State v Atu [2019] PGNC 196; N7922 (19 July 2019)

N7922

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) N0. 197- 198 of 2017

THE STATE

V

CHRISTINE ATU

Kokopo: Susame, AJ
2019: 16, 19 July

CRIMINAL LAW – Sentence - Offences – Abuse Of Office & Misappropriation –Ss 92(1) & 383a (1) (A) (2) (B) Of the Criminal Code –

Cited Cases:

Counsels

Mr. C Sambua, for the State
Mr. A Tunuma, for the Prisoner

DECISION ON SENTENCE

19 July, 2019

1. SUSAME, AJ: After trial you were convicted on 4 July 2019 on the charges of abuse of office and misappropriation. After you and the lawyers addressed the court on sentence case was adjourned to today for decision on your sentence.

2. The facts are found in the earlier decision which I will rely on in deciding your penalty. What penalty should I impose on you for the offences you committed?

Abuse of office

3. The offence of abuse of office provides for two penalty provisions. Situation covered by subsection (1) provides for an imprisonment term not exceeding 2 years. If the act was done for purposes of gain penalty provided under subsection (2) is imprisonment term not exceeding 3 years.

4. In your case penalty provided in subsection (1) would be applicable. That is you are liable to be imprisoned for a term not exceeding 2 years.

Misappropriation

5. For this particular offence you misappropriated sum of K840.00 while being employed as a public servant from the health authority you worked for. In that regard you are liable to be imprisoned for a term not exceeding 10 years. That is provided in subsection (2) (b) of 383A of the Criminal Code.

6. Whether you should receive the maximum penalty for each count is a matter of judicial discretion depending on the seriousness of the charges. It is well settled sentencing practice observed by the courts in this jurisdiction that maximum penalty should never be imposed at first instance unless the case is considered the worst type.

Allocutus

7. In your address on sentence you said the following. You respected the court’s decision. You expressed remorse for what you did. You paid the person who performed work. You used your authority to make the decision to pay the person. You now realise the law that it was a mistake. You asked the court for leniency. What you have done has caused problems with your work and it has also caused you to separate from your family. You asked the court to have mercy on you in whatever decision court comes up with.

Submissions

8. In her submission Ms. Pulapula representing you was of the view mitigating factors outweighed the aggravating factors. She referred the court to few decided cases including the often cited case of State v Wellington Belawa [1988-99] PNGLR 496 to guide the court along in reaching an appropriate sentence. Using the guidelines in Belawa your sentence should fall under category 1. In concluding she asked the court to impose a one year suspended sentence with conditions.

9. Mr. Tugah considered there were a number of aggravating factors. He considered the tariffs in Belawa was decided in 1989 and is outdated. These sort of offences have increased and becoming more prevalent. Counsel was of the view that court should consider the totality principle. He submitted sentence should be made concurrent because the offences were committed out of a single transaction. In conclusion counsel submitted there was a need for public and specific deterrence, hence court to impose a punitive penalty.

10. Court had the benefit of a means assessment report less the pre-sentence report compiled by Nigel Amos the Senior Probation Officer. What comes out of the report is that prisoner has the capacity to restitute the funds misappropriated and that probation sentence was recommended.

11. Guidelines in Belawa will offer some guide. The prescribed tariffs have been considered inappropriate by the courts in recent times given the prevalence of misappropriation of public funds by persons in position of trust. There have been slight increases in the sentences over those prescribed in Belawa depending on the amount stolen and other aggravating factors.

12. Other considerations laid down in Belawa which Mr. Tugah outlined in his submission are also useful. Going by those considerations court will be in a better position to decide whether there are more aggravating factors or not. These considerations are:

(1) Amount taken;

13. The amount misappropriated was K840.00 which is not substantial.

(2) The quality and degree of trust reposed upon the offender including his rank;

14. There was greater degree of trust placed on you as the team leader of the programme. It was your duty everyone engaged in the program was paid his dues according to the work performed. That no one was unjustly denied his allowance. You abused the authority of your position and made a personalized decision totally denying Wape Sale of his allowance for the work he performed. In that respect you breached the trust Wape Sale had of you as the team leader.
(3) The period over which the frauds or the theft were perpetrated;

15. It was a one off incident.

(3) The use to which the money or property dishonestly taken was put into;

16. Leo Ako was paid more than he was entitled to receive.

(4) The effect upon the victim;

17. Your employer was not affected in a substantial way but you facilitated an unauthorized payment, hence one person was denied payment of his allowance and the other received more than the amount he was entitled to receive.

(5) The impact of the offences on the public and public confidence;

18. I doubt very much your conduct has had any impact on the public.

(6) The effect on fellow employees or partners;

19. What you did was prejudicial to the rights of Wape Sale who was denied his allowance for the work performed.

(7) The effect on the offender herself;

20. You have lost your job because of the offence you committed. You have brought shame and disgrace upon yourself and perhaps members of your family which has also led to you being separated from your entire family.

(8) The offender's own history;

21. No information is available of prisoner’s personal history.

(9) Restitution

22. You have not restituted the amount misappropriated. In the means assessment report you have undertaken to restitute the amount misappropriated from funds that are available to you.

(10) These matters of mitigation special to himself such as illness; rely on the sentencing guidelines and tariffs and decided cases.

14. No such special features are present in your case.

15. The factors that weigh against you are firstly you abused your position or office as the Sister In Charge and coordinator of the Immunization Programme and made a decision which was not sound to divert allowance intended for Wape Sale to Leo Ako. That decision was arbitrary. The diversion of payment of allowance was contrary to accepted legalized procurement processes. When you did that Wape Sale was completely denied allowance for the work he performed. While Leo Ako was paid more than he was entitled to receive. The amount misappropriated has not been repaid. You have undertaken to restitute if ordered.

16. You are a first-time offender. You have expressed remorse and asked for leniency of the court. The amount stolen is not substantial and I have no doubt you have the means and ability to restore your employer’s loss. The offence you committed is a non- violent crime.

17. The facts of your case are unique and distinguishable from the cases your lawyer had made reference to.

18. The facts upon which you were convicted are not so grave for the case to be considered the worst type deserving the maximum penalty available at law. Sentence lower than the maximum for each of the offences will be considered in the exercise of powers vested to me by s 19 of the Criminal Code.

19. The following shall be your sentence:

1. For offence of abuse of office you are sentence to 12 months imprisonment term
2. For offence of misappropriation you are sentence to 12 months imprisonment term
3. As to whether the sentence should be made cumulative or concurrent, I am in agreement with Mr. Tugah that offences were committed in single transaction. As such I order sentences imposed will be made concurrent.
4. I further order that the entire sentence is wholly suspended and prisoner is to enter into a written recognizance with cash surety of K1000.00 and she is to keep peace and be of good behaviour for a period of one year.
5. The cash surety shall be forfeited to the State and paid into the State Cash Revenue Fund in the event of breach of the terms of order No.04.
6. That as further condition of order N0.4 prisoner shall restitute the amount of K840.00 to her employer forthwith and evidence of payment to be made available to the Assistant Registrar for record purpose.
7. Prisoner’s bail to be refunded forthwith.

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