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State v Watangia [2018] PGNC 93; N7175 (29 March 2018)

N7175

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) NO. 28 OF 2016


THE STATE

V

JOHN WATANGIA


Kokopo: Susame , AJ
2018: 23 February, 29th March


CRIMINAL LAW – Sentence – S. 383A Offence of Misappropriation – Sentencing factors & guidelines – Comparable judgments – Prevalence of offence – the need for increase in baseline sentence – Offence serious but non violent – Alternatives to sentencing considered appropriate for misappropriation cases depending on its merits – suspension of sentence is not merely an exercise of leniency- Purpose of retribution, restitution & rehabilitation is still achieved – 3 years sentence imposed, but suspended upon probation with strict condition.


Cases cited:
Doreen Liprin v The State (2001) SC673
Goli Golu v. The State [1979] PNGLR 653)
Public Prosecutor v. Don Hale (1998) SC564
Taiba Maima v Sma [1971-1972] PNGLR 49,
The State v Cynthia Feria (2014) PGNC 74, N5600
The State v. Dobi Ao (No.2) (2002) N2247
The State v Eric Emmanuel Vele (2002) PGNC 93; N2252
The State v Francis Rarlu (2008) PGNC 241; N3710
The State v Siba Kua (2007) PGNC 103; N3230
Wellington Belawa v The State [1988-89] PNGLR 496


Counsel:
Miss Batil, for the State
Mr. Paisat, for the Prisoner

JUDGMENT ON SENTENCE


29th March, 2018


  1. SUSAME, AJ: The prisoner has been found guilty and convicted on 5th March 2018 for misappropriation of K9 000.00 in cash from his employer Oceanic Communications PNG Limited.
  2. The prisoner was initially charged for misappropriating the sum of K17 114.50. That amount was reduced to K9, 000.00 after plea bargaining. So, the indictment charging him was that between months of July and September 2015 at Kokopo the prisoner whilst in the employ of Oceanic Communications Limited as the Operations Logistics Officer and Stock Controller, dishonestly applied to his own use sum of K9 000.00 in cash from Oceanic Communications Limited which the prisoner admitted stealing.
  3. First I set out the facts, next the summary of submissions, the law and sentencing guidelines followed by factors in aggravation and mitigation. Then some discussion of comparable cases that have been decided.

FACTS


  1. Facts agreed by the prosecution and defence and put to the prisoner on arraignment are as follows. Between the months of July and September 2015 the prisoner was employed by Oceanic Communications PNG Limited (OC PNG Ltd.) in Kokopo, East New Britain Province. He was overseeing and in charge of stock controlling, dispatching and sales of Digicel PNG products under a contract OC PNG Ltd had entered with Digicel PNG.
  2. On 13th August 2015, the company’s operations manager Mr. Raj Pravin travelled in from Port Moresby on relieving duties conducted a full audit of the stock items on cell phones, flex cards, sim cards and other items. The ground manager at Kokopo office resumed duties from rec-leave and conducted another audit. Both audits revealed that K10, 300.00 in cash, pre-paid sim cards and phones valued at K6, 814.50 went missing when the prisoner was in charge and overseeing the office.
  3. In line with the company policy, because the prisoner was then in charge of the office he was held responsible to make good the loss. On 28th August 2015, the prisoner in a deceitful way took K9000.00 from K20, 362.50 that was going to be deposited in the bank by another company employee namely Araurobo Veratau. He admitted using that amount to repay the money that was found missing following the audit instead of using his own funds.
  4. Court read the evidence in the committal files tendered into court by the prosecution after provisional plea was entered. In addition to the other evidence court noted the prisoner’s confessional statements of guilt recorded in the record of interview. On the evidence I was satisfied it was safe for the court to enter a conviction. Accordingly, the prisoner was found guilty of the charge.
  5. After prisoner’s antecedents was presented to court counsel of the prisoner sought an adjournment for submissions on sentence to be filed together with means assessment report and pre-sentence report. Adjournment was granted and parties to return to court again on 12 March at 9.30am for hearing of submissions. The reports and submissions were filed and court heard counsels of their respective submissions. When sitting commenced accused was heard on allocutus followed by hearing of submissions.

SUBMISSIONS


  1. Set out below are summary of the submissions heard.
  2. Miss Batil for the state filed an 11 page submission and provided valuable assistance. Court was reminded of sentencing principles and guidelines on misappropriation cases. References were made to a number of decided cases in PNG as guidance.
  3. She submitted the present case falls within category 2 following Wellington Belawa v The State [1988-89] PNGLR 496 because the amount misappropriated fell between K1000.00 and K10, 000.00. Miss Batil submitted a strong deterrent sentence to be imposed and if sentence is to be wholly suspended it will be within the discretion of the court under s 19 of the Code.
  4. In addition to her written submission she argued restitution is not possible because complainant has not cooperated to provide information on how the money can be repaid. As an alternative, court to impose a fine or custodial sentence. I will respond to this part of her submission later on.
  5. Mr. Paisat’s submission is also noted. He cited the cases of The State v Francis Rarlu (2008) PGNC 241 N3710 and The State v Siba Kua (2007) PGNC103 N3230 which involved persons who were in authority to hold monies. The Court in those two cases imposed a 3 years suspended sentence on conditions for prisoner to make periodical restitution and do community service and prisoner to enter into a recognizance to be of good behaviour.
  6. Mr. Paisat urged the court to consider the pre-sentence and means assessment reports and other mitigating factors favourable to the prisoner. He submitted for a 3 years to be wholly suspended upon prisoner entering into good behaviour bond for 2 years with condition for repayment of K9000.00 to the complainant or the state in periodical payment of K500.00 per month over a period of one year.

OFFENCE & PENALTY REGIME


  1. Section 383A of the Criminal Code Act prescribes the offence of misappropriation in the following terms:

383A. MISAPPROPRIATION OF PROPERTY.


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

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

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 years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:–

(a) where the offender is a director of a company and the property dishonestly applied is company property;

(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.

(3) For the purposes of this section–

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and

(b) a person’s application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property; and

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into his possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps; and

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender’s application of the property, had control of it.


(Underlining Added)


AGGRAVATING FACTORS


➢ Stealing from employer in breach of trust
➢ Offence prevalent
➢ Offence pre-planned
➢ Offender used the money

MITIGATING FACTORS


➢ Prisoner is first time offender
➢ Prisoner’s early plea
➢ Prisoner’s exemplary good conduct and cooperation

ALLOCUTUS


  1. In mitigation you stated you are married and have 2 children. Your wife is a nurse at Nonga Base Hospital. You said there are 7 of you in the family including one by adoption. You said sorry to the court and the company for what you did. You asked the court to place you on good behavior bond and court to give you time to repay the money.

FACTORS CONSIDERED


  1. I have read and considered the list of cases provided in the submissions. The cases cited were of valuable guidance to the court. They have their own distinct and peculiar circumstances involving theft of money by employees from their employers in the tenure of their employment. Amounts stolen varied from as low as K2000.00 to K15, 900 in the cases. Sentences imposed ranged from as low as 18 months to 3 years. Sentences where wholly suspended or partially suspended and prisoners placed on good behavior bond with conditions including restitution of amounts stolen.
  2. I identified three cases out of the cases provided by Miss. Batil and which Mr. Paisat also referred to. In my view the 3 cases were more relevant in terms of comparable judgments.
  3. First is the case of The State v Cynthia Feria (2014) PGNC 74, N5600 involving the theft of K10, 716.00. Considering the mitigating factors favourable to the offender court imposed a sentence of 2 years, 21 months which was wholly suspended with condition for restitution of money stolen within 3 months.
  4. Second is the case of The State v Siba Kua (2007) PGNC 103, N3230 involving theft of K9 829.00. The court in that case imposed a 3 years sentence but one year suspended with conditions.
  5. The third case is the case of The State v Francisca Iralu PGNC241, N3710 in which K9000.00 was stolen. Court imposed a 3 years sentence but was wholly suspended on prisoner entering into a recognizance and placed on good behavior bond with additional conditions to do free community work service and repayment of money periodically.
  6. The Supreme Court case of Wellington Belawa v The State [1988-89] PNGLR 496 (which has been cited in the respective submissions) is leading authority on sentencing guidelines of misappropriation cases under s383A of the Code. Factors recommended for considerations are:
    1. The amount taken
    2. The degree of trust held by the offender
    3. The period over which the offence was committed
    4. The use to which the money was put
    5. The effect upon the victim
    6. The effect on the public and confidence
    7. The effect on fellow employees or partners
    8. The effect on the offender himself
    9. The offenders own history
    10. Restitution; and
    11. Those matters of mitigation special to himself such as illness; being placed under great strain of excessive responsibility of the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty in the obtaining of the funds by his professional body or the police and at the start of his trail; and finally, any help given by him to the police.
  7. Following R v Barrick (1985) 81 Cr App R 78, the same court set this scale of sentences which may usefully be accepted as a base to be then adjusted upwards or downwards according to the various factors above:

(1) where the amount misappropriated is between K1 and K1,000, a gaol term should rarely be imposed;

(2) where the amount misappropriated is between K1,000 and K10,000, a gaol term of up to two years is appropriate;

(3) where the amount misappropriated is between K10,000 and K40,000, two to three years imprisonment is appropriate;

(4) where the amount misappropriated is between K40,000 and K150,000, three to five years imprisonment is appropriate.


  1. The court adopts the sentencing guidelines in Wellington Belawa v The State (supra) and apply them to your case.
  2. As recommended in that case amounts misappropriated between K1000.00 and K10, 000 comes under category 2. Recommended jail term for this category of cases is term of imprisonment of up to 2 years. However, in recent cases sentences imposed have gone beyond the 2 years as in the 3 cases used for guidance. You stole a sum of K9000.00. That puts your case under category 2.

The amount taken

  1. The amount you have admitted to stealing and supported by evidence is K9000.00

The degree of trust held by the offender

  1. At the time the offence was committed you were then employed as the Operations Logistics Officer and Stock Controller with Complainant Company at their Kokopo Office. You were in charge of overseeing all the stocks. So there is high degree of trust expected of you.

The period over which the offence was committed


  1. Facts accepted by the court are that you stole the amount from K20, 362.50 your fellow employee was going to deposit in the bank on 28th August 2015. The purpose you stole the money was to offset the difference in variance of the stock and data entered in the computer as a result of the two audits that were done. So it was a one off incident unlike other cases where monies were stolen over period of time

The use to which the money was put

  1. You committed the offence because you did not want to be blamed for the variance and short falls discovered in the audit reports by your employer. Instead of using your own funds to offset the variance you stole from your employer. In that respect you benefited but was a loss of K9000.00 to your employer.

The effect upon the victim

  1. You were working for a company which head office is in Port Moresby. Value of its net assets and investments are not known. There was some loss suffered by your employer but I doubt very much the company’s operation’s was seriously affected by the loss.

The effect on the public and confidence

  1. I doubt the offence you committed had any effect on the public and the public will lose confidence in the kind of service your former employer was providing to them. The company’s office in Kokopo I believe is still operating.

The effect on fellow employees or partners


  1. Evidence does not establish as a fact you colluded with any of your fellow employees to still the money. It is not known the particular employee you took the money lost his job or was affected in anyway.

The effect on the offender himself


  1. You have lost your job because of what you did to your former employer. You are now without a paid income except for your limited savings in your bank account. That means you will not sufficiently complement your wife’s income in this hard economic times which will no doubt put a lot of strain on her, your 2 children, yourself personally as well as your other family members who may need your support one way or the other. You have unnecessary put additional financial burden upon yourself, your wife and father to make good the loss the company suffered. Not only that you have also brought shame upon yourself, your wife and children and others will think less of you as a dishonest person and a thief.

The offenders own history

  1. You have an unblemished record of prior convictions of similar or other offences in the past until this one. As featured in the pre-sentence report you have worked with the company for 5 years 6 months at different times. From 2007 to 2011 then from March 2015 to October 2015 when the offence was committed. You also worked for LD Logistics Ltd and Digicel (PNG) Ltd for several months.

Restitution

  1. You have not repaid the amount you stole though you have expressed your intention to do so when allocutus was administered. That was also stated in the pre-sentence report. Your wife and your father have indicated willingness to help you repay the money.
  2. Those matters of mitigation special to himself such as illness; being placed under great strain of excessive responsibility of the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty in the obtaining of the funds by his professional body or the police and at the start of his trial; and finally, any help given by him to the police.
  3. You are of good health. Your mother spoke well off you as a well behaved son and your father was surprised when he heard you committing the offence. Your Ward member also spoke well of you as a humble person and a person who keeps to your word. You also have no serious marital problems with your spouse. You attend church on Sundays and involve in church activities.
  4. With respect to your educational back ground the highest certificate you have obtained is a Diploma in Computing from Don Bosco Training Institute, Port Moresby after completing your secondary school education in Kokopo and Vuna Bosco Technical Secondary Schools. So you are a person who has received some formal education.
  5. You have cooperated well with the police. You pleaded guilty to the charge.
  6. Of all the discussions what sentence should this court pass on you? Obviously not the maximum. Maximum penalty is reserved for the worse kind of case like in a case of a repeated offender and or case with exceptionally serious circumstances. (See Taiba Maima v Sma [1971-1972] PNGLR 49, Goli Golu v. The State [1979] PNGLR 653). Your case does not fall in that category.
  7. Miss. Batil for the State submitted restitution of money stolen is not possible because of complainant’s failure to provide information as to how money is going to be repaid. For that reason she asked the court to impose a fine or custodial sentence. The implication of that submission is that court should not impose a suspended sentence in the exercise of its discretion conferred by s. 19 of the Code like in the decided cases highlighted.
  8. The court does have power conferred on it by s 19 (1) (a) & (b) to impose a fine or impose a custodial sentence without suspending whole or portion of the sentence. Unfortunately counsel has not provided any authority where such a sentence has been imposed apart from the ones she cited. Secondly, how impossible it is for restitution to be made when the complainant still has an office branch in Kokopo where the money was stolen. It would be of complainant’s interest money is repaid. So counsel’s submission on this point is not persuasive in the light of comparable decisions she cited. Thirdly, prisoner has means and ability to repay the loss complainant has suffered with the assistance from his family.
  9. They have expressed willingness to do that. Mr. Paisat of counsel for the prisoner has asked the court for periodic payments over period of one year. Is this not an important factor to consider by this court?
  10. Let me make further observations on what the courts have said in deciding appropriate sentence to impose. Firstly, in The State v Francisca Iralu (supra) His Honour David J stated:

“It is generally accepted now that while the factors set out in Wellington Belawa are still relevant, the tariff recommended is outdated and therefore the need to impose stiffer sentences due to the prevalence of the offence. However, the Court still has a discretion under s.19 of the Code to impose an appropriate sentence depending on the facts or circumstances of a particular case.”

  1. Indeed that is true. Times have changed. Recommended baseline sentence in Wellington Belawa are outdated. In recent years courts have begun imposing sentences over and above 2 years for category 2 offence of misappropriation as can be seen in the survey of decided cases.
  2. Pre-sentence and means assessment reports have been received by the court. Some valuable information has been provided in the reports which court upholding the rule of law cannot ignore easily in doing justice. These reports are necessary for the Court to consider an alternative punishment to imprisonment such as a non-custodial sentence in line with case authorities like Public Prosecutor v. Don Hale (1998) SC564 and The State v. Dobi Ao (No.2) (2002) N2247.
  3. The offence you have been convicted for though it is also serious and prevalent is a non-violent one.
  4. His Honour Kandakasi J in The State v Eric Emmanuel Vele (2002) PGNC 93; N2252 noted in significance observations by Amet CJ (as he was then) in the Supreme Court case of Doreen Liprin v The State (2001) SC673 that a Judge should, for the purposes of imposing an effective punishment explore all options before taking what might be regarded as the drastic step of imposing a prison sentence.
  5. His Honour Amet CJ in Doreen Liprin considered misappropriation of amount of K6000.00 did not warrant a custodial sentence. Instead court should be serious in “designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation.”
  6. In Eric Emannuel Vele’s case Kandakasi J in agreement said this:

“....It is now time to seriously consider alternatives to sentencing in this type of cases. But, that with respect does not necessarily mean head sentences to 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 purpose of deterrence and rehabilitate an offender. It would also give 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.”

  1. In the same case His Honour observed with approval views he expressed earlier in The State v. Micky John Lausi (2001) PGNC 124; N2073 and The State v. Jimmy Solomon (2001) PGNC 111; N2100 stated:

"It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such order is made in the community interest and is generally designed to prevent re-offending which a prison sentence, standing alone, seldom does. A person so released as an obvious incentive not to re-offend. Therefore, there should be no misconceptions as to what will occur if he does. From time to time, persons charged with more serious offences may be dealt with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that a particular offender will be positively damaged by immediate incarceration."

With respect therefore, a non-custodial sentence does not grant the offender immediate liberty. He is simply allowed to serve his penalty out of the prison system for reasons such as those noted in the above passage. Hence, the need to impose a head sentence and conditions for a suspended sentence that will make that clear to an offender."

  1. I have given serious consideration to the philosophical views expressed in those cases. I think they make sense and I endorse their views in agreement. Having said all these I have decided to impose a head sentence of 3 years following The State v Siba Kua & The State v Francisca Iralu.

SENTENCE

  1. Accordingly this is the sentence the Court shall pass on you:
    1. You are sentenced to 3 years imprisonment with hard labour. In the exercise of court’s discretion under s.19 of the Code and the Probation Act the entire sentence is suspended and you are placed on probation for a period of 3 years.
    2. In addition to the mandatory condition provided in s 17 of the Act the following additional conditions are ordered:
      1. You are to fully restore to your former employer, Ocean Communications PNG Limited (OC PNG Ltd.) the sum of K9, 000.00 in installments on or before 30th November 2018
      2. Your bail monies shall be converted and applied towards part payment of restitution of the amount owing to OC PNG Ltd.
      3. You are to make all periodical payments OC PNGA Ltd business account through its Kokopo branch office.
      4. You shall contact the Senior CBC Officer at his office, Kokopo within 24 hours after the passing of this sentence and thereafter as and when required by him or her.
      5. You shall not change your residential address at Kokopo unless reasonable notice is given to the Senior CBC Office in Kokopo of your intention to do so and the reason for the proposed change.
      6. You shall not leave the East New Britain Province without the leave of this court during the period of your suspended sentence.
      7. You shall for the purpose of the Probation Act Ch.381 allow CBC Officers to enter your home during reasonable hours to monitor your compliance of these terms and to make such recommendations as the Senior CBC Officer considers appropriate either for a variation or an implementation of these terms. The Senior CBC Officer shall produce and furnish to the court a report every 4 months commencing month of July 2018 until completion of the suspended sentence.
      8. During the period of suspended sentence, you shall provide free community service of one (1) hour per day every Wednesday at a public institution in Kokopo to be determined and supervised by the Senior CBC Officer, over a period of 6 months to commence forthwith.
      9. You are at liberty to apply for a review of any of the terms of your suspended sentence provided that there has been substantial compliance.
      10. In the event that any one of the conditions is not complied with, a warrant of arrest shall be issued for your immediate arrest on application by the Senior CBC Officer.
      11. You are to give a satisfactory explanation to the court why your suspended sentence should not be forfeited and you to serve out your 3 years sentence at the Kerevat Jail IHL.

Public Prosecutor: Lawyer for the State
Daniels & Associate Lawyers: Lawyer for the Prisoner

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