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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 1310 OF 2020
THE STATE
V
GARRY PAYA
(NO 2)
Waigani: Ganaii, Aj.
2021: 13th, 15th, 20th December
CRIMINAL LAW – SENTENCE - Sentencing principles – Consideration of ‘relevantly comparable’ cases - Denouncement
of actions of Offender – Deterrence aspect of punishment – Long serving public servant – Motor Vehicle is property
of State through District Development Authority – Deprivation of Right of Owners - Head Sentence of 12 months Imprisonment
– Fully suspended – Probation orders with conditions – No restitution as Vehicle returned in good shape and form
Cases Cited:
Papua New Guinea Cases
Aieni v Tahain [1978] PNGLR 37
Goli Golu v The State [1979] PNGLR 653
Kumbamong v The State (2008) SC 1017
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Nopi [1979] PNGLR 536
State v Hanaio [2007] PGNC 207; N4980
State v Hotsia Geria [2008] PGNC 295; N3868
State v Kagai [1987] PNGLR 320
State v Kenneth Penias [1994] PNGLR 48
State v Kiaro [2020] PGNC 277; N8610
State v James Gurave Guba [2000] PGNC 78; N2020
State v Patrick Sogi (2008) N3437
State v Raymond Peter (2020) N2020
State v Wakai, Fred, Harieha, and Ine’e [2006] N3359
State v Yarra [2018] N7363
Tardew v The State [1986] PNGLR 91
Overseas Cases
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
References
Nil
Legislation
The Criminal Code Act, Chapter 262 of 1974, Section 383
Counsel
Ms S. Suwae, for the State
Mr M. Sumbuk, for the Accused
DECISION ON SENTENCE
20th December, 2021
1. GANAII, AJ : INTRODUCTION: This is the sentence for Garry Paya who has been convicted after trial on one count of Unlawful Use of Motor Vehicle contrary to section 383 (2) of the Criminal Code.
2. This is not the usual case of unlawful use of a motor vehicle associated with an armed robbery. It is rather a case involving a high-ranking government officer’s unlawful use of a government issued motor vehicle. The circumstances involved a deliberate movement of the government vehicle by road to the coast from the highlands, and then the further movement of same by ship to Port Moresby without the lawful consent of the owners. In Port Moresby, the offender had put the vehicle to his personal use.
3. The offender was employed by the Wapenamanda District Development Authority (referred to as WDDA) as the District Treasurer. An official vehicle, a Toyota Landcruiser, bearing the registration number PAH 302, owned by the WDDA, was allocated to him in his capacity as the District Treasurer. His appointment as the District Treasurer then ended upon revocation of his appointment on the 18th of December 2019.
4. Between the 01st of January and 19th of May 2020, without the lawful authority or consent from the WDDA, the offender transported the said motor vehicle from Wapenamanda to the coast, onto a ship and to Port Moresby. A formal police complaint was laid by the member for Wapenamanda Electorate, Honourable Rimbink Pato. The vehicle was sighted in Port Moresby, driven by the offender and was confiscated and impounded by the Police. The offender was arrested, charged and the vehicle was returned to the District.
Antecedent and Allocutus
5. The offender has no prior convictions. He was given the opportunity to say what matters the court should take into account when considering a punishment (Aieni v Tahain [1978] PGNC 13 applied). He said the following:
“Since I completed University studies in 1982, I have held a lot of senior positions in private and Government offices. I have overseen a Christian Organisation in Port Moresby and have been a community leader. I have served the Wapenamanda District by leaving my job in Port Moresby to work in the District.
The Court has found me guilty and I say sorry. I am 65 years old. I have never committed any offence before. I am sorry for this offence. Although I thought I was doing the right thing, the Court has found me guilty. For this I say sorry and will not do this again.
I have spent money on the registration of the motor vehicle. I have also spent money on the new tyres of the motor vehicle. The vehicle has been returned to the District. I have incurred cost in shipping and transporting the vehicle back.
Since I have no criminal records, I ask the court for mercy and ask for a non-custodial sentence. As I am involved in church activities. I ask for probationary orders where I can work for the church.
I ask the court to consider my good record of an unblemished working career life.”
Pre-Sentence Report
Origin and Family background
6. The offender Garry Paya is 65 years old and hails from Newtown Village, Wapenamanda District of the Enga Province. He is the second born out of a family of three brothers. His parents have passed on. His elder brother is also deceased. His other siblings live their own lives.
7. His father was a pioneer Lutheran Missionary who performed Evangelism work into many parts of the Province, in the early 1960s when the early missionaries first arrived in Enga. His mother was a faithful supporter of his father in his missionary work.
Education and Marital Status
8. The offender completed secondary education at St Paul’s Lutheran High School and Senior High School, Year 12 at the Aiyura National High School, in the Eastern Highlands Province in 1978. He had obtained a Bachelor of Arts Degree in Commerce from the University of PNG in 1982.
9. Offender is married with two wives and has more than seven children. All his children are grown up and live their own lives. He has other children from his second wife. The offender also maintains the welfare of 20 relatives who live with him at his premises.
Residential Address and Health
10. The offender resides at Section 42, Allotment 55, Noko Place, Three Mile, National Capital District. He resides there with his wife and eleven children and other relatives in a five-bedroom house that he owns. The offender has no health issues and does not consume alcohol or take drugs.
Employment History
11. The offender is currently unemployed. He has had vast work experience both in the private and public sectors between 1982 to 2019 when his appointment was revoked. Between this period he has had the following work history: External Auditor, Deloites Accounting Firm; Financial Controller, Nation Air; Private Business, Consultant Public Auctioneer/Hire Car; Auditor, Auditor General of PNG; Deputy Administrator, Enga Provincial Administration; District Administrator, Wapenamanda District; Chief Internal Auditor, Department of Health; Private Consultant, Malaysia; Accountant, National Judicial Staff Services; Chief Internal Auditor/Treasurer, Enga Provincial Government; and District Finance Manager, Wapenamanda District, Enga.
Financial Situation and Future Plans
12. Currently, due to the revocation of his appointment, the offender does not earn a salary. He survives on rental monies paid to him from the two tucker shops located within his residence. This is the only source of income that sustains both his immediate and extended family members.
13. The offender plans to retire from the public service and do church ministry work. He also plans to go to his home province and settle any differences he has with the Enga Provincial Government relating to this charge.
Community Views/Previous good record
14. According to the views from members of the community namely, Mr. Emanual Kaitas, Vice President and Overseer of the Spirit Ministries, WorldWide, he said that Mr. Paya is a faithful church member and holds a key position in the church. Mr. Ipi Mala, a neighbour, who has known Mr. Paya for a long time says Mr. Paya has never committed any offence in his life and he is well respected by everyone in the community.
Family Concerns
15. The offenders second wife Julie Pato has expressed concerns that they have many children attending various schools and the offender is the only one who sustains them. He has outstanding issues regarding his children’s welfare that he needs to attend to them. She has asked that the court be lenient on the offender.
Victim’s Views
16. The Honorable member, Mr. Rimbink Pato was unreached and the views of the WDDA was not obtained.
Potential Danger to the community and Suitability for Probation Supervision
17. The offender does not have any prior criminal records with the police. He has cooperated with the Probation Officer during his interview for the PSR. He also does not have a prior probation supervisory record. He is not a threat to the community.
Defence Submission on Penalty
18. Defence submitted that pursuant to the offence provision, the penalty for the offence of UUMV is a term not exceeding five years. The maximum penalty is reserved for the worst case (Goli Golu v The State cited). In Nopi, Public Prosecutor v The State [1979] PNGLR 536, and other case laws, defence submitted that sentencing is not exact science based on formulas, but rather it is a discretionary process guided by several legal principles to achieve one or more objectives for sentencing.
19. The section 19 Criminal Code discretionary powers of the court stipulate that the court can impose less than the maximum sentence. Section 155 (4) of the Constitution vests inherent powers in the court to make appropriate orders necessary to do justice to each case based on its peculiar facts. This court will take note of the personal particulars of the offender that the defence submitted on and as contained in the PSR and alluded to earlier.
Relevant Case Authorities
20. In the case of State v James Gurave Guba [2000] PGNC 78; N2020 (19 December 2000), the court said:
“As is undoubtedly the case with nearly all of the cases under the Code, s. 383 in my view has its own categories. There are four broad categories in my view and these are:
(a) The offence is committed under serious aggravating circumstances such as serious injuries to the owner of the vehicle, the vehicle itself or other properties and is being committed in the course of or in the furtherance of a serious crime such as armed robbery;
(b) The offence is committed under circumstances in which not all of the factors under (a) exist but only some of them exist. An example of that would be say the vehicle is being taken by force but without injuring the owner or its lawful driver, driven off and is recovered with minor damages to the vehicle or any other property;
(c) The offence is being committed in situations where say a single factor under (a) exist. An example of that would be a case in which say, the owner or legal driver leaves the vehicle unlocked and the offender gains entry and drives off and damages the vehicle;
(d) The offence does not fall under (a) (b) or (c) but is still an offence under s. 383. An example of that would be a case in which say an owner/employer authorizes his employee to use a vehicle for a specified purpose within a specified period but he simply exceeds the authorized purpose and time for the employee’s own purpose or interest without advancing his employers interest in any way.
In my view, an offence which falls under category (a) should attract sentences between 4 and 5 years. Then those falling under category (b) should attract sentences between 3 and 4 years while those under (c) and (d) should respectively attract sentence between 1 to 3 years and a number of months to 1 year. Of course, from what is suggested, the actual sentences in any one given case can be substantially or fractionally reduced depending on the particular facts of the case and mitigating factors such as a guilty plea, young first offender, no prior convictions and an expression of genuine remorse”.
21. Defence also relied on the following comparable cases:
unlawful use of the motor vehicle. The vehicle was a stolen motor vehicle. There is no evidence that the prisoner was involved in the stealing of the motor vehicle. Court said the categories in Guba’s case do not apply here. Court sentenced him to the time he had been in custody, 1 year and five months.
up with a number of others to stop a vehicle being driven along a public road. The offender and his companions forced the driver to
drive them around looking for beer, then took control of the vehicle and used it overnight before returning it the next day. Sentenced
to two years. Time in custody and part suspension was imposed. Court did not impose full suspension because the prisoner had an history
of absconding bail.
22. Defence submitted that in comparison to the above cases, this case does not fall within categories (a), (b) or (c) of Guba’s case. The case does fall within category (d).
23. In the present case, the offender returned the motor vehicle in a fully operational state. The offender had spent money on servicing the vehicle and had installed four brand new tyres for it.
24. Defence submitted that this is a case where offender assumed some misplaced, misconceived and misunderstood sense of entitlement with regards to the use and management of the vehicle.
25. Defence also submitted that there is no evidence to suggest that the offender intended to deprive the owner of the motor vehicle permanently of its use and possession. The offender also did not convert the ownership of the vehicle to his own name. Upon confiscation, the offender returned the vehicle to its owners in its original registration details, in the name of WDDA and bearing the registration number PAH 302.
26. The offender has had a long and illustrious career in both private and public practice and has contributed significantly to the development of the country, his province and district. On his character, the offender has had no previous conviction. He is not violent and has not committed a violent offence. He is 65 years old and is at the age of retirement from active duties.
Defence submission on Suspension
27. In the case of Tardew v The State [1986] PNGLR 91, the Supreme Court highlighted three broad categories where suspension of a sentence may be considered: firstly, where suspension will promote personal deterrence, reformation, and rehabilitation of offender; secondly, where suspension will allow the repayment or restitution of stolen money or goods and thirdly, where imprisonment would cause an excessive degree of suffering to the particular offender for example, because of their bad physical or mental health conditions.
28. In Kumbamong v The State (2008) SC1017 – the Supreme Court observed:
“The Courts need to re-examine and identify cases that require imprisonment for the protection of the society and the cases that do not warrant imprisonment but correction outside the prison system. This is not a new thing. The courts have been doing that for centuries but have failed to guarantee safer societies. What is new, however, is the question of what should be the primary focus of criminal sentencing and the suggested answer of correction and rehabilitation and not necessarily imprisonment in prisons. Adopting such an approach would enable the courts to address that which matters most, which is the emotional needs of an offender and the society as a whole for a safer society.”
29. The circumstances of the case are such that it would not be unreasonable to consider suspension of the sentence imposed, if not wholly, then partially. A sentence of 2-3 months is appropriate in the circumstance of this case and defence is seeking that the sentence be wholly suspended on conditions of probation with the church and with restitution orders.
Prosecutions Submission
30. State submitted that the following principles apply: Goli Golu (supra) where the maximum penalty is reserved for the worst case. In Lawrence Simbe v The State (supra), sentence is decided on the merits of each case.
Comparable cases
31. On comparable cases, the following are applicable for consideration.
Prisoners were found guilty after trial. They got permission to use the motor vehicle to visit sick relatives in the hospital. However, they put it to a different use. It was used to confiscate horse race machines without the consent of the owner. The aggravations were the offenders used police field uniforms and impersonated police officers and they possessed semi-automatic rifles. The court considered that there is a need for deterrence. In mitigation the prisoners were first time offenders and were remorseful. They were sentenced to four years imprisonment with partial suspension on condition that the prisoner enter into his own recognition; pay a surety sum of K1,000 and be of good behaviour.
32. The court’s expression of the abuse of authority of office as a public servant serving in the Public Service for a number of years and where the offender should have known better is a relevant comment which is applicable in the present case.
33. In this case, the mitigations are that the prisoner is a first-time offender; the vehicle was returned without damage, and he had apologised and expressed his willingness to pay restitution. In aggravation, the general offence of unlawful use of a motor vehicle is prevalent. But for the specific circumstance in this case, the offence committed by public servants is not prevalent. However, it does involve abusing of authority of office by a high-ranking public servant who should have known better the government’s policy and stance on the use of government vehicles.
34. State submitted that based on the sentencing trend as reflected in the cited comparable cases, this case attracts a penalty of between 3-4 years. If suspended, stringent orders be imposed on suspension for specific and general deterrence aspects of punishment.
Application
The purpose for sentencing
35. The purposes for sentencing are to ensure that the offender is adequately punished for the offence, to prevent crime by deterring
the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation
of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender, and to recognise
the harm done to the victim, the community and the State. Sentencing principle in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 is adopted and applied.
Maximum penalty is reserved for the worse case
36. I take into account the section 19 Criminal Code discretion of the courts and the principles enunciated in Goli Golu v The State (supra). The punishment that this court must impose should be in proportion to the harm done and the detrimental effect that the offence has had on the WDDA, the State and the people of Wapenamanda.
37. Where the society needs to be protected from such offences, an offender must be punished to the extent commensurate with the seriousness
of the crime. The sanction should not be too severe or too lenient: State v Kiaro [2020] PGNC 277; N8610 (30th October 2020), Narokobi, J, applied.
Relevant Consideration
38. In the case of State v Hotsia Geria [2008] PGNC 295; N3868 (17 November 2008), Kandakasi, J posed the following questions which are pertinent to determining an appropriate penalty: what the relevant facts pertinent to the case are; what the relevant sentencing trends applied by the courts are; what the aggravating and mitigating factors are and what the appropriate head sentence should be and should any or part of it be suspended.
39. The case of State v Guba (supra) is appropriate as a guide for a consideration of the categories of UUMV offences and the type of penalty these categories attract. I note however, that in the absence of any Supreme Court cases, this case can only be a guide and the court is not bound to strictly follow it.
40. In the National Court cases of State v Sesero (supra), the Court stated that the offence of armed robbery is prevalent. Consequently, unlawful use of motor vehicles during armed robberies are also prevalent. Unsuspecting members of the public are forced to suffer unnecessary loss and inconvenience. It calls for a custodial sentence for deterrent purposes. The maximum penalty is a meagre 5 years for a serious offence. The penalty provision in that Court’s view needs revisiting with a view to increasing the penalties according to the nature of aggravation.
41. In State v Hanaio [2007] PGNC 207; N4980 (26 October 2007), the court stated that for the offence of unlawful use of a motor vehicle, in the absence of a Supreme Court sentencing guideline, the use of a starting point at the middle of the range that is 30 months imprisonment is appropriate.
42. The present case does not involve serious aggravating circumstances such as injuries or threat of violence to the owner or passengers of vehicle or serious damage to vehicle or other properties in the course of commission of a serious crime such as Armed Robbery. The case also does not involve the offender accessing the vehicle keys and driving off. Consequently, categories (a) – (c) of Guba case do not apply.
43. Going by the prescriptions in the Guba case, this case may fall into category (d) where the owner or employer authorises the offender to use the motor vehicle and for a specific purpose within a specific period of time and they exceed the authorised purpose and time and put the vehicle to their own use or for their own interest and benefit.
44. In this case, and according to the complainant, Mr Pato, the offender’s use of the government issued motor vehicle was subjected to a specific time and purpose and that was for as long as he was the District Treasurer for the WDDA doing work for the WDDA in the District. When the offender’s appointment as District Treasurer was revoked, and he knowingly transported the vehicle from Wapenamanda down to the coast and onto a ship to Port Moresby, without the consent of the WDDA, he had abused the authority of that office and had unlawfully used the motor vehicle. Arguably, his actions may amount to stealing, except he was not charged for stealing the motor vehicle by moving it to another location without the consent of the owner.
45. The seriousness of the offence perpetrated in a situation described as a category (d) circumstance of Guba’s case, in my view, must be determined by assessing the extent to which the deprivation of the rights of the lawful owners of the vehicle affected them. This will indicate whether the sentence is at the top end or bottom end of the scale in the range of 1-12 months.
46. In this instance, where the motor vehicle was given to the offender for use because of his employment status as the District Treasurer, and where his duties required him to be based in the District to carry out his functions as such, the taking away of the vehicle although temporarily, and without the consent of the owners does affect the continuous functioning of the office of the District Treasurer. No doubt, this would have deprived the WDDA and its people of the services that the office should otherwise give them if it was fully resourced with among others, the vehicle. The WDDA is a legal entity that enjoys the right to advance its aims and objectives for the District. A deprivation of this right through the taking away of its vehicle, aggravates this offence.
A summary of each of Comparable Cases
47. In the case of State v Wakai and Others and State v Yarra (supra), two of the offenders among others in Wakai’s case who were police impersonators, were actual policemen. The court’s remarks on the abuse of powers displayed by these policemen when they unlawfully used the motor vehicles for purposes other then what they obtained the vehicles for is useful and applicable.
48. In Wakai’s case, a policeman and other police impersonators unlawfully used the vehicle for a purpose other than what they asked to use it for. Although facts are different to the present case, in the court’s ruling on sentence, at paragraph 16, Sevua J made these relevant remarks. He said:
“On penalty, I consider that the offence of unlawful use of motor vehicle is very serious and prevalent, and it calls for a custodial sentence. Usually the offence is associated with the crime of armed robbery, therefore the circumstances of this case are not akin to an unlawful use of motor vehicle relating to an armed robbery. Nevertheless, the fact that the vehicle was not used for the purpose it was given is a serious factor. In my view, even if the facts of this case are not related to an armed robbery situation, it is still a criminal offence which needs to be deterred with punitive sanction. The maximum penalty for this offence is 5 years and it has become a very prevalent offence indeed. Perhaps the reason it is very prevalent is because of the maximum penalty provided by law. Perhaps, the Parliament should amend the Code by increasing the maximum penalty to say, 10 years or 15 years. That might deter offenders.”(Underlined emphasis mine)
49. The Court said that regardless of whether the unlawful use of motor vehicle was committed in the course of an armed robbery or not, putting the vehicle to a use other than what it was intended for, is a serious aggravating factor. That is applicable in this case.
50. In Yarra’s case, where the vehicle was impounded at the Police station and used without the consent of the owner, the court said the actions of these policemen, brought the name of good and hardworking policemen and women into disrepute. In Wakai’s case, the court said the use of police uniforms, firearm, and running a trial where there was no proper legal defence but on the basis that there was a lawful court order which was not produced was a waste of court’s time. For the unlawful use of a motor vehicle without the consent of the owner under this circumstance, the sentence although without commission of a further offence for example, Armed Robbery, should be increased.
51. Consequently, sentences of 4 and 3 years were imposed respectively. In consideration of the aggravations and mitigations, sentences were fully and partially suspended with conditions.
52. The above cases, and more so in Yarra’s case, the policeman was involved in the use of the motor vehicle in the course of being employed as a long serving public servant. The court said he could have known better than to conduct himself in the manner he did. State submits, on the basis of this remarks from the courts, that this case is applicable to the present case as Mr Paya had also served in the public service for a considerable length of time and ought to have known better than to do what he did with the government issued vehicle.
53. I agree that the remarks by the court in Yarra’s case are applicable in that regard and in so far as Mr Paya’s seniority and number of years in the public service is concerned. Although, there were no specific directions given to him and no written rules existed at that time, on the use of the government issued vehicle, Mr. Rimbink Pato stated in his evidence that the vehicle belonged to the WDDA; it belonged to the District and in the District and not to anyone else or to anywhere else. That was the unwritten rule that the leadership of the WDDA had in place to govern the use of its motor vehicles.
54. It must be emphasised that given the offender’s seniority in the Public Service, he ought to have known better that any government issued vehicle is subjected to Government’s authority and control over where and how the vehicle is to be used. That simply meant that Mr. Paya was not an authority unto himself as he said, but that he was subjected to the rules guiding the manner in which the vehicle was to be used. For the movement of the vehicle outside of Wapenamanda District, Enga Province, to the coast and onto a ship to Port Moresby, without the consent of the owner is a serious aggravating factor. It may amount to the offence of stealing.
55. In this instance, as it was clear in the evidence of the Honourable Member and Chair of WDDA, Mr Pato, the vehicle belonged to the District and remains in the District. This meant that the vehicle was to be used in the District, for work related purposes and not outside of the District for personal use.
56. Where the WDDA Board and Chair were unaware of the movement of the vehicle, and where due to past experiences, the chairman was specifically concerned about the WDDA vehicles being stolen and driven away from the District, there was an intentional disregard by the offender for the concerns of WDDA. There was intentional disregard to obtain consent from the lawful owners of the vehicle and a denial of their right to the use and enjoyment of their vehicle. What aggravated this offence is the offender’s years of experience as a senior public servant and his blatant disregard for the unwritten rule that Mr. Pato spoke about, which is that the District vehicle must be based in the District for work purposes.
57. Where defence submitted that the offender held some misunderstanding on the usage of the government vehicles allocated to him, I say this. The movement of a government vehicle without the consent of the owner is or may amount to the serious offence of stealing. This is no light mater. If Mr Paya was not sure that he was doing the right thing, he could have simply talked to the WDDA Board or to Mr Pato. If his concern for the safety of the vehicle was a genuine one, I do not see why Mr Pato would object to any suggestion by the offender for the safe keeping of the vehicle. At verdict, this court rejected the submission that the vehicle was taken away for safety purposes. For the same reason, I reject the submission now that there was a simple misunderstanding. This was a case involving a long-distance movement of a government vehicle with the deliberate avoidance of getting the consent from the lawful owner and thus avoiding detection. That is a serious matter.
58. Whilst I agree that this is not a case of permanent deprivation of use and possession of the vehicle by the owner, as the vehicle was indeed returned upon confiscation, the elements of the offence was completed upon a temporary deprivation. A temporary deprivation is all that is needed to make out the offence. A temporary deprivation no matter how short it is, could have meant a lot for the complainant depending on the effects of the crime on them. The court will not speculate on how the crime has affected the WDDA or the Wapenamanda District, and its people as a Victim Impact Statement (VIS) was not obtained. What is known though, through the evidence at trial is that surely what the offender did was a cause for concern for the Chair and Board of WDDA especially after similar bad experiences had occurred in the past where their vehicles had been stolen from them and taken away from the District. Generally, it can be accepted that the temporary deprivation did result in a denial of their rights to the enjoyment, use and possession of the vehicle in the District and a cause for concern for the WDDA.
59. In conclusion, having sad the above, and as in all cases, the sentence in this matter will be determined having regard to its own peculiar facts and circumstances, the principle in Lawrence Simbe v The State (supra) is applied.
Restitution
60. On restitution, I note that the offender has made apologies in open court during the administration of allocutus. These demonstrated genuine remorse after being convicted. The offender has shown willingness to reconcile and make restitution. Where the victim’s views on restitution were not obtained and where the vehicle had been returned in good shape and form to the WDDA, without conversion of the title and where the offender had purchased four new brand-new tyres for it, I will not make any order for restitution.
61. I consider in mitigation that the prisoner is a first-time offender and he is 65 years old. In aggravation, there was abuse of office; the WDDA was temporarily deprived of the right to the possession and use of the vehicle; and there was no lawful or proper defence raised except to say the vehicle was moved for safety reason, which this court found to be an excuse. There is no extenuating circumstance favourable to the offender in considering a reduced sentence.
62. I consider the mitigating factors but they are outweighed by the aggravation. In State v Kenneth Penias [1994] PNGLR 48, the court said the maximum penalty or closer to the maximum penalty may be imposed in cases where the aggravations outweigh the mitigations.
Head Sentence
63. I consider the case to be serious due to an abuse of position by a senior public servant in the district, depriving the District of its right to use of the vehicle. Although in the specific facts of this case, this offence of UUMV is not prevalent as in a case of unlawful use associated with an offence of armed robbery, there were elements of fraud and deprivation of property which may amount to an offence of stealing and a deterrent aspect of punishment must be imposed for specific and general deterrence purposes.
64. Taking into account the principle of starting point, (in State v Hanaio, supra) a sentence of two and a half years should be the starting point. Given the presence of aggravations and mitigations, the sentence may go up or down depending on the circumstances of each case. Taking into account the categorisation of this offence in category (d) of Guba’s case, and the aggravations present in this type of unlawful use case, a sentence of up to 12 months and not less may be appropriate. I am mindful that the considerations in Guba’s case, are a guide. I consider a sentence of 12 months imprisonment in light labour (ILL) to be appropriate.
65. Consequently, a head sentence of 12 months imprisonment in light labour is imposed.
Suspension
66. Some case law principles on suspension of head sentences say that suspension is not an act of leniency but is in the interest of the community and to promote rehabilitation and prevent recidivism (tendency of a convicted prisoner to re-offend), the principle in the case of The State v Kagai [1987] PNGLR 320 is applied. Where evidence of good character supports suspension, there must be actual evidence and not based on submissions that the offender has good character: State v Kagai (supra).
67. I am mindful that the PSR promotes the offender’s prior good character which means he has never been in trouble with the law before and that he has always been a law-abiding citizen, until the court found him guilty of this offence.
68. Due to the offender’s readiness to pay restitution, his commitment in the public service and his involvement in church programs and faith-based organisations, I find that the offender is a peace-loving citizen and can be easily rehabilitated. Consequently, serving time in prison for specific deterrent purposes is not strongly called for.
69. The vehicle had been retuned in good shape and in running condition. In my view, and in hearing Mr. Pato’s views in court, he was happy that he had achieved his objective and that was to have the vehicle returned to Wapenamanda for use in the District. For the above, I am satisfied that the complainant is happy and he had spoken for the WDDA. I note also that the offender had spent some monies on purchasing new tyres for the vehicle. For these reasons, I will not order restitution or compensation. I order full suspension of the 12 months without restitution and compensation orders.
Orders
70. The orders of the court on sentence are:
(ii) The offender shall report to the Probation Officer within 48 hours from the time of this order.
(iii) The offender shall reside at his known address at Section 42,
Allotment 55, Noko Place, Three Mile, National Capital District.
(iv) The offender shall not leave his place of residence or Port Moresby without leave of this court during the course of his probation period.
(v) The offender shall perform 600 hours of community work at a
worksite to be approved by the Probation Office.
(vi) The offender shall keep the peace and be of good behaviour at all
times.
(vii) The offender shall not commit any offence whilst on probation.
(x) The Probation Officer shall file a report on the responses and progress of the probationer twice, every six months.
(xi) The first report by the Probation officer shall be filed on the 20th of June 2022. The last report shall be filed upon completion of probation on 20th of December 2022, in the the Waigani National Court.
(xii) In breach of any of these Probation Orders, the offender’s Probation shall lapse and he shall be arrested to serve the whole term of his sentence.
71. The prisoner’s bail sum is to be refunded forthwith.
Orders accordingly.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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