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State v Seseka [1990] PGNC 61; N921 (19 October 1990)

Unreported National Court Decisions

N921

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR: 391 OF 1990
THE STATE
V
OA SESEKA

Waigani

Amet J
8-9 October 1990
16 October 1990
19 October 1990

CRIMINAL LAW - Sentence - Restitution - Extended family Customary commitment in restitution as mitigation - Effect of as sanction -

The prisoner between the first day of July 1988 and the 4th day of December 1989 dishonestly applied to his own use the sum of Twenty-Five Thousand Kina, the property of New Guinea Australia Lines (NGAL) and Cathay Pacific Airways. He pleaded guilty to the charge.

Held:

(1) A sentence of imprisonment was warranted despite a strong plea in mitigation.

(2) &##160; Extendetended familt cusy mary commitment and obligation to make restitution is a mitigating factor.

(3) &##160;; xtendmiendmily tmey tment imposes corresponding obligationstions upon the prisoner and is a form of s of sanctianction to be taken into account.

Pples ntencing in the case of Wellington Belawa v. T v. The Sthe State [1989] Unreported, SC 375, restated and applied.

Cases Cited:

The following case is cited in the judgment:

Wellington Belawa v. The State [1989] Unreported, SC 375.

JUDGMENT ON SENTENCE

This was a judgment on sentence for one count of misappropriation by the prisoner who pleaded guilty to the charge under S.383A of the Criminal Code (Ch. 262).

Counsel:

J. Pambel, for the State

I. Wartovo, for The Accused

Cur adv vult.

19 October 1990

AMET J: The prisoner ed guilty to y to one count “that he between the first day of July 1988 and the 4th day of December 1989 at Port Moresby, dishonestly applied to his own use the sum of Twenty-Five Thousand Kina, the property of New Guinea Australia Lines (NGAL) and Cathay Pacific Airways.

He was employed by New Guinea Australia Line as an accounts clerk from 1985. In 1988 he assumed the role of Airline Accounting Clerk. One of his duties, was the collection of daily takings from the Sales Office for banking, the recording of same and actual banking of the cash and cheques.

The method of execution of this scheme of misappropriation quite simply was that over this period of some 17 months, the prisoner only banked the cheques and some of the cash and took some or all of the cash from time to time. The scheme was straight forward yet not easily detectable until a thorough reconciliation was done upon discovery that there was not sufficient funds in the bank to make payment.

This offence involved a very large sum of money, and I wish to restate some of the principles that the Supreme Court in the case of Wellington Belawa v. The State (Unreported Supreme Court Judgment No. SC.375 of 1st December 1989) stated should be taken into account in considering the appropriate sentence.

1. &##160; TOUNT TAKENN

The principle here is simple. The larger the amount the greater should be the punishment. I agree generwith uggesuidelfor ss the serious misapmisapproprpropriatioiation by n by a sera servant,vant, that for an amount of K1,000 to K10,000, a gaol term of up to two years is appropriate. For cases involving between K10,000 and K40,000 two to three years imprisonment is appropriate. These ranges obviously have to be guidelines from the actual sentence can be adjusted upwards or downwards taking into account the other factors hereunder referred to. The amount here was large.

2. ـʔ THE DEGREE OF TRUST REPOSEEPOSED IN THE OFFENDER

The higher the position of trust the greater the responsibility. The prisoner was in itionrust.as ab do aof accounting transtransactioactions wins withoutthout any any immediate supervision. This unfortunately allowed the opportunity for this dishonesty to be perpetrated.

3. ټ&##160;< < THE PERIOR WHICH THE FRAUDFRAUD WAS PERPETRATED

The principle is that a series of dishonest acts over a long period indicates a more confirmed state#8220ty orinal mindnd” than the situation where an offe offender nder committed only one “spur of the moment” criminal act. The prisoner’s criminal conduct spread over 17 months and involved numerous distinct acts of criminal dishonesty. This of course demonstrates a more serious conduct than a “spur of the moment” act which was unlikely to be repeated.

4. ـʔ THE USE TO WHICH THE MONEYMONEY WAS PUT

Where the money is used to maintain an offender’s desperately impoverished family or some other worthwhile purpose then it can be a mitigating factor. The prisoner said he used K22,000 to build a family house, K2000 - to buy two generators and K1,000 for motor vehicle spare parts. These were not desperate family or worthwhile needs. There is no mitigation in this.

5. ټ&##60;&< R60; RESTITUTION

6. ;ټ SE

7. &<;ɘ A6PLEA OF GUIF GUILTY

A plea of guilty is usually a mitigating factor. If upon detection an offender wask andessedoffend wasperative at the outset to pleading guilty, then than that shot shows rews remorsemorse. Thi. This is the case here, the prisoner confessed the offence himself upon learning of the discovery of the fraud.

8. &ـ < < THE EFFECT E OFHENDER<

The principle factor here is to consider whether the offender has lost his job and if like obtaother The ner has been dismisismissed, sed, and is not employed at present.

p>9.&#19. &##160; <
N0; AIO PRRIM CAL RECORDECORD

10. ټ < PERSONAL MITIG TINGORSS

There are no special mitigating factors, such as illness, excessive family responsibility and the like. He has co-operatth thice.

The prishas however presented a comprcomprehensehensive uive undertndertaking by relatives to make restitution. This has been in support of the plea not to sentence the prisoner to imprisonment. Two affidavits of the wife of the prisoner and a younger brother were tendered plus ten (10) Statutory Declarations by clan relatives, all giving the undertaking to contribute K100 per month towards restitution. The prisoner’s brothers and sisters had undertaken to contribute between them a total of K1,500 per month, whilst the wife of the prisoner had undertaken to raise K500 per month from amongst her relatives and from selling fish and other produce. This would bring a total of K2,000 per month. The prisoner’s brothers and sisters and his wife and her relatives have raised about K1400 to pay towards restitution immediately.

Additionally the prisoner’s termination and other employment benefits to the value of K1,317.85 have been withheld and forfeited towards restitution, by his former employer. It was calculated that the balance, after these payments, would be repaid in 12 months on the undertaken given by all the relatives.

A relative, one Moi Avei a business consultant gave character evidence on behalf of the prisoner, on his personal character, his status in the village as a clan chief, his role as a clan chief and a deacon in the United Church at his Boera Village.

The prisoner was respected leader amongst his family and clan and in the village Mr. Avei also gave evidence of the prisoner’s family coming from Koitabu background and how Koitabu people are reliable and can be depended upon to keep their commitment, and that if a clan or village make a commitment they can be depended upon to honour it. Mr. Avei also described a Mango Project being proposed for the area which will involve land over which the prisoner is one of the principal leaders.

I accept the commitments that all the members of the prisoner’s family and his wife have made. I accept that a certain amount has been forfeited from his entitlement towards repayment and that K1400 has also been raised by the family. I accept the character evidence by Mr Avei. There is no reason to suggest that anything be said is not true.

I am much impressed by the clan rallying to the assistance of the prisoner and many being prepared to make the kind of commitment referred to to help the prisoner. This demonstrates the kind of pride and commitment Mr. Avei spoke of and which I accepted. There was no direct evidence led of the kind of obligation that might be placed upon such an offender who was helped in the way the relatives have undertaken to help the prisoner. I do not think however that evidence is necessary to establish that some reciprocal obligation is placed upon the prisoner. There cannot be any doubt about that. I believe this is universal in the country. The extent, and duration may vary from area to area.

I am satisfied that such assistance with corresponding obligations over quite a number of years provide a form of sanction in themselves.

The value and place this kind of customary sanction has upon the punitive principles of sentence have not been fully considered in these courts. No real arguments have been presented and I do not wish to deal with it in any depth except to say in my own perception that it does have a place which will have to be explored and elaborated upon.

All of these mitigating factors have been advanced by the relatives with the view to preventing the prisoner from being sentenced to imprisonment. I accept and sympathise with that and that’s honourable. But it should be made perfectly clear that the decisions of the courts are not arrived at as simply as that. The courts have to balance out many of the factors I have referred to. Several other factors the courts have to have reference to as well are the interests of the victim, the public interest in offences like this, such as the need for the public to be made aware of the seriousness of this kind of offences, and the need to demonstrate some measure of deterrence.

This kind of large scale frauds and acts of dishonesty involving large sums of money over a long period of time are becoming on the increase, both in the public and private sectors, and goods and services and profits are deprived rightful owners by actions of dishonesty such as this.

I bear in the mind the personal background of the prisoner. I sympathise with the wife and children of the prisoner, and the loss and hardship they will suffer if the prisoner is sent to prison. The prisoner’s wife had personally pleaded, in the affidavit she swore, not to send her husband to prison. I accept the prisoner has five children to attend to their school needs.

I said before and I repeat that all of these factors and matters ought always to be in the minds of fathers and all offenders when they are tempted and begin offending in this way. Educated, intelligent adults who knowingly and yet deliberately over a long period of time, such as 17 months, embark upon a life of fraud have no excuse whatsoever. They bear full responsibility for the suffering occasioned to their families as a result of their actions.

I do not know whether the family knew or had any suspicion that the prisoner was living and acquiring goods beyond his means. I do not know whether the wife and immediate family suspected that the prisoner was obtaining goods beyond his income and means. If they knew, they bear some responsibility as well for not having counselled against it.

Sometimes family and clan pressure upon young men and women to provide goods and services beyond their means and ability leads to offences of theft and misappropriation such as this.

Now having said all of these, where does the prisoner’s circumstances fall in the range of penalty alternatives available to me, taking all these factors into account. Based on the amount misappropriated, the method of execution, position of trust and the length of time over which the offence was perpetrated, and the fact that no real effort had been made to make any repayment in the 10 months to the time of this case, I am compelled to the opinion that a sentence of imprisonment is warranted. I do not think that a non-custodial sentence is altogether appropriate despite the strong plea in mitigation. I am however prepared to partially suspend the sentence on conditions.

I sentence the prisoner to three and a half years imprisonment in hard labour. I order that he serve 1 year only of the sentence and the balance of two and a half years be suspended on the following conditions:-

1. ; E60er itto a good behaviohaviour bond for 2 years, to run after release.

2. That heough awyer intoReghsf the National Court at Waigani, monthly minimum ofum of K790 K790.00 c.00 commenommencing cing on 1st November, 1990, and on every fworkiy of montheafteil thance of K of K23,6823,682.15 2.15 beingbeing (K25 (K25,00-K,00-K1,317.85) have been paid off through the Registry to New Guinea Australia Line.

3. ;ټ I60; In defa default the prisoner’s sentence will be commuted by 1 month for every months default in repayment.

Lawyer for The State - Public Prosecutor

Lawyer for The Accused - Isaac Wartovo & Aates