N6047

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1018 of 2009

THE STATE

-V-

DAVID TOBENA
(No. 2)

Wewak: Geita J
2013: 	16, 19, 20, 22 & 23 April
2014: 	 7 February; 9 May,
2015: 3 & 12 August.

CRIMINAL LAW –Sentence – Trial -The maximum penalty for an offence under Section 404(1) (a) and Sections 383A (1) & (2), is five and ten years imprisonment respectively - A sentence of 1 year imposed for count 1. – A sentence of 3 years imposed on Count 2 – Count 1 is made cumulative to Count 2 -All remaining 12 counts made concurrent to court 2. 
CRIMINAL LAW – Sentence - Totally principle considered – The 14 crimes committed did not arise out of the one criminal enterprise. There were 14 separate criminal enterprises undertaken by the prisoner to unjustly enrich himself - Cumulative and Concurrent sentence employed – Prisoner ordered to serve time out at CS Boram until such time that all outstanding monies belonging to Wewak Urban Local Level Government are paid in full - Thereafter be placed on Probation for 24 months and to be of good behaviour. 

The finality of this case was prolonged due to the lack of professionalism and diligence on the part of defence counsel which in turn brought about adverse consequences on the prisoner being recalled from bail and remanded until Supreme Court intervention. 

Cases cited: 
Avia Aihi v The State [1982] PNGLR 92
Doreen Liprin v The State (2001) SC 673 
Gima & Arnold v The State (2003) SC 730 
Konis Haha v The State [1981] PNGLR 205
Mase v The State [1991] PNGLR 88 
Public Prosecutor v Don Hale (1998) SC 564
R v Barrick (1985) 81 Cr App R 78
The State v Bill Saun Daniel N3502 
The State v Daniel Mapiria Sevese N3453
The State v Mabil Setuheni (2013) N. 5554
Wellington Belawa v The State [1988-89] PNGLR 496

Counsel: 
Mr. Anthony Kupmain, Mr. Paul Tusais, for the State
Mr. Lunge, for the accused

JUDGMENT ON SENTENCE
12 August, 2015 

1.	GEITA J:	You pleaded not guilty to seven counts of obtaining goods by false pretence contrary to section 404 (1) (a) of the Criminal Code and 8 counts of misappropriation contrary to section 383A (1) (2) of the Criminal Code. The offence of false pretence attracts a maximum sentence of five years imprisonment and the offence of misappropriation attracts a maximum sentence of ten years imprisonment. 

Terms of the Indictment

2.	The facts as found on your conviction following the trial on 12 May 2014 are these: Between 6th of December 2007 and 31 October 2008 the prisoner, whilst employed as Town Manager for Wewak Urban Local Level Government (WULLG) from here onwards, periodically submitted false claims. These involved a total of 8 cheques made out in the name of a number of persons including himself working with (WULLG) and others outside the organisation. All cheques were drawn from (WULLG) operating account amounting to K18, 826.10.

Allocutus 

3.	In his allocutus the prisoner said he is married with six school age children and is the only breadwinner. He expressed remorse, asked for leniency and indicated his willingness to repay all the monies. This was his first time in court after an unblemished working record of 20 years. Showed remorse and apologised to the court and to his family. He pleaded for Probation Orders with conditions.

Antecedents

4.	No prior convictions

Mitigating circumstances

5.	His impressive employment record over a long period of his working career with no prior convictions. Good family men. Expressed remorse and displayed willingness to repay the stolen monies with K12, 000.00 paid so far. Favourable pre-sentence report and means assessment report, considered in parts in his mitigation.

Aggravating circumstances

6.	The prisoner committed the offences whilst occupying a public office entailing a position of trust. Citizens within the Wewak Local Level Government Council denied basic services due to the theft. 

Extenuating circumstances

7.	Sir Michael Thomas Somare's 40 years in politics coinciding with 40 years PNG Independence considered to be an extenuation circumstances by the prisoner is flawed. 

Community attitudes

8.	 Under normal circumstances community attitudes are also captured in the pre-sentence report. However this time around there appears to be none. One can only speculate that the long passage of time has since dimmed community attitudes so the matter is best rested for now otherwise there would be public outcry over this theft and misappropriation. 

Pre-sentence report & Means assessment report 

9.	The pre-sentence report, though biased speaks highly of the prisoner's suitability for probation. The report covers in great detail your family background, your education and past work history together with your future plans. The willingness of your family members and your ability to repay the lost monies is well documented in your means assessment report. You have already demonstrated your willingness by repaying some of the stolen money.

Prisoner's submissions on sentence 

10.	Mr. Lunge submitted on behalf of the prisoner that the offence does not fall within the worst category and that the maximum penalty be avoided: Avia Aihi v The State [1982] PNGLR 92. He submitted for a sentence within 30 months to be wholly suspended and the prisoner placed on probation with orders for restitution within six months. He referred the court to these two cases in support of his submissions that the totality of sentencing principle was applicable in this case in light of multiplicity of counts. (Mase v The State [1991] PNGLR 88, Konis Haha v The State [1981] PNGLR 205.) He further referred me more than ten case laws in which courts have taken a leaning towards restitution and compensation in dishonesty related offences. They all deal with like cases with sentencing ranging between 2-3 years with suspended sentences. In the same vein Mr. Lunge submitted that a sentence of 30 months with suspensions be considered. Notable amongst the cases relied upon were Doreen Liprin v The State (2001) SC 673 and The State v Mabil Setuheni (2013) N5554.

State submissions on sentence

11.	The thrust of State submission is the presence of prevalence of the offence to be determined by the amount stolen or misappropriated and what degree of trust and the responsibility held by the prisoner at the time the offences were committed. Put differently the amount stolen was substantial, the prisoner was a senior bureaucrat holding a position of trust, and the offences were committed over a period of ten months. Mr Paul Tusais referred me to the lead case of Wellington Belawa v The State [1988-89] PNGLR 496. It is no secret that the sentencing range in that case was outdated and no longer appropriate due to the frequency and the prevalence of misappropriation cases, warranting deterrence sentences. The cases of The State v Daniel Mapiria Sevese N3453; The State v Doreen Liprin SC 673 and The State v Bill Saun Daniel N3502 were also referred to me. 

12.	The State's lawyer Mr. Tusais called for a tougher sentence on the prisoner as a deterrence to others in senior position of trust. He submitted that the public suffered as a result of this crime and demeaned public confidence in the system. More so the negative impact it had on Wewak Town infrastructure services and community programmes. 

13.	Notwithstanding the shame, suffering and humiliation the crime may have brought upon the prisoner the State submitted that the people of Wewak turned out to be the losers in the end, as the prisoner has landed himself a comfortable job doing virtually the same functions he performed before previously. Hence the need for general deterrence was warranted over a non custodial sentence. 

14.	Mr Tusais submitted that this case was one of serious breach of trust. Furthermore the high breach of trust and the position occupied at the time the crime was committed is reflected in the maximum five to ten years custodial sentence for both indictments. A custodial sentence of three years with hard labour to be imposed on all counts to be served concurrently, State submitted. 

Application

15.	Now applying the facts in your case to the law and sentencing principles in such offences, all ingredients canvassing what should constitute mitigating and aggravating factors in the case of Wellington Belawa (supra) equally apply here hence I need not look beyond the case authority in Wellington Belawa (supra) and will be guided largely by the principles contained therein. Most of which are contained in an English judgment Barnette J found very helpful and applied them in the Belawa case: (R v Barrick (1985) 81 Cr App R 78.). I quote

 "The following are some of the matters to which the Court will no doubt wish to pay regard in determining what the proper level of sentence should be: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police." Per Lord Chief Justice of England)

16.	Barnette J added two more factors of his own: the amount taken and the question of restitution. For the purpose of this judgment I endorse and apply the principles in this case.

17.	Now considering the situation of the prisoner in regard to each of those matters mentioned above: (1) The amount taken; (2) "The quality and degree of trust reposed in the offender including his rank"; (3) "The period over which the fraud or thefts have been perpetrated"; (4) "The use to which the money or property taken was put"; (5) "The effect upon the victim"; (6) "The impact of the offences upon the public and upon public confidence"; (7) "The effect on the offender himself"; (8) Restitution; (9) "His own history"; (10) "Matters of mitigation special to himself." I find that all those matters mentioned above are adequately considered in the prisoner's case. Unfortunately they all weigh heavily against him in aggravation. 

18.	The only supposed extenuating circumstances pleaded on his behalf by Mr Lunge failed to meet the above test in my view. The prisoner will not be accorded this benefit under extenuating circumstances. The prisoner pleaded not guilty and so put the State to the expense of a trial (though he did admit almost all of the relevant facts).

19.	In this case the people of Wewak town were the losers as a result of the theft and misappropriation by a former senior public servant. They lost confidence in the system as a result of this theft. Barnette J had this to say and I quote:

"… At a time when scandal and corruption by public officers are being frequently exposed, the disclosure of this breach of trust by the "top man", the Secretary himself, must have had a most serious effect upon public confidence in the whole system of government administration. It is a serious circumstance of aggravation…)

20.	Barnette J's sentiments expressed over very light sentences in these types of offences some 26 years ago still remains true to this day. Most of the sentences in the cases referred to me have been surprisingly light in view of the increasing frequency of this offence.

21.	I have also found the statement of Mogish J in State v Daniel Mapiria very helpful, unreported, 7 September 2004, CR.1118/2000. I quote here:

"Like politicians and senior bureaucrats, senior executives of statutory organisations must be warned that if they manipulate the system to benefit themselves at public expense, then they will be severely punished, that imprisonment is almost inevitable."

22. 	I acknowledge that the prisoner's pre-sentence report and means assessment reports spoke highly of him and his ability to pay restitution. They are important considerations and have been taken on board: (Public Prosecutor v Don Hale (1998) SC 564 and Gima & Arnold v The State (2003) SC 730. 

23.	It is also acknowledged that you have repaid more than K12, 000.00 back to Wewak Urban Local Level Government (WULLG) in six lots of cheque payments commencing 30th May 2014. The last payment was made on 31 July 2015. Assessing from the frequency and ad-hoc manner in which repayments were made, they clearly cannot be said to carry with them signs of genuineness and or remorse on your part. You waited for more than 7 years to the time of your conviction to make the first attempted restitution. Quite frankly the repayments were made after your conviction with the hope of escaping and or avoiding the just sentence available under the laws of false pretence and misappropriation. For these reasons I am not inclined to accord you any further leniency on extension of time to make final and full restitution of remaining monies outstanding of K6, 826.10. You will instead serve out the remaining sentence in custody unless full and final payment is made and received by the victim, Wewak Urban Local Level Government.

24.	Now moving onto whether your sentence should be made cumulative or concurrent to the sentence you are serving. This process entails exercise of discretion by Courts however Courts must be guided by the applicable principles: where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be made concurrent; where the offences are so differently in character or in relation to different victims, cumulative sentences would be appropriate.

25.	In your case you have been convicted of 14 counts of false pretence and misappropriation over a ten months period involving different persons. For the moment I do not consider that each of the 14 crimes committed could be said to have arisen out of the one criminal enterprise. There were 14 separate criminal enterprises undertaken by the prisoner to unjustly enrich himself. It follows that the totality principles must be considered in order to arrive at an appropriate sentence and decided whether they should be concurrent or cumulative. More so to guard against the eventual sentence being too harsh and oppressive and or crushing on the prisoner: (Mase v The State [1991] PNGLR 88 and Konis Haha v The State [1991] PNGLR 205. 

26.	Applying these principles to your case, a consideration for a concurrent and cumulative sentence appropriate under the circumstances in my view. For ease of reference, I list the counts in tabular form with proposed sentences.

Count	Charge & Code	Amount	Description	Sentence	
1	False Pretence – 404 (1) (a) CCA	
K2, 000.00	Cheque raised for Christine Saul for Advance of Legal Fees	
1 year	
2	Misappropriation – 383A (1) (a) CCA	
K2, 000.00	Applied to own use	3 years	
3	Misappropriation – 383A (1) (a) CCA	
K6, 380.00	Cheque raised to Maureen Tawia for Ward Survey Work	
3 years	
4	False Pretence – 404 (1) (a) CCA	
K2, 360.00	Cheque raised to Lucas Waitik for hire of brush cutter	
1 year	
5	Misappropriation – 383A (1) (a) CCA	
K2, 360.00	Accused and one other Chris Mungu raised to own use	
3 years	
6	False Pretence – 404 (1) (a) CCA	
K2, 070.00	Cheque raised to Lucas Waitik for hire of brush cutter	
1 year	
7	Misappropriation – 383A (1) (a) CCA	
K2, 070.00	Accused and one other Celestine Honok applied money to own use	

3 years	
8	False Pretence – 404 (1) (a) CCA	
K1, 776.10	Cheque raised to Rhonda Monji as part of her salary	
1 year	
9	Misappropriation – 383A (1) (a) CCA	K1, 776.10	K376.10 given to Rhonda Monji and rest applied to own use	
3 years	
10	False Pretence – 404 (1) (a) CCA	
K540.00	Cheque raised to Patrick Wolly for hire of lawn mower	
1 year	
11	Misappropriation – 383A (1) (a) CCA	
K540.00	Money applied to own use	
3 years	
12	Misappropriation – 383A (1) (a) CCA	K1, 200.00	Money applied to own use	3 years	
13	False Pretence – 404 (1) (a) CCA	K2,500.00	Cheque 658 raised to Toney Emmanuel for payment of accommodation was cancelled and a new one drawn to David Tobena Chq#730	

1 year	
14	Misappropriation – 383A (1) (a) CCA	K2, 500.00	Money applied to own use	3 years	
		K18, 826.10			

27.	Due to the foregoing reasons and principles, you are convicted and sentenced to 3 years in hard labour on Count 2. For count one you are sentenced to 1 year. Counts 1 is made cumulative to count 2. The remaining count, 3 – 14 will be made concurrent to Counts 2. Your bail of K1000 will be converted as part restitution. All the time you spent in custody awaiting sentence will be deducted. 
28. You are ordered to serve your time out at CS Boram until such time that all outstanding monies belonging to Wewak Urban Local Level Government are paid in full. You will thereafter be placed on Probation for 24 months and to be of good behaviour. 

Orders accordingly,

Public Prosecutors: Lawyer for the State
Ninerah Lawyers: Lawyer for the Accused