attributes of a good leadership but lack only in one – integrity.

53. Leaders are stewards of the people and their well being. They must be stewards with integrity. Unfortunately, for the prisoner this one act of dishonesty has tarnished his reputation and standing, may be not in his own Komo Magarima or even in his Hela Province in PNG but in a wider community. His standing as a strong and good leader is now adversely affected by this single act of dishonesty. So while I acknowledge the character references, they count for nothing in the light of this single act of dishonesty. This single act of dishonesty destroys all the good deeds and things said about him.

54. In all the circumstances of the case and from the sentencing trend set by the case precedent the prisoner is sentenced to 3 years imprisonment with hard labour on the first count of conspiracy and 3 years imprisonment with hard labour on the second count and 5 years imprisonment with hard labour on the 3rd count. All those sentences will be served concurrently with each other. Two and half years are suspended for the reason that all the money has been restituted. The other two and half years will be served.
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Public Prosecutor: Lawyer for the State
Haiara Legal Practice: Lawyer for the Accused