N3502

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 292 of 2005

THE STATE

V

BILL SAUN DANIEL

Vanimo: Kandakasi, J.
2005: 13th, 16th and 22nd December

DECISION ON SETENCE

CRIMINAL LAW – PRACTICE & PROCEDURE – Indictment and Arraignment – An accused pleads to facts constituting essential elements of offence – No requirement to specify at arraignment relevant law - Court can proceed to consider sentence on facts prisoner as pleaded to – Criminal Code s. 557 – 

CRIMINAL LAW – Particular offence – Misappropriation of employee’s property by servant – Breach of trust placed in offender - Proceeds of sales left in prisoner care for deposit with bank – Misappropriation part of – Full restitution – 3 years fully suspended sentence – Section 383A(1) (2) (b) and (d) of Criminal Code.

Cases cited:

The State v Louise Paraka (24/01/02) N2317
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 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 (6/7/02) N2100
The State v Eric Emmanuel Vele (24/07/02) N2252
The State v Anson Ising CR 11 of 2004 (judgment delivered on 27/10/05).
The State v Makeu Kig (21/10/04) N2177
The State v Saul Ogerem (27/10/04) N2780
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.

Counsel:

J. Wala, for the State. 
G. Korei, for the Prisoner.

22nd December, 2005

1.	KANDAKASI J: You pleaded guilty to one charge of misappropriation contrary to Section 383A (1) (a) and (2) (b) and (d) of the Criminal Code.

The Relevant Facts

2.	In the year 2004, you were in the employ of PNG Power Ltd. On 12th August 2004, a Ms Elizabeth Agori, employed as a cashier by PNG Power Ltd, gave you K5,552.50 for you to deposit with the bank for PNG Power Ltd. The monies consisted of payments for power supplies by various customers in Vanimo. On 13th August 2004, you deposited only K3552.50 and retained the balance of K2,000.00 and applied to your own personal use.

3.	Bank reconciliations carried out by the finance section of your then employer reveal a discrepancy in the deposit and the amount of monies collected. An investigation carried out by the finance section of PNG Power Ltd revealed that you misappropriated and applied the sum of K2,000.00 to your own personal use.

Address on Sentence, Submissions and Consideration

4.	In your address on sentence, you asked the Court to note that, this is your first ever offence, you pleaded guilty to the charge and asked the Court to exercise mercy toward you. You also asked the Court to note your personal and family backgrounds in terms of you being married with three children all of whom are attending high school and your father is dead whilst your mother is alive.

5.	Your lawyer, asked for a pre-sentence report from the probation service in this province. I granted that request and adjourned your case for both parties to make their submissions on sentence on Friday 16th December 2005. This saw a wastage of about three days. If you and your counsel observed what this Court said in The State v Louise Paraka, these times could not have been wasted. There I emphasized the need for counsel and parties to ensure that they obtain and have available a pre-sentence report particularly if they contemplate a guilty plea and a submission for suspension of either the whole or part of the sentence. In future, I warn that, I will not grant adjournments that easily to ensure a smooth and expeditious conclusion of cases of guilty pleas and thereby avoid wastage of time and money occasioned by unnecessary adjournments.

6.	The pre-sentence report in your case is now before the Court. It essentially repeats what you have said in your own address on sentence. At the same time, it states that you have repaid to PNG Power Ltd the whole of the K2,000.00 dishonestly applied to your own use. That was done by way of PNG Power deducting from what was due to on your termination. Based on that, the report recommends this Court to give you a lenient sentence. With the support of the pre-sentence report, your lawyer asks this Court to impose the kind of sentence the pre-sentence report recommends. In so asking, your lawyer urged this Court to take into account the factors in your mitigation.

The Offence and Sentencing Trend

7.	The offence of misappropriation with which you have been charged and convicted of with its penalty is prescribed by Section 383A (1) (2) (b) and (d) 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)	(b) and (d).

8.	Recently, I reviewed the sentencing tariffs in The State v Mahuva Jimmy and Uta Helisha. That started with the Supreme Court decision in Wellington Belawa v The State, which 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. Further, where a person commits the offence in breach of some trust reposed in him that should result in a higher sentence than on not in such a position. Other factors such as the position of the offender and time taken to commit the offence are also relevant. Furthermore, 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 cooperating with the police are further relevant factors in mitigation of the offender.

9.	Then I 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, 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 and The State v Bygonnes Tuse Nae, for misappropriation of amounts exceeding K100,000.00.

10.	I further noted that, the judgment of the Supreme Court in Doreen Liprin v The State heralded a development toward favouring suspension of sentences and giving of more time to an offender to repay the money or return the property, he or she misappropriated. In that case, the National Court convicted Doreen Liprin 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 her request, which she did not meet. That resulted in her imprisonment to serve the sentence.

11.	From prison, she lodged an appeal to the Supreme Court against 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.

12.	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). I commented that, that sentencing trend in this sort of cases. The then 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.

13.	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 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 costs to the Sate 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".

14.	In The State v Dobi Ao (No. 2), I agreed it was time to seriously, consider alternatives to sentencing in these type of cases but I said with respect it:

"… 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 of 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".

15.	Subsequently in The State v Gibson Haulai 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".

16.	I have subscribed to the view and I continue to 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 to 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".

17.	As I said in many cases before, 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.

18.	Taking the above views into account, I imposed wholly suspended sentences in The State v Eric Emmanuel Vele, The State v Louise Paraka, The State v Dobi Ao (No.2) and more recently in The State v Ansong Ising. 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.

Sentence In Your Case

19.	In determining an appropriate sentence for you, I remind myself that it is settled law that the maximum sentence for any offence is usually reserved 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. So what are the factors in your case?

20.	First, I note that there are number of factors against you. These are firstly, you misappropriated K2,000.00 belonging to your employer, PNG Power Ltd. Your employer entrusted you with the money evidenced by the fact that, those and other monies were left in your care for deposit with the bank. As I noted in The State v Mahuva Jimmy and Uta Helisha, generally the law allows for a higher penalty against people who commit offences in breach of trust. In the case of misappropriation, Section 383A (1) and (2) of the Criminal Code as confirmed by the Supreme Court in Wellington Belawa v The State specifically stipulates that breach of trust is a factor in aggravation.

21.	Secondly, the amount of money, K2,000.00, you misappropriate was from your employer. This attracts the application of Section 383A(1) (a) 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. I note your lawyers submission that, since you were indicted only under subsection (1), this Court can not consider your sentence under subsection (2) (b) and (d). Your lawyer made that submission without attacking the validity of the indictment, your arraignment, your guilty plea and your conviction and your own address on sentence. He did not point to any authority on point to support his submissions.

22.	As far as I know, an accused person pleads either guilty or not guilty to the essential elements of the charge presented against him or her. The relevant indictment in the case of an indictable offence or in the information, in the case of a summary offence, must therefore disclose each of the elements. Lay J., highlighted this in his judgment in the case of The State v Saul Ogerem, when he said:

"The wording of the indictment has not alleged a charge of any offence and it has omitted particulars necessary to inform the accused person of the nature of the charge. Thus it has prevented the Defendant from knowing and pleading to each of the elements of the charge. In relation to the submission that the short facts on arraignment can substitute for the mandatory particulars not included in the indictment, one only has to read is the words of s557 of the Code. A Defendant does not plead to the short facts, he pleads to the indictment".

23.	An indictment or information gets presented on the basis of facts disclosing an offence known to law, which the prosecution through the Court are usually put to an accused during his or her arraignment. There is no requirement for the State to specify in the indictment or the facts put to an accused during his or her arraignment, the particular law under which he or she is charged, although this is usually done in most cases.

24.	In your case, the indictment amongst others specifically pleads the fact that you were an employee of PNG Power Ltd and that you misappropriated a sum of K2,000.00. These facts or elements of the offence were specifically put to you both in the indictment and the brief facts during your arraignment.

25.	You then pleaded guilty to the charge against you with these elements constituting part of the charge of the indictment against you. I therefore find that the lack and specifically putting to you subsection (2) (b) and (d) of Section 383A of the Code is of no serious consequence.

26.	Finally, I note that the offence you committed is a prevalent one. It is being committed almost everyday right throughout the country often times in breaches of trust. Yet the kind of sentences imposed is so pitifully very low in my view. Where large sums of money are involved the sentence ought to go higher as held by the Supreme Court in Wellington Belawa v The State. This should start with cases involving money or values of property above K10,000.00. Rather than imposing lower sentences of say 2 to 4 years they should increase to say 7 years and above while those running into K100,000.00 should attract sentences up to the maximum prescribed sentence of 10 years. Such increases in the sentences are now more called for than not given the number of people committing this offence and getting away with it very lightly. This is necessary, if we are serious in deterring this kind of offence for the betterment of our country.

27.	Against the above factors in aggravation, I note in your favour that, firstly, you pleaded guilty to the charge against you. That saved the State extra time and costs in running a trial. Your guilty plea has also meant less time for the Court to deal with your case. Secondly, I note that the offence you committed was a one of incident rather than one perpetrated over a period of time as in the case of an employee committing acts of misappropriation and or forgery over a period of time until found. Thirdly, 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 as little as 2 years imprisonment as in The state v Benson Likius. I note that, the offence of misappropriation is one of the main contributors to our country’s poor state of affairs. This alone calls for a serious review of the kind of sentences imposed with a view to deterring 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.

28.	I note too that your case comes closer to the case of The State v Mahuva Jimmy and Uta Helisha, as far as the amount of money involved and breach of trust is concerned. Finally, I note that in the absence of any evidence to the contrary, the offence had no serious impact against your employer, its clients and the community at large.

29.	In addition to the foregoing, 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 note in a number of cases already as in The State v Raphael Kimba Aki (No.2):

"The Supreme Court in Allan Peter Utieng v The State 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 concerns once proven guilty according to law. His 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".

30.	The pre-sentence report confirms your claim that you have fully restituted the K2,000.00 you misappropriate from PNG Power Ltd. The report also highlights that, you are not a violent person and the offence you committed is not a crime of violence. The report further highlights that you have a good standing in your community and that the community would be content with a non-custodial sentence. Based on this, the report recommends that you be given a non-custodial sentence.

31.	In Acting Public Prosecutor v Don Hale, 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.

32.	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 18 months appropriate. I then consider it appropriate that the whole of that sentence should be suspended and I do so on the following terms and conditions:

1.	You pay a fine of K400.00 immediately which could be met by a forfeiture of your bail money of K400.00 to the State, if you have not yet had that reimbursed to you;

2.	You enter into a recognizance with a surety in the sum of K1,000.00 (not cash) to keep the peace and be of good behaviour for a period of 18 months commencing today;

3.	For a period of 12 months commencing this month, you render three hours of free community service each Mondays and Wednesdays and Fridays excepting any public holidays to the Vanimo Town Authority by cutting grass and undertaking other cleaning activities as may be determined by the probation office in consultation with the Lord Mayor, or LLG President in Vanimo;

4.	For the purpose of term 3 above, the probation service shall furnish to this Court a detailed work program within 7 days from today for the Court’s endorsement;

5.	You be home bound between the hours of 6.00 pm and 6.00 am each day for the currency of your suspended sentence;

6.	During the currency of your sentence, you shall not leave your place of residence and the Township of Vanimo as well as the Sandaun Province unless leave of this Court has been first sought and obtained; 

7.	You will allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to report with such recommendations as he might consider appropriate either for a variation or an implementation of these terms;

8.	The Probation Service shall furnish a bimonthly report to this Court of your performance and observance of these conditions with the first being due by 21st February 2006;

9.	If for whatever reason you breach any of these terms, the suspension will immediately be lifted and you will serve the full term of 18 months from the date of the first breach; and

10.	You will be at liberty to apply for a review and or variation of any of these terms including a lifting of any of these terms and conditions provided there has been substantial compliance.

___________________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner