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State v Sevese [2006] PGNC 101; N3453 (23 October 2006)

N3453

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 250 of 2006

THE STATE

-V-

ROBERT LOROU SEVESE

Kerema: Kandakasi, J.
2006: 4 and 23 October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Misappropriation of K8,000 - Offence committed by elementary school board chairman – Guilty plea by first time offender - Prisoner prepared to restituted – Means and pre-sentence report recommend non- custodial sentence without prove of prisoner’s ability to restitute and against community wish – Sentencing guides and trends discussed – Serious need to reconsider and increase sentences given prevalence of offence and its serious negative impact on society - Custodial sentence of 2 years imposed - Criminal Code Sections 383A (1) (a) and (b) and 19.

Cases cited:
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. 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. Kuk Kuli (CR 399 of 2004)
The State v. Ajex Bia
The State v. Sabarina Yakal [1988-89] PNGLR 129.
Dori Inaria v. The State (10/07/02) SC 688.
The State v. James Gurave Guba (12/99) N2020.
The State v. Jimmy Banes Ere (24/7/02) N2254.
The State v. Nason Samban (25/03/04) N2598.
The State v. Peter Yawoma N2032.
The State v. Attiock Ishmel (12/10/01) N2294.
Sakarowa Koe v. The State (01/04/04) SC73.

Counsels:

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

23 October, 2006

1. KANDAKASI J: The State charged you with one count of misappropriation of K8,000.00 belonging to the Karaeta Elementary school. You pleaded guilty to the charge soon after its presentation on 4 October 2006. The Court then heard yourself and your lawyer as well as that of the State as to the kind of sentence you should receive. You applied for an order for restitution and suspended sentence. I therefore ordered a pre-sentence report and means assessment report from the probation service. The probation service submitted its report on 12th and the next day, the 13th of this instant, the Court received further submissions from your lawyer and that of the State and reserved its decision on sentence. This is now the decision of the Court.

The Facts

2. The relevant facts as put to you during your arraignment and as they appear from the depositions are these. Between March and November 2005, you were the chairman of the Board of the Karaeta Elementry School, here in Kerema. On 6th March 2005, the people of Karaeta village gathered at the village. At that gathering, the Governor for this Province, Honourable Chris Haiveta presented a cheque for K15,000 from the District Support Grant toward the construction of a classroom at the school. You received the cheque on behalf of the school in your capacity as chairman of the school’s board.

3. On 7 March 2005, you deposited the cheque into the school’s bank account number 1000937857, kept with the Bank South Pacific, here in Kerema. You were a signatory to the account as the school’s board chairman. Between 15 March and 7 November 2005, you made several withdrawals out of the account without the prior knowledge and approval of the board and its other members, until a full draw down of substantially the whole amount of K15,000 purportedly, for the intended purpose of building the school’s classroom. Of those funds, you applied to your own use and purpose a sum of K8,000.

4. The village people and the full school board’s attempts to meet with you for you to fully account for the use of the funds failed. You were constantly flying to Port Moresby. The school, the village people and the Gulf Provincial leadership referred the matter to the police. The police carried out their investigations and found that you misappropriated the school’s funds and had you arrested and charged on 16 December 2005. You have been in custody since that time.

Allocutus and Submissions

5. In your address on sentence, you spoke of being a first time offender and pointed out that you have been in custody in relation to this offence for about 10 months now. You went on to say that, during the period of your incarceration, your family has been suffering with school age children not going to school and being without a father. Accordingly, you asked for a suspended sentence so you could provide for your family and an opportunity to repay the funds you misappropriated. In so pleading, you also claimed that, half of the material you purchased from the initial K15,000 are still in Port Moresby and that you need to be outside the prison system to see to a delivery of those material to the school.

6. Your lawyer added by reminding the Court that you plead guilty to the charge and that you are 55 years old. He went on to point out that you come from Karaeta village here in Kerema, Gulf Province. You have two wives and 9 children in total. You have successfully entered Australian University courses out of Flinders University. By way of religion, you follow the United Church. Further, your lawyer informed the Court that you have no prior convictions.

7. Your lawyer than submitted that, you committed an offence that is not worse of its kind and so therefore you should not be given the maximum sentence prescribed under the relevant provisions of the Criminal Code. He then referred to a number of Supreme and National Court decisions including one or two of my decisions and submitted that you should be given a sentence not exceeding 5 years, the whole or part of which should be suspended with orders for restitution. The State did not seriously oppose these submissions.

Pre-sentence Report

8. In the light of your lawyer’s submission, the Court requested a pre-sentence and means assessment report. The probation service furnished a means assessment and pre-sentence report in one single report. I then received further submissions from your lawyer as well as that of the State. Turning to the pre-sentence report, I note that it has inputs from yourself and members of the community. Those representing the community point out that you have no garden or any other means to generate an income to restitute what you misappropriated. They have also expressed the view that you acted in isolation and in defiance of the other members of the board and community’s wishes in relation to the spending of the K15,000. Accordingly, the community’s view in effect is that you must receive your just punishment in prison.

9. Against what the community is saying, you indicated a preparedness to repay the K8,000 you misappropriated by selling betel nuts in instalments. However there is no evidence of your betel nut gardens, and the volume of betel nut that are there and how much that will produce. Despite that, the report recommends a repayment schedule by instalments of K1200 commencing 24 November, 2006 and ending 31 May 2007. This proceeds purely on the basis of your statement which runs contrary to inputs from the members of the community who say you have no means to pay.

10. In Acting Public Prosecutor v. Don Hale (27/08/98) SC564, 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."

11. Going by the authority of the above Supreme Court decision, I held in The State v. Irox Winston (21/09/00) N2304 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."

12. Subsequently, the Supreme Court endorsed these views in its judgment in Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730.

13. It is clear to me that, where there is no pre-sentence report supporting a suspension of sentence, no Court can suspend either the whole or a part of any sentence. The question then is, should the Court proceed to suspend any sentence merely because a pre-sentence report speaks in favour of it. In my view, that would not be in line with the intent and purpose of requesting and considering a pre-sentence report, which is to ensure that there is basis in the report for a suspension of any sentence. It follows therefore that, where there is no proper foundation for a recommendation for suspension of sentence, the Court cannot proceed to suspend because there is no basis for any suspension of sentence.

14. In your case, as I noted, the community input in the report is against any suspension of sentence and or orders for restitution because you do not have the means to repay. Yet the pre-sentence report recommends a repayment schedule. That recommendation is clearly without the support of any evidence, save only for your own claims, which clearly go against the inputs from the community leaders. In the circumstances, I find that you have not provided me with any basis to suspend either the whole or part of any sentence this Court deems fit in the particular circumstances of your case. Similarly, I find that there is no evidence to support the proposal for you to restitute over a period of time, the funds you misappropriated. Accordingly, I will proceed to consider a custodial sentence for you.

The Offence and Sentencing Trend

15. 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) ...; or

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards."

16. In The State v. Mahuva Jimmy and Uta Helisha,[1] 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.[2] 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.

17. 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,[3] 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[4] and The State v. Bygonnes Tuse Nae,[5] for misappropriation of amounts exceeding K100, 000.00.

18. 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[6], 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.

19. 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.

20. 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),[7] I commented that, that sentence did not, with respect, have regard to the then prevailing sentencing trend in this sort of cases. The then Deputy Chief Justice, Sir Kapi 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.

21. 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] warrant 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."

22. In The State v. Dobi Ao (No 2),[8] 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."

23. I noted also that in The State v. Gibson Haulai[9] 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."

24. 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, if that is the way the Court is going to proceed.

25. Taking the above views into account, I imposed wholly suspended sentences in
The State v. Eric Emmanuel Vele (24/07/02) N2252, The State v Louise Paraka (24/01/02) N2317 and The State v. Dobi Ao (No 2).[10] 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.[11] I add however, that these kinds of sentences have been imposed because of good pre-sentence reports forming the foundation for them.

Your Sentence

26. Your lawyer did draw the Court’s attention to some of the above cases and submitted that a sentence of 2 years suspended with orders for restitution would be appropriate. The State pointed out that the pre-sentence report does not support any order for restitution and or suspension of sentence. Counsel for the State then drew the Court’s attention to two unreported and unnumbered decisions in the case of The State v. Kuk Kuli (CR 399 of 2004) and The State v. Ajex Bia, where substantial amounts of money were misappropriated and sentences of 2 years and 3 years respectively were imposed. These two cases are of no assistance in your case because I do not have a copy of these decisions and so therefore I am unable to work out the particular circumstances in which the offenses were committed.

27. I accept your lawyer’s submission that since none of the aggravating factors under subsection (2) of s. 383A were put to you at the time of your arraignment, I can not take any aggravating factor into account and consider a sentence beyond 10 years. I also 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.

28. 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.

29. 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. Indeed the money you misappropriated was intended for the construction of a classroom for the Karaeta Elementary School. As we speak, there is no classroom standing to accommodate the learning of the children and future leaders of Karaeta, Kerema, this province and the country. You have selfishly denied them that basic need and necessity in life. This is a factor in your aggravation.

30. Although, I note that it was not formally put to you in your arraignment that you acted in a breach of trust, that fact is there and is glaring at us. I have already gone through the law on how people who commit offenses in breaches of any trust placed in them have been dealt with. The failure of the State to put to you the fact of the trust placed in you and your breach of it during your arraignment does not mean that I should ignore it. Instead, I am entitled to consider that fact[12] and note that, the State’s failure to put this fact to you means you cannot be sentenced beyond 10 years. I have already expressed the view elsewhere that, where a serious offence is down graded following a guilty plea, the Court should be careful not to further reduce[13] the sentence unless very good mitigating factors exist.

31. I note that you remained defiant in the accused box even though you pleaded guilty to the charge. You did not express any remorse. This is consistent with your habit of avoiding the school’s board and failing to reason with them. It is also consistent with your attitude or failure to reimburse any of the monies you misappropriated. This and the foregoing are factors in your aggravation.

32. Additionally, I note that you are a well educated and married man. At the time of the offence you were holding a responsible position as chairman of the school’s board. 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.

33. 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 bear the inconveniences of going to Court to testify against you.

34. Secondly, I note that this is your first ever offence. That means you have not been in trouble with the law before. The law allows for a lenient sentence in appropriate cases where the offender is a first time offender. The conversed of that is that a repeated offender may be given a far sterner sentence. The idea behind this is to avoid crushing a first time offender with a heavier penalty and the risk of turning the offender into a hard core criminal. Hence a lighter sentence would serve both as a punishment and serve the community’s desire to prevent the offender from re-offending.

35. Weighing the factors for and against you, I note that they seem to balance out. Then having regard to the kind of sentence other offenders have received in case where substantial amounts of money were involved, I accept your lawyer’s submission that a sentence of 2 years is appropriate. Accordingly, I impose that sentence against you.

36. Of the head sentence of 2 years I order a deduction of the period of 10 months and 5 days you have already spent in custody whilst awaiting your trial and sentence. That will leave you with the balance of 1 year and 1month and 25 days yet to serve. I order that you serve that sentence in hard labour at the Bomana Correction Services. A warrant of commitment in those terms shall issue forthwith.

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

^[1] (02/09/04) N2632.
^[2] [1988-89] PNGLR 49.
^[3] [1987] PNGLR 183.
^[4] N1401.
^[5] (18/09/96) N1474.
^[6] (9/11/01) SC675.
^[7] (2002) N2247.
^[8] Ibid.
^[9] (25/03/04) N2555.
^[10] Opt cit. note 7.
^[11] (21/06/01) N2177.
^[12] The State v. Sabarina Yakal [1988-89] PNGLR 129; Dori Inaria v. The State (10/07/02) SC688; The State v. James Gurave Guba (12/99) N2020 and The State v. Jimmy Banes Ere (24/7/02) N2254.
^[13] The State v. Nason Samban (25/03/04) N2598; The State v. Peter Yawoma N2032;The State v. Attiock Ishmel, (12/10/01) N2294; and Sakarowa Koe v. The State (01/04/04) SC73.