N3458

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 604 OF 2008

THE STATE

V

DAVID KAKI

Kavieng: Paliau, AJ
2008: August 13th
2008: September 4th

CRIMINAL LAW – Sentence – Dishonestly Applied to own use property belonging to another – Charge of – Guilty Plea – Criminal Code s. 383A (1)(a).

Cases cited:

Wellington Belawa v. The State [1988-89] PNGLR 496
The State v. Robert Lorou Sevese, CR 250 of 2006
The State v. Mahuva Jimmy and Uta Helisha (2004) N2632
Lawi v. The State [1987] PNGLR 183
The State v. Bygonnes Tuse Nae (1996) N1476 (18/09/96)
The State v. Paroa Kaia N1401
Doreen Liprin v. The State (2001) SC675 (09/11/01)
The State v. Dobi Ao (No. 2) (2002) N2247
The State v. Gibson Haulai (2004) N2555 (25/03/04)
The State v. Eric Emmanuel Vele (2002) N2252 (24/07/02)
The State v. Louise Paraka (2002) N2317 (24/01/02)
The State v. Makeu Kig (2001) N2177 (21/06/01)

Counsels:

Mr. Rangan, for the State
Mr. Siminji, for the Accused

4th September, 2008

1.	PALIAU, AJ:	The prisoner pleaded guilty to one count of dishonestly applying to his own use K24, 388.08 in cash belonging to another. The money belonged to Lihir Gold Limited (LGL). At the time of misappropriation, the prisoner was a Senior Payroll Officer. It was because of his position that the money came into his possession. 

2. The prisoner on 8th May 2008 raised a Lihir Gold Limited BSP cheque No. 112720 and written out as "Please Pay Cash" and had it cashed on 23rd May 2008. He then used this money for his own purposes. 

3. I am now required to determine the type of penalty to be imposed on the prisoner. 

Antecedent Report

4. The prisoner has no prior convictions.

Allocutus 

5. The prisoner said on his behalf that he was under extreme pressure from his relatives at home at Teremanda village, Wabag, Enga Province, to contribute towards a compensation demand. He used this money for this purpose. He apologised to the Court and the State for making this trouble. He had an unblemished record during his previous employment and his ten (10) years of employment with Lihir Gold Limited. This is his first time to commit such an offence. He also said that this trouble has caused hardship to his children’s education, so much so that they have been withdrawn from their schools in the National Capital District. The prisoner urged the Court to be lenient and to be placed on probation so that he can repay the money.

Pre-Sentence Report

6. A pre-sentence report was prepared by the Community Based Corrections Services. Amongst other good things said about the prisoner, the Report recommended that the prisoner be placed on probation for one year and that he sells one of his assets, either the car or the house to offset the remainder of what is owed to Lihir Gold Limited.

Decision as to the appropriate penalty

7. Section 383A (1) and (2) of the Criminal Code provides that:

(1)	A person who dishonesty 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 (5) years except in any of the following cases when he is liable to imprisonment for a term not exceeding ten (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 K 2, 000 or upwards.

8. Depending on the presence of what I will call the aggravating factors in paragraphs (b), (c) and (d) above of Section 383 A (2), the maximum term of imprisonment for this offence is five (5) years. In the present case the prisoner was an employee and the property was the property of his employer, the prisoner was placed in a position of trust by virtue of his position as a Senior Payroll Officer and the property was of a value of more than K 2, 000.00. The presence of only one case of aggravating factor will render the prisoner liable to imprisonment term of not exceeding 10 years. The maximum term of imprisonment applicable to the prisoner David Kaki is 10 years. 

9. The range of sentences in misappropriation cases can be found in the case of the State v. Robert Lorou Sevese, CR 250 of 2006 and The State v. Mahura Jimmy and Uta Helisha (2006) N2632, where Justice Kandakasi ably reviewed most of the cases dealing with sentences in misappropriation cases. 

10. It started with the Supreme Court decision in the case of Wellington Belawa v. The State [1988-89] PNGLR 496. In that case, it was held that, where the amount of money is less the sentences should be lesser and where the amount of money is more, the sentence shall be higher. Higher sentence should be imposed where the offender was in breach of trust reposed in him. Other factors such as the position of the prisoner, time taken to commit the offence, the application of money misappropriated and its effect on the victim and the public, or fellow employees are also relevant considerations. Also it was held that other mitigating factors like the effect of the offence on the prisoner, his history, restitution, illness, great strain placed on him and co-operating with the Police are other factors that must also be considered. 

11. Cases after the Wellington Belawa cases have imposed sentences ranging from 18 months to 6 years: Lawi v. The State [1987] PNGLR 183, amount misappropriated K 10, 000.00; The State v. Paroa Kaia N1401, good mitigating factors, guilty plea, misappropriated K 94, 478.31; The State v. Bygonnes Tuse Nae (1996) N1474, misappropriation of amounts exceeding K 100, 000.00.

12. In the Supreme Court case of Doreen Liprin v. The State (2001) SC675, the Court imposed imprisonment term of 18 months for misappropriating K 6, 000.00. The National Court in that case imposed a sentence of 3 years and suspended the whole of the sentence on conditions of restitution within 2 months. The prisoner failed to meet the condition and she was imprisoned to serve the 3 years sentence. She appealed against conviction and sentence. The Supreme Court dismissed her appeal against conviction but upheld her appeal against sentence. Her sentence was reduced to 18 months. 

13. In the above case the then Chief Justice when reducing the sentence proposed that the Courts should seriously look at alternative ways to imprisonment like retribution, restitution and rehabilitation. 

14. However, in the case of The State v. Dobi Ao (No. 2) (2002) N2247, Justice Kandakasi commented that whilst he agree that the Courts should consider alternatives to sentencing in this type of offence, the head sentence must not be drastically reduced. He proposed that the head sentence be sterner but have them wholly suspended or it be made part custodial or non-custodial. 

15. Further, in the case of The State v. Gibson Haulai (2204) N2555, Justice Kandakasi added that:

"…Just 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."

16. The above views were taken into account coupled with good pre-sentence reports when wholly suspended sentences were imposed in these cases. The State v. Eric Emmanuel Vele (2002) N2252, The State v. Louise Paraka (2002) N2313, The State v. Dobi Ao (No. 2) ( 2002) N2247 per Kandakasi, J and The State v. Makeu Kig (2001) N2177.

17. I have considered the submissions by both Counsels, the views expressed and the sentences imposed in the above cases and consider the proper starting point is 8 years. 

18. To determine what is to be the head sentence, I will weigh the mitigating and aggravating factors. The head sentence will be below 8 years starting point if there are more good things said about the prisoner. If there are more bad things said about the prisoner, the head sentence will be above 8 years. 

19. The mitigating and aggravating factors are as follows: -

Mitigating Factors

1. Willing to repay the outstanding, by selling of his assets, car or house;

2. No prior convictions; 

3. Plea of guilty, has saved the Court’s time;

4. Co-operation with the Police;

5. Expressed remorse;

6. Apologised to the Court and the victim;

7. Being placed under great strain by relatives;

8. Not pre-planned, spare of the moment;

9. Restitution; deducted entitlements of K 8, 152.83 to reduce amount misappropriated to K 16, 235.25 outstanding;

10. Affected offender’s children’s education, termination from employment.

Aggravating Factors

1. Loss to the victim;

2. Breach of trust reposed in the prisoner;

3. Senior Payroll Officer, offence committed in relation to his duties;

4. Affected entitlement of an employee.

Determination

20. As the mitigating factors are more than the aggravating factors, the head sentence will be below the starting point of 8 years. I impose a head sentence of 6 years. 

21. I will deduct 6 months 8 days for the time spent in custody from the 6 years head sentence. I impose a term of imprisonment of 5 years, 6 months and 23 days. 

22. I have taken into account the above cases, the submissions by Counsels and in particular the pre-sentence report and I will impose a non-custodial sentence. I will wholly suspend the 5 years, 6 months and 23 days and impose the following conditions: -

a.	You shall enter into your own recognizance and keep peace and be of good behaviour for one (1) year commencing today, 4th September 2008.

b.	You shall sell one of your assets, whether the house or car and organise other forms of fund raising to offset or repay the outstanding K 16, 235.25 to the victim within 6 months of today’s date, 4th September 2008. 

c.	The Community Based Corrections Services in Port Moresby will supervise condition 2 above. 

d.	That you be repatriated back to Port Moresby to serve your probation and to raise funds to offset the outstanding amount of K 16, 235.25. At the same time to be close to your family. 

e.	If you breach the above conditions, you shall be brought before the National Court to show cause why you should not be detained in custody to serve the rest of the sentence. 

Sentence

23. DAVID KAKI, having been convicted of the crime of misappropriation of property belonging to another person, you are sentenced to:

Length of Sentence imposed - 6 years

Pre-Sentence period deducted - 6 months & 8 days

Resultant length of Sentence to be served - 5 years, 6 months & 23 days

Amount of Sentence suspended - 5 years, 6 months & 23 days

Time to be served in custody - Nil

Sentenced accordingly. 

Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Accused