State v Tony [2018] PGNC 155; N7268 (18 May 2018)

N7268

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 303 OF 2017

THE STATE

V.

RACHAEL TONY

Waigani: Miviri AJ
2018: 30^th April,
1^st, 14^th, 15^th & 17^th May

CRIMINAL LAW – Practice and Procedure – s383A Misappropriation CCA –Plea – Private Secretary to Chief Justice – falsely used name of Deputy Chief Justice – hired vehicles from private hire company – K25, 844.50 incurred – application to personal use – dishonesty – serious breach of trust–deterrent and punitive sentence.

Facts
The prisoner was private secretary to the chief Justice. She falsely used the deputy chief Justice’s name and secured the hire of two vehicles from a private company billing up to K 25, 844.50. She used both personally and also for the use of others.

Held
Plea
Very serious breach of trust
First offender
PSR discretion of court.
4 years IHL

Cases:
The State v Belawa [1988-89] PNGLR 49
Tardrew, Public Prosecutor [1986] PNGLR 91
The State v Vagi [2014] PGNC 254 ; N5697
The State v Eliakim [2007] PGNC 76; N3190
The State v Johnson Bale [2004] PGNC 161; N2626
The State v Kintau [2014] PGNC 55; N5761
The State v Hagei [2005] PGNC 60; N2913
The State v John Aubuku [1987] PNGLR 267

Counsel:

L. Jack, for the State
G. Tine, for the Defence

SENTENCE

18^th May, 2018

1. MIVIRI AJ: This is the sentence of a woman who was employed in the office of the Chief Justice as Private Secretary who misappropriated K25, 844.50 in the hire of two vehicles.
   

Background

2. Prisoner was employed by the National Judicial Staff Services (NJSS) as Private Secretary to the office of the Chief Justice. Her duties included administration, general office work and duty travel arrangements for the Chief Justice. Part of which included the arrangement of hired vehicles for the Chief Justice and other Judges upon instructions. Unknown to Deputy Chief Justice Sir Gibbs Salika she used His Honour’s name to hire firstly a Toyota Prado registered number BEJ 415 for 10 days from 2^nd February to 12^th February 2016 at the cost of K 900 per day. Then a Toyota Land cruiser 5 door bearing registration number BDL 316 for 20 days from 12^th February to 3^rd March 2016 at K700 per day. The cost of both hires was K 25, 844. 50 invoice dated the 3^rd March 2016 which was sent to the Deputy Chief Justice Sir Gibbs Salika’s chambers who never requested nor did he hire any vehicle from Islands Mobile Hire Cars during that period. She obtained the vehicles under the name of the Deputy Chief Justice Sir Gibbs Salika and used it for her personal use and to the benefit of others.
   

Charge

3. The charge on the indictment invoked section 383A of the Code which reads;
   

“(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 trust, direction 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 excerpt 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;

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

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

(d) where the property dishonestly applied is of a value of K2000 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 tangible property;

(b) a person’s application of property maybe dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into 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;

(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.

Penalty: Imprisonment for a term not exceeding one year.

(4).........

Plea

4. She admitted to police in the record of interview and maintained in court. The evidence tendered corroborated her guilty plea and accordingly I confirmed her plea. The maximum penalty was 10 years IHL. Because the property in this case was K25, 844.50 above K2000 warranting the maximum sentence above.
   

Antecedents

5. On the 20^th July 2010 she started duties with the National Judicial Staff Services. Up to the date of the offence 1^st February 2016 to the 4^th March 2016 she would have been in the office for almost six years. She was 27 years old born on the 15^th December 1990, and was originally from Hula, Rigo District, Central Province. She was a single parent with a young child. And was resident at the suburb of Gerehu Port Moresby with her brother. And the subject vehicle here was taken off her at Badili which she professed was where she lived. She was a united Church follower and her Pastor gave good reference on her involvement in church. She was educated at Badihagwa Secondary School up skilled with qualification from IEA College of Tafe in tourism and hospitality.
   
6. There were no reasons disclosed apparent or identifying as to why she did what she did. The offence was recurring starting from the 1^st February 2016 to the 4^th March 2016 a total of 33 days altogether culminating in K 25, 844.50 billed for the vehicles hired out. She used the name of the Deputy Chief Justice Sir Gibbs Salika to secure the hire.
   

Allocutus

7. When given an opportunity to address the court on sentence, she apologised to the Deputy Chief Justice and her colleagues for what she did and asked to repay that money back.
   

Aggravation

8. She committed the offence without regard for the integrity neither of that office nor of the office of the Deputy Chief Justice or even of other Judges who also used her services to get administrative arrangements of the like. She drew all that name and integrity down by her criminality without heed or regard of that fact. Since the 12^th February 2016 to the 4^th March 2016 she made no payments to the company Islands Mobile Hire Cars. Her presentence report was returnable on Monday the 14^th May 2018 before the court. When the matter was called on that day counsel defending did not appear including the prisoner from Bail. Matter was adjourned to 15^th May 2018 at 9.30am. Counsel and defendant appeared and advised court that the file had not been given for the 14 days granted to prepare the presentence report and therefore requested a further 5 days. The court granted 2 days only to Thursday the 17^th May 2018. With the earlier grant of 14 days this was a total of 16 days granted for presentence report. When the court resumed 1.30 pm Thursday 17^th May 2018 the presentence report was not before the court and was filed in the middle of the State counsel’s address on sentence. At the back of it was a bank of South Pacific deposit butt dated Saturday the 12^th May 2018 for the sum of K1000 deposited to National Court Registry Trust Account number 1000583618. It was not clear who made this payment and even if it was the prisoner the National court was not owed any money by the prisoner. She did not steal from the National court or the Registrar. She had no obligation to pay them. What was misappropriated was owed by her to Islands Mobile Hire Cars. The obligation on her part was to pay them not the court registrar to his trust account on a Saturday 12^th May 2018.
   
9. In my view this was a desperate and hasty attempt to pay in the face of pending determination of sentence. It was not and never was a genuine attempt to pay but payment made to avoid jail term in my view. It was made on a Saturday 12^th May 2018 and on Monday 14^th May 2018 when the matter was called neither the prisoner nor counsel defending was before the court. Hasty because Islands Mobile Hire Cars was owed money by the Prisoner not the Registrar of the National court so that it was paid into trust account in his name. For the two years 2 months 17 days since 1^st February 2016 it was never paid to them at all. This was therefore not a genuine attempt in any case it was not to Island Mobile Hire Cars. They remained outstanding to be paid by the Prisoner.
   
10. Coupled with that, I consider this offence as the most serious breach of trust by a public servant particularly in the light of the fact under section 169 of the Constitution establishing the office of the Chief Justice. It is significant and fundamental to set out section 169 (3):
    

“In addition to his other powers, functions, duties, and responsibilities, the chief Justice after consultation with other Judges, is responsible for the organization of the affairs and the administration of the business of the Supreme Court and the National Court (other than, except to the extent allowed by or under an Act of the Parliament, matters relating to the National Public Service.)

11. By Section 170 the office of the Deputy Chief Justice is constitutionally created like the Chief Justice placing of very high prominence and importance both to these offices. Both are the most senior Judges in that order under section 171 of the Constitution. And it is they who are responsible for the running of the Supreme Court created by Section 160 and the National Court by section 163. Both are Knights decorated by the Queen of the Commonwealth for their service to law, Order and Justice to Papua New Guinea and her people and Constitution. By her conduct and criminality, the prisoner has within 31 days drawn that name and integrity into disrepute and standing. And these include of the other Judges of the Courts she also discharged duties for.
    
12. What they do is the calling of the third arm of Government and therefore of great importance in the governance of the Country under the Constitution. It is of the highest integrity and fundamentally cannot be shattered in any way because the fabric of society weaves from what they do as custodians of law order and Justice in the country. The role they play is the remaining pillar that always brings the country back into calm waters of Justice, Law and Order. It means that the prisoner as a personal secretary or any other staff or personnel for the same to the office of the chief Justice or any other Judges for the same cannot call that integrity into question in any way or form.
    
13. Here is a criminal offence of dishonest application of property to her use using the name of the Deputy Chief Justice Sir Gibbs Salika whilst she is employed as private secretary to the chief Justice Sir Salamo Injia. And sum of K25, 844.50 not paid since 1^st February 2016 and up to 4^th March 2016 and now Tuesday 15^th May 2018. On the 24^th May 2017 in a record of interview she asked to repay and paid nothing then. On allocutus on the 30^th April 2018 up to the present no money has been paid in settlement of that K 25, 844.50 by the prisoner. It is two years 2 months 17 days and still not a toea of that money has been paid by the prisoner in settlement owing. It is her wrong committed by her for which she stands before this court and it is her responsibility not her relatives or any other who are innocent of the conviction she has sustained. They will not bear her criminality for her that is not the law and has never been. In this regard therefore what has been placed in the presentence report by her relatives will not be considered. For her part she says she has K 8, 463.44 in her Nambawan Super which is a photocopy and is not in proper form nor is it verified as from that organization by proper form in law. It does not add to her case in sentence and will not be considered because it is not evidence in law and by law, Section 34 Evidence Act.
    
14. A search warrant dated the 5^th June 2017 has been executed on the 7^th June 2017 at 8.55am at the Bank of South Pacific Account number 1002139424 account name Rachael Iraela Tony c/-NJSS, P. O. Box 7018 NCD including bank statements of that account from 1^st January 2016 to the 31^st May 2017 and any other documents relating. This is prisoner’s personal account with the bank of South Pacific. There is no money over and above the K25, 844.50 in that account to say that there is indeed means to settle if court were to grant option to settle or repay off. No other material has been filed before the court to be invoked as a basis for a non-custodial sentence with conditions for repayment or even a schedule or repayment. I adjudge that there is no substance to invoke suspension of sentence on condition of repayment as no evidence has been placed before me. It must also be distinguished from an attempt to pay to avoid what is due in law upon the prisoner. The latter is the case now. Sentence must fit the wrong.
    
15. It is a very serious offence indeed and her guilty plea does not in my view wear out the gravity of the offence. Weighed it would be disproportionate to give any other sentence other than a strong deterrent and punitive sentence a clear message to her and any others with similar inclinations that the court will not tolerate such behaviour. In so doing enforcing the sentencing principles that her conduct is denounced in the strongest terms. That it is just punishment given the facts set out here. To accede to her allocutus to give her time to repay the money will be unrealistic given that she has made no attempts since to start paying that money nor does she profess the means to effect payment.
    
16. Under section 19 (6) of the Code three broad categories can be summarized upon which suspension can be considered in sentence, (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example because of his bad health, Tardrew, Public Prosecutor [1986] PNGLR 91. In all respects in her case there is nothing to sway sentence in this regard before me.
    
17. In State v Vagi [2014] PGNC 254 ; N5697 3 years imprisonment in jail was imposed there were no prospects or evidence she could repay back the K65, 924.90 that other innocent persons would be unnecessarily drawn in to help her. That is squarely the case here. Where the amount stolen is small the sentence has corresponded where the amount is large the sentence has likewise followed suit, The State v Eliakim [2007] PGNC 76; N3190.The State v Johnson Bale [2004] PGNC 161; N2626 and State v Kintau [2014] PGNC 55; N5761 the amount involved was K 87,500.00 both prisoners had paid off the money as at the date of sentence. 4 years IHL was imposed upon both but fully suspended.
    
18. That is not the case before me by the Prisoner not a toea of that money has been repaid back. The deposit of Saturday 12^th May 2018 is not to Islands Mobile Hire Cars account. It is to the National Court Registrar’s Trust Account number 1000583618. That is not the Island Mobile Hire Cars Account. Therefore in law not a toea has been paid to Islands Mobile Hire Cars by the Prisoner. She has no real means to pay K 25, 844. 50 back to Islands Mobile Hire Cars and has not done since 1^st February 2016
    

Issue

19. What is the appropriate sentence for the prisoner?
    

Mitigation

20. She had admitted outright to the police when she was taken in and interviewed. And she maintained before the court. It was an informed position to admit as she did. A first offender relevant particulars set out in her antecedents I give due consideration. That is all that can be considered as mitigating. There are no extenuating circumstances: State v Hagei [2005] PGNC 60; N2913 placed before me to sway otherwise than to impose a term that will be a deterrent and punitive on her as well as others with similar or like inclinations.
    

Law

21. Section 383A involves firstly, dishonesty and secondly, application of the use of property either to one’s own use or another. It is relevant to be guided by the principles laid out in Wellington Balewa v The State [1988-89] PNGLR 496, applicable here given the facts and circumstances including both the mitigating and aggravating factors here in the following order:
    
    • (i) Amount that was taken;
    • (ii) Degree of trust held by the prisoner;
    • (iii) Period over which the offence is committed;
    • (iv) Use of what the property was put to;
    • (v) Effects on the victims;
    • (vi) Effects on the offender herself;
    • (vii) Effect on the public confidence;
    • (viii) Restitution.
      
22. K 25, 844.50 is a large amount of money including the degree of trust both of which have been discussed above. Including the period over which the offence was committed. She ought to have known it was wrong she was working in the office of the Chief Justice and came into contact daily with the duties that were of that office as private secretary, and no doubt by that fact was versed of what stealing or misappropriation was and the consequences that drew. She had no excuse to do what she did. She was no ordinary secretary and her conduct was very serious likened to the Policeman in John Aubuku v The State [1987] PNGLR 267 both had no reasons to breach the law they were always well acquainted with it having rubbed with it each day of their service in their duties. Prisoner had no reason to defy the law here. She was acquainted with it having served in that office.
    
23. Prisoner admitted in the record of interview that the vehicles were applied to her own use. The effect on the victim have been set out above including that prisoner is now unemployed and with no means to draw from to settle what has been incurred as result of the offence. She applied through her lawyer and was granted 14 days to get material to support determination of an appropriate sentence. That did not happen because as the lawyer explained 15^th May 2018, the file was not given to the Probation officer in the 14 days adjournment granted on his application. In my view that is clear evidence of disrespect to the orders of the court granted. No motion has been filed to vary that order and supporting documents except from the bar table that file was never given to the probation officer. There was more than enough time given to get the presentence and means assessment reports. If there were means to sustain or repay the money that would have been given at the first opportunity since. Even before the matter got to the Police prisoner never made any attempt to pay when she was asked and accompanied the chief Justice’s driver to her residence at Badili to return the subject vehicle. From that date February or March 2016 she never paid that money. It is now two years since and up to 15^th May 2018 there was no evidence of any payment made or material filed to show means to pay. Given the magnitude and the seriousness of the crime against her I further adjourned to Thursday 17^th May 2018 at 1.30 am for that report. That report is not favourable to her particulars I have set out above.
    
24. The sentence in all the circumstances in view and applying Wellington Belawe (supra) given that the amount K10, 000.00 to K 40, 000.00 is 3 to 4 years imprisonment. Accordingly it is determined that the proportionate sentence against the prisoner for the crime of misappropriation is 4 years IHL. And I so impose that sentence upon her.
    
25. The sentence of the court is 4 years IHL. Any time in custody is deducted forthwith. The balance will be served in jail forthwith.
    
26. Bail of K2000 is refunded forthwith.
    

Orders accordingly.

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for Defence