N7253

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 24 OF 2017

  THE STATE 

V.

KEVIN UNOBO
(No3)

Waigani: Miviri AJ
2018: 30th April,
 1st, 4th & 14th May

CRIMINAL LAW – Practice and Procedure – s383A Misappropriation CCA – trial – serious breach of trust employer/employee –vehicle applied to own use–– dishonesty – registered to family business IPA– caught by police driving subject vehicle – vehicle retrieved– first offender.
Facts
The accused was liaison officer between the Central Provincial administration and office of the Governor Alphonse Moroi in the purchase of 9 police vehicles for police in central province. He dishonestly applied to his own use a Toyota Land cruiser. 

Held
Serious breach of trust
Employer/Employee relationship
K124, 000 worth Vehicle retrieved 
First offender 
Trial
Good PSR & MAR
Strong deterrent sentence

Cases:
Kavo v The State [2015] PGSC 48
State v Thomas Jim Nori [2016] N6467
Tardrew, Public Prosecutor, [1986] PNGLR 91 
Wellington Balewa v The State [1988-89] PNGLR 496.

Counsel:

T. Aihi, for the State
J. Kolowe, for the Defence
		
SENTENCE
15th May, 2018
1.	MIVIRI AJ: This is the sentence of the court upon the prisoner convicted after trial of a count of misappropriation.

Background

2.	Prisoner was the liaison officer between the Central Provincial Administration and the office of then Governor of Central Province, Alphonse Moro; He was tasked to ensure that police in the Central Province were equipped with vehicles in preparation for the 2012 election. Two Bank of Papua New Guinea cheques in sum of firstly K700, 000.00 and K 19, 709. 38 were raised and paid to Ela Motors Limited to supply the vehicles. Four vehicles out of five were delivered. The fifth vehicle was not delivered. He took delivery of it as it was shipped in from Alotau. He kept it and registered it under his business name Eno Transport hire registration number of BDP 758. Between the 1st and the 30th June 2012 He used it as his own knowing very well it was property of his employer Central Provincial Government.

Charges

3.	The conviction was sustained under 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)………
4.	The maximum prison term was 10 years imprisonment by operation of that section. His facts and circumstances do not warrant the maximum sentence. But a determinate term of years is in view. The value of the vehicle K123, 338.78 was in excess of K2000 and it was the property of his employer.

Issue 

5.	  What is an appropriate sentence for the prisoner?

Allocutus

6.	He thanked the court for hearing his case. It was a long wait for him going and coming from bail. Finally the matter was laid to rest now in that his fate was clear and determined. He pleaded to be accorded mercy for what he did and a chance to pay for it. He apologized to the Central Provincial Government for what he did. Further he asked the court to consider his young family of 6 children aged 13 to 6 months old. And also thanked them and all his family for their support in his case. He was terminated from employment because of that fact and remained so at time of the verdict.

Mitigation

7.	Counsel defending urged to take account of allocutus and to give appropriate weight to it in the determination of an appropriate penalty. You were a first time offender aged 49 years old and married with 7 children ages ranging from 13 years to 9 months old. And from Gebea village, Abau Central Province and an SDA follower. You are educated to grade 10 in 1989. And you have up-skilled with Diploma in IPA and were employed with the central Provincial Government until termination over this matter for a period of 21 years since April 1993.
 
8.	The subject vehicle was returned to the Police it was only a year old. An Ela Motors quotation of K3772. 45 dated the 9th May 2018 had all glasses of the subject vehicle to be replaced. It is not clear whether the vehicle is road worthy and drivable. But as at the date of this sentence the vehicle is at the fraud Squad office. Photographs taken show it in good condition since it was only a year old when taken in by Police. Prisoner cooperated with Police in the matter but it was an aggravating and prevalent offence. And a very serious breach of trust. In determining an appropriate sentence counsel urged to consider State v Thomas Jim Nori [2016] N6467 where sentence of 2 years IHL suspended on payment of a fine of K10, 000.00 was imposed. That is a similar case on the facts as here and I take account of it in considering sentence against you. Like offenders must be treated alike and that I do here against you in your case. 
 
9.	You case is likened to Wellington Balewa v The State [1988-89] PNGLR 496, the principles in that case are well within the facts and circumstances of your case which are applied here. It has been readopted and reaffirmed in Kavo v The State [2015] PGSC 48. Your case is not like that here. You did not have any right to that vehicle in any form or manner. The property was not yours in any way nor did you have any right to use it as you did. As a career public Servant for 21 years you ought to have known that you were committing a very serious criminal offence in the way that you acted then.

10.	You used the vehicle between the 1st and the 30th day of June 2012 here in Port Moresby to your own use. Whilst the people of Central Province were denied the use of a police vehicle that could have assisted in discharging duties relating to the policing and enforcement of law and order in the province then. The Government decision to serve the people was seriously impaired by your greed to use the vehicle personally. A brand new vehicle it has now depreciated in value. Photographs show it is still in good condition. No evidence has been led before the court as to whether or not it is driveable from where it is stored at the fraud and anticorruption office in Konedobu. The presentence report attaches a quotation dated the 9th May 2018 from Ela Motors in the sum of K3772. 45 for the replacement of all glasses to it which is obviously to do with the body and not the engine. It is not clear whether mechanically the vehicle is driveable. The evidence on trial was that it was driven to where it is now. Presumably on that basis it can be repaired and the obtaining of quotation is in that regard. It is the subject of this proceeding against you and if it is mechanically repairable and drivable that is in your favour.

11.	In the presentence report, evidence filed which I take due consideration of you are a man of good character and the offence is out of character. These are clear from Ward Councillor Cloudy Bay LLG Colin Marava, James Goli Community Leader Anave Village, Cloudy Bay, Paster Kadasa Damaro District Director Seventh day Adventist Church National Capital District and one Doctor Graham Haina relating to your medical condition. He has submitted a report on you dated the 8th December 2015 relating to your medical condition then and there, 6th May 2018. I have observed you in court and have seen nothing indicative that you are unwell so as to seek a medical report to assist in the determination of an appropriate sentence. It cannot be said that that is the present condition the medical report you rely on is outdated by three years. In my view it does not add anything to your case. It is my view that there are no medical complications in your case to sway any sentence from the ordinary. 

12.	And that you have accepted to make good what you have caused. In this regard you are supported by your wife Bura Maro who is prepared to assist any payment if ordered and has filed a statement to this effect. Secondly you have disclosed in the means assessment report that you have your nambawan Super entitlements as a public Servant yet to be paid of K 100, 789.71. You also have a Toyota dyna PMV truck registered number BEU 303 valued at K 35, 000. 00 to K40, 000.00 and a Mazda utility unregistered valued at K 15, 000.00 to K 20, 000.00 which you could convert to cash or can be forfeited to the State.

Aggravation

13.	You do not have any good reason for committing the crime. You were greedy and did not live up to your oath of 21 years as a Public Servant and a Christian of the Seventh Day Adventist faith. You knew as a Christian it was wrong to steal as you did here. By your actions you have denied the people of Central Province of a Police vehicle that could have served your people even up to now. Law and Order is a big problem in the country and Central Province is no different from any other in the country. By your actions you contributed to that problem. K123, 338.78 of State money was wasted without any return to the people or the Government because of your greed. You were trusted by the Political head then Governor of the Province Honourable Alphonse Moroi and the Central Province administration to bring and deliver police vehicles for law order and security in the Province and you failed. You used the vehicle personally for almost a month and now as a consequence the vehicle is idle at the Fraud and Anticorruption office not serving its intended purpose. You have as a result lost your public service career of 21 years and public confidence is seriously impaired yet again by a public servant in your standing. It reflects very badly on the public service what you did. In so doing I adopt and apply the principles of sentencing in Wellington Balewa (supra) in determining an appropriate sentence in your case.

14.	You delivered the bulk of the vehicles paid for by that money but kept this one as it was late arriving from Ela Motors Alotau. You used it personally for a month and it has been driven into the fraud and anticorruption office at Konedobu where it is current obviously in need of repair no fault of the central Provincial Government or administration but a matter in your hands, you being the last person holding onto it. You will ensure it is in good order and return it to where it was intended.

15.	In all the circumstance a fair and proportionate sentence given the facts and circumstances of your case will be 3 years IHL. And I so impose that upon you. But in the exercise of my discretion pursuant to section 19 (6) of the Code which in my judgement is applicable here and I adopt Tardrew, Public Prosecutor, [1986] PNGLR 91 which sets out three broad principles upon which suspension of sentences may take place; (1) where suspension will promote the personal deterrence, reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender for example because of his bad health. 

16.	I consider all equally applicable here in the sentence that I now pass upon you with the orders that I now make, you are sentenced to 3 years IHL for misappropriation pursuant to section 383A. That sentence  is wholly suspended on  the following conditions:-

(i)	You shall enter into a 3 year  Probation Order;
(ii)	You shall within four months as of today’s date 16th May 2018 repair service and make road worthy Toyota ten seater Land cruiser registered number BDP 758 at your own expense at Ela Motors either at Badili or Waigani Branches. The four months expires on the Monday 17th September 2018 or Tuesday 18th September 2018 if the former is a public Holiday. Also by which time and date you shall have been issued a certificate of safety and roadworthiness by Ela Motors together with the final invoice paid off.
(iii)	Within or by Thursday the 27th September 2018 you shall hand the Toyota ten seater Land cruiser registered number BDP 758 with the final receipt of payment with certificate of safety and roadworthiness formally to the Central Provincial Administrator or his delegate who shall hand it over to the Director Transport of Police Department for allocation to Central Provincial Police Command.
(iv)	Conditions (ii) and (iii) shall be witnessed by the Probation Officer, Arresting officer, Central Provincial Administrator or his delegate, the director transport Police, and the Provincial Police commander Central or his delegate.
(v)	The Probation officer shall file that report of compliance with the National Court registry by Thursday 4th October 2018 discharging those conditions.
(vi)	You shall perform 600 hours of unpaid work at a work site to be allocated by the probation officer during the course of your probation.
(vii)	You shall be of Good behaviour at all times during the course of your probation;
(viii)	You shall not consume alcohol or any intoxicating substance or drugs during the course of your probation.
(ix)	The probation officer shall file every six months a report on your progress on probation.
(x)	You shall be resident at all times during the course of your probation period at section 267 Lot 141 Gari Avenue Tokarara National Capital District 
(xi)	You shall not leave that location without the leave of the National court.
(xii)	Should you breach any of these conditions you shall be arrested your probation lapses and you shall serve the 3 years in jail.
Orders accordingly. 
__________________________________________________________________
Public Prosecutor:  Lawyer for the State
Public Solicitor    : Lawyer for Prisoner