N8662
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 231 OF 2015

THE STATE

V

SIWI BUNGO
(No. 2)

Kimbe: Batari J
2020: 23rd September, 12th November
	
CRIMINAL LAW– sentence – misappropriation – former Kimbe Acting Mayor dishonestly applied money received by virtue of employment to own use – K15,570.00 stolen market gate takings – Breach of trust – factors relevant on sentence.

CRIMINAL LAW – sentence – misappropriation – sentencing options – alternative to imprisonment – relevant considerations.

Cases Cited

David Kaya and Philip Kaman v The State (2020) SC 2026 
Doreen Liprin v The State (2001) PNGLR 6
Wellington Belawa v The State [1988-89] PNGLR 496

Counsel

J. Apo & R. Luman, for the State
D. Kari, for the Offender

SENTENCE
12th November, 2020
1.	BATARI J:   An indictment presented against you, Siwi Bungo on 17/4/2018 charged that between 1/7/2014 and 31/12/2014 you dishonestly applied to your own use, K15,570.00, the property of the State.  You pleaded not guilty.  Following your conviction and submissions on sentence, this is your punishment. 
 
2.	The delay in completing your case has been largely due to time constraints from heavy Court schedules and availability of outside counsel to complete your trial.  After submissions on sentence, I reserved to consider a Pre-Sentence Report (PSR) and a Means Assessment Report (MAR) ordered from the Community Based Corrections (CBC) Office.

3.	The reports compiled by Probation Officer Mrs Elizabeth Passingan are fairly inclusive on your personal background and circumstances.  Both counsel have made submissions on relevant matters to take into account on sentence.  The reports will be read into the record.

4.	To avoid any misapprehension, Orders for PSR and MAR do not warrant suspension of sentence or probation orders.  Once a tentative view is formed, that one of the sentencing options other than imprisonment under s. 19 of the Criminal Code is open on the face of the records, the Court is obliged to consider relevant facts ordered from the Probation Office under s. 13 (2) of the Probation Act, Chapter, 381.  The information gathered from the reports will assist the Court weigh up the sentencing options available to it.  The assessment on the PSR and MAR may or may not favour the offender.  That consideration comes at the end when all the facts are before the Court.  To decide the outcome before all the facts are before the Court will be premature and an abuse of the sentencing process.

A.  BACKGROUND

5.	The facts of this misappropriation case are canvassed in the published judgment on verdict.  In brief, Kimbe Urban Local Level Government (Kimbe ULLG) runs Kimbe Town Market and charges user fees for market facilities and amenities.  Daily takings of fee levies are recorded and tallied against the receipt butts at the end of each day.  The records include cash payouts to individuals and hired service providers.  During the period in question, the offender was the Acting Town Mayor.  On many occasions, he solicited and received cash from the ULLG revenue collections.  By the end of December 2014, he had taken in total, K15, 570.00.  

B.  FACTORS FOR CONSIDERATION ON SENTENCE

6.	The case of Wellington Belawa v The State [1988-89] PNGLR, 496 has been the leading case in dealing with misappropriation cases.  It sets out several factors recognized by the Supreme Court which should guide the discretion of the sentencing authority as following.

(i)   The amount taken

7.	The consideration here concerns proportionality of punishment to the amount taken.  That is, the larger the amount, the greater the punishment should be.  The total amount embezzled by the prisoner is K15,570.00.  This is a fairly large amount.

8.	The sentencing proposition in Belawa v The State (supra) suggests where the amount misappropriated is between:

     (1)   K1 and K1,000, a jail term should rarely be imposed.
     (2)  K1,000 and K10,000, a jail term of up to two years is appropriate.
     (3)  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.	Recently in, David Kaya and Philip Kaman v The State (2020) SC 2026 (Batari, Mogish, Berrigan, JJ) the Court (per Batari, Berrigan JJ) proposed, having regard to s 383A of the Criminal Code as amended, the recognition by the Courts over time for the need for increased deterrence, and the recent trend of sentences, the following scale of sentences may usefully be accepted as a base to be adjusted upwards or downwards according to the factors outlined in Belawa’s case, such that where the amount stolen is between:

1)	K1 and K1000 a gaol term should rarely be imposed;
2)	K1,000 and K10,000, a gaol term of up to two years is appropriate;
3)	K10,000 and K40,000, two to three years of imprisonment is appropriate;
4)	K40,000 and K100,000, three to five years of imprisonment is appropriate;
5)	K100,000 and K500,000, five to seven years’ imprisonment is appropriate;
6)	 K500,000 and K999,999.99, seven to 10 years of imprisonment is appropriate, bearing in mind that the maximum under s. 383A(2) should be reserved for the worst types of offending involving amounts less than K1 million.
 
10.	Their Honours were mindful, it is appropriate to allow an opportunity for a trend of sentences to develop over time before attempting to set sentencing guidelines for offences attracting the maximum penalty under ss. 383A(1A) (a) or (b) of the Criminal Code.

11.	The amount misappropriated here falls into the third category of Belawa’s case and Kaya and Kaman’s case.  The suggested term of imprisonment is two to three years.  I will use this base as a start to be adjusted upwards or downwards as may be influenced by relevant mitigating or aggravating factors.  A term just outside the range may be appropriate.     

(ii)   The degree of trust in the offender including his or her rank

12.	Under this head, the degree of culpability is dependent on the repository of trust, i.e. the greater the degree of trust and the higher rank, the greater the degree of culpability.  It is common acceptance that those persons occupying elective offices or top administrative positions are there because of the confidence of the voters or the employer in them.  They are trusted men or women with supervisory roles, enjoying special benefits and rights that go with their position.  It can also be assumed; the temptation is ever present to abuse their office and avoid punishment.  The protection of the integrity of their high office requires them to conduct their business with openness and high moral aptitudes.
  
13.	In this case, you headed a local level Government body responsible for developmental policies and good governance in physical services delivery.  In 2012, the electors in Ward 4 of Kimbe ULLG elected you their Ward member.  In 2014 you were appointed Acting Town Mayor.  During the brief stint in that high office, you used the Town Market as your personal bank, accessing the revenue collections at your leisure, outside the formal accountable processes contrary to the Public Finance (Management) Act and Finance Regulations.  It was obvious you lacked the required high level of competence and reliability, or you simply chose not to be answerable to the high office of Mayor and the ordinary people who put you there.

14.	Appointing someone to a very demanding position of trust and respect beyond the level of experience, skills and competence of that person is not uncommon practice where nepotism is rife both in the public and the private sectors.  Such preferential treatment, for one reason or another often has counter-productive and disastrous results.  Wrong persons are placed in wrong jobs for the wrong reasons and consequently, unwanted outcomes.

15.	This I think occurred in this case.  You were appointed Town Mayor when you have absolutely no sense of good governance and accountability as seen in the way that you and within your own knowledge, others treated Kimbe Town Market as a milking cow.  There was a very serious breach of trust on your part.  You held a position of high respect and responsibility over public properties and funding.  Kimbe ULLG depended on your leadership and accountability and you failed miserably to deliver.  Your degree of culpability is high, by virtue of the high office of trust you held.

(iii)  The period over which the fraud or thefts have been perpetrated

16.	The consideration here is where a chain of dishonest acts spread over a long period, this indicates a more confirmed state of ‘guilty mind”.  Conversely, the offender who took the money on a one day “spur of the moment” act was unlikely to repeat the act.

17.	You committed the offence over a long period of time.  Your evil enterprise started almost the moment you stepped into the high office of Town Mayor.  Greed got the better of you to treat the public purse from the market earnings as your own personal bank account.  The evidence of a confirmed guilty mind is clear on the face of the records.   

(iv)  The impact of the offence on the public and public confidence

18.	The impact on public confidence is enormous, to state the obvious.  Town markets are funded by the government to provide the lowest and ordinary group of income earners, the SMEs avenues to sell their cash crops, marine harvests, sewn clothing items of clothes and manufactured consumables for income.  Monies collected from gate takings are revenues which in the long term would maintain and improve the market facilities and other public utilities.  When public servants and those in high places steal from State resources, this puts a serious doubt on the public confidence in the State services.

(v)  Motive:  How money or property dishonestly taken was used

19.	The motive for the prisoner’s offence was simply greed.  The money taken was not out of necessity to fund some worthy cause to be treated as a mitigating factor.  The stolen monies were put to wastage and such worthless causes as smoke, betel nut, I think drinking and gambling as well.  It was reckless spending of the money stolen.

(vi)   The effect upon the offender himself/herself

20.	Loss of employment and shame is the usual affliction on those who steal.  There is also lesser opportunity for future employment.  These factors may be taken into account, the rationale being, they constitute heavy penalty themselves.

21.	You were suspended following investigations and you have not held any public office since.  Dealing with shame and humility can be daunting.  You may have gotten over that.

(vii)   Restitution

22.	You have offered to repay the misappropriated amount.  For that reason; I ordered from the CBC Office, the MAR.  The means report will assist in assessing your ability to make restitution.   It is also helpful when the court deliberates the possibility of restitution as part of or in addition to an imprisonment term that might be warranted on the facts.

23.	It is commonly accepted; restitution is a mitigating factor because it restores the victim to the position he or it was in before the commission of the offence.  It carries much more weight if restitution is made early, before detection or arrest.

24.	In this case, you do not have sufficient means despite your offer to repay the amount stolen.   And no one has offered to assist you repay the K15,000.00 plus stolen and there seems to be no basis to order restitution.  

25.	However, I bear in mind the notorious fact of the ‘wantok system’ in which the individual finds his security.  When in trouble, his immediate kin and extended relatives and wantoks would freely rally around him in all manner of support.  I think I can safely say, for one reason or another, this seems to work mainly in favour of men.   So, in this case, I have no doubt, the prisoner will likely comply with any order for restitution.    

(C)	OTHER RELEVANT FACTORS

(i)  Custody
 
26.	The essence of time in custody is that the offender would have the experience of being held in confinement and would have learned valuable lessons not to reoffend.  The Court has discretion to deduct time in custody from the head sentence.  It is not a significant fact here. 

(Ii) Assistance to the Police 

27.	Co-operation with the police may be seen as the admissions, or in the arrest of the main perpetrator, or in the investigation of a case that might have proven difficult due to the lack of lead evidence or the complex nature of the offence.  Fraud cases fall into this category.

28.	In this case, you did not make full admissions. You conceded receiving some monies in the record of interview but disputed the amounts and gave little or no explanation for receiving the monies and purpose.  You were not forthright when the police confronted you with the allegations of your involvement and the anomalies in the amounts taken. 

(ii)   Plea of guilty

29.	A plea of guilty is a mitigating factor. It can lead to substantial discount from the maximum sentence.  Here, your conviction followed a long drawn out trial.  So, you are not entitled to any discount that is available to those who pleaded guilty. 

(iii)   Personal circumstances

30.	Your background and personal circumstances are set out in the PSR.  In brief, you are aged 52 years, married with 5 children, one of them disabled.  Originally of Kerowagi, Chimbu Province, you now live at Section 10 Bush Camp in Kimbe.  You completed Grade 10 and attended PTC College in Port Moresby.  In 1999 you moved to Kimbe and have been here since.  You followed the Life Baptist Faith and have been active in the affairs of that Church.  This is your first conviction.

(v)  Remorse

31.	Your conduct has been unremorseful.  This factor is not in your favour.  

(v)  Matters of mitigation special to the prisoner

32.	There are three post trial matters that I consider relevant in your favour:  the humility following your conversion and your being content with the low income from side market sales;  second, your disabled daughter is depended on your support and care; third your school age children are depended on your support and for their school fees.  

D.  SENTENCING OPTION: ALTERNATIVES TO IMPRISONMENT

33.	I have long held the view, that those who steal from the State ought to repay what they stole other than put the State and the public to further expenses by having to house, feed, cloth and provide for their general welfare in jails.  They are usually non-violent scheming offenders driven by greed and dishonesty to quietly steal from the public or private purse under their trust.  

34.	Offenders in this category are usually immersed in their own pride and self-esteem.  When their crime is detected, they would rather serve their punishment in secluded jails, far from the community to avoid the shame and humiliation from constant public scrutiny.  Then having served their terms and released sooner than ordered by the courts due to benefits from remissions and non-parole custody periods, they continue to enjoy the fruits of their evil labour, if they had not spent it all.  And the victim continues to suffer his or its loss.

35.	Restorative justice ought to be the sentencing option for this class of offenders, with the emphasis on repayment to the victim the loss, and the community, the wrong against it.  The offender should not be sent to prison but ordered to pay restitution and returned to the community to be punished by his or her own community through community works orders.   

36.	For the offender, this will be most unpopular sentencing option because of the effect of the unusually drastic and demeaning measures.  For instance, give a prominent public servant who steals from public purse, the option of imprisonment and the option to clean public utilities and resorts at nominated work sites; I think he would prefer a jail term for its seclusion and comfort than the discomfort from community work orders and public ridicule.

37.	My view is, that the offender should be seen, repaying his or her debts to the public through practical community work orders at such sites as, charitable organisations, churches, schools, hospitals etc utilising their relevant skills or clean the streets, market areas, etc without pay.  Another option would be to keep the offender in his or her position at half the salary level for that position. This form of punishment will meet the punitive aspect of sentencing.  It will also bring about enormous savings in terms of costs to the State.

38.	These are not the usual form of sentences the Court would impose largely due to lack of support mechanism outside the prison.  I consider however that the usefulness and long-term economic benefit to the State and the public out-weigh the expenses to keep and maintain the prisoner in jail for the number of imprisonment years he or she would be serving.

39.	Where restitution is to be taken as a relevant consideration for suspension of sentence if, an alternative to imprisonment will meet the sentencing objectives, I adopt what is stated in, Doreen Liprin v The State (2001) PNGLR 6 per Amet CJ at p. 11:

“I believe it is time to consider seriously whether offences of misappropriation of amounts of this kind warrants custodial sentences. I do not believe so. I believe the Court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment.”

40.	I have had regard to the submissions by both counsel on sentence. Their common position is that the maximum term of 10 years is reserved for the worst type of misappropriation case.  This is not one.  Your case falls into the range of three to five years.

41.	Having considered those factors for and against you, I am of the view that a term of imprisonment is warranted, and I propose a sentence of five years.

42.	This term should serve both personal and public deterrence aspects of sentencing.   It should also warn other likeminded persons, they will expect the same treatment if caught.  I think the experiences the prisoner has gone through, the time it has taken to complete his case together with the sentence that I am about to impose, should bring home to him at personal level, no advantage is gained by stealing from the public purse or others.

43.	I have also considered whether to suspend the whole or part of the term of sentence and whether the whole or portion of the amount taken be repaid.  You do not have adequate means or ability to repay the whole amount and may not be able to do so except with possible help from others as averted to earlier.

44.	I do not consider you to be a threat to the community. You may be usefully punished by alternative orders to imprisonment.  This will be beneficial to you, the community and the State.  Orders for suspension of sentence are justified. I propose to suspend the whole of the term on conditions.

45.	The sentence of the court is as follows:

1)	You are sentenced to five years imprisonment IHL.
2)	The sentence is wholly suspended, and you are to be released forthwith to serve your sentence on probation orders on the usual terms under the Probation Act over the period of five years and in addition, the following conditions will apply:

(a)	The whole sum of K15,570.00 shall be reinstituted or refunded to the State within 12 months as follows:

i.	the first instalment of K7,000.00 is to be paid within three months of today’s date or by 12 February 2021.
ii.	Bail money of K2,800.00 is to be converted as part of the K7,000.00 first instalment;
iii.	The balance of K4,200.00 shall be paid by 12 February 2021;
iv.	The balance of K8,570.00 shall be paid in full or by instalments from March 2021 to 11 November 2021;

(b)	 All repayments shall be made to the Finance Cash Office in Kimbe and copy of the official receipts of payment be deposited with the Assistant Registrar in Kimbe and also the Probation Office in Kimbe;

(c)	 Any claim for restitution by Kimbe ULLG for the Town Market revenue shall be made to the Finance Cash Office in Kimbe.

3)	You shall within 48 hours of these orders report to the Probation Officer.

4)	Shall enter into your own recognizance in the sum of K1,000.00 to keep the peace and be of good behaviour for five years, in default 12 months imprisonment.

5)	Shall perform unpaid community work at a work site to be nominated and supervised by the CBC Office for a total of 300 hours.

6)	Shall not leave your place of abode or Kimbe or WNB Province whilst on probation.

7)	Shall have a satisfactory Probation Report as and whenever required.

8)	The CBC Office shall file with the National Court Registry at Kimbe six monthly reports on your responses on probation with the first report due in February 2021 call-over.

9)	You shall appear in court on the first call-over in February 2021 for the first review of the restitution orders and again at the call-over in November 2021 for review of your full compliance with the restitution orders.

10)	In the event of a breach of these orders, you will be arrested and brought to Court to show cause why you should not be imprisoned to serve the suspended sentence. 

Sentenced accordingly
_________________________________________________________________
Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Accused