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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 11 of 2004
THE STATE
ANSONG ISING
WABAG: KANDAKASI, J.
2005: 24th and 27th October
DECISION ON SENTENCE
CRIMINAL LAW- Sentence - Particular offence – Misappropriation of employers property by senior public servant – Breach of trust placed in offender as District Administrator –Misappropriation of State vehicle – Failure to follow established procedure for disposal of State assets – Failure to exercise due care and attention and establish proper basis for disposal of vehicle – Serious breach of trust and offence – A strong deterrent sentence called for - Appropriate to suspend whole or part of the head sentence considered – 3 years fully suspended sentence imposed - Section 383A(1) of the Criminal Code.
Cases cited:
John Jaminan v. The State (No.2), [1983] PNGLR 318
The State v. Luke Sitban (07/06/04) N2572.
Acting Public Prosecutor v. Don Hale (27/08/98) SC564.
The State v. Irox Winston (21/09/00) N2304.
Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730.
The State v. Mahuva Jimmy and Uta Helisha (02/09/04) N2632.
Wellington Belawa v. The State [1988-89] PNGLR 49
Lawi v. The State [1987] PNGLR 183.
The State v. Paroa Kaia N1401.
The State v. Bygonnes Tuse Nae, (18/09/96) N1474.
Doreen Liprin v. The State (9/11/01) SC675
The State v. Dobi Ao (No 2) (2002) N2247.
The State v. Gibson Haulai (25/03/04) N2555.
The State v. Micky John Lausi (27/03/01) N2073.
The State v. Jimmy Solomon (6/7/01) N2100.
The State v. Eric Emmanuel Vele (24/07/02) N2252.
The State v Louise Paraka (24/01/02) N2317.
The State v. Makeu Kig (21/06/01) N2177.
The State v. Paul Yepe (No.2) (Unreported judgment delivered on 26/03/04) CR No. 97 of 1998.
The State v. Danny Makao (Judgment delivered today) CR 1100 of 2004.
James Mora Meaoa v. The State. [1996] PNGLR 280.
The State v Henry Nandiro (No 2) (22/06/04) N2668.
Fly River Provincial Government v. Pioneer Health Services Limited (24/03/03) SC705.
The State v Benson Likius (08/03/04) N2518.
The State v. Raphael Kimba Aki (No.2), (28/03/01) N2082.
Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
Counsels:
Mr. M. Ruari for the State.
Mr. D. Kari for the Accused.
27th October 2005
KANDAKASI J: On Monday this week you pleaded guilty to one charge of misappropriation contrary to Section 383A (1) and (2) of the Criminal Code.
The Relevant Facts
The facts on which you pleaded guilty are straight forward. During the period 1996 to 2002, the State employed you as the District Administrator for the Kandep District of this province based at Kandep. Between 14th September 1999 and 28th November 2001, you dishonestly applied to the use of one Awas Kende a Toyota Land Cruiser motor vehicle, registration number MAC 316 (the vehicle). The then Member of Parliament for the Kandep Open Seat, Honourable Jimson Sauk bought the vehicle with District Support Grants and had it allocated to the Titip Health Centre. The vehicle was part of Enga Provincial Government’s fleet of vehicles and therefore the property of the State.
Mr. Awas Kende was the then driver of the vehicle. He claimed that the vehicle was involved in an accident. That, he claimed, resulted in repair costs of about K4, 275.00, which he claimed he paid as the Titip Health Centre or the State did not have the money to meet the expenses. By letter dated 28th May 2002 addressed to you, he claimed that supporters of Honourable Jimson Sauk and the Governor Honourable Peter Ipatas were claiming ownership and he asked for either a reimbursement of his K4, 275.00 or he be given ownership of the vehicle. However, the letter transferring the ownership was written on 14th September 1999. A statutory declaration by Mr. Awas Kende dated 4th December 2002 confirms that the vehicle was transferred by the said letter to him on 14th September 1999. Further, in Mr. Awas Kende’s statement in evidence before this Court, it states that you asked him to make a deposit toward a purchase of the vehicle in November 2001 and he did.
Despite the above chronology of events, you claimed that you bypassed the public tender requirements for the disposal of public assets because of a situation of emergency immediately following the 2002 National General Elections. The pre-sentence report states that following the declaration of the results of the 2002 general elections for the Kandep Open Seat. That was between the end of June to early July 2002, in favour of Honourable Don Polye. The Commander of the Kandep Police Station was shot dead and there were no police presence in Kandep. The report goes on to state that at about this time, the supporters of Honourable Polye and Mr. Jimson Sauk claimed ownership of the vehicle and that you decided to transfer the ownership to Mr. Awas Kende for the safety of the vehicle and also because Mr. Kende met alleged repair bills for the vehicle. There is no evidence of you carrying out any independent enquiries and satisfying yourself as to the truthfulness and accuracy of Mr. Awas Kende’s claims. Instead, it is clear that, you merely accepted Mr. Kende’s claims and gave him ownership over the vehicle, without going through the public tender requirements for the disposal of State or public assets.
Clearly, there is inconsistencies in your claims and in particular the reason for your deciding to pass on the ownership of the vehicle to Mr. Awas Kende. On the evidence before the Court, I find that you decided to pass on the ownership of the vehicle to Mr. Awas Kende on 14th September 1999. That was long before the 2002 National General Elections and the alleged election related problems between the supporters of Honourable Polye, Honourable Sauk or Honourable Ipatas. The claims of you acting in emergency cannot be sustained because the evidence clearly shows that you decided to pass on the ownership of the vehicle to Mr. Awas Kende on 14th September 1999, long before the claim of emergency which allegedly occurred between late June and early July 2002. I find that, you came up with these claims in a bid to avoid the consequence that should follow you in terms of your criminal punishment for the offence you committed. The fact that you said nothing about the emergency during your record of interview means less credibility for your belated claims of emergency, which the law says I cannot believe and act upon.
The Supreme Court in John Jaminan v. The State (No.2),[1] stated the relevant principles in relation to belated claims of an alibi in these terms:
"...[T]he alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight: see Ryan (1964) 50 Cr. App. R. 144 at 148 and Hoare [1966] 50 Cr. App. R. 166. As a matter of law he has a right of silence on both occasions but as a matter of fact — and here we are dealing with facts — its belatedness reduces its weight. If the accused is telling the truth that he was not at the hotel with the prosecutrix, that he was with Akai Kup going to and from Kelua village, why not tell that to the police so that they can check out the story when memories are fresh. In a judge and jury jurisdiction it is permissible for the prosecutor and the judge to comment on a belated alibi in distinctly unfavourable terms. In our jurisdiction it is permissible for a judge to say that one of the reasons why he disbelieved an alibi is that it was belated..."
I applied these principles in a number of cases. An example of that is The State v. Luke Sitban.[2]
Ultimately, I find that you did misappropriate the vehicle for the use and benefit of Awas Kende. You did so without lawful authority and in clear breach of set guidelines and procedure including the public tender requirements for the disposal of State or public assets.
Address on Sentence
In your address on sentence, you asked the Court to note that, you acted under emergency to diffuse countering claims over the vehicle by the political supporters of Honourable Jimson Sauk and Honourable Peter Ipatas, Governor of this province. You further informed the Court that, the vehicle was bought at a price of K50, 761.00 in 1998 from Ela Motors and produced the relevant invoice for that. You also urged the Court to note that, this is your first ever offence from a previous impeccable record of dedicated service to the State. Further, you urged the Court to note that you are married with 4 children, 3 of whom are attending school. You finished with a plea for a fine or a lighter sentence for your punishment.
Your lawyer added by urging the Court to note your family and your personal backgrounds. He then urged the Court to note that, you are still in the employ of the State but unattached. You therefore enrolled with the University of PNG for a degree in public administration. Initially, this case made you to go to and from Port Moresby for the purposes of your study and Wabag resulting in enormous costs to you in airfares. According to the pre-sentence report, you have incurred substantial legal costs trying to defend yourself in relation to this offence. All of these caused you to withdraw from your studies. You are currently living at Aipos, here in Wabag but originally come from Pipi village just outside Wabag.
Furthermore, your lawyer urged the Court to note your guilty plea, being a first time offender, you did not personally gain from the offence, you are not a threat to the society and that you lost your position as the District Administrator for Kandep. Having regard to these factors, your lawyer further urged the Court to impose a non-custodial sentence against you.
The law however states that I cannot even consider imposing a non-custodial sentence without the support of a pre-sentence report recommending such a sentence on proper basis. The law on point is very clear. In Acting Public Prosecutor v. Don Hale,[3] the Supreme Court stated the law in these terms:
"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."
Going by the authority of the above Supreme Court decision, I held in The State v. Irox Winston[4] that:
"...[I]f the Court is minded to give a lenient sentence because of tender age or other good mitigating factors, it must first have before it a pre-sentence report supporting such a sentence. This is because criminal sentencing is a community response to an offence and has to reflect the community’s view of the kind of sentence an offender should receive. Without such a report supporting either the suspension of a sentence or the imposition of a lenient sentence, a Court can not arrive at such a sentence."
Subsequently, the Supreme Court endorsed these views in its judgment in Edmund Gima v. The State & Siune Arnold v. The State.[5]
In the Irox Winston case, I pointed out that, before making a submission for a non-custodial or a lenient sentence, counsel and his client must ensure to have available a pre-sentence report. You and your lawyer did not observe this. The Court decided to bend backwards by giving you before 4:00pm on Tuesday to bring in a pre-sentence report for the Court’s consideration before it arrives at its decision on your sentence. The Court received the required report and I have made reference to that in the foregoing and will have regard to that before arriving at a decision on your sentence.
The Offence and Sentencing Trend
The offence of misappropriation with which you have been charged and convicted of with its penalty is prescribed by Section 383A (1) and (2) of the Criminal Code. This provision states in relevant parts:
"383A. Misappropriation of property.
(1) A person who dishonestly applies to his own use or to the use of another person—
(a) property belonging to another; or
(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a
trust, direction or condition or on account of any other person,
is guilty of the crime of misappropriation of property.
(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years
except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:—
(a) ...; or
(b) where the offender is an employee and the property dishonestly applied is the property of his employer; or
(c) ...; or
(d) where the property dishonestly applied is of a value of K2,000.00 or upwards."
In The State v. Mahuva Jimmy and Uta Helisha,[6] I reviewed most of the cases dealing with sentences in misappropriation cases. That started with the Supreme Court decision in Wellington Belawa v. The State.[7] That case set the relevant guidelines for sentencing in misappropriation cases. It held that, where the amount of money or the value of property involved is lesser, the sentences should be lesser and where the amount of money or value of property involved is higher, the sentence should be higher. Where a person commits the offence in breach of some trust reposed in him that should result in a higher sentence than an ordinary person should receive. Other factors such as the position of the offender and time taken to commit the offence are also relevant. Further, the application of the money stolen or misappropriated its effect on the victim and the public, or fellow-employees or partners are also relevant considerations. At the same time, the Court held that, the effect of the offence on the offender himself, the offender’s own history; restitution; illness; being placed under great strain by excessive responsibility or the like and co-operating with the police are further relevant factors in mitigation of the offender.
I then noted that, cases subsequent to the Supreme Court judgment have imposed sentences between 18 months to say 3 years as in Lawi v. The State,[8] for misappropriations of K10,000.00. Others have imposed sentences of 4 years on a guilty plea with good mitigating factors for a misappropriation of K94, 478.31 as in The State v. Paroa Kaia[9] and The State v. Bygonnes Tuse Nae,[10] for misappropriation of amounts exceeding K100, 000.00.
I further noted that, in recent times, there has been a development favouring suspension of sentences and giving of more time to an offender to repay the money or return the property, he or she misappropriated. The judgment of the Supreme Court in Doreen Liprin v. The State[11] is the authority responsible for that trend. In that case, the National Court convicted the offender after a trial on one count each of forgery, uttering and misappropriation of a sum of K6, 000.00. It then imposed a sentence of one year each for the first 2 offences and 3 years for the misappropriation, all made concurrent. It then suspended the sentence on conditions of restitution within a period of 2 months on the prisoner’s request.
The offender did not meet the condition for her suspended sentence. That resulted in the offender’s imprisonment to serve the sentence. From prison, she lodged an appeal to the Supreme Court on both conviction and sentence. Although her appeal was out of time, the Supreme Court in the exercise of its powers under s. 155(2) (b) of the Constitution proceeded to deal with the matter.
The then Chief Justice dismissed the appellant’s appeal against conviction but upheld her appeal against sentence. He had the sentence reduced to 18 months. In The State v. Dobi Ao (No 2).[12] I commented that, that sentence did not with respect have regard to the then prevailing sentencing trend in this sort of cases. The Deputy Chief Justice and Justice Los did have regard to the relevant sentencing trends and concluded that the cumulative sentence of three years was appropriate as it was within the range. Nevertheless, despite his views on the sentence, Justice Los accepted the Chief Justice’s proposal on sentence. I also commented in the case cited that, with respect, the Supreme Court decision does not provide any assistance as to determining appropriate sentences.
The then Chief Justice’s proposal in addition to reducing the sentence, proposed that the appellant be given more time to look for alternative employment to repay the amounts misappropriated and that the Court make orders for free community services under the Probation Services supervision. His Honour’s reasons were:
"I believe it is time to consider seriously whether offences of misappropriation of amounts of the kind [K6,000.00] warrants custodial sentences. I do not believe the Court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment."
...
The converse implications of a sentence of imprisonment is, whilst the immediate effect is that of declaration of liberty and does a punishment, the cost to the State and the community will exceed considerably the amount of money misappropriated. It would be of no benefit to society. The purpose of punishment can as easily be obtained in alternative orders to imprisonment. The offender is now (sic) threat to society."
In The State v. Dobi Ao (No 2),[13] I agreed it was time to seriously consider alternatives to sentencing in this type of cases and said:
"But, that with respect, does not necessarily mean head sentences be drastically reduced. Instead, it means, there be sterner head sentences and then either have them wholly suspended or it be made part custodial and part non-custodial. This is to show the seriousness of the offence and to serve both the purposes of deterrence and rehabilitation an offender. It would also give the offender a consideration to faithfully meet any conditions that might be imposed for suspending either in part or in whole the head sentence. The absence of a sanction for failing to meet such conditions might give no reason to the offender to comply."
I noted also that in The State v. Gibson Haulai[14] I added:
"...[J]ust ordering restitution without more in the form of a punishment would not serve any deterrence. Rather it would encourage people with criminal minds to misappropriate monies belonging to other persons, apply them to their own use interest free and made to repay only the principle amount under a restitution order. People with means to repay would hence be encouraged and get way with it. Hence, it is necessary that there be additional conditions attached to a restitution order to show the community’s abhorrence of the commission of such offences and to help deter other would be offenders."
I continued to subscribe to the view and I do so again in this case that:
"It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such order is made in the community interest and is generally designed to prevent re-offending which a prison sentence, standing alone, seldom does. A person so released as an obvious incentive not to re-offend. Therefore, there should be no misconceptions as to what will occur if he does. From time to time, persons charged with more serious offences may be dealt with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that a particular offender will be positively damaged by immediate incarceration."[15]
I then expressed the view that, a non-custodial sentence does not grant the offender immediate liberty. Rather, such sentences only allow offenders to serve their penalty outside the prison system for reasons such as those noted in the above passages. Hence, the need to impose a sterner head sentence and conditions for a suspended sentence that will make that clear to an offender.
Taking the above views into account, I imposed wholly suspended sentenced in The State v. Eric Emmanuel Vele;[16] The State v Louise Paraka[17] and The State v. Dobi Ao (No 2),[18] itself. I note also that some of my brothers have imposed similar sentences, such as the one by Sawong J in The State v. Makeu Kig.[19]
In Your Case
It is settled law that the maximum sentence for any offence is for the worse category of the offence under consideration. Whether a case is worse or not is dependant on the circumstances surrounding the commission of the particular offence, and all the factors the Supreme Court set out in Wellington Belawa v. The State[20] in the case of misappropriation. So what are the factors in your case?
You misappropriated a motor vehicle belonging to the State, which was and still is your employer, through the Department of Enga. You were the District Administrator of the Kandep District at the relevant time. Because of that, all of the administrative affairs of the District came under your control. As I said in The State v. Paul Yepe (No.2)[21] case, District Administrators are the ultimate representation of government authority and presence in a District. The police and other systems of government come under the overall authority of District Administrators, in terms of administrative hierarchy in the Districts. Similarly, all government and other public assets in the districts come under the overall care, control and management of the District Administrator, subject to all relevant and applying legislation and administrative procedures.
Where a person of such responsibility commits an offence, it sends a very bad and wrong message to the community at large. Most of our communities in the various districts of the country are illiterate. They only come to know what kind of behaviour, conduct is right by observing those in authority, and the educated’s actions or conduct. Where a district administrator commits an offence by his very conduct, he or she is encouraging the ordinary people in the districts to have no regard and respect for the law and set procedures and guidelines. Given that, a stronger deterrent sentence is called for when a person of your position commits an offence.
Earlier today, I highlighted that position in the context of the decision in The State v. Danny Makao.[22] That was in the case of a police officer who asked for and received a bribe to stop criminal proceedings against a person suspected of attempted murder. The observations there equally apply in the sense that there is a prevalence of misuse, abuse and misappropriation of public funds and other properties or assets of the State and the fact that such offences are being committed by those who are employed to uphold the rule of law and to protect them.
Generally, as I noted in The State v. Mahuva Jimmy and Uta Helisha,[23] the law allows for a higher penalty against people who commit offences in a breach of trust position. The Supreme Court endorsed that view in confirming a sentence of 14 years in James Mora Meaoa v. The State. [1996] PNGLR 280. That was in the case of a gang rape by operators of a small boat that capsized at sea and they rescued the victim, a person from the inland to the shore. The Court there held that, a breach of a position of trust is an aggravating factor. It also held that positions of trust are not limited and may extend to de facto situations such as a vehicle or boat operator and his passengers. In your case, you were an employee of the State from whom you misappropriated the very property entrusted in your hands. This is reflected in my view in s. 383A(1) and (2) as confirmed by the Supreme Court in Wellington Belawa v. The State[24] where the Court held that the commission of the offence of misappropriation in a breach of trust is a factor in aggravation.
Another factor is the amount of money or the value of the property misappropriated. Although there is no clear evidence on the exact value of the vehicle at the time of your misappropriating it, it is clear that at the time of its purchase in 1998 it was worth K50,000.00. The misappropriation was after one year. So allowing for depreciation of the value for the one year that passed, its value could have reduced to about K30,000.00 to K40,000.00. However, there is no evidence confirming the value of the vehicle at the time of the offence. Instead, the State is content with the value of the vehicle at which you had it disposed to Awas Kende. You misappropriated it for a consideration of K4, 275.00 as being the amount Mr. Awas Kende claimed he paid in repairs following an alleged motor vehicle accident. On any account, the value of the vehicle was over K2,000.00 for the purposes of determining an appropriate sentence for you.
The above two factors attracts the application of Section 383A(1) and (2) (b) and (d) of the Criminal Code which means the maximum sentence you are likely to get for this offence is 10 years and not 5 years. I have expressed the view that, where the legislature prescribes a regime of sentence or penalty for a particular offence, a sentencing judge must adhere to it. I made that clear in the context of a case of rape simpliciter which attracts a sentence up to 15 years and aggravated rape which attracts a sentence up to life imprisonment under Section 347 of the Criminal Code as amended. In the case of The State v Henry Nandiro (No 2),[25] I held that, having regard to the penalty regime for the offence a sentence for aggravated rape must start from 15 years. What this means in your case is that your sentence should rightly start at 5 years.
You claimed that you committed the offence, in a case of emergency, which I rejected for the reasons already given.
I note that your claim of acting under emergency is a claim you came up with to cover up for what I find to be a deliberated designed to dispose of the vehicle in question against the set procedures and guidelines under the public tender requirements. This is demonstrated by your failure to provide any evidence of having checked and verified Mr. Kende’s claims of the vehicle being involved in an accident, being repaired by a workshop and him paying K4, 275.00. I must confess this is the first time I am coming across a simple driver of a State vehicle going out of his way to meet repair bills totalling a substantial K4, 275.00. Questions do arise as to where did Mr. Kende get this money from? What was his consideration for paying for the repair costs? What prove or evidence did he provide in terms of the repair bill, and him paying or settling the bill?
A reasonable and prudent administrator in your then position charged with the responsibility to ensure the safety of State assets, could have asked the above questions and have them satisfactorily answered before accepting the claims but you did not do that. Then having accepted those claims, you were required to take the matter up with the relevant authorities ultimately being the provincial tenders board to make the required decision to dispose of the vehicle and set a reserve price for it. The Supreme Court of which I was a part in the case of Fly River Provincial Government v. Pioneer Health Services Limited[26] emphasized the importance of tender requirements. The Supreme Court pointed out amongst others that the tender requirements are there to ensure that every person in the country is give the opportunity to bid for any government work or project for a monetary consideration. In the case of disposal of assets, the tender requirements are there to given every person in the country the opportunity to put up their bids toward the purchase of a public asset that is being sold or disposed off. Additionally, this process enables the State to get the best possible price.
What this means is that, your actions prevented the people of Enga from having an equal opportunity to bid for the vehicle. It also means that, your actions prevented the State from getting the best possible price, which may have gone beyond the K4, 275.00. The Constitution requires every person in the country to be given equal opportunity to participate in the economic life of the country. Your conduct failed to observe and to allow that constitutional dictate to take its course before the vehicle was ultimately disposed off.
Against the above factors in aggravation, I note in your favour that, you pleaded guilty to the charge against you. That saved the State extra time and costs in running a trial. Your guilty pleas have also meant less time for the Court to deal with your case.
Further, I note that the offence you committed was not one that was perpetrated over a period as in the case of an employee committing acts of misappropriation and or forgery over a period until found. Rather, your commission of the offence was a one off act.
Furthermore, the amount of money involved is nowhere near to offences committed by leaders and people in high places running into hundreds of thousands of Kina. These people have gotten away with little as 2 years imprisonment as in The State v Benson Likius.[27] This is demonstrative of there being an appearance of much inconsistencies and variance in the kind of sentences imposed in misappropriation cases. People who have stolen, misappropriated or misused large sums of public funds have gotten away with lighter sentences. I note that, the offence of misappropriation is one of the main contributors to the country’s poor state of affairs. This alone calls for a serious review of the kind of sentence imposed with a view to imposing deterrent sentences to help deter other would be offenders from committing the offence. People who are inclined to committing this kind of offence must now be warned that, the penalties will go up given the prevalence of the offence and the kind of money and property that are involved.
I note your family and personal backgrounds as you, your lawyer and the pre-sentence report have outlined and put to the Court along with the recommendations of the pre-sentence report. I do note that your family would be adversely affected should the Court impose upon you a custodial sentence. That cannot however, be a factor in your favour because that is the very consequence of your own actions. The principle is, you cannot benefit in terms of a lenient sentence from your own criminal conduct. As I noted in a number of cases already as in The State v. Raphael Kimba Aki (No.2),[28] the Supreme Court in Allan Peter Utieng v. The State[29] observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offender’s personal background including the needs of his family once proven guilty according to law. An Offender’s background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.
The pre-sentence report recommends that you be given six months to repay to the State K4, 275.00 with your cash bail of K1, 000.00 being immediately forfeited to the State as your first instalment. The recommendations of the pre-sentence report proceeds on the basis of your previous good record and the part that you play in maintaining law and order in your village and therefore this province as well as your undertaking not to commit the same or any other offence.
In Acting Public Prosecutor v. Don Hale,[30] the Supreme Court said sentencing is a community responsibility. After all, the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. I have endorsed and followed that view in many cases, some of which I have cited in this judgment. I am therefore prepared to impose a sentence that reflects the wishes expressed by the community through the pre-sentence report. This, I am prepared to do because I am of the view that, sending you to prison will not serve any useful purpose. You will be a strain on the State’s limited financial resources in terms of looking after you in prison and feeding you. Apart from not seeing you in your house and your community, the members of your family and community will not be able to see you serving your penalty. I therefore, consider a non-custodial sentence is appropriate but that has to be on strict terms as an alternative to imprisonment.
Going by the tariffs in this kind of offences, and what I have observed in your case in terms of the factors in aggravation as well as those in your mitigation, I consider a head sentence of 3 years is appropriate. I would then have the whole of that sentence suspended on the following terms and conditions during the currency of your suspended sentence:
I consider the sentence and the terms and conditions of the sentence proposed above sufficiently accommodate all of the comments and
concerns raised in the foregoing. Accordingly, I make orders in those terms.
___________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor
[1] [1983] PNGLR 318 at pp. 332 -333 per Bredmeyer J.
[2] (07/06/04) N2572.
[3] (27/08/98) SC564.
[4] (21/09/00) N2304.
[5] (03/10/03) SC730.
[6] (02/09/04) N2632.
[7] [1988-89] PNGLR 49.
[8] [1987] PNGLR 183.
[9] N1401.
[10] (18/09/96) N1474.
[11] (9/11/01) SC675.
[12] (2002) N2247.
[13] Ibid.
[14] (25/03/04) N2555.
[15] A position I took in the cases of The State v. Micky John Lausi (27/03/01) N2073, The State v. Jimmy Solomon (6/7/01) N2100, The State v. Eric Emmanuel Vele (24/07/02) N2252 and The State v Louise Paraka (24/01/02) N2317.
[16] Ibid.
[17] Ibid.
[18] Opt cit. note 1.
[19] (21/06/01) N2177.
[20] Opt cit. note 5.
[21] (Unreported judgment delivered on 26/03/04) N2571
[22] (judgment delivered today) CR 1100 of 2004.
[23]Opt cit. note 4.
[24] Opt cit. note 5.
[25] (22/06/04) N2668.
[26] (24/03/03) SC705.
[27] (08/03/04) N2518.
[28] (28/03/01) N2082.
[29] (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
[30] Opt cit. note 1.
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