N7759
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 232 OF 2013

THE STATE

V

DUSTY WAIE

Kerema : Koeget, AJ
2016 : 15th March, 9th June, 14th June.

CRIMINAL LAW -  Indictable offence – misappropriation of property – person in trust – sentence on guilty plea - Misuse of funds by a senior public servant in the employment of State institution -  Restitution of sum misappropriated as a mitigating factor – Exercise of Court’s discretionary powers under section 19 of the Criminal Code Act

Cases Cited

Wellington Belawa v The State [1988 - 89] PNGLR 496
Brian Kinid Lawi v The State [1987] PNGLR 183
The State v Gabriel Ramoi [1993] PNGLR 390

Counsel

D. Mark, for the State
B. Popeu, for the prisoner

14th June, 2016

1.	KOEGET, AJ; INTRODUCTION: The accused pleaded guilty to one count of misappropriation of monies belonging to the Gulf Provincial Government.  The charge is laid under section 383A (1)(2)  of the Criminal Code Act. 

Facts

2.	The prisoner was employed by Gulf Administration on a substantive level of Expenditure Accountant.  On other occasions he acted as Provincial Treasurer whenever the incumbent was unable to perform duties and functions of that office.

3.	Between 27th October 2006 and 16th March 2007 various payments for expenses and travel under the Trust Fund and Suspense (TFS) accounts were processed through the Provincial Government Accounting System (PGAS).  These funds are under the Provincial Support Grants (Discretionary and non Discretionary) authorized by the Governor and Joint Provincial Planning and Budget Priority Committee (“JPPBPC”) and the guidelines for use of these funds are issued by the National Executive Council (“NEC”) in accordance with the requirements of Public Finances (Management) Act 1995.

4.	An investigation was initiated by the incoming Government of Gulf Province and it was discovered that the prisoner had misused the sum of K7,000.00 the property of the Gulf Provincial Government, an instrumentality of the State.

EVIDENCE

5.	The following documentary materials were tendered by consent:

-	Record of interview between the accused and the Police investigator.
-	Police investigator’s statements.
-	Witnesses statements.

6.	The accused admitted the commission of the offence in the record of interview with the police and in court he pleaded guilty to the charge.  So he was convicted accordingly.

ISSUE

7.	The issue for the court to determine is what is the appropriate sentence to be imposed upon the prisoner?

LAW

“Section 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 contract (either solely or conjointly with another person) subject to a trust, discretion or condition or on account of any other person;

is guilty of a 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 –

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

ALLOCATUS

8.	In allocutus, the prisoner stated: “I apologise for the offence I committed and the shame and embarrassment brought to the family. I am a first time offender and I am willing to repay the sum misappropriated if given chance by the Court”.

Personal Particulars:

9.	The prisoner is from Ero village in the Kikori District of Gulf Province.  He is 39 years of age and married with six children.  He now resides in Kerema town with his family.  

AGGRAVATING FACTORS

10.	The prisoner planned the commission of the offence and effected it over a period of time.  He abused the trust placed upon him by the employer.

MITIGATING FACTORS

11.	There are no prior convictions so he is a first time offender.  He has lived an unblemished life for 38 years until the date he committed this offence.  He is remorseful and is willing to repay the sum misappropriated if given chance by the court.

SENTENCE

12.	The prisoner is a first time offender and is remorseful.  He is willing to repay the sum stolen and he has the means.  So a lenient sentence is to be imposed in this case.

13.	The prisoner is sentenced to be imprisoned for a period of two years in hard labour.  In exercising the court’s sentencing discretionary powers under section 19(1)(d)(i) of the Criminal Code Act, the sentence of two years in hard labour is wholly suspended on conditions that:-  

(1)	The prisoner enters into recognizance and promise to be on Good Behaviour Bond for two years.

(2)	The sum of K7,000.00 is deducted from the final entitlement pay out of the prisoner currently withheld by the Finance Department pending determination of this case, and the said sum to be paid into the Consolidated Revenue Account with Department of Finance.

(3)	Should the prisoner breach anyone of the conditions stated above, he is to be brought to court to be dealt with the suspended portion of the sentence.

(4)	The bail money is refunded to him.
________________________________________________________________
Public Prosecutor: Lawyers for the State		
Public Solicitor: Lawyer for the Defence