PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 363 of 2006

THE STATE

v

LIVINGSTON HAURAHAELA

Kerema: Kandakasi, J.
2006: 19 and 23 October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Misappropriation - Police and court bail and fine monies totalling K1200 – Funds fully recovered – Guilty plea – Prior convictions – Pres-sentence report supportive of community base sentence – Eighteen months fully suspended sentence on conditions imposed - Criminal Code Sections 383A (1)(a) and (b) and 19. 

Cases cited:

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.
Acting Public Prosecutor v. Don Hale (27/08/98) SC564.
The State v. Irox Winston (21/09/00) N2304.
The State v. Gibson Haulai (25/03/04) N2555. 
Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730. 
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. Lucas Yovura (29/04/03) N2366.
The State v. Donald Poni (22/09/04) N2663.

Counsels:
Mr. D. Mark, for the State.
Mr. P.Kapi, for the Prisoner.

23 October, 2006

1. KANDAKASI J: You pleaded guilty to one charge of misappropriation contrary to s.383A (1) (a) and (b) of the Criminal Code, presented by the State on the 19th of this instant. Since your arrest you have been on a cash bail of K500. 

The Facts

2. The relevant facts as put to you during your arraignment and as they appear from the depositions are these. Between July and November 2003, you were employed by the National Department of Finance and Treasury as an acting examiner based at Kikori, Gulf Province. One of your duties was to collect public monies into the State treasury through the Kikori District Treasury office. Such funds included police and court bails and court fines. During the relevant period, police in Kikori arrested and charged a Mr. Jeffery Tobi for causing grievous bodily harm to another person and was released on a police cash bail of K500. Another person, a Tony Tandako was also arrested and charged by Police in Kikori for being in possession of a high powered firearm. He too was released on a Police cash bail of K400. Also during this time, a Umapi pleaded guilty to a charge of having phonographic material and was fined K300. All of these funds were paid into the Kikori District Treasury office, on different dates and you collected them. Instead of completing the relevant collectors statements for these monies and have them paid into the trust account kept at Kerema, you kept them in a safe and applied them to your own use. 

3. You claimed initially that your superiors in Kerema failed to forward you airline tickets in time to go to Kerema for official duty. Therefore you used the money in question and informed your superiors about it and they asked you to reimburse the money. Later it became clearer that you used the money to get your wife and yourself to Port Moresby for medical treatment. You reimbursed the money through pay deductions of K200 per fortnight, commencing 15 March 2006 and ending 24 May 2006. A receipt issued on 13 October 2006 confirms the full repayment of the money you stole. 

4. You have two prior convictions. The first is for being in possession of drugs in 2001 by the Kerema District Court. You pleaded guilty to the charge and the Court cautioned you and placed you on good behaviour bond. The second conviction is for break, enter and stealing from the Kikori District Office in 2001. You also pleaded guilty to the charge. The National Court sitting in Kerema convicted you and placed you on good behaviour bond for 1 year. 

Allocutus and Submissions

5. In your address on sentence, you said sorry for committing the offence and promised not to do it again. You also confirmed that the monies you stole have been fully reimbursed. Further you informed the Court that, you have a 5 year old child to look after following her mother leaving you. In the circumstances, you pleaded for leniency and a non custodial sentence. 

6. Your lawyer added by drawing the Court’s attention to the pre-sentence report which outlines your personal and family background and ends with a recommendation for a non custodial sentence with community work orders to be supervised by volunteer probation officer, Mr. Joseph Frank of the Catholic Mission here in Kerema. The pre-sentence report states that you are presently unattached but still on full pay on the position you held during the time of the commission of the offence. You are living in Kerema town with your parents. You have a 5 year old daughter to look after. Her mother has since left you and is not clear whether she will return. You are the first born of your family and the parents look upon you for support of the rest of your siblings, one brother and 4 sisters. Your parents are in their 50s and are still alive and well. 

7. By way of education, you went as far as the Lae Commercial Training College and graduated with a certificate in accounting and basic computing. Upon graduating, the Gulf Provincial Administration employed you as its commitments clerk and eventually elevated you to the position of acting examiner. You are presently on a fortnightly salary of K400 net. 

8. For the purposes of determining an appropriate sentence for you, your lawyer urged the Court to note in your favour, your guilty plea, your full reimbursement of the monies you misappropriated and the amounts of money you misappropriated are no where near the kinds of money misappropriated by people like Daniel Mapiria running to millions of Kina and yet allowed out on a mere six years sentence with orders for reimbursement. At the same time, your lawyer correctly pointed out the factors against you, namely, your two prior convictions, you committing the offence in the present case in breach of a trust placed in you and that the offence you committed is a prevalent one. Weighing the factors for and against you, he submitted that your case warrants a non custodial sentence of 2 years suspended on conditions of supervised probation. Counsel for the State endorsed these submissions.

9. The question before me now is, does this mean that I must accept your lawyer’s submissions with the endorsement of the State and impose a non custodial sentence of 2 years fully suspended on conditions? An answer to that question is dependant on a consideration of the particular facts of your case, the sentencing guidelines and tariffs. I therefore, turn to those aspects now commencing with the sentencing trend and tariffs.

The Offence, Sentencing Trend and Tariffs

10. The offence of misappropriation is prescribed by s. 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)	…
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)	where the property dishonestly applied was subject to a trust, direction or condition; or
(d)	where the property dishonestly applied is of a value of K2,000.00 or upwards."

11. I reviewed most of the cases on misappropriation in my earlier decision in the case of The State v. Mahuva Jimmy and Uta Helisha, which I wish not to repeat in any detail, suffice only to do so in a summary manner. The review started with the Supreme Court decision in Wellington Belawa v. The State. 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. 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.

12. I then noted that subsequent decision of the Court 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.

13. 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 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. 

14. 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. 

15. 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 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. 

16. 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 deprivation of liberty … 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 no … threat to society."

17. In The State v. Dobi Ao (No 2), 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 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."

18. Earlier in Acting Public Prosecutor v. Don Hale, the Supreme Court said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. The Supreme Court in that case said:

"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."

19. Going by the authority of the above Supreme Court decision, I held in The State v. Irox Winston 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."

20. Then 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 away 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."

21. I have expressed the view in a number of cases already and I continued to subscribe to the view 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."

22. Subsequently, the Supreme Court endorsed these views in its judgment in Edmund Gima v. The State & Siune Arnold v. The State. 

23. Taking the above views into account, I imposed wholly suspended sentence in The State v. Eric Emmanuel Vele; The State v Louise Paraka and The State v. Dobi Ao (No 2). 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. I add however, that these kinds of sentences have been imposed because of good pre-sentence reports forming the foundation for them. 

Your Sentence

24. In order to determine an appropriate sentence for you, I take into account your family and personal background as noted in the pre-sentence report and as I outlined in the foregoing. I accept your lawyer’s submission that the offence you committed is not serious by reference to the amounts of money involved especially when compared with the kind of money that have been misappropriated by members of Parliament and other people in responsible positions. As would be apparent from the foregoing discussion on the sentencing trend and tariffs, most of the sentences have hovered around 3 and 4 years. 

25. The kind of sentences that have been imposed have not increased in any significant way even though the offence of misappropriation of public and other people’s money or properties have been on the increase. The sentences to date fail to appreciate and reflect the fact that, it is this offence that has contributed heavily to the lack of any new development and maintenance of existing public goods, services and infrastructure. One need not go any further than the Kerema Township which testifies to that. The courts therefore have to carefully rethink and devise and impose sentences that are reflective of that fact.

26. It would follow therefore that, you did commit a very serious offence in that you have contributed to the already poor state of affairs and lack of public service infrastructure and development due to misappropriation of public funds. Indeed the money you misappropriated were to be held in trust in the case of the bail monies and court fine was to go into the consolidated revenue collections, which could be applied toward the improvement of public institutions and infrastructure. You have selfishly and dishonestly applied the funds to your own use. This is a factor in your aggravation.

27. Secondly, I note that you acted in a breach of a position of trust. The courts have said in clear terms that, anyone who commits an offence in breach of trust must be dealt with more severely than one who is not. This is because breaching the trust placed in a person by the trusted person amounts to a betrayal of the trust. This is why s. 383A (2) (c) makes it a factor in aggravation. This alone calls for a consideration and application of a sentence up to 10 years. 

28. Thirdly, you have two prior convictions, one of which is for an offence of stealing as well. This Court gave you good behaviour bond for 1 year. The other was for being in possession of illegal drug. There, you were cautioned and placed on good behaviour bond as well. Those offences were respectively committed in 2001 and 2000 respectively. You committed this offence in 2003, just after the completion of your good behaviour bond period. It seem clear to me therefore that, the penalties in the previous two sentences appear not to have served its intended purpose of rehabilitating you in terms of keeping you away from breaking the law. It means therefore that this Court must bear in mind some element of punishment and deterrence of personal and general deterrence in the sentence the Court is minded to impose against you. 

29. Finally, I note that you are a well educated and a mature man, well experienced with the criminal justice system. At the time of you committing the offence, you were in a responsible position and a position of trust. You were therefore in a better position to appreciate and act in accordance with the trust and responsibilities placed on you. Instead you abused that to your own advantage. 

30. Against the factors in your aggravation, I note that you pleaded guilty to the offence. That saved the State the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need for the relevant witnesses to come to Court and testify against you which would have been an inconvenience forced upon them by your unlawful conduct at the first place. 

31. Secondly, you have fully reimbursed the amounts of money you misappropriated, without waiting for the Court to order you to do so. This shows an acceptance of responsibility for committing the offence and taking the necessary steps to correct it. It demonstrates that your expression of remorse is genuine. This does not however totally and fully exonerate you from your criminal responsibility. 

32. Finally, I note that, you have a little 5 year old child dependant on you. Her mother has abandoned her. Whilst the effect and or impact of an offence on an offender’s personal and family background and needs is a natural consequence of the offender’s own doing and therefore can be no reason for reduction of sentence, there may be exceptional cases as in this case for the sentence to reflect such a special family situation. I have in a number of cases held this but those were in cases where the offender had no personal and sole responsibility of such a tender aged child like your 5 year old daughter. In your case, it would be unfair to force your parents to look after your innocent 5 year old child by sending you to prison given your other mitigating factors. 

35. Weighing the factors for and against you I note that they seem to balance out. Then having regard to the kind of sentences other offenders have received in cases involving substantial amounts of money, some of which, I mentioned in the course of this judgment, I consider a sentence of 18 months appropriate and I impose it. At the same time, I consider it appropriate that I should suspend the whole of that sentence on terms. This is warranted in my view, in the light of the pre-sentence report’s recommendation, the factors in your mitigation, the nature of the offence which is non violent and my believe that you would be better punished and reformed outside the prison system considering the terms of the suspension I am just about to outline. 

36. On your acceptance of the following terms and conditions, I would confirm a suspension of the sentence of 18 months:

(1) 	Immediately, upon the handing down of this decision, you attend on Mr. Joseph Frank, the Volunteer Probation Officer who is with the Catholic Mission here and settle with him a supervised 8 hours per week community work schedule commencing 6 November 2006 week for a period of 12 months and have that schedule delivered to the Court later today or no later than 9:00am tomorrow for the Court’s approval;

(2)	You immediately enter into a recognizance to keep the peace and be of good behaviour for the whole of the suspended period of 18 months commencing today;

(3)	Pay a fine of K500 by allowing a conversion of your cash bail of K500 into Court fine;

(4)	You be home bound between the hours of 6:00pm and 6:00am each day;

(5)	You shall reside only at your parents’ residence at Kerema town and shall not leave the township and or the Province during the currency of your suspended sentence unless leave of this Court has been first sought and obtained;

(6)	Any member of the Police here in Kerema or the country shall be at liberty and report to the Court and enforce any attempted or any actual breach of any of the terms of the suspension of sentence.

(7)	You will allow for and permit Mr. Joseph Frank to visit your home on a regular basis at your costs 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 with the first being due by December 6th, 2006. 

(9)	If for whatever reason you breach any of these terms, you will serve the full suspended sentence of 18 months from the date of the 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, which shall include a full compliance of terms 1, 2 and 3 above.

___________________________

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