N4524

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1219 OF 2009

THE STATE

V

ALPHONSA MAGUM

Kimbe: Kawi, J
2011: 14th, 16th, 20th April

CRIMINAL LAW – Misappropriation – Offender a Policewoman placed in charge of looking after bail monies – The position was a position of trust and authority – Offender used bail monies to pay police reservists – Monies applied not for her own use, but for the use of others. Offender fully restituted amount dishonestly applied before her arrest – Offender charged with disciplinary proceedings under the Police Force Act – Offender found guilty of committing a disciplinary offence – Offender dismissed from the Police Force.

SENTENCE – Offender married with five children – One a disabled child – Offender fully restituted monies misappropriated – Offender terminated from Police Force – Monies applied for the use of Police Reservists – Two years head sentence fixed – Head sentence fully suspended on condition that offender enter into her own recognizance to keep peace and be of good behaviour for six months. Court fine of K100.00 imposed.

Brief facts

The offender, a Policewoman Constable, was charged with one count of dishonestly applying monies to her own use. She made restitution and repaid all monies dishonestly used. Monies were used to pay Police Reservists -The offender was also charged with a disciplinary offence under the Police Force Act and dismissed from the Police Force. She was married with five children, one of whom is disabled and requires the constant love, care, warmth and affection of a mother.

HELD

1.	A head sentence of two years is hereby fixed and would serve as a deterrence for the offender who was placed in a position of Trust and Authority. Abusing a position of trust and authority would attract an imposition of custodial sentence. Here the factors operating in favour of the prisoner were strongly mitigating and had significantly watered down the aggravating factors.

2.	Sending the prisoner to jail for two years will be to the detriment of the five children especially, the disabled child, who will be deprived of a mother's case, love and warmth.

3.	Taking into account the mitigating factors; viz; your early plea of guilty, the full restitution made before the arrest of the offender, and her dismissal from the Police Force, the head sentence of two years is fully suspended. The dismissal from the Police Force is sufficient punishment for the offence committed.

4.	Pursuant to Section 19(d)(i) of the Criminal Code, the offender is sentenced to enter into her own recognizance with a surety payment of K100.00 which is to be paid as a court fine and to be of good behaviour and to keep peace for six months.

Cases cited:

Wellington Belawa –v- The State [1988-89] PNGLR 496
Public Prosecutor –v– Bruce William Tardewa [1986] PNGLR 91

Counsels:
Mr Anthony Kupmain, for the State
Mr Doko Kari, for the prisoner

20 April, 2011

JUDGMENT ON SENTENCE

1.	KAWI J: INTRODUCTION: Alphonsa Magum of Ami village, Maprik, East Sepik Province, pleaded guilty to an indictment charging her with one count of dishonestly applying money to her own use contrary to Section 383A(1)(a)(2)(b)(c)(d) of the Criminal Code. Following her plea, I convicted her and by virtue of her conviction she is now a prisoner of the State. I however granted her bail on her own recognisance to appear before me for her sentence. This is now my judgment on her sentence.

THE FACTS

2. The brief facts to which she pleaded guilty are that the prisoner was a Police Woman Constable attached to the prosecution section of the Royal Papua New Guinea Constabulary. She was stationed at the Bialla Police Station here in Bialla. As a Police Prosecutor she was given the added responsibility of looking after bail monies for various bail applicants. The bail monies were locked inside a safe which was kept in the Police Station Commander's Office. Only the prisoner, being in charge of these bail monies had access to these monies. Having easy access to these monies, the prisoner obtained a sum of K2,950.00 which she used to pay certain Police Reservists who had been helping and performing police duties without pay. The State alleges that these monies did not belong to the accused, but were monies belonging to bail applicants and remandees which were held in trust until dishonestly applied by the prisoner to her own use.

THE LAW

3. The accused is charged under Section 383A(1)(a)(2)(b)(c)(d) of the Criminal Code for dishonestly applying the sum of K2,950.00 for her own use. This provision is stated in these terms:

"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.

(2)	An offender is guilty of the crime of misappropriation of property is liable to imprisonment for five years except in any of the following uses when he is liable to imprisonment for ten years;–

(a)	……..
(b)	where the offender is an employee and the property dishonestly applied is the property of his employer;
(c)	where the property dishonestly applied was subject to a trust, direction or condition.
(d)	Where the property dishonestly applied is of a value of K2,000.00 or upwards."

4. In order to convict an accused person of a charge under Section 383 of the Criminal Code, the State must prove beyond reasonable doubt that the accused:

(a)	dishonestly;
(b)	applied to his own use or use of another;
(c)	property belonging to another.

5. In this present case, the court did not have to go to the extent of hearing evidence to prove these elements beyond reasonable doubts as the accused had pleaded guilty to the charge proffered.

THE ISSUE

6. As the accused has pleaded guilty, the sole issue for determination is what kind of punishment or sentence should the court impose upon the offender?

ALLOCOTUS

7. When the allocutus was administered, the prisoner apologised to the court and to the Police Department for her actions. She begged the court for mercy and leniency when sentencing her. In fact during the whole plea process, I noted that the prisoner showed what I considered to be a demeanour of genuine remorseness.

SENTENCING PROCESS

8. Sentencing is not an exact science. Rather it is a discretionary process guided by several well-known principles of law. One of these principles is that the court will take into account factors operating in your favour and those operating against you. These are often referred to as mitigating factors and aggravating factors. Some mitigating factors may be strongly mitigating while others may be mildly mitigating. The same goes for aggravating factors. Let me now address these factors.

MITIGATING FACTORS

9. Strongly operating in your favour is the fact of your earlier plea of guilty. By pleading guilty you saved the court a lot of time, energy and expense which could have been unnecessarily incurred, but for your early guilty plea. Your early plea of guilty followed an excellent effort on your part to co-operate with police in their investigations. You made necessary admissions to police in your record of interview. This allowed police to finalise their investigations quickly. Another factor I take into account is that you have a family of five children one of whom is disabled and needs the loving care and attention of a mother to be at his bedside always to attend to his needs.

10. A very strong mitigating factor operating in your favour is that you have repaid back all the monies dishonestly applied for the use of others. Evidence from the Provincial Treasury Office is that you repaid a total of K6,200.00, to the Provincial Treasury Office. The amount of K2,950.00 which you dishonestly applied for your own use is included in this K6,200.00 which you repaid. The court accepts this as an indication of your acceptance of responsibility. As indicated earlier, it shows genuine remorseness and acceptance of responsibility for your actions. Another factor in your favour is that monies were applied for the use of others namely the Reserve Policemen who were performing police duties on a voluntary basis.

AGGRAVATING FACTORS

11. Operating strongly against you is the fact that you were placed in a position of trust and authority. You were in charge of collecting bail fees and you were the only police personnel who had access to the safe where monies were locked in. Despite this you abused the very trust your superiors placed upon you by dishonestly applying the bail monies for the use of others.

12. In his submission learned counsel for defence, Mr Kari referred to the sentencing guidelines laid down by the Supreme Court in Wellington Belawa –v–The State [1988-89] PNGLR 496. He made extensive submissions on these guidelines and urged the court to take those factors into account when exercising the discretion to punish you. These guidelines are:

(a)	Amount of Money taken

You pleaded guilty of dishonestly applying to the use of others, namely Reserve Policemen, the sum of K2,950.00 being monies belonging to bail applicants and other remandees who wanted to apply for bail.

(b)	Period over which the thefts occurred

This offence was perpetrated over a period of six (6) months until it was discovered. It was not a one off case of stealing.

(c)	The quality and degree of trust placed in the offender

You were given the responsibility to look after monies belonging to applicants for bail. And in that position you had direct access to the safe where the monies were kept. You then took the monies and applied K2,950.00 for the use of Police Reservists. Your superiors had the trust and confidence in you and therefore they placed you in that responsible position to look after monies belonging to applicants for bail. When you took the monies and applied it to the use of the Police Reservists, you abused the trust and confidence placed in you by your superiors. Abusing a position of trust and authority would normally attract an imposition of a strong deterrent custodial sentence. Here factors operating in favour of the prisoner were strongly mitigating and therefore had the effect of significantly watering down the aggravating factors

(d)	The use of which the Stolen Money was put into

You dishonestly applied the monies totalling K2,950.00 not for your own personal use, but for the use of others, namely Police Reservists. The Court notes that Police Reservists do perform the same duties that normally policemen and policewomen perform. Yet they are either lowly paid or not paid at all. They simply volunteer their services to the constabulary at no costs. You saw their plight and you felt that at the least some form of payments or token of appreciation must be made to these Police personnel, and that is where you took the money and applied it to their use.

(e)	The effect upon the victim

Your superiors within the Police hierarchy are clearly dismayed at your actions. They have called for a sterner custodial punishment to be imposed upon you to serve as a deterrent to you as well as other would be offenders.

(f)	The effect upon the offender

The prisoner was clearly ashamed and so embarrassed of her actions. She apologised to the court and the Police Department. In fact during the plea process, I noticed that she showed a demeanour of being very apologetic and very remorseful.

(g)	Restitution

The prisoner was a policewoman holding the rank of Constable when she committed the offence. After the commission of the offence was discovered, disciplinary proceedings were taken against her and she was subsequently charged and then terminated from the Police Force. 

Before her termination she repaid a total of K6,200.00 back to the Provincial Treasury office. The amount of K2,950.00 is included in this K6,200.00 payment. Evidence from the Treasury Office confirmed this. All this was done before her dismissal from the Police Force. During submissions her lawyer, submitted that repaying all monies she dishonestly applied to the use of the Police Reservists, was sufficient restitution. In the Pre-Sentence Report the Provincial Police Commander, Chief Inspector Richard Molou did confirm that that prisoner had repaid back all the monies misapplied. Similarly, Ms Helen Nara of the Provincial Treasury Office reported that the offender had repaid all monies misused by making a payment of K6,200.00.

13. The learned State Prosecutor on the other hand, submitted that the act of dishonestly applying monies to the use of others involves a breach of trust reposed upon the offender, and for this she must be punished. The court finds that this single act of restituting the monies dishonestly applied for the use of others, demonstrates a very genuine attitude on the prisoner to show that she is remorseful over what she did. This also shows her acceptance of criminal responsibility, and her acceptance to make restitution immediately without waiting for the court to tell her what to do. The Pre-Sentence Report states that her parents and her younger sister who is employed by the Westpac Bank here in Kimbe has rallied behind her and moved to assist her make restitution if the Court orders one. Her parents say that they have an oil palm block which they identified as Section 6 Block No. 495, Tamba. They would harvest fresh fruit bunch and sell them to repay any monies imposed by the Court.

PRE-SENTENCE REPORT

14. In addition to addressing these sentencing guidelines, I will also consider matters addressed in the Pre-Sentence Report. This Report sought the views of the offender, her husband, her parents and her siblings. The views of the Provincial Police Commander representing the Police Department was sought as well. The report covered the prisoner's family background, her marital status, her own family, her educational background, her employment history, her financial situation, her future plans, her involvement with the community, the concerns of her spouse and the family concerns, the circumstances surrounding the commission of the offence and her attitude to the offence. The Report stressed that the prisoner is not a threat to the community nor is she a high risk person to the community of Kimbe. Finally the Report strongly recommended that the offender is a very suitable person to be considered for probation supervision.

15. I have considered the Report and its recommendations. I find that the Report did seek the views of the victims, the Police Department and the family as well. I do accept the Report and find that it is a well balanced report and I will therefore use it in computing an appropriate penalty for the offender.

ADDRESS ON SENTENCE

16. You pleaded guilty to an indictment charging you with one count of dishonestly applying monies to the use of others, the sum of K2,950.00 contrary to Section 383A(1)(a)(2)(b)(c)(d) of the Criminal Code. The court entered a provisional plea of guilty and after reading the court depositions your guilty plea was confirmed. In your address in allocutus, you apologised to the court and begged the court for mercy and leniency in sentencing you. 

17. In his submission your counsel also requested me to impose a non-custodial sentence. The Pre-Sentence Report strongly recommended a non-custodial sentence to be imposed upon you.

18. In the case of Wellington Belawa –v– The State [1988-89] PNGLR 496 the Supreme Court laid down sentencing tariffs which has been applied by Judges religiously in many cases, involving misappropriation of money. The Supreme Court laid down these sentencing tariffs: For cases in which the amount misappropriated is from K1.00 to K1,000.00 a jail term should be rarely imposed. Where the amount misappropriated is between K1,000.00 and K10,000.00, an imprisonment term of two (2) years is to be imposed. And where the amount misappropriated is from K40,000.00 to K150,000.00, an imprisonment term of 3 years to 5 years should be imposed.

19. The amount you dishonestly applied to the use of others is K2,950.00 and you have completely repaid this amount. And going by these sentencing tariffs, I would have to impose a sentence of 2 years imprisonment. And I fix a head sentence of two years upon you to be served in light labour at the Lakiemata Jail outside Kimbe. I do this considering that you occupied a position of trust and responsibility. Despite this you abused the very trust and confidence your superiors had of you. The two year jail sentence is not only to deter you, but other would be offenders from doing the same thing again in future.

SUSPENSION OF SENTENCE

20. Both counsels were very helpful in their submissions. The learned State Prosecutor, Mr Kupmain, submitted that the documentary evidence showing restitution is inconclusive. He submitted that considering the degree of trust placed upon the offender and the fact that this offence was committed over a period of six months, there must be some kind of deterrence made. He further submitted that considering the position she was placed in, the prisoner could have stopped after one (1) month but she continued on for six months. 

21. The sentencing discretion of a sentencing Judge is vested upon the court by Section 19 of the Criminal Code. And the Court can even suspend the whole or part of the sentence imposed upon a prisoner. The relevant principles on suspending sentence were discussed by the Supreme Court in Public Prosecutor –v– Bruce William Tardew [1986] PNGLR 91. In that case the Supreme Court stated that suspension of sentence may be appropriate in three broad categories. First where suspension will promote the personnel deterrence, reformation or rehabilitation of the offender. Secondly, where suspension will promote the repayment or restitution of stolen monies or goods and thirdly, where imprisonment will cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.

YOUR SENTENCE

22. I have considered these principles and their application to your case. I take into account the following mitigating factors.

(a)	You are married with five children, with one of those children disabled. This disabled child requires the constant love, care and attention of a mother. Sending you to jail for two years will be to the detriment of your children, especially your disabled child who will be deprived of a mother's warmth, love and care. In fact the Pre-Sentence Report record concerns raised by the spouse of the accused, as well as the parents and the sister who all raised concerns about the welfare of the disabled child. They all raised concerns about the love and care of a mother to the child being deprived if the offender is given a custodial sentence.

(b)	You have made full restitution of the monies you dishonestly applied to the use of the Police Reservists. These monies were not used for your own purposes, but for the use of Police Reservists, a group of men and women who perform normal police duties on a voluntary basis. In many cases Police Reservists go without pay and are not given any recognition at all for the work they do. I consider that the monies you took and misapplied was an act of dishonesty, but it was applied for good cause. The Pre-Sentence Report in this regard says:

"The accused may have the right intention to assist the reservists but bail monies were not for that purpose. She was given a position of trust, but she had abused it."

(c)	You were severely punished for this dishonest act of helping others in need. You were charged with disciplinary offences under the Police Force Act and then found guilty and dismissed from the Police Force. I consider this to be sufficient punishment.

23. Taking into account these factors, I consider that a suspension of the whole sentence of two years is warranted here. I will therefore exercise my sentencing discretion vested in me by Section 19(1)(d)(i) of the Criminal Code and have the whole head sentence of two years which I imposed on you suspended on these terms.

24. Pursuant to Section 19(1)(d)(i), you are to enter into your own recognizance with a surety payment of K100.00 to be paid as a court fine and to be of good behaviour and to keep peace for 6 months. The Court fine must be paid before the 30th April 2011.

______________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner