N790

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

STATE

V

RAPOLA

Waigani
Hinchliffe J
21 November 1989

CRIMINAL LAW - Sentencing - Probation - Relevant considerations - First offender - Misappropriation of moneys - Skilled computer operator - Mother of seven children - Community interest not served by imprisonment - Useful punishment - Community service order - Prohibition on consumption of alcohol.

CRIMINAL LAW - Sentence - Misappropriation - Skilled computer operator and mother of seven children - Sentence of two years six months suspended - Probation on conditions - Community service with Red Cross Society using computer skills - Prohibited from consuming alcohol - Repayment of money misappropriated.

The accused, a 36-year-old mother of seven children with ages ranging from three to 19 years, pleaded guilty to a charge of dishonestly applying for her own use the sum of K17,023.95, the property of her employer. The accused was employed as a computer operator with a firm of lawyers, having been fully trained in Papua New Guinea as well as Australia. The money was misappropriated over a 12-month period by paying cheques into accounts of the accused and a friend. Whilst the offence was not associated directly with alcohol, the accused was a heavy drinker.

Held

(1) A sentence of two years six months should be imposed but the sentence suspended on the accused entering into probation for a period of two years on the following conditions:

(a) to work for the Papua New Guinea Red Cross Society for one year free of charge;

(b) not to consume alcohol for a period of two years; and

(c) to repay the money within 10 days.

Sentence

The accused pleaded guilty to a charge of misappropriation and the following reasons were delivered on sentence.

Counsel

S Soi, for the State.
D Koiget, for the accused.

21 November 1989

HINCHLIFFE J: You have pleaded guilty that between 30 June 1987 and 14 June 1988 you dishonestly applied to your own use K17,023.95 the property of Gadens, Lawyers.

This is a serious offence and you could be jailed for up to 10 years.

The short facts of this case are that you were employed by Gadens, Lawyers, as a computer operator. Whilst in that employment you raised cheques either made out to your name or one Peter Munduna. Some of the cheques made out to you were deposited into your bank savings account and then withdrawn and used to buy food and clothing. For the cheques to Peter Munduna, they were deposited in his bank savings account and withdrawn some time later at your request. For his co-operation you rewarded him by payments of money.

This case has caused me considerable concern because on the one hand, the large amount of money that was misappropriated plus the long period over which the crime occurred normally demands a term of imprisonment without any kind of suspension. On the other hand, you are a fully trained computer operator. In 1975 and 1976, you attended computer-training courses. In 1975, you attended a computer-training course in Brisbane and on your return to Papua New Guinea you underwent a six-months training course in computers at the University of Papua New Guinea. In 1981, you travelled to Sydney and did another computer course. In 1979, you attended a middle management course and in 1986, you took part in a bookkeeping course.

Your qualifications in the computer and typing area had, until this incident occurred, kept you in good, constant employment for many years.
The reason why I have pointed out your qualifications is that it went through my mind that your much-sought-after expertise in Papua New Guinea may be able to be put to some use and not be wasted by placing you in gaol where you will be of no use and only cost the community money to keep you there.

After your lawyer told me your work and family history, I decided to call on a pre-sentence report, in particular the possibilities of useful community service work.

I now have the report before me and I am thankful to Mr Oa for his comprehensive report and sensible recommendation. He had a meeting with the Papua New Guinea Red Cross Society Personnel Committee and the committee has now indicated that you would be of use to the Society in the following areas:

1. To assist in all clerical work.
2. To do reception work and typing.
3. To do computer work and train other staff.
4. To help out with packing clothes and other materials for disaster purposes and
5. To help at the Special Education Centre with clerical and other general duties.

Naturally if I was to consider that course you would be working for no salary whatsoever.

But before making any final decision, I must look at other matters relevant to sentencing:

(a) You have no prior convictions. It indicates that up until now you have been a good, law-abiding citizen. At your age (36 years) it could be said that it was out of character to commit such a crime although the fact that it occurred over a 12-month period is not in your favour. It certainly was not something that happened on the spur of the moment.

(b) You pleaded guilty. That to a certain extent shows me that you are sorry for what has happened and because of your plea you have not caused any unnecessary waste of time.

(c) You are a married woman with a large family. You have seven children aged between three and 19 years. I have no doubt that they would suffer considerably if you were sent to gaol, in particular, the younger ones. Unfortunately it is the children who so often suffer for the parent’s crime, it seems unfair. You say that the money was spent on food and clothes for your family. That is probably partly true but I also note from the pre-sentence report that your are a heavy smoker and drinker. Obviously a considerable amount of money would have gone on cigarettes and alcohol. Again this Court sees the proceeds of a crime being spent on alcohol. There is no doubt that alcohol abuse is the cause of a majority of the crimes in this country and I would say is one of the main contributors to the dismal law-and-order situation that we are all being affected by. It is a drug. Unfortunately a lawful drug, but it has a similar damaging effect as any unlawful drug, such as marijuana or cocaine. It is so destructive it destroys families and causes untold worry and sorrow. One wonders why there are not severe restrictions placed on its sale and alcohol content. In any event, it should be discouraged through education and advertising.

(d) Money to be repaid. I have been told that the whole of the money can be repaid by loans etc within 10 days and I think that is important because it is the concern of the Court that the victim be compensated if possible, as soon as possible.

I ask myself, "Does the community demand that I send you to gaol?" I would have thought that the answer is "No" because you are not an habitual offender and you are not a violent, dangerous person who is a threat to those people who wish to live in peace and obey the law. On the other hand, you would be expected to be usefully punished. You must repay the money. You must stop drinking alcohol. You must repay the community for your illegal and anti-social behaviour. I also feel that through your crime you can now contribute to the community by free work in a charitable organisation that will benefit from your expertise. When all that is done, you will be forgiven and your debt to society will be paid off. To my mind, that course is far more productive and beneficial to everyone than a person such as you languishing in a gaol being useless. Of course, if you do not carry out the orders of the Court, then there is no other alternative but gaol.

I make the following order. You are convicted and sentenced to two years and six months imprisonment in hard labour but to be released forthwith on probation for a period of two years. The following conditions apply:

1. From 27 November 1989 to 26 November 1990 you are to work every full working day with the Papua New Guinea Red Cross Society free of charge. You are to obey all the instructions of your employer and to assist in every way possible.

2. You are not to consume any alcohol whatsoever during the two-year probation period.

3. To repay to Gadens, Lawyers, the sum of K17,023.95 on or before 13 December 1989.

In the event that the conditions are not complied with, then your probation will be breached and you will be sent to gaol for two years and six months.
I request that a quarterly report be forwarded to me in regard to your progress.

Sentenced accordingly

________________

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.