State v Kautete [2018] PGNC 437; N7544 (26 October 2018)

N7544

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 41 OF 2018

THE STATE

V

FELIX KAUTETE

Waigani: Berrigan, J
2018: 26 September& 22, 26 October

CRIMINAL LAW – Sentence – Misappropriation – Plea of guilty – No prior conviction – Suspension - Restitution - Section 383A(1)(a)2(d) of the Criminal Code.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38.
The State v Alice Wilmot (2005) N2857
The State v Augustine Sekry (2005) unnumbered, unreported
The State v Benson Likius (2004) N2518
The State v Christian Korei (2005) N2946
The State v Denis Vela, CR 43 of 2004, unreported
The State v Elizabeth Teka (2008) N3509
The State v Frank Kagai [1987] PNGLR 320
The State v Gibing Yawing (2017) N6836
The State v Lukeson Olewale (2004) N2758
The State v Nancy Leah Uviri (2008) N5468
The State v Niso (No 2) (2005) N2930
The State v Philip Wiamai (2007) N5492
The State v Simon Savoa Feaviri, CR (FC) 103 of 2017, unreported 8 December 2017
The State v Tardrew [1986] PNGLR 91
The State v Tiensten (2014) N5563
Wellington Belawa v The State [1988-1989] PNGLR 496

Counsel:

Ms Lilly Jack, for the State
Mr Edward Sasingian, for the Prisoner

DECISION ON SENTENCE

26^th October, 2018

1. BERRIGAN, J : INTRODUCTION: The prisoner, Felix Kautete, pleaded guilty to one count of misappropriation, that on 9 September 2013 he dishonestly applied to his own use and the use of others cash money in the sum of K24,000, the property of Maria Laka, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code.
   

Facts

2. The brief facts are that on or about 8 September 2013 the complainant, Maria Laka, and her husband met the prisoner at the offices of the National Capital District Commission (NCDC), Lagatoi Haus, Waigani in the National Capital District, following advice by her uncle, Heagi Morea, that NCDC was selling vehicles on tender.
   
3. The prisoner showed them a vehicle, Toyota Hilux, 5^th Element, dual cab, white in colour, without number plates. The prisoner advised the complainant that the vehicle was internally tendered for sale and all they needed to do was make a cash payment to him and he would sort out all the paper work, including transfer of ownership, registration and other matters with the Motor Vehicle Insurance Limited (MVIL). On that basis the complainant agreed to make payment the following day.
   
4. On 9 September 2013 the prisoner met with the complainant, her husband, Heagi Morea and his wife at NCDC office. The complainant gave him K24,000 in cash for the purchase of the vehicle.
   
5. The prisoner advised them to wait at the ground floor of the building whilst he went to sort out the paperwork. At around 4.10 pm he returned and advised the complainant that cash payments were not accepted for registration and so he was going to arrange for a cheque to be raised by NCDC for MVIL for that purpose. He said it should all be sorted out the following day. The prisoner never returned and instead applied the money for his own use.
   

Maximum Penalty

6. Pursuant to s. 383A(1)(a)(2)(d) of the Criminal Code the offence carries a maximum penalty of ten years’ imprisonment. The maximum penalty should usually be reserved, however, for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. This is not such a case.
   

Sentencing Considerations

7. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:
   
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
       

Comparable Cases

8. In addition the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:
   
   1. K1 and K1000, a gaol term should rarely be imposed;
   2. K1000 and K10,000 a gaol term of up to two years is appropriate;
   100. K10,000 and K40,000, two to three years’ imprisonment is appropriate;
   4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
      
9. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: The State v Niso (No 2) (2005) N2930; The State v Tiensten (2014) N5563.
   
10. Both counsel referred me to cases in support of their respective submissions. The defence cited a number of cases, most relevantly: The State v Denis Vela, CR 43 of 2004, unreported, Mogish J in which the prisoner, a police officer, was sentenced to 4 years’ imprisonment for misappropriation of K28,000 from the State.
    
11. The State has also helpfully referred me to:
    
    1. The State v Nancy Leah Uviri (2008) N5468 in which it was suggested the guidelines in Wellington Belawa might be adjusted upwards such that a sentence of between 4 and 6 years’ imprisonment would be appropriate where a sum of between K10,000 and K40,000 is involved;
       
    2. The State v Elizabeth Teka (2008) N3509 in which the prisoner pleaded guilty to misappropriating K37,000 in cash from the victim, her brother in law, both of whom were from Ialibu in Southern Highlands Province. The victim came from the village with K40,000 to purchase a PMV but there were none in stock at Ela Motors in Mt Hagen. He approached the victim and asked her to hold K37,000 until a bus became available for sale. The prisoner deposited it to her account and applied it over a period of time for her own use until it was depleted from her account. On conviction, the prisoner was sentenced to 5 years’ imprisonment which was wholly suspended on conditions including full restitution;
       
    100. The State v Simon Savoa Feaviri, CR (FC) 103 of 2017, unreported 8 December 2017, in which the prisoner was found guilty by Kandakasi J following trial of one count of misappropriating K18,931.25 belonging to BSP. He was sentenced to 3 years’ imprisonment wholly suspended on conditions including restitution;
         
    4. The State v Alice Wilmot (2005) N2857 in which the prisoner pleaded guilty to one count of misappropriating K19,960 systematically over a period of 17 months whilst a bank teller from her employer, ANZ. The prisoner failed to express remorse and was sentenced to 3 years’, partially suspended to take into account restitution; and
       
    5. The State v Philip Wiamai (2007) N5492 in which the prisoner pleaded guilty to one count of misappropriating K16,848.70. The prisoner agreed to assist his cousin brother, a retired school teacher, obtain his finish pay but once he did put it into his bank account and applied it to his own use. The prisoner was sentenced to 4 years’ wholly suspended on conditions, including restitution.
       
12. I have also had regard to the following which may provide guidance in determining sentence:
    
    1. The State v Lukeson Olewale (2004) N2758, in which the prisoner pleaded guilty to one count of uttering and one count of misappropriating a cheque for K40,000 against the account of the Fly River Provincial Government, his employer. The prisoner conspired with others including a bank manager and was sentenced to 4 years’ imprisonment by David AJ (as he then was) wholly suspended on conditions including restitution with assistance from his family;
       
    2. The State v Benson Likius (2004) N2518 in which Lenalia J sentenced the prisoner to 5 years’ for misappropriating K68,674.06 the property of his employer, Lihir Management Company using a scheme applied over a period of more than 20 months. Three years of the sentence was suspended on conditions including restitution;
       
    100. The State v Christian Korei (2005) N2946 before Lay J in which the prisoner pleaded guilty to misappropriating a sum of K82,202.73 donated for the purpose of building a classroom for his community. On discovery the prisoner made restitution of K65,000. He was sentenced to 4 years’ imprisonment on conditions including full restitution; and
         
    4. The State v Gibing Yawing (2017) N6836 in which the prisoner was sentenced to 2 years’ imprisonment by Salika DCJ. The prisoner, an accountant, pleaded guilty to one count of misappropriating K14,955 from his employer, Simbu Farming and Marketing Ltd.
       
13. The sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Nature and Circumstances of the Offence, including Matters of Aggravation

14. Having regard to Wellington Belawa, I take into account the following matters.
    
15. The offence involves a substantial amount of K24,000. The offence was committed over a relatively short period but clearly involved a level of planning and was intended for financial gain.
    
16. The offence involved a breach of trust. The complaint was related to the victim through marriage. As a result of the offence the victim lost a substantial amount of money.
    

Personal Circumstances

17. The Prisoner is 53 years of age and comes from the Uritai Village, Malalaua District of Gulf Province. He resides at Koni Ranuguri Settlement in the National Capital District with his wife and seven children, all of whom are married and working. His second born son passed away on 21 April 2012. His first wife passed away on 9 August 2014.
    
18. The prisoner did not complete his formal education. Prior to this matter, he had been employed as the private body guard of the Deputy City Manager at NCDC for 6 years. He also runs his own business on a contract basis with NCDC to clean market places and roads, build stone walls, cut grass and so forth.
    

Matters in Mitigation

19. In mitigation this is the prisoner’s first offence. He is previously of good character. Mr Simon Vai of NCDC regards the prisoner as a humble person, who performs his duties faithfully and with a good work ethic.
    
20. The prisoner has lived at Koni Ranuguri settlement for more than 30 years and is well regarded. According to his local pastor, the prisoner is a community leader and poses no threat to anyone.
    
21. The prisoner cooperated with police and pleaded guilty at an early stage. On allocatus he expressed remorse, which I accept as genuine. He saved the State the time and expense of a trial. With the support of his family he paid K9000 towards restitution two days prior to pleading guilty.
    
22. He is diabetic and was observed by the Probation Services on interview to have limited mobility.
    
23. I have no doubt that the offence will bring shame and a loss of standing to the accused in his community, and to his family.
    

Sentence

24. The prisoner has been convicted of one count of misappropriation. The aggravating factors clearly outweigh the mitigating factors in this case. The offence is serious and prevalent and there is a need for both general and personal deterrence.
    
25. Taking into account all of the matters outlined above, I impose a sentence of 3 years’ imprisonment in hard labour. I will now consider whether any or all of that sentence should be suspended.
    
26. A medical report states that the offender has diabetes. I am sure it would make prison more difficult but it is not suggested that the condition would cause an excessive degree of suffering.
    
27. The offender has already restituted K9000 with the support of his family. His family have pledged to assist him with the balance. The words of Sevua J in The State v Alice Wilmot do resonate with me: “Restitution... should never be used as a means by the rich and wealthy to buy their freedom so that they escape criminal responsibility”. I also agree that personal restitution will normally be more indicative of genuine remorse.
    
28. The prisoner in this case, however, is not a wealthy man. He freely admitted the offence to police and to this court and I do accept that he is genuinely remorseful. Moreover, courts in this jurisdiction have made it clear that suspension is not an act in leniency but an order made because of the exceptional circumstances of a particular offender, or in the community interest to prevent re-offending, or to promote restitution: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.
    
29. According to the Pre-Sentence Report and the Means Assessment Report the prisoner currently lacks the personal means to complete restitution. He is certainly fortunate to benefit from a large and extended family willing to assist him. He has also indicated his willingness to personally contribute if allowed to resume employment and assist with the management of his son’s business. The Probation Service regards him as suitable for probation.
    
30. In those circumstances I order that the sentence of 3 years’ be wholly suspended on the following conditions:
    
    1. The prisoner shall repay the outstanding amount of K15,000 to the victim, Maria Laka, within 6 months from today;
       
    2. The Probation Service is to supervise the payment of restitution and provide 3 monthly reports;
       
    100. On completion of restitution the prisoner shall immediately enter into his own recognisance to keep the peace and be of good behaviour for the period of his sentence.
         

The Court orders accordingly.

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