Papua New Guinea Law Reports - 1988-89
[1988-89] PNGLR 496
SC375
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
WELLINGTON BELAWA
V
THE STATE
Waigani
Bredmeyer Woods Barnett JJ
24 October 1989
1 December 1989
CRIMINAL LAW - Sentence - Dishonesty offences - Persons in position of trust - Guidelines - Appropriate tariffs.
CRIMINAL LAW - Sentence - Obtaining goods by false pretences - Administrative Secretary of Province - Plea of not guilty - Restitution tainted by dishonesty - Amount appropriated K1,979.
The following factors are among those which should be taken into account on sentencing an offender for an offence involving dishonesty where the offender is in a position of trust:
(1)      the amount taken;
(2)      the quality and degree of trust reposed in the offender including his rank;
(3)      the period over which the fraud or the thefts have been perpetrated;
(4)      the use to which the money or property dishonestly taken was put;
(5)      the effect upon the victim;
(6)      the impact of the offences on the public and public confidence;
(7)      the effect on fellow-employees or partners;
(8)      the effect on the offender himself;
(9)      the offender’s own history;
(10)    restitution; and
(11)    those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.
R v Barrick (1985) 81 Cr App R 78, followed.
The following scale of sentences may usefully be accepted as a base to be then adjusted upwards or downwards according to the various factors above:
(1)      where the amount misappropriated is between K1 and K1,000, a gaol term should rarely be imposed;
(2)      where the amount misappropriated is between K1,000 and K10,000, a gaol term of up to two years is appropriate;
(3)      where the amount misappropriated is between K10,000 and K40,000, two to three years imprisonment is appropriate;
(4)      where the amount misappropriated is between K40,000 and K150,000, three to five years imprisonment is appropriate.
Held
(Bredmeyer J dissenting) Where the Administrative Secretary of a Province — the most senior public servant in the Province — was convicted on a plea of not guilty of obtaining goods to the value of K1,979, by false pretences and where restitution was tainted with dishonesty in the obtaining of the funds therefor, a sentence of two years imprisonment was not excessive.
Cases Cited
Norris v The State [1979] PNGLR 605.
Public Prosecutor v Tardrew [1986] PNGLR 91.
R v Barrick (1985) 81 Cr App R 78.
R v Harley [1971-72] P & NGLR 399.
R v Pia-Afu [1971-72] P & NGLR 393.
Tom Amaiu v The State [1979] PNGLR 576.
Appeal against Sentence
This was an appeal against the severity of a sentence of two years imprisonment imposed on conviction of obtaining goods to the value of K1,979 by false pretences.
Counsel
L Henao, for the appellant.
V Noka, for the respondent.
Cur adv vult
1 December 1989
BREDMEYER J: This is an appeal against sentence. The appellant was charged with one count of false pretences and one count of misappropriation. The false pretences count was that he falsely produced to Ela Motors, Kimbe, an unauthorised government purchase order and thereby obtained one fibre-glass dinghy valued at K1,000 and one 15-hp outboard motor valued at K979, a total of K1,979. The second count was that he dishonestly applied the said dinghy and outboard motor to his own use. The appellant pleaded not guilty although he admitted many of the facts against him. The appellant had been the Secretary of the Department of West New Britain for three years, that is, the senior public servant in that Province. On 1 July 1987, he was appointed Secretary of the Department of the Milne Bay Province but he did not physically transfer from Kimbe in West New Britain to his new appointment until September 1987. On 12 August 1987, he wrote out an integrated local purchase order claim (ILPOC) to Ela Motors, Kimbe, for the purchase of the dinghy and outboard motor which I have mentioned. He pretended that the purchase was on behalf of the government. This was entirely false as the goods were intended for his private use. They were delivered to his house the same afternoon and he sent them to Manus Island as a present for his wife’s relatives. He signed the ILPOC as Secretary of the Milne Bay Province. So Ela Motors rendered the bill to the Bureau of Management Services at Alotau for payment.
The Ela Motors bill and the ILPOC were examined by a finance examiner, Miss Cadigan, at Alotau on 2 November 1987, and she queried the reason for the purchase of the goods. Her queries were directed to the appellant but he neglected to answer them. In late December 1987 or early 1988, he applied to the Bank of Papua New Guinea for a loan of K2,000 which he intended to use to pay for the goods, but the loan was refused. Throughout the first half of 1988, the salesman from Ela Motors, Kimbe, endeavoured to obtain payment of the bill. He sent a copy of the ILPOC and invoice to Mr Ilaisa, a First Assistant Secretary of the Milne Bay Department, who made inquiries with the Plant and Transport Board and Government Stores, Alotau, but could find no record of the dinghy or outboard motor in Alotau. He referred the matter to the police for investigation.
In the meantime, the Ela Motors salesman from Kimbe had phoned the appellant on at least five occasions endeavouring to get payment. The appellant applied for a loan from the Milne Bay Disaster Relief Fund and on 21 August 1988, the provincial Minister for Finance authorised him to borrow up to K4,000 from that fund. On 24 August, the appellant was charged with the present offences. On 9 September, about 13 months after the commission of the offence, the appellant withdrew K1,000 from his private bank account which had been invested in an interest-bearing deposit and paid it to Ela Motors in part-payment of the bill. The appellant subsequently drew K3,000 from the Milne Bay Disaster Relief Fund and on 21 October 1988 paid off the balance of K979 to Ela Motors. In May 1989, he was retrenched from the public service and, out of his retrenchment pay, repaid the K3,000 loan from the Disaster Relief Fund.
The accused was aged 35 years at the time of trial, married with six children, and, as I have said, was the senior public servant in the Province. He had no prior convictions. The trial judge gave detailed remarks on sentence that the appellant was the most senior public servant in West New Britain Province for three years and had been appointed to a similar position in the Milne Bay Province. He used his office for his personal benefit and he breached the trust placed in him by his high office. He found that the appellant never intended to pay for the goods personally until the ILPOC was queried in November 1987. Even when it was queried, he was in no great hurry to pay it off. For example, he chose not to cash in an interest-bearing deposit for K1,000 because he did not want to lose the interest on it. The trial judge found that the appellant was not entitled to a loan from the Provincial Disaster Relief Fund and that he got that loan dishonestly. He was one of the three signatories to that Disaster Relief Fund and to borrow from it, to which he was not entitled, was another breach of trust. The trial judge treated this dishonestly obtained loan from the Disaster Relief Fund as an important aggravating factor. The trial judge said this:
“Not only did you breach all financial regulations in raising the ILPOC but you continued to flout proper financial management practices and ethics of public administration in personal conflict of interest in proper discharge of your professional duties.
Your lawyer has urged upon me to consider your considerable record of public service, the many years of public service. I acknowledge that, but the irony of that is, that it should have made you the wiser and prevented you from doing what you did in relation to your position. It does not hold you in good stead.”
The trial judge said that the public interest in this case was paramount and that there was a need to deter people in high positions of trust from abusing and manipulating the system to benefit themselves at the public expense. This called for a stern, retributive and punitive sentence which outweighed any personal factors. The trial judge said that the higher the office the greater the responsibility and accountability and if such a person abuses that office he can expect to be punished more severely than an ordinary citizen. The trial judge considered that a non-custodial sentence was totally inappropriate and that a stern, punitive and deterrent sentence was necessary as a clear warning to public servants that high standards of honesty and integrity are expected.
The principles which guide this Court in hearing an appeal against sentence have been well expressed in Norris v The State [1979] PNGLR 605 at 612-613, by Kearney J:
“... So the question in practice on a sentence appeal is usually this — has the appellant shown that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.”
Counsel for the appellant argued before us that the trial judge made an identifiable error in that he gave undue weight to the borrowing of K3,000 from the Disaster Relief Fund. The dishonest borrowing of K3,000 from this Fund, from which he was not entitled to borrow, albeit with the approval of the Minister, could have been charged as a separate offence. A trial judge must take care not to punish the offender for an offence disclosed in the evidence but for which he has not been charged. I consider the effect on sentence of the dishonest loan of K3,000 from the Disaster Relief Fund is twofold. First, rather like a later conviction, it disentitles the offender to the leniency he might otherwise have expected. Secondly, it reduces the credit that should be given to the appellant for having repaid the debt in full. Restitution is always good and the appellant should be given credit for it. Restitution may also, and often does, demonstrate remorse. The sooner the money is repaid after the offence, or after the detection of the offence, the greater the remorse shown. In this case, the appellant’s repayment of the debt shows very little remorse. Neither payment made by the appellant was made promptly after the detection of the offence, and the second payment of K979 from the Disaster Relief Fund was itself dishonestly obtained. I consider that the trial judge did not err in considering the dishonestly obtained loan an important aggravating factor.
We have been asked to set some sentencing guidelines in this case and I will endeavour to do so. The first point I wish to make is that I consider the punishment should be the same whether the offence is misappropriation as an employee, or as a director of a company, under s 383a(2) of the Criminal Code (Ch No 262) or stealing as a servant or public servant under s 372(6) or (7) of the Code. I am aware that the maximum penalty for the former offence is ten years imprisonment and that the maximum for the latter offence is seven years imprisonment but I consider that the difference in sentence is a legislative accident and that the offences cover the same misconduct and are equally serious.
Secondly, although the amount taken is not the only factor, it is a major determinant of the appropriate sentence. The following suggested guidelines all relate to serious theft (theft as a servant) or serious misappropriation (again as a servant). From K1 and K1,000, a gaol term should rarely be imposed. From K1,000 to K10,000, a gaol term of up to two years is appropriate. In many of these cases, a short, sharp sentence is appropriate on the “clanging gates” principle, because many of the offenders are in high positions and wealthy and can pay a fine with little discomfort. For cases involving between K10,000 and K40,000, two to three years imprisonment is appropriate. For cases involving between K40,000 and K150,000, three to five years imprisonment is appropriate. The sentence imposed by the Supreme Court on appeal in Public Prosecutor v Tardrew [1986] PNGLR 91 fits into this category. It was a sentence of five years imprisonment for offences totalling K82,202 where all moneys had been recovered.
The sentences I have suggested all relate to a first offender, with a good work record, who has pleaded guilty and who has repaid the stolen money, or the value of the goods taken, in full. Where a plea of not guilty is entered, higher sentences may be imposed. Where the money has not been repaid, the suggested term should be increased by between one-third and one-half, and if it is desired to suspend part of the sentence as a device to encourage repayment of the money, the suggested increase of from one-third to one-half should be suspended on the condition that the offender repays the money. A suspension on that basis can be pro-rata, for example, one week’s suspension for each K100 repaid, and may impose interest from the date of the theft. Some judges have imposed 8 per cent interest on a daily basis from the date of the offence to the date of repayment. That rate is the rate fixed by the Rules of the National Court applicable to civil judgment debts.
There are numerous factors which should be taken into account on sentence in this type of case and I have been assisted by the guidelines given by the English Court of Criminal Appeal in Barrick’s case (1985) 81 Cr App R 78 at 82. With some adaptation from that list I set out the major factors as follows:
(1)      The amount taken.
(2)      The degree of trust placed in the offender including his rank. The higher the position of trust the greater the culpability. Thus if the offender holds a very senior position in the public service or in a company, the greater the punishment that will be imposed. The principle here is that “from whom much is given, much is expected”. The person who enjoys a high position of trust and respect and enjoys high salary and other perquisites should be expected to carry out his duties honestly and to set an example to others.
(3)      The period over which the fraud or theft was perpetrated. Did the offender take the money on one day or was his guilty intention put into effect over a longer period of time?
(4)      The impact of the offence on the public and public confidence.
(5)      The use to which the money was put. Was the money put to some worthwhile purpose or was it wasted on luxuries or idle living?
(6)      The effect upon the victim. Was the theft covered by insurance, for example, or was the money stolen from a widow and children waiting for their late husband’s pension? Was the theft from family members etc?
(7)      Restitution of the money whenever paid is always a mitigating factor because it restores the victim to the position he was in before the commission of the offence.
(8)      Remorse. This is related to (7) and (9). If restitution is made, it may or may not show remorse. The sooner restitution is made after the commission of the offence, or after the detection of the offence, the more clearly it shows remorse. If it is made on the eve of the trial immediately after conviction, it does not show remorse.
(9)      A plea of guilty or not guilty. A discount is usually given for a plea of guilty. In some cases a plea shows remorse especially where the State evidence may have some weakness; in other cases it may not show remorse but purely submission to the overwhelming weight of the State case.
(10)    Any prior record. I consider the absence of any record of little relevance in this kind of serious theft. Normally the offender has no prior convictions; if he did have prior convictions, he would be unlikely to be holding the position from which he committed the theft.
(11)    The effect on the offender. The principal factors to consider here are: did he lose his job and is he likely to obtain another job?
(12)    Matters of mitigation special to the accused such as illness, being placed under a great strain by excessive responsibility, or perhaps a long delay in being confronted with his dishonesty and the start of his trial.
When I apply these considerations to the appellant, the amount taken, about K2,000, was neither large nor small. The appellant was the senior public servant in the Province, a position of very high trust and status enjoying good salary and perquisites. The ILPOC was signed on the one day so his guilty intention did not persist over a long period of time. The money was not put to good use. The ILPOC was signed for the purpose of making a gift to his wife’s relatives. The money was taken from Ela Motors which is a subsidiary of Burns Philp. It is a big company and can sustain a loss; nevertheless, its salesman was put to considerable trouble to obtain repayment and only succeeded over a year later and the company received no interest on the money over the period. Restitution was made of the full sum and that is in the appellant’s favour. Nevertheless, as I have said, it was not quick, so it shows very little remorse; and the repayment of K979 by money dishonestly taken from the Disaster Relief Fund shows no remorse whatsoever. The appellant did not plead guilty so does not get the benefit of a plea although he did admit much of the evidence against him. The appellant has not suffered greatly from the consequences of his action. He was not dismissed from the public service, he was able to be retrenched with full benefits. He later got another job as executive officer of the Constitutional Review Committee of the Milne Bay Province.
When I apply the suggested tariff given above, a sentence of between one and two years is appropriate. But to be more specific, it is in the appellant’s favour that the amount taken was not large, being K2,000 on the suggested scale of K1,000 to K10,000, the offence was committed on one day, and all the money has been repaid. It is against the appellant that he was in a very high position of trust, his offence must have shaken public confidence in top government officials, the money was not put to good use, little remorse was shown in the manner of restitution, and he did not plead guilty. When I weigh up all the relevant factors in this case both for and against the appellant, I consider a gaol term of 15 months is appropriate. This differs significantly from the sentence imposed by the trial judge, so I must conclude that, although he made no identifiable error, his overall sentence is excessive so that some error must have occurred in the sentencing process. I would allow the appeal and substitute a sentence of 15 months imprisonment with hard labour. In this I have the misfortune of dissenting from my colleagues.
WOODS J: I agree with the principles enunciated by Barnett J and with his conclusion and would dismiss the appeal.
BARNETT J: The appellant was appointed Secretary of the Department of Milne Bay on 1 July 1987 but remained in his previous job as Secretary, Department of West New Britain, for a few months before taking up his new posting. While still in the West New Britain Province position, he signed an integrated local purchase order claim (ILPOC) made out to Ela Motors, Kimbe, for a fibre-glass dinghy and outboard motor valued at K1,979. He took possession of the dinghy and motor and immediately sent them to his wife’s family in Manus Province. The ILPOC specified that the claim was to be presented to the Bureau of Management Services at Alotau, Milne Bay.
The appellant transferred to Milne Bay on 1 September 1987 and the ILPOC was presented for payment in Alotau at about the time of his arrival. It was queried by an examiner and referred to the Secretary’s office where the appellant took physical possession of it. Realising that his dishonesty was in the process of being uncovered, the appellant then made unsuccessful attempts to borrow K2,000 from the Bank of Papua New Guinea on the security of an interest-bearing deposit of K1,000 held by him at that bank. In the meantime, public disclosure of his offence drew closer as, in June 1988, a senior officer began making inquiries with Ela Motors and the West New Britain Provincial Government and he then referred the matter to the police for investigation.
The appellant finally redeemed his interest-bearing deposit with the Papua New Guinea Banking Corporation and repaid K1,000 to Ela Motors on 9 September 1988 which left K979 outstanding. He eventually managed to repay this by arranging with the provincial Minister for Finance for an illegal approval to borrow up to K4,000 from the provincial Disaster Relief Fund. The appellant, as Secretary, was the principal officer entrusted with the administration of that fund. He drew down K3,000 on this loan and from it repaid Ela Motors the outstanding K979. He used the rest of the K3,000 loan for other purposes. At that stage he had no means of repaying the balance of the K3,000 illegal loan. He managed to repay the full amount to the Disaster Relief Fund when he received retrenchment money in May 1989.
On these facts he was convicted of obtaining the goods by false pretences with intent to defraud contrary to s 404(1) of the Criminal Code (Ch No 262) and of dishonestly applying the goods to his own use contrary to s 383a of the Code. He was sentenced to two years imprisonment on each count, to be served concurrently.
The only issue now before the Supreme Court is the appellant’s appeal against severity of sentence.
It is agreed that the appellant had no prior convictions and that he apparently had been of good character prior to the offence. It is also agreed that, eventually, he managed to repay all of the money owing to Ela Motors but that almost half that amount was paid from an illegal loan from the Milne Bay Disaster Relief Fund.
The trial judge acknowledged the appellant’s impressive employment record and previous good character but said:
“... the irony of that is, that it should have made you the wiser and prevented you from doing what you did in relation to your position. It does not hold you in good stead.”
He was unfavourably impressed by the fact that the repayment was commenced only after, and because, the appellant realised that his dishonesty was in the process of being discovered and by the fact that half the amount was raised by organising another improper arrangement which enabled him to gain access to public funds for his private purposes. His Honour said:
“I consider the public interest in this case is paramount. The public need to deter people in high positions of trust from abusing and manipulating the system to benefit themselves at the public expense.
The need for stern, retributive and punitive sanctions outweighs any personal factors.
I have said elsewhere that the higher the office one holds, the greater the responsibility and accountability, and if such a person abuses the position of that office then he can expect to be punished more severely than an ordinary citizen.”
Mr Henao for the appellant submits that the learned trial judge erred in three matters:
(1)      Mr Henao submits that the trial judge failed to give any credit for the appellant’s good character and impressive employment record.
(2)      That the trial judge was too greatly influenced by the fact that the appellant had committed a further improper act by borrowing illegally from the Disaster Relief Fund. Mr Henao submitted that, as the trial judge spent so much of his judgment explaining the impropriety of this action, it seems that he was really punishing the appellant for a subsequent offence with which he was not charged.
(3)      Mr Henao submits that, when comparing the appellant’s two-year sentence with the sentencing pattern for similar offences over the last few years, it stands out as being “out of line” and significantly heavier.
Considering those submissions in turn it is, first, quite clear that the learned trial judge did address the question of the appellant’s employment record and previous good character for he mentions it in his reasons for decision. Equally clearly, he felt that the need for a deterrent sentence in a case involving breach of trust by such a high-ranking public servant “outweighs any personal factors”. In this respect it is worth remembering that:
“... allowance for mitigation is not considered to be an entitlement of the offender. The sentencer may withhold a reduction which might normally be expected if some recognised penal objective, such as general deterrence ... requires the imposition of the whole of the permissible sentence” (D A Thomas, Principles of Sentencing, 2nd ed (1979) at 194).
As pointed out by the Lord Chief Justice of England in R v Barrick (1985) 81 Cr App R 78, in cases where senior employees are guilty of breach of trust or dishonesty, they will normally be people with an impressive employment record and previous good character — otherwise they would not be holding the job in the first place. For such people, the mere fact of conviction will bring about disgrace, dismissal, shame and the loss of future employment opportunities. The crime involved taking advantage of the position obtained as a result of the record of previous good character and faithful service fraudulently to steal from the employer. Such factors standing alone should carry little weight in determining the appropriate sentence in cases such as this.
Considered together with other factors, however, good character and employment record can amount to significant mitigating factors. It is, for instance, common to take into account the fact that a convicted person of previously good character has made full restitution. Restitution reduces the damage caused to the victim and it can also be evidence that the prisoner feels remorse and is unlikely to offend in the future.
This leads on to Mr Henao’s second submission in which he argues that making restitution, in this case, actually worked against the appellant and increased the severity of his sentence.
The trial judge devoted several pages of his judgment to outlining the conduct of the appellant after the commission of the offence. He found as a fact that the appellant originally had no intention of repaying the money if the ILPOC had been passed without query. Even when facing detection, he refrained from cashing his K1,000 interest-bearing deposit for as long as possible and then made good the outstanding balance by further improper manipulation of public funds. He borrowed the money from the Disaster Relief Fund of which he was the principal administrator under the instrument which established it. Under the provincial Financial Administration Act 1978, it is quite clear that money could only be paid out for the purposes of the account — provincial disaster and relief (s 18). The trial judge said of these matters:
“I have emphasised all of these because they, in my view, aggravate considerably your conduct.”
Clearly, restitution will usually be a mitigating factor but that effect will be lessened or even nullified if the method of repayment is itself tainted by further evidence of dishonesty. When considering sentence, the trial judge “may receive such evidence as he sees fit” (Criminal Code, s 596(4)) and evidence of associated matters such as these are properly taken into account as part of the general circumstances of the case (see Tom Amaiu v the State [1979] PNGLR 576) where the Supreme Court found that it was proper for the trial judge to refer to associated matters of obtaining by false pretences and forgery. (The accused, a Member of Parliament, had been charged only with stealing.)
In this case, the appellant’s conduct with regard to restitution contained aggravating factors which worked against the mitigating effect. The trial judge was entitled to take this into account “as part of the general circumstances of the case” when considering sentence.
Mr Henao’s final submission, that the sentence is out of line with previous sentences of the National Court, appears to have some truth in it. Both counsel submitted details of sentences from previous cases but the problem is that it is most difficult to distinguish any clear sentencing pattern. To this extent it is not quite true to say that this two-year sentence is “out of line” but it is certainly one of the more severe sentences. It is also true that some of the other sentences referred to have been surprisingly light in view of the increasing frequency of this offence.
In view of the wide range of sentences which have been ordered for crimes of misappropriation and various types of stealing by trusted employees, it may be helpful to state some of the principles of sentencing applicable to such offences. In this context I have found the statement of the Lord Chief Justice of England in the case of Barrick (at 82) to be very helpful:
“The following are some of the matters to which the Court will no doubt wish to pay regard in determining what the proper level of sentence should be: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.”
In addition to those matters listed in Barrick, there are two well-accepted factors which should be listed — the amount taken and the question of restitution.
I propose to consider the situation of the appellant in regard to each of those matters.
(1) The amount taken
The principle here is simple. The larger the amount, the greater should be the punishment. In seeking to apply this principle, I find myself in general agreement with the tariff approach adopted by Bredmeyer J in this appeal. The scale of imprisonment he suggests can usefully be accepted as a base to be then adjusted upwards or downwards according to the weight given to the various factors here listed.
(2) “The quality and degree of trust reposed in the offender including his rank”
Clearly, a greater degree of trust and a higher rank makes the offence more serious. There is less supervision over a top and trusted man and consequently more opportunity to be dishonest and to avoid punishment. This is a factor calling for heavier punishment as a deterrent to such top people.
The appellant was the senior public servant in the Province and consequently this factor calls for a more severe sentence.
(3) “The period over which the fraud or thefts have been perpetrated”
The principle would be that a series of dishonest acts over a long period indicates a more confirmed state of “guilty mind”’ than the situation where an offender committed only one “spur of the moment” criminal act.
The appellant has been convicted of only one criminal action (resulting in two charges) and so in this respect the degree of seriousness is towards the low end of the scale. The surrounding circumstances, however, show it was not a “spur of the moment” act which was unlikely to be repeated. There was a degree of careful planning in the way he directed the ILPOC to be presented at Alotau just prior to transferring there. It seems that he planned to take advantage of the disruption caused by his transfer to try and avoid detection. The dishonest way he then took possession of the ILPOC and manipulated public funds in order to pay off Ela Motors showed that he should be given no credit for having “formed” a proven determination to conduct his affairs honestly in future.
(4) “The use to which the money or property taken was put”
There are cases where money stolen is used to maintain the offender’s desperately impoverished family or for some other worthwhile purpose which can be treated as a mitigating factor. In other cases, the money is used for purposes like gambling and drinking or to finance other criminal activities.
The appellant used the stolen property to benefit his wife’s family on Manus Island. Perhaps this was in fulfilment of some customary obligation to them but there was no evidence to show why this factor could amount to a circumstance of mitigation.
(5) “The effect upon the victim”
There are cases where the victim is seriously disadvantaged or even ruined by the loss of the property stolen. This can occur if large sums are stolen from a small unprofitable business or if things like technical designs or business secrets are stolen.
The appellant dishonestly obtained property worth K1,979 from a large firm and the effect upon that “victim” could not have been very great.
(6) “The impact of the offences upon the public and upon public confidence”
The public can sometimes suffer from the loss of the actual property taken. For example, if large amounts are taken from a superannuation fund. But the public can also suffer from loss of confidence if the offender was a high and trusted public employee. This is an aggravating factor calling for a heavier sentence.
The appellant was the Secretary of the Department of West New Britain when he committed the offence and Secretary of the Department of Milne Bay when he endeavoured to “cover up” his offence and when it was uncovered. In those positions he was responsible for the administration of those provinces and he was in charge of, and a model for, all provincial public servants. It was his job to ensure that those public servants gave honest and efficient public service to the government and the public. At a time when scandal and corruption by public officers are being frequently exposed, the disclosure of this breach of trust by the “top man”, the Secretary himself, must have had a most serious effect upon public confidence in the whole system of government administration. It is a serious circumstance of aggravation which obviously, and properly, influenced the mind of the trial judge.
(7) “The effect on the offender himself”
People in high positions who commit crimes of this nature usually suffer loss of employment and public disgrace. It will usually be hard for them to obtain future employment in similar positions of trust and they and their families will suffer. These factors can be given some weight in sentencing as they constitute a heavy penalty in themselves.
As far as the appellant is concerned, it seems that he arranged for voluntary retrenchment in May 1989 and received some form of retrenchment entitlements. He and his family have nevertheless undoubtedly suffered from public disgrace and loss of future employment opportunities and these factors should be taken into account in mitigation. (Apparently, however, he has already been offered a position with Placer Pacific.)
(8) Restitution
If restitution is made, it is proper to take that into consideration in mitigation of sentence as it will reduce the suffering of the victim and, depending upon the circumstances of the restitution, may demonstrate remorse and that the offender is unlikely to repeat the offence.
(9) “His own history”
The offender’s own history is always a relevant factor in determining sentence. The history might disclose a worthless life of crime with several previous convictions or it might disclose an exemplary life of dedicated employment and community service.
The history of this offender which was put before the trial judge showed an impressive employment record and no evidence of previous convictions or acts of dishonesty. These factors must be taken into account but, as mentioned in the case of Barrick, this is almost always the case with offenders charged with breach of trust in positions of high office. If they did not have such a good employment record they would not have obtained their high position. It is their action of abusing that position of high trust which has resulted in the charge against them and for this reason weight given to the previous good service as a mitigating factor is reduced.
(10) “Matters of mitigation special to himself”
Under this heading would come factors like ill health, young or old age, the effect of excessive nervous strain, co-operation with the police, serious family problems and the like.
No significant special personal circumstances were put before the trial judge. The appellant pleaded not guilty and so put the State to the expense of a trial (though he did admit almost all of the relevant facts).
The principle which the Supreme Court should follow when deciding whether to interfere with a sentence imposed by the National Court has been stated in R v Pia-Afu [1971-72] P&NGLR 393 at 396 and in R v Harley [1971-72] P&NGLR 399 at 403-404:
“... that the court should not interfere with the sentences appealed against unless it is clearly satisfied that the sentence should be altered.”
It has been submitted that a two-year (concurrent) sentence is out of line with the previous sentencing pattern. I can see no clear previous sentencing pattern but in my opinion many of the previous sentences are too low in view of the present frequency of such offences by high officers in positions of trust. Perhaps this case can be a guide for future cases involving high government officers.
In this case, it has been said that the trial judge put too much emphasis on the dishonest way the offender organised restitution and too little emphasis on his previous good character and employment record.
I do not agree with those submissions but in any event this Court should not interfere with the sentence of the trial judge unless it is “clearly satisfied that the sentence should be altered”.
Taking into account all the factors listed above, I am not clearly satisfied that this sentence of two years imprisonment should be altered. I think it is fair, just and appropriate in all the circumstances.
I would reject the appeal.
Appeal dismissed
Lawyers for the appellant: Henao Cunningham & Associates.
Lawyer for the respondent: Public Prosecutor.