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State v Vele [2002] PNGLR 39 (24 July 2002)

NATIONAL COURT OF JUSTICE

THE STATE

V

ERIC EMMANUEL VELE

Waigani: Kandakasi K
19, 26 April; 3, 7 May; 24 July 2002

CRIMINAL LAW – Sentence – Misappropriation of K16,499.77 from employer in breach of trust – First time offender Restitution - Non-custodial sentence with community work orders possible sentences - Community willing to supervise any community work orders – Appropriate to make orders to accommodate such preparedness because sentencing is a community responsibility.

Facts

The accused pleaded guilty to one charge of misappropriation contrary to s 383A(1)(a) of the Criminal Code. A total of K16,499.77 was misappropriated from the Westpac Bank whilst employed as the Supervisor, International Business Centre at its Port Moresby branch.

Held

1. The offence was committed in total breach of the trust and confidence the employer place on the prisoner.
2. The offence was held over a period of time.
3. The amount of money stolen or misappropriated is substantial.
4. A sentence of two and half years in hard labour imposed. However, the whole of the sentence were suspended on the terms and conditions outlined in the judgement.
   

Papua New Guinea cases cited

Acting Public Prosecutor v Don Hale (1998) unreported SC564.

Constitutional Reference No.1 of 1977 (Sch.2.3) [1978] PNGLR 295.

Doreen Liprin v The State [2001] PNGLR 6.

Lawi v The State [1987] PNGLR 183.

The State v Bygonnes Tuse Nae (1996) unreported N1474.

The State v Jimmy Solomon (2001) unreported N2100.

The State v Paroa Kaia unreported & unpublished (1995) N1401.

The State v Micky John Lausi (2001) unreported N2073.

The State v Oa Seseka (1990) unreported N921.

Wellington Belawa v The State [1988-89] PNGLR 49.

Counsel

Ms. Johnston, Gani and. C Sambua for the State.
D Dotaona, for the Prisoner.

24 July 2002

Kandakasi J: On 9 April 2002, you pleaded guilty to one charge of misappropriation contrary to section 383A (1)(a) of the Criminal Code. You misappropriated a total of K16,499.77 from the Westpac Bank (the "Bank") your then employer. I convicted you for that offence and heard submissions on sentence on 7 May 2002 after two earlier adjournments. I then reserved a ruling on your sentence to a date when I am ready. This is now the judgement of the Court.

Between the 2nd and 26th April 2001, you were in the employ of the Bank as Supervisor, International Business Centre at its Port Moresby branch. You debited various accounts of your employer and credited them to both your own, your wife and a cousin namely Eric Warren's personal accounts. You then took the money out of those accounts and applied them to your own personal use. The Bank discovered what you were doing in early April. You also became aware that the Bank discovered your offences and you started to stay away from work until 18th May 2001, when you were terminated.

You have repaid a total of K11,091.23, leaving you with a balance of K4, 008.77. You are now prepared to repay the remaining amounts by fortnightly installments until the full amount is repaid. That is possible if the Court does not impose a custodial sentence and you continued to be in paid employment. You therefore ask for a non-custodial sentence with orders for restitution.

The State is prepared to accept an order for restitution as the appropriate penalty for the offence you have committed and are in Court for. In view of that, I asked for a pre-sentencing report in line with authorities such as Acting Public Prosecutor v Don Hale (27/08/98) SC564, before determining an appropriate sentence for you. After all, as I observed in a number of my own judgements with the latest in The State v Dobi Ao (No.2) (unreported judgement delivered 01/04/02) N2247 criminal sentencing is a community responsibility. As such, the Courts must be responsive to the wishes of the community, which can be obtained through a pre-sentencing report.

The pre-sentencing report recommends a non-custodial sentence with community work or service orders under Probation Services supervision. At about the time of ordering a pre-sentencing report on your case I received advice from the author of the report now before me that, previous orders I have made are being faithfully complied with and are having a positive impact on the prisoners.

In your case, there is indication from members of your community, especially the Ela United Church, of its preparedness to help you to become a better law-abiding citizen. That Church is prepared to supervise any community service orders this court might order. You have expressed deep remorse both in person before me and in writing for what you have done and are desirous of not repeating the same mistake or for that matter, getting into trouble with the law again. You have a family that is supportive and willing to assist you to overcome your problems. You also have an employer who is prepared to keep you employed as long as you will this time, remain very faithful. Keeping that employment will be necessary to meet your undertaking to repay the balance of what you took away from the Bank.

Bearing the above in mind I consider sending you to prison will do you more harm than ensure that you come out a reformed offender. As I said in the Dobi Ao (supra) case, prisons are appropriate places to keep most violent offenders like murderers, rapists and armed robbers. Cases of misappropriation do not require imprisonment if an order for restitution will be complied with and or other forms of punishment will do.

I came to that decision bearing in mind the relevant Supreme Court set guidelines in Wellington Belawa v The State [1988-89] PNGLR 496, in cases such as yours. In summary, the Supreme Court held that the lesser the amount of money involved the lesser the sentence terms should be. The converse of that is that, the higher the amount is, the higher the sentence terms should be. The Court then held that the amount taken; the quality and degree of trust reposed in the offender including his rank; the period over which the fraud or the thefts have been perpetrated are relevant factors for consideration. The Court included in that list, the use to which the money or property dishonestly taken was put; the effect upon the victim; the impact of the offences on the public and public confidence; the effect on fellow-employees or partners. Further the Court held that the effect on the offender himself; the offender's own history; restitution; and factors in mitigation such as illness, or her being placed under great strain by excessive responsibility or the like; co-operating with the police. These are also factors relevant for consideration.

I also noted that since then, subsequent judgments have imposed sentences between 18 months for misappropriation of K6,000.00 and 3 years for misappropriations of K10,000.00 as in 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 K94,478.31 as in The State v Paroa Kaia N1401 and The State v Bygonnes Tuse Nae (18/09/96) N1474, for misappropriation of amounts exceeding K100, 000.00.

I also had regard to a most recent Supreme Court judgement on this kind of cases. That was the judgement in Doreen Liprin v The State (9/11/01) SC673. In that case, Doreen was convicted on one count each of forgery, uttering and misappropriation of a sum of K6, 000.00. She was given a sentence of one year each for the first two offences and 3 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 did not meet the condition for her suspended sentence and she was 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 in the exercise of its powers under s 155(2)(b) of the Constitution proceed to deal with the matter.

The Chief Justice 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 trends in this sort of cases. The Deputy Chief Justice and Justice Los did have regard to the relevant sentencing trends and concluded that the cumulative sentence of three years was appropriate as it was within the range. Despite his views on the sentence, Justice Los accepted the Chief Justice's proposal on sentence. With respect, this does not provide any assistance as to determining appropriate sentences.

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. Usually, if past sentences fail to deter other would be offenders, including evidence of prevalence in the kind of offence under consideration, the sentence in the subsequent case may have to be increased to counter that, unless, the other purposes of sentencing is appropriate.

The Chief Justice's proposal in addition to reducing the sentence, proposed that Doreen Liprin be given more time to look for alternative employment to repay the amounts misappropriated and that the court make orders for free community services under the Probation Services supervision. The Chief Justice reasoned in these terms at p. 5 of the judgement:

"I believe it is time to consider seriously whether offences of misappropriation of amounts of the kind [K6,000.00] warrants custodial sentences. I do not believe so. I believe the Court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment...

The converse implications of a sentence of imprisonment is the cost to the State and the community will exceed considerably the amount of money misappropriated. It would be of no benefit to society. The purpose of punishment can as easily be obtained in alternative orders to imprisonment. The offender is now (sic) threat to society."

I agreed that 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 then had regard to my observations in The State v Micky John Lausi (27/03/01) N2073 cited in The State v Jimmy Solomon (6/7/01) N2100 that:

"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 has 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.

Then in the case before me (The State v Dobi Ao (No. 2) supra pp. 58-82) I decided to impose an wholly suspended sentence of 6 years. In so doing I took into account a number of factors. The first was that the commission of the offences and the prospect of being given a custodial sentence had a bad effect on her family and the family was working toward over coming that. Secondly, her younger children needed her to attend to their daily needs. Thirdly, she expressed remorse for committing the offences and she realized that she caused much pain and suffering to her family by committing the offences as it had the potential of bringing shame to her family and relatives and friends. Fourthly, her relatives and members of the community were prepared to assist her in meeting her penalty for the offences if the Court were to order a full restitution with free community service orders. Fifthly, members of the community and her church came forward and undertook to support the prisoner in her need to comply with any orders I might make.

I also took into account the fact that by traditional or customary Papua New Guinea recognises communal and family responsibility. Everyone affected by a problem in society contributes towards resolving it. Schedule 2.1 (1) of the Constitution adopts custom as part of our underlying law provided it is consistent with the Constitution, any statute and is not repugnant to the general principles of humanity. Parliament by legislation provided for the way in which custom may be pleaded in certain circumstances and for the resolution of any conflicts of customs.

The only known Act on the reception of custom is the Customs Recognition Act Ch 19. The Act ousts the strict rules of evidence in cases where there is a need for proof of a particular custom. It also empowers a Court to inform itself of a particular custom in whatever way it sees fit. The Supreme Court in Constitutional Reference No. 1 of 1977 (Sch.2.3) [1978] PNGLR 295, held that in order for a custom to be adopted it must be universal or it must be a custom that applies nation wide. Communal or collective family responsibility is a fact of life throughout the country.

I then noted that there could not be any argument now that criminal sentencing is a community responsibility. To date, this has been restricted to the question of whether or not an offender should be released back to the community instead of serving his time or penalty in prison. The only case that I was able to find that has made some reference to the need to develop the underlying law was The State v Oa Seseka (19/10/90) N921. In that case the now Chief Justice (then Amet J) in the context of the relatives and members of the offender's clan rallying behind the offender said:

"I am satisfied that such assistance with corresponding obligations over quite a number of years provide a form of sanction in themselves. The value and place this kind of customary sanction has upon the punitive principles of sentence have not been fully considered in these courts. No real arguments have been presented and I do not wish to deal with it in any depth except to say in my own perception that it does have a place which will have to be explored and elaborated upon."

I went on to note that much of the focus now is on the alternatives to criminal sentence. This has been highlighted in the recent conference on "Alternatives to Sentencing" held early this year. The Supreme Court echoed that in its recent judgement in the Doreen Liprin (supra) case. As was noted by the Supreme Court in the Don Hale (supra) case, this Court must be responsive to the wishes and aspirations of the people when charged with the duty to determine an appropriate penalty for an offender. I then said and I quote:

"I am therefore of the view that, when a call for restitution with a suspended sentence is made, the Court must first call upon the offender's immediate community through the Probation Service to respond to that. If the community is supportive of such a call, they must show the extent of such support. The Court must then carefully and seriously consider what the community is saying and if considered appropriate, device a sentence that is in keeping with the wishes of the community even if it includes a commitment to assist the offender toward a full restitution of the amounts misappropriated." Supra¸p. 78

I then went on to observe that as was noted in the Oa Seseka (supra) case, some of these offences are committed because of pressures exerted on the offender by the family and or his/her community. No doubt in some cases, the family and community up bringing leads an offender at the first place to offend. Also in some cases the family or the community benefit in some way, however, small that might be from the offences. It would therefore be only fair and equitable that, they be ordered to share in the penalty. Again as was noted in the Oa Seseka (supra) case, any contribution the family or the community makes toward an offender's penalty may come with obligations upon the offender that might take years to discharge. That in itself might serve as an effective deterrent sanction at the family and community level for other would be offenders. After all, offenders come out of families and communities before they become offenders for whatever reason. It is more the case than not, that families and communities are not assisting the police in identifying criminal elements in society. This is partly contributed to by the fact that families and communities are not being penalized for wrongs of the criminal elements in their family or the community. I am firmly of the view that the law and order situation in the country would improve considerably if the families and the immediate communities of offenders share in the penalties imposed on offenders.

It might be argued that such an approach to criminal sentencing might let offenders off the hook or that they might be made to avoid the full weight of their wrongs by reason of it being shared. The argument might be extended to say that well to do or very forceful offenders might force their family or communities to bear the penalty and they themselves avoid it. The simple response to that is, prior to independence and even before the coming of the white man, our people lived and continue to live in their respective societies without prisons and a police force to maintain law and order. Collective community or family responsibility prevailed. The situation is still the same throughout the country today. Even at the international scene, though not strictly in relation to the subject under discussion, countries are desperately trying to form into bigger unions or communities because of the strength or the force collective responsibility brings as opposed to working alone. The chances of success at the community level are far greater than going through the prison system, because it becomes personalized as opposed to an imposed system and people just doing a job under the current criminal law justice system.

Only an effective sentence can bring about a real achievement of the aims or purposes of criminal sentencing. It is now well accepted that an offender may be better reformed through community participation. As I already stated, my previous community-based sentence orders are doing well and were having a positive impact on the offenders. When placed with such information, it is far better to get the community involved than not, if to do so will reform offenders whilst at the same time make them pay for their wrongs by rendering free service to the community rather that become a drain on the public purse. The onus is on a sentencing judge to device a sentence that will meet the interests of society in punishing offenders and at the same time the interest of the offender to be treated fairly and to be given a chance to reform and become a better law abiding citizen.

Now returning to your case, I note in your favour that you are a first time offender. You are 29 years old. You have started a relationship with a woman and that resulted in a child being born. You are not married because the woman's parents could not approve you. You are paying maintenance of K70.00 per fortnight as a result of a separation between you and her. You are currently employed with a fortnightly salary of K400.00 gross and net of K200.00. No evidence has been furnished to show where one half of your salary is going to. You are prepared to apply the remaining on your salary toward a repayment of the balance on the amounts you misappropriated. I note you are and will be living with your mother if the Court imposes a non-custodial sentence. As such your living expenses will be minimal. Your mother will also be assisting you in your endeavours to reform. As I noted already, the State is not opposed to an order for restitution as a penalty for your offence.

Against these are the factors that go against you. First, you committed an offence that is serious although, not violent. You committed the offence in total breach of the trust and confidence your employer, the Bank, placed in you, in the position of Supervisor International Center. This kind of conduct adversely affects the kind and level of trust and confidence customers place on their banks. Secondly, the offence was committed over a period of time. Thirdly, the amount of money you stole or misappropriated is substantial.

Taking into account all of the above, I consider no useful purpose will be served if you are sent to prison. You will be a drain on the State's limited financial resources in terms of looking after you in prison and feeding you. Apart from not seeing you in your house and your community, the members of your family and community will not be able to see you serving your penalty. I therefore, consider a non-custodial sentence is appropriate but that has to be on strict terms.

Going by the tariffs in this kind of offences I consider a sentence of two and half years in hard labour appropriate. I would then have the whole of that sentence suspended on the following terms and conditions:

1. You immediately enter into your own recognition to keep the peace for the currency of your suspended sentence;

2. Immediately, pay a sum of K500.00 into the National Court at Waigani for surety for compliance of these terms, to be refunded to you at the expiry of your suspended sentence, on the certification of the Probation Services that you have satisfactorily compiled with and completed the terms of your sentence;

3. You repay the full amount of K4, 008. 77 to Westpac Bank at a fortnightly amount of K150.00 per fortnight with liberty to pay more depending on the level of your net income, until the full amount is repaid;

4. You render three hours free community service each Saturday and Sunday to the Port Moresby General Hospital as Probation Services of the Attorney Generals Office and the Chief Executive Officer of that hospital may direct for the whole of the suspended sentence;

5. Be at Ela United Church every Sunday starting this coming Sunday and render such free community service as the leaders of that church may direct, in close consultation with the Probation Services of the Department of Attorney General for the whole of the suspended sentence;

6. You be home bound between the hours of 6:00 p.m. and 5:00 a.m. at Section 231, Allotment 531 Tokarara, National Capital District for the whole of the suspended sentence;

7. You be not in the company of any youth during the currency of your sentence except at church for genuine church programs;

8. You do not leave the National Capital District without leave of this Court on prior application during the currency of the suspended sentence;

9. You do not consume any alcoholic drink at anytime anywhere during the whole of the suspended sentence period;

10. You will allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance with these terms and to make such recommendations, as they consider appropriate either for a variation or an implementation of these terms;
    
11. The Probation Service will attend on you each quarter to do a comprehensive review and report to this court of your compliance of these terms.
    

12. If for whatever reason you breach any of these terms, you will serve the balance of the term of the suspended sentence of two and half years as at the time of the breach;

13. You will be at liberty to apply for a review and or variation of any of these terms supported by appropriate evidence or material.

14. You accept that any member of your family or community will be at liberty to report to this Court of a failure to meet any of these conditions without any prior notice or warning to you.

I consider the sentence and the terms and conditions of the sentence proposed above reflective of all of the comments and concerns raised in the foregoing. Accordingly, I make orders in those terms.

Lawyers for the State: Public Prosecutor.
Lawyers for the Prisoner: Public Solicitor.