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State v Dira [2017] PGNC 162; N6830 (22 June 2017)

N6830

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 296 of 2014

THE STATE

V

FOSTER DIRA

Popondetta: Koeget, AJ
2017: 19^th & 22^nd June.

CRIMINAL LAW- Indictable offence – Misappropriation under section 383A (1)(a), (2)(b) of the Criminal Code Act – guilty plea – maximum sentence under section 383A (1)(a), (2)(b) of the Criminal Code Act – court’s discretionary powers under section 19 of the Criminal Code Act.

Counsel:

L. Toke, for the State
E. Yavisa and C. Namono, for the Accused

22^nd June, 2017

1. KOEGET AJ: INTRODUCTION: The accused is charged that between 20^th April and 7^th May 2012, at Popondetta in the Oro Province of Papua New Guinea, dishonestly applied to the use of others cash in the sum of K6,000.00.

2. The money belongs to the State and the charge is brought pursuant to section 383A (1)(a), (2)(b) of the Criminal Code Act.

FACTS

3. Between 30^th April and 7^th May, 2012 the accused raised cheque in the sum of K6,000.00 drawn from Ijivitari District Services Improvement Programme (DSIP) Trust account and endorsed it. The accused employed in the Ijivitari District Treasury office as the Examiner, took the cheque and cashed it at Price Rite Super Market Limited in Popondetta. She obtained the cash and gave it to some individuals named in the indictment.

4. The State alleged that those individuals were not entitled to receive the proceeds of the cheque.

5. The State allege that her actions contravened section 383A (1)(a), (2)(b) of the Criminal Code Act.

ARRAIGNMENT

6. The accused pleaded guilty to the charge and was convicted accordingly.

ISSUE

7. The issue for the Court to determine is what is the appropriate sentence to impose upon the prisoner.

LAW

8. The law in relation to misappropriation is 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 is guilty of a crime of misappropriation of property.

(2) an offender guilty of the crime of misappropriation of property is liable to imprisonment for five years except in any of the following when he is liable to imprisonment for ten years –
(b) where the offender is an employee and the property dishonestly applied is the property of the employer....”

PERSONAL PARTICULARS

9. She is from Madina village in the New Ireland Province. She is 39 years of age and is a single mother.

10. She began employment with the District Treasury Office after completion of Grade 10 at Popondetta High School. She has worked in that office for 17 years now. She is still employed in the same office as an Examiner.

AGGRAVATING FACTORS

11. The prisoner misappropriated money belonging to her employer and such offence is prevalent in the country.

MITIGATING FACTORS

12. She pleaded guilty to the charge and saved court’s valuable time. She is remorseful and is willing to repay the sum misappropriated. She requires time till end of June 2017. She is a first time offender.

SENTENCE

13. She had worked in the Ijivitari District Treasury office for some considerable time and ought to have known such actions were unlawful and contravened provisions of the Criminal Code Act, Public Finance (Management) Act and Financial Instructions of Department of Finance.

14. There was no great deal of skills involved in commission of the offence and the amount misappropriated is minimal.

15. The prisoner is sentenced to 1 year in hard labour. The sentence is wholly suspended on the condition that:

(1) She is to repay the sum of K6,000.00 to the Ijivitari District Treasury office at Popondetta by end of July 2017 and original copy of receipt is furnished to the National Court in Popondetta.

(2) The bail money of K1,000.00 is converted to repaying the sum misappropriated and the balance is to be paid by end of July 2017.

(3) Should the prisoner not repay the sum of K6,000.00 in full by end of July, 2017, she shall be brought back to court to be dealt with the suspended portion of the sentence.

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