State v Krapp No.2 [2016] PGNC 294; N6496 (23 September 2016)

PAPUA NEW GUINEA N6496

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 967 of 2013

THE STATE

V

SAMSON KRAPP NO. 2

Aitape: Geita J
2016: 23 September

CRIMINAL LAW – Sentence after Trial- Misappropriating K11, 000.00 from Nuku, Palai and Yankok LLGs – Section 383A (misappropriation of property) - Sentence of 6 years.
CRIMINAL LAW – Sentence – Principle employed – Deterrence and Restitution.

Cases Cited:

The State v Nancy Leah Uviri [2008] N5468
The State v Taulaola Pakai (2010) N4215
The State v Wellington Balewa [1988-89] PNGLR 496

Counsel:

Mr. Paul Tusais, for the State
Ms.Renatta Yayabu, for the Prisoner

Note: The original judgment was delivered extempore now properly edited for publishing.

JUDGMENT ON SENTENCE

23 September 2016

1. GEITA J: You Samson Krapp was found guilty of misappropriation after trial on 22^nd September 2016 for misappropriating cash monies totalling K11, 000 contrary to section 383A (1)(a) 2 (c) of the Criminal Code and the offence attracts a term of imprisonment not exceeding 10 years.

The Facts

2. The facts are well known but I will go through them for the purposes of recording. The facts found by this Court following your conviction after trial yesterday are these: Between 17^th – 22^nd November 2011 at Vanimo, Sandaun Province you dishonestly applied for your own use and the use of other unknown persons the sum of K11, 000 the property of the State of Papua New Guinea. Those monies were applied for and released by Sandaun Provincial Aids Council or SPAC to be used for the four Local Level Government areas Nuku Central, Yangkok, Palai, Maimai Wanwan as part of their World Aids Day celebrations leading up to 1^st December 2011, World Aids Day.

Antecedents

3. There were no prior convictions recorded against you.

Allocutus

4. When you were asked to tell this Court the type of punishment that this Court should give you, you basically said you were sorry for what had happened in that you thought your intentions were good or proper but now found by Court to be the wrong intentions. You apologized to a whole lot of people including the Court, the Lawyers, Court staff, the people of Papua New Guinea including your family members, the people of Nuku, Palai and Yangkok for causing disharmony amongst your people. You told Court that this was your first time to get into this kind of trouble and asked for leniency. You asked if you could be released on probation and you promised that you would never commit this type of trouble again and you will stay good. Your lawyer also addressed this Court on your behalf.

Mitigating factors

5. 1. No prior convictions

2. First time in court

3. Expressed remorse, although late coming at the eleventh hour.

For the moment, there are no additional favourable mitigating factors in your favour.

Aggravating factors

6. The aggravating factors are that you have stolen and you have denied the community in four LLG areas in Nuku District. You were found guilty after trial and that you persistently misled recipient of monies allocated to them.

Pre - sentence report and Means Assessment report

7. In order to help this Court come up with a punishment which is considered fair for you and everybody, your lawyer asked for a Pre-Sentence and Means Assessment Report. I have been given copies and I have gone through all those reports. Firstly the Pre-Sentence Report and I must thank the Probation Officer Mr. Ben Kasanda for giving this Court a fairly well detailed Pre-Sentence Report together with a Means Assessment Report. That Report gives me information on where you live, your family background, your marital status, your education level, your work experience and financial situations, your future plans and your community history. So all that information is given to me and the Probation Officer also interviewed the Provincial HIV/AIDS Council Co-ordinator in Vanimo Mr. Symphorian and he has said he has no comments because the decision is made by other people in higher authority. So I have purposely stated that because the Probation Officer has done a very good job. He has given to this Court all those information.

8. As a starter you are married, you are aged 41. You have a very good education. Your wife is a Nursing Officer in Vanimo General Hospital. You have a 10 year old son, five adopted children 4 boys 2 girls. Two elder boys studying at University of Technology and one doing second year Mining Engineering and other doing Business Administration so your family is doing very well. I have also had a look at your Means Assessment Report. Your Means Assessment Report is basically telling me that you have some money to pay. That you have a little bit of money tucked somewhere and have the ability to pay. I have also had a look at the report attached with Pre-Sentence Report and that is the report from the Catholic Priest that you worked with and they have given very favourable reports in your favour. They are saying that you are a very hard working person and you have contributed significantly to the Seminarians for the skills and Christian leadership, attitude and personality. And they have also echoed the same sentiments which you echoed in your allocutus when you said you are now worried about Grade 10 and 12 students who will be sitting for their examinations in October. And now that you are in Court, the future of those students numbering 30 will be in jeopardy.

Community’s View

9. Community views are very important. They are very favourable. I am also looking at Fr. Saul Noah and also the Arresting Officer and Fr. John Wan. So they testify and attest to your good character, sadly so you are a good man now you got yourself into this fix. I will come to that later. So I have all those information before me. So the Probation Officer has thoroughly gone through all the Reports and he is of the view that you are not a danger to the society and that he has favourably recommended that you be released on probation. So that is also noted that an assessment has been made.

Submissions by the Prisoner

10. Your lawyer submitted on your behalf and I will touch on that. Your lawyer basically re-emphasized or re-echoed what you told me that you are married with two children at UPNG; they are schooling and also echoed that in your allocutus you were sorry for what you have done. And that you were a first time offender, no prior convictions. And your lawyer also told me that because of that crime in 2013 you also were in custody until you were released on K1, 000 bail. Your lawyer also told me that I should also consider the fact that you are not a habitual criminal and so I should consider some leniency. I have been reminded about my powers under section 19 of the Criminal Code which gives powers to either suspend or give non-custodial sentences and emphasize strongly that you are willing to pay some of that money. In fact your lawyer on your behalf has told me that you are willing to pay K2, 500 right away so I take note of that. Generally you are saying you want to pay the balance within a year or two. That’s the balance. So those information are now before me. In support of your case, your lawyer has referred me to the often quoted case of The State v Wellington Balewa [1988-1989]. In that case a senior public servant in Oro- Popondetta misappropriated monies. And so the Court in 1999 set some guidelines on how much money and the penalties should be given. For instance in that case the Court said something like if monies stolen between K1.00 and K1, 000 maybe they should not be sent to jail. But if K1, 000 and K10, 000 maybe 2 years. From K10, 000 to K40, 000, Court may consider 2 to 3 years. And so it goes. So that is what your Lawyer is saying. Your Lawyer is saying previous Courts have done that and asked this Court if I can consider that type of punishment in your case. And suggested that based on that guide perhaps a sentence of 4 years with a head sentence of 6 years to be considered in your case.

Submissions by the State

11. The Government Lawyer has submitted that your case is slightly different in that although the money that you misappropriated is K11, 000. The money was meant for a specific purpose and the circumstance in which those monies were used and people denied were serious considerations. The Government Lawyer is saying that should be considered as very serious case. I will come to that later. In that you denied the people of West Sepik Province their monies. The Government Lawyer suggested that the case your Lawyer referred to State v Wellington Balewa is now out-dated, it’s a very old case and Courts should not use that but Government Lawyer submitted that in that case if Court is going to punish differently than Court must also take into account that the person who stole breached somebody else’s trust, he was in a position and those people trusted him. But he breached their trust so Government Lawyer is saying in this case you breached the trust of SPAC and so you should be punished differently or a little higher. The Government Lawyer has said all along you told Court that you were a Primary School Teacher only to find this morning that you are a High School Teacher and you hold a very well paid job indirectly saying that you have been lying all along so that does not help your character. So Government Lawyer is saying those type of things go against you and that you have been misleading the Court and probably that is how you have been misleading all those people, so that’s what the Government Lawyer is saying. Indirectly saying you should not be believed and suggested that in line with what the National Court has given maybe a head sentence of 6 years could be considered for you. Both Lawyers suggested that on the questions of whether you should spend some time that is left to the discretion of this Court and I will come to that a little later.

Application

12. Now in our Country misappropriation happens all the time; Senior Public Servants, educated people, and village people they steal. They misappropriate and as the Government Lawyer said the people in this Province have been cheated by your actions. Although the amount may sound insignificant the fact is that a Public Servant has stolen. And so that must be given serious consideration. In your case you waited 5 years until this Court found you guilty after trial that does not go very well in your favour. You have said sorry and you have said you are willing to pay and you are sincere about it. Understandably it is your Constitutional right to maintain your silence until proven guilty; that’s fine. But the downside is when you are tried and you are found guilty then that must go against you in some form. Besides other reasons for lying low probably hoping that due to passage of time all evidence will be lost and witnesses transferred out of the Province and your case ending up being thrown out without finality as happens in the country all the time. Let me remind you and the general public that our Criminal Justice System can be slow and is slow but wrong doers will eventually be brought to justice. Like what the good book says your sin will find you out. And indeed it has done that. You are a teacher, teaching at a church run institution and I am sure you are familiar with that scripture.

The long arm of the Law will eventually catch up with people who break the Law, people who steal. So if you steal, if you break laws and think that you can run away after 10 to 15, 20 years the law will still catch up with you. So that is the message I want to get across.

13. I note that the people that you stole from SPAC: they have some feelings for you and they have successfully prosecuted you but they are also people and they feel for you however; they have a much bigger family to worry about. And that much bigger family are the people of Nuku, Yangkok, Palai, in your words the message you want to bring awareness to all those people have been deprived. The information you want to disseminate, information that you wanted to transfer on this thing called HIV/AIDS, the killer disease although curable spreading right throughout our country. Just pause for a moment, by your actions how many people have contracted that disease because they have been denied. Just pause for a moment, somebody may have been dead because his opportunity to hear HIV/AIDS awareness did not get to him because somebody was greedy and stole their monies. I’m sure you know about these words. Some lives have been affected and others infected. Two different words, those people dealing with HIV/AIDS know these words all the time. There are people who are affected and there are people who are infected. If you don’t have AIDS then you are not infected you are affected and most of us are affected because of this thing. So it’s not a simple matter of SPAC trying to recover their K11, 000. We are here talking about lives being lost or innocent people infected of this dreaded disease as a result of your greed. You Samson Krapp denied, who knows, one person whose chance to be told about HIV/AIDS and I consider your actions tantamount to serious aggravation. A case of life or death. You have pleaded to me that you are worried about your 30 grade 10 and grade 12 students. What about the masses of people that have been denied their rights? As I have said some young men may have been infected because he was denied that opportunity to be given that message on HIV/AIDS. So the gravity is not just K11, 000 the gravity is huge-You know this. You have been in that business- you used the word nicely and colourfully. You are here to disseminate to the masses of people in Nuku, Palai, Yangkok. They were denied their rights. And as you know, that sickness is spreading like wild fire in our communities. Our opportunity to stop it and to educate, you denied our people.

Sentence

14. Now coming to the type of punishment that I should give you. I have recourse to what National Courts have said in the case of Balewa (supra) and I have recourse to the case of The State v Nancy Leah Uviri [2008] N5468, that’s a 2007 case in which National Court Judge Cannings said that the Wellingon Balewa case may be used but its dated and that there is an advanced level of community concern about corruption. So the Judge has gone ahead and made some recommendations: K1.00 to K1,000 – suspended sentence: K1,000 to K10,000 – four years imprisonment; K10,000 to K40,000 – four to six years imprisonment; K40,000 to K150,000 and beyond – six to ten years. So that is the Law I will accept and adopt for you in this case. I will adopt what Judge Cannings said in that case. And if I may use the Judge’s words, he said and I am quoting “...This is a very serious crime displaying all the attributes of deceit, dishonesty and deception that can be otherwise described as corruption. This was not corruption in the public sector; it was corruption in the private sector. But wherever it takes place this sort of conduct eats away the fabric of our society which must be based on honesty, decency and fairness.” And the Judge goes on to say in the case ,” In the Preamble of our Constitution the people of Papua New Guinea assert that our national wealth won by honest, hard work be equitably shared by all”. Such serious criminal conduct must be deterred, and must be stopped and the best way to do that is to imprison offenders.” So that is what the Judges are saying and I adopt those sentiments here that people’s monies are being stolen every day and the Courts must come down hard on those people.

Do I consider that some of that head sentence to be deducted?

15. I have this to say, the SPAC is an Agency of the Government, although that money may be insignificant but they need all that toea they want to conduct more awareness in this Province and so I must make sure some of that money is recovered so that they can go out and do their work otherwise they will be short by K11, 000 because of your misdoing. I pause here and go on to your pleas for your family, your pleas for your students which are part of your family. But again I look at another National Court case of The State v Taulaola Pakai (2010) N4215. In that case Judge Hartshorn said and I am quoting “An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid suffering the suffering of one’s family should have little or no weight when an appropriate sentence is being considered”. (Emphasis mine)

16. So that is what the Judges are saying. In short why didn’t you think about your family when you went out to steal those monies? You should think about your family first, and to come and tell Court; please worry about my students, worry about my children, worry about my family. The Court is saying that is too late. You brought it upon yourself. So I am saying I too share those sentiments and I will adopt them in what I consider to be an appropriate punishment. Under those circumstances, I do not consider any deduction from head sentence necessary.

The ultimate sentence I propose to impose therefore is firstly based on the principle of deterrence and restitution in view of all the information available to me in your address and reports I consider a head sentence of 6 years appropriate under the circumstances. I take note that you are willing to pay however it would have been a different story had you made some restitution 5 years ago but that did not happen. You remain defiant until convicted.

Court Orders

17. However in light of SPAC needing that money I made orders in the following:-

1. You are sentenced to 6 years imprisonment;
2. You are ordered to serve 3 years without remission ;
3. Your remaining 3 years will be deducted upon full restitution of K11, 000 to the State of Papua New Guinea through SPAC.
   

Orders accordingly,

_______________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Prisoner