State v Kutan [2011] PGNC 330; N4526 (24 May 2011)

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CRIMINAL LAW – Practice And Procedure – Case of misappropriation- Section 383A (1)(a)(2)(b)(d) – Plea of guilty – Sentencing tariffs considered–Sentencing tariffs in misappropriation cases discussed – Sentencing range of 2 years appropriate –head sentence of two years imposed- custodial sentence of two years imposed but wholly suspended on strict conditions– Good mitigating circumstances – Prisoner a person of good character and standing – Prisoner youthful and first time offender – Prisoner ordered to undertake community work – Prisoner released to the custody of community leaders to undertake community work.

Cases cited:
Wellington Belawa –v– The State [1988-89] PNGLR 496
Brian Kindi Lawi –v–The State [1987] PNGLR 183
The State –v–Paroa Kaia N1401
The State –v–Bygonnes Tuse Nae (1996) N1474
Doreen Liprin –v– The State SC 673
The State –v– Dobi Ao (No.2) (2002) N2247
The State –v– Gibson Haulai [2004] N2555
The State –v–Sano Kurumo [1999] N1942
Public Prosecutor –v–Bruce William Tardew [1986] PNGLR 91
Aloises Peter Iboro –v– The State [2001] SC 676
Avia Aihi –v– The State (No. 3) (1982) PNGLR 96
Goli Golu –v– The State [1979] PNGLR 653

1. KAWI J: Evans Pomat Kutan pleaded guilty to one count of misappropriating a sum of K25,000.00 belonging to Courts (PNG) Limited whilst he was the Branch Manager for Courts (PNG) Limited in Madang, contrary to Section 383(1)(a)(2)(b)(d) of the Criminal Code.

Section 383A of the Criminal Code creates the offence with which you have been convicted of. In particular you have been convicted under Section 383A(1)(a)(2)(b)(d). The relevant parts of this provision is stated in the following terms:

(1) A person who dishonestly applies to his own use or to the use of another person–

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:–

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

3. The sole issue for determination here is what kind of sentence should the court impose upon the prisoner?

4. When the allocotus was administered, the prisoner apologized to the court and expressed what I thought was genuine remorseness. In fact during the whole plea, I noted that the accused showed what I considered to be a demeanor of genuine remorseness. He pleaded for the court's mercy and begged for leniency in sentencing him.

5. Sentencing is not an exact science. Rather it is a discretionary process guided by several well known principles of law. One of this principles is that the court will take into account factors operating in your factor and those operating against you. These are often referred to as mitigating factors and the aggravating factors.

6. Operating in your favor is the fact of your earlier plea of guilty to the charge. By pleading guilty you saved the court a lot of time and expense which could have been unnecessarily incurred, but for your early plea. Your early plea of guilty followed your excellent co-operation with police in their investigations of your case. You made police investigations so easy by your various admissions of the offence.

7. In his submissions your counsel Mr Mesa strongly submitted that I take into account what he termed as the de-facto provocation offered by the company to you which resulted in your committing the offence. He argued that you were forced into doing what you did by the company's (Court's (PNG) Limited's) indifferent and no care attitude towards you. He tendered into evidence Court's Letter of Offer to you as the Branch Manager of Court's Madang Branch. In their letter of offer to you Court's have offered certain benefits and privileges to you which they did not pay to you in monetary terms. Mr Mesa pointed out some of these entitlements in his submission. This included non payment of your accommodation allowance, which resulted in the prisoner finding his own accommodation and paying for it himself from his own salary. Further the company failed to repatriate his family to join him in Madang.

8. While he was struggling in Madang, his son fell ill in Port Moresby. He was admitted to the Port Moresby General Hospital.

9. The accused applied for paid compassionate leave to travel to Port Moresby to visit his sick son and the mother, but this was refused by the company management. His son passed away while he was in Madang. With the company's indifferent attitude to him he found it very difficult even for him to travel to Port Moresby for his funeral. There were other entitlements and benefits which the company agreed to pay to the prisoner but they failed thereby breaching the terms of their contract of employment with the accused. This included:-

The company promised to pay K2,000.00 per month as housing allowance to the accused since his travel to Madang in August 2008. Non-payment of his allowances continued until the 16th of May 2009 when he was transferred back to Port Moresby and then terminated. The company owed about K20,000.00 in unpaid housing allowances to the accused.

10. Mr Mesa submitted that the accused was by himself with no other staff and so he was basically struggling and at the same under a lot of pressure to perform while he' was stationed in Madang. It was argued that the prisoner was put under much pressure to perform to very high expectations of him, he ended up misappropriating the money in the way he did. It was further submitted that upon his termination the company forfeited all his final entitlements and other unpaid entitlements. The learned State Prosecutor, Mr. Morog did not take issue with these submissions by defence counsel, and so I will accept this as very strong mitigating factors in favour of the prisoner.

11. Another strong mitigating factor in favour of the prisoner is that he is a first time offender. This means that he has never been in conflict with the law before, and this is his first ever brush with the law. His antecedent reports confirm this. Still another factor in his favour is that the prisoner has been described as a non-violent person in the community and is therefore considered to be a low risk prisoner.

12. In his submissions, Mr. Morog, the learned State Prosecutor submitted that the prisoner was the branch manager of the Courts (PNG) Limited Shop in Madang. He was therefore occupying a position of trust and responsibility to his Superiors and customers. He betrayed the company's trust and confidence bestowed upon him and therefore this breach of trust situation is sufficient for a deterrent custodial sentence to be imposed upon him. Added to this it was further submitted that money was taken through trickery and dishonest means and so the court should visit this one by imposing penal sanctions.

13. A Pre-sentence Report was conducted on the Prisoner by the Probation Service of the Justice Department. In compiling the Report, the Probation Officer responsible consulted the Prisoner, his wife, his family members and other community leaders of the Prisoner's community of Vabukori. This included the Vabukori village court Magistrate, Mr Mina Kiki and Reverend Peter Pisero of the Vabukori United Church. Both men gave an independent character assessment of the Prisoner whom they described as peace loving and law abiding member of the Vabukori community.

"the offender is a good law abiding person and I have not heard of him in relation to any trouble or appeared in the village court apart from this offence. He is a family minded and an easy going person".

Mr Kiki then appealed to the court to seriously consider imposing a suspended sentence.

15. Reverend Peter Pisero who gave a written character reference described the prisoner as follows:

"Mr Kutan participates well in Christian activities and his association with the leaders, elders and young people is very highly exceptional which makes him more known to others within the community. To my observation I find him as a man who pocesses great pride in everything he does and has humble attitudes, towards people within the community at large. He is a man who always willingly helps others whenever he sees fit. He is a self starter, self reliant and has great mental energy which derives him to more good within our community."

16. Both men then strongly recommended that because the prisoner was a law abiding and peace loving member of their community, the court should consider imposing a non-custodial sentence. Attempts by the Probation Service Officer to talk to and get the views of Courts (PNG) Limited failed as the responsible officers simply refused to talk to the Probation Service Officer.

17. I have considered the contents of the Report and find that it sought the views of the accused and his family members. The report also sought the views of independent members of the community. Attempts were made to talk to the management of Courts (PNG) Limited but they simply refused to talk to the Probation Service Officer. Despite the lack of input from Court's (PNG) Limited and having read the report, I am satisfied that it is a well balanced report as it contains the views of a cross-section of the community. I will accept the Report and use it to help me compute a sentence for the Prisoner.

18. Judges often refer to a starting point when they are determining a sentence. By that they mean a good reference point. Usually a good reference point is a sentence in a previous case, against which the case being dealt with can be assessed. For instance, in misappropriation cases a convenient starting point case for Judges have always been the case of Wellington Belawa –v– The State [1988-89] PNGLR 496.

19. Depending on the circumstances of the case, Judges then adjust the sentence upwards or downwards. The Judge assesses whether the case being dealt with is more or less serious. In the present case both counsel were very helpful in their respectful submissions and cited me some National Court decisions in similar cases which will help me compute an appropriate sentence for the Prisoner.

20. In considering an appropriate sentence for you, I must remind myself that sentencing is not an exact science. It is a discretionary process guided by legal principles, some of which I have already addressed and some will be addressed below.

21. One of the well established principles of law that is applied in our jurisdiction is that the maximum penalty prescribed by the legislation itself is always reserved for the worst type of offence or where the offender is described as high risk to the community or a worst or serial offender. Many cases in our Jurisdiction have acknowledged and applied this principle of law. One such case is the Supreme Court decision in Aloises Peter Iboro –v– The State [2001] SC 676. That was a case where the appellant appealed a life imprisonment sentence imposed by the National Court for the brutal killing of a young woman for her abduction and rape. Amet CJ, Gavara-Nanu and Kandakasi JJ made the following comment which I respectfully adopt. "It is a well accepted principle in our Jurisdiction now that the maximum penalty prescribed by the legislature should be reserved for the "worst type or "worst category" of the offence under consideration. This has been made abundantly clear in the context of willful murder cases. For example, the Supreme Court in Avia Aihi –v– The State (No. 3) (1982) PNGLR 96 referred to its earlier decision in Goli Golu –v– The State [1979] PNGLR 653 where it was said:

"In fact this court has said that the maximum sentence for any offence (including willful murder) should be reserved for the most serious instance of a particular offence".

22. On the basis of the evidence before me and the findings contained in the Pre-sentence Report, I cannot describe you as a high risk person to his family or to the Vabukori community. Neither can the court classify your actions as belonging to the worst category of offense and you as a worst offender. In classifying you as a low risk person to your family and your community of Vabukori the probation officer strongly recommended that you be considered for probation supervision and he cited the following reasons as the basis for his recommendations:-

23. Section 19 of the Criminal Code gives the Court its sentencing powers. This include the discretion to impose a lesser penalty upon an offender if the factual circumstances of a case do not establish a particular case as being a case falling in the "worst case" category or the offender being categorized as a "worst offender" or a "serial offender" or a high risk offender to his community.

24. How I exercise my sentencing discretion depends upon the factual circumstances of how you perpetrated this crime, the mitigating factors operating in your favor and the aggravating factors operating against you. Some mitigating factors may be strongly mitigating while others may be mildly mitigating. The same goes for aggravating factors.

25. In your case I find that a strong aggravating factor operating against you is that you were placed in a management position which entailed you being placed in a position of trust and confidence from your employer as well as the ordinary customers. You however were dishonest, when you turned around and stole from your employer. Another aggravating factor against you is that your dishonest action of stealing money was perpetrated over a period of ten (10) months. It was not a one off stealing incident, but a carefully planned scheme in which you were the only beneficiary until discovered.

26. On the other hand there are many factors that strongly operate in your favour. This includes your early plea of guilty, being a first offender and that you are married with a very young family. The Pre-sentence Report says that you are now unemployed and so is your wife and son who has always depended upon you for support. Being both unemployed you depend a lot on your parents for support. I note that in a semi urban village like Vabukori, a family needs money to survive. Being both unemployed, your young family often ends up with no monies to spend. And this has been your single biggest struggle since you were terminated. I find this constant struggle to be a factor in your favour.

27. Perhaps the single biggest factor operating in your favour is the circumstance that you were placed in and which forced you to commit the offence you did. First your employer decided that it will not pay you your Housing Allowance of K2,000.00 per month. This forced you to struggle and find your own accommodation. Secondly your employer decided that it will not pay airline tickets for your wife and children to fly to Madang and join you. This was despite the fact that these entitlements were agreed upon between you and your employer. Thirdly you were forced by the circumstances to perform other duties outside of your duty statement.

28. In my view this indifferent attitude by your employer was the driving force behind your commission of the offence. As a mitigating factor, I find that this factor alone completely waters down the strength of all the aggravating factors.

29. In the case of Wellington Belawa –v– The State [1988-89] PNGLR 496, the Supreme Court laid down useful guidelines in sentencing in misappropriation cases. The Supreme Court set the following scale of sentences which has since been judicially accepted and used as providing a sentencing base to be adjusted either upwards or downwards depending on the circumstances of each cases. Where the amount misappropriated is between:

Amount Misappropriated	Sentencing range
K1.00 and K1,000.00	Jail term to be rarely imposed
K1,000.00 and K10,000.00	2 years imprisonment
K40,000.00 and K150,000.00	3 to 5 years imprisonment.

30. Going by these sentencing guidelines the amount you stole is K25,320.00. This falls within the range of K10,000.00 and K40,000.00 which would attract a prison sentence of 2-3 years. The Supreme Court also stated that some of the factors that can be taken into account by a sentencing judge include:

You pleaded guilty to stealing K 25, 320.00 being the property of Court's (PNG) Limited Madang Branch.

This was not a one off theft. Rather the offence is said to have been carefully perpetrated over a period of ten (10) months between August 2008 and May 2009.

The Court finds that Court's (PNG) Limited placed a lot of trust and confidence upon you, by promoting you to a very senior position within just two short years. Despite the trust and confidence reposed upon you by the company, you abused and breached that trust and confidence by stealing from the very hand that was feeding you.

You were forced into stealing these monies to pay medical bills for your son who was sick and hospitalized at the Port Moresby General Hospital and he eventually passed on. You also stole the monies to help pay for your own accommodation in Madang. The court finds that some of the money stolen were used to pay for medical expenses of your son while the larger proportion of the money was used to help you pay for your rented accommodation. The medical condition of your son and the need to have a decent accommodation while in Madang placed you under great strain and excessive responsibilities.

Several attempts were made by the Probation Officer to get the view of Court's (PNG) Limited. But his attempts to speak to the company were met with a blatant refusal to talk from the company management.

This could not be assessed as the company responsible Court's (PNG) Limited refused to co-operate with the Probation Officer who could provide such assessments.

The prisoner was so ashamed and clearly embarrassed of his actions. Right throughout the plea process he showed a demeanor of being very apologetic and also very remorseful.

The prisoner's father and sister have pledged to have monthly deductions from their salaries to help in the restitution. Both have pledged to have K200.00 and K140.00 respectively deducted from their salaries towards assisting with restitution. Going by this proposal it would take well over five years to meet the amount of monies stolen. This Court will not accept this kind gesture from the father and sister.

The Prisoner himself offered to pay K5000.00 from his Nasfund Deductions and sell off some of his personal items like a computer laptop and a desktop towards the costs of making restitution. He then proposed that the balance can be met by him fishing and selling fish at the local markets. The Prisoner also hopes to find some employment where his fortnightly salaries can be used for restitution. I find this to be a genuine gesture from the prisoner to make restitution.

But given the difficulties of seeking employment let alone getting a job in the city, this Court cannot readily accept that restitution will be made by the prisoner. I do however note that the Prisoner is owed about K20,000.00 in unpaid Housing Allowances for the ten months he spent in Madang. He was also not paid his family's repatriation tickets to join him in Madang. This court finds that the value of a return economy fare ticket to Madang for his wife, and son and another adult as approved by the company stands at about K2,000.00. These payments were unnecessarily held back by the company and not paid at all to the prisoner. As at the date of termination, Courts (PNG) Limited owed the prisoner some K22,000.00 in unpaid monetary entitlements. This outstanding monies owed to the prisoner have now been quite rightly forfeited by Court's (PNG) Limited to repay monies stolen by the prisoner.

32. You pleaded guilty to the charge of misappropriation contrary to Section 383A1(a)(2)(b)(d) of the Criminal Code. The Court entered a provisional plea of guilty and after reading the relevant court depositions, I confirmed your guilty plea. In your address before sentence you said you were sorry for what you did and you were remorseful. You requested that the Court imposes a non custodial sentence upon you. In his submission your lawyer also requested me to impose a non custodial sentence upon you.

33. Before imposing your sentence I will refer to a number of past National Court decisions on sentence which I will use as a guide to assess your sentence. The decisions of His Honor Justice Kandakasi, in the cases of the State –v– Dobi Ao (No 2.)[2002] N2247 and The State –v– Gibson Haulai [2004] N2555 stand for the proposition that a judge can fully suspend a head sentence it imposes.

34. In the Dobi Ao case His Honour imposed a non - custodial sentence, where apart from orders to make restitution, His Honour also sentenced the prisoner to render free community service for a certain period of time and imposed other strict conditions. His Honour took a similar approach in the Gibson Haulai case. In that case, Gibson Haulai stole a total of K27,320.00. His Honour imposed a head sentence of three (3) years which he then had fully suspended.

35. In Dobi Ao the amount stolen was K37,526,58. His Honour imposed a head sentence of three (3) years in light labor which was then fully suspended.

36. In The State –v–Siba Kua the amount stolen was K9,829.00. The prisoner pleaded guilty to the charge of misappropriation. Davani J imposed a head sentence of three (3) years in hard labour, but one year was fully suspended, allowing the prisoner to serve only two years in prison.

37. The sentencing tariffs show that a misappropriation case such as the present case will attract a sentencing range of 2- 3 years imprisonment. The court then has the discretion to either fully suspend the head sentence as was done in the Dobi Ao and Gibson Haulai cases, or to suspend part of the head sentence and impose part custodial sentence as was done in the Siba Kua case. Similarly in Sano Kurumo the two years head sentence was wholly suspended and other conditions including restitution was imposed.

38. The Table below shows a summary of some Supreme and National Courts decisions showing the amount stolen and the kind of sentence imposed. This is to give a picture of the sentencing tariffs being imposed by the courts so far in cases of misappropriation.

Name of Case	Amount Stolen	Plea	Kind of sentence imposed
Wellington Belawa	K1979.00	Not Guilty	Two years imprisonment
Brian Kindi Lawi	K10,000.00	Not guilty	3 years imprisonment
Paroa Kaia	K94,478	Guilty	4 years imprisonment
Bygonnes Tusa Nae	K100,000.00	Guilty	4 yea4rs imprisonment
Doreen Liprin	K6,000.00	Guilty	18 months imprisonment
Dobi Ao	K37, 526.58	Not Guilty	3 years sentence wholly suspended. Prisoner ordered to do community work on strict terms.
Gibson Haulai	K27,320.00	Guilty	3 years wholly suspended. Prisoner ordered to do community work on strict terms.
Siba Kua	K9,829.60	Guilty	3 years imprisonment 1 year wholly suspended. Prisoner served two years in prison.
Sano Kuromu	K9720.00	Guilty	2 years imprisonment wholly suspended

39. In Wellington Belawa's case the Supreme Court set the following scale of sentences which has since been accepted and used as providing a sentencing base to be adjusted either upwards or downwards according to the factors that I have already outlined above.
40. The cases cited above and the sentencing range highlighted above demonstrates that misappropriation cases such as the one before me now is capable of attracting a sentencing range from two (2) to three (3) years imprisonment.

41. Judges have imposed sentences between 18 months for misappropriation of K 6, 000.00 and three (3) years for misappropriation of K 10, 000.00 as in Brian Kindi Lawi –v– The State [1987] PNGLR 183. Cases subsequent to that have imposed sentences of 4 years on a guilty plea with good mitigating factors for a misappropriation of K 94, 478.31 as in the case of The State –v–Paroa Kaia N1401 and The State –v– Bygonnes Tuse Nae (1996) N1474 for misappropriation of amounts exceeding K 100,000.00.

42. A Supreme Court decision of this kind of cases is that of Doreen Liprin –v– The State SC 673. In that case Doreen was convicted on one count each of forgery, uttering and misappropriation of a sum of K 6, 000.00. She was given a sentence of one year each for the first two offences and three years for the misappropriation, all to be served concurrently. However, the sentences were suspended on the condition that she repays all of the monies she stole within a period of 2 months. She failed to meet the condition for her suspended sentence and so was re-arrested and taken into custody to serve her sentence. Whilst in prison she lodged her appeal to the Supreme Court. Although her appeal was out of time, the Supreme Court proceeded under s.155(2)(b) of the Constitution to deal with the matter.

43. The Chief Justice then Sir Arnold Amet, dismissed the appellant's appeal against conviction; but upheld her appeal against sentence. He had the sentence reduced to 18 months. With respect, that sentence was arrived at, without having regard to the sentencing trend developed in this kind of cases. The Deputy Chief Justice then Sir Mari Kapi and Los, J did however consider the relevant sentencing trends and concluded that the cumulative sentence of three (3) years was appropriate as it was within the range of sentences imposed in similar kind of cases. Despite his views on sentences, Los J accepted the Chief Justice's views on sentence. With respect this does not provide any assistance as to determining appropriate sentences and the sentencing tariffs.

44. It is an important aspect in criminal law sentencing that, sentencing tariffs must be considered to determine sentences in future cases if subsequent sentences are to have any relevance to the interests of society to appropriately deal with offenders.

45. In the Doreen Liprin case, the then Chief Justice proposed that Doreen Liprin be given more time to look for alternative employment to make restitution by repaying the amount of money she misappropriated. The Chief Justice also stated that the Court should make orders for free community services under the supervision of the Probation Service. At page 5 of his judgment he said the following: -

"I believe it is time to consider seriously whether offences of misappropriation of amounts of this kind of money warrants custodial sentences. I do not believe so. I believe the Court should be seriously consider designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment."

46. My brother Kandakasi, J expressed similar sentiments in the case of The State –v–Dobi Ao (No.2) (2002) N2247.

47. In that case the accused was found guilty after a trial on a total of eight counts of misappropriation totaling K 37,526.58 from the State. In considering an alternate sentence other than imposing a custodial sentence His Honour made the following pertinent remarks (at page 5):

"I agree it is time now to seriously consider alternatives to sentencing in this type of cases. But, that with respect, does not necessarily mean head sentences be drastically reduced. Instead it means in my view that, 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 rehabilitate 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."

I ask myself here, which of the sentencing trends as outlined above do I follow?

48. If I follow the older tariffs starting with Wellington Belawa, Brian Kindi Lawi, Paroa Kaia, Bygoness Tuse Nae and Doreen Liprin then I will have to impose a term of custodial sentence upon you which will be in the range of 2-3 years as submitted by the counsel for the State. On the other hand if this court follows Siba Kua then it will impose a head sentence first, and then depending on your mitigating circumstances, the court will suspend part of the head sentence and you spend the balance serving a custodial sentence. Furthermore if the court follows Samo Kurumo it will impose a head sentence, and then have it wholly suspended and order restitution and impose other conditions. Similarly if this court follows Dobi Ao, Samo Kurumo and Gibson Haulai, it will impose a head sentence first and then suspend the whole of it and order you to do some community work.

49. These facts are to be contrasted with the fact that you committed the offences in total breach of the trust and confidence placed upon you by your then employer, Court's (PNG) Limited when it placed you in the position of Court's Madang Branch Manager. The offences were committed by you over a period seven (7) months. The amount of money you stole is quite substantial. It is K 25, 320.00 and it was not a case of one off stealing rather it was perpetrated over a period of ten months.

50. Therefore going by the sentencing tariffs laid down by the Supreme Court in the Wellington Belawa case, I will impose a head sentence of two years upon you to be served in hard labour at the Bomana Corrective Institution.

51. In submissions your counsel Mr Mesa submitted that I should seriously consider imposing a suspended sentence with stringent conditions and one of the conditions that he submitted I consider, is a condition for restitution.

52. According to section 19(6) of the Criminal Code, a part of the sentence can be suspended on an offender entering into a recognizance. The relevant principles were discussed by the Supreme Court in Public Prosecutor –v– Bruce William Tardew [1986] PNGLR 91. There the Supreme Court held that suspension 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.

53. I have considered the application of these principles here, and considering the mitigating factors operating in your favour and the whole circumstances of your case, I consider that a two year imprisonment sentence will cause an excessive degree of suffering upon your family who are largely dependent upon yourself. I consider that a suspension of the whole sentence is warranted here. I therefore will exercise my discretion pursuant to section 19(6) of the Criminal Code and have the head sentence of two years I imposed on you fully suspended on these terms:

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

National Court of Papua New Guinea

State v Kutan [2011] PGNC 330; N4526 (24 May 2011)