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State v Sema [1977] PGLawRp 542; [1977] PNGLR 289 (31 August 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 289 - The State v Alphonse Joseph Sema�

[1977] PNGLR 289

N105

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

ALPHONSE JOSEPH SEMA

Madang

Prentice DCJ

29 August 1977

31 August 1977

CRIMINAL LAW - Sentence - Stealing - Stealing by court clerk - Magistrate/accomplice dealt with summarily by fine - Parity of sentencing - Sense of propriety and justice - Offence calling for 6 months imprisonment - Clerk fined K100 and sentence of 6 months imprisonment imposed suspended on entering into good behaviour bond for 2 years.

The accused, a District Court clerk aged 29, pleaded guilty to stealing K139 between December 1976 and July 1977, while employed as a public servant. The attention of the Court was drawn to the facts that the Supervising District Court Magistrate had during the same period allegedly �borrowed� K95.00 in respect of which he had appeared in the District Court of Madang, elected to plead guilty to stealing amounts totalling K55.00 and to be dealt with summarily, and was dealt with by fines.

Held

N1>(1)����� The prevalence of stealing by clerks in the Public Service in Papua New Guinea, and the need for deterrence is such that only in very exceptional cases should a custodial sentence be avoided.

Reg. v. Pia Afu [1971-72] P. & N.G.L.R. 393 at p. 397 referred to.

N1>(2)����� The prospect of the court clerk going to gaol for an offence in which his senior officer was implicated and which he condoned, when that magistrate having pleaded guilty was not himself ordered to be imprisoned, offends the sense of propriety and justice required.

Winugini Uruqitaru v. The Queen [1974] P.N.G.L.R. 283 referred to.

N1>(3)����� In the circumstances the offence called for a sentence of six months imprisonment with hard labour.

N1>(4)����� In all the circumstances, the accused should be fined K100 and sentenced to six months imprisonment with hard labour suspended upon his entering into a recognizance in the amount of K50.00 to be of good behaviour for two years.

Remarks on Sentence

The accused a District Court Clerk pleaded guilty to stealing K139 while employed as a public servant.

Counsel

B. M. Ryan, for the State.

G. C. Lalor, for the accused.

Cur. adv. vult.

31 August 1977

PRENTICE DCJ: The accused pleaded guilty to stealing K139.00 while employed as a public servant, between December 1976 and July 1977 (s. 384(5) of the Criminal Code). He is a man of 29, with form IV education, who was employed as the Court Clerk at the District Court in Madang. He has three young children. The money was taken bit by bit. Some K119.00 of the monies stolen had been repaid when he was questioned by police early in August 1977. I am informed that it has now all been repaid. The story is the familiar one of receipt of monies associated with irregular and late bankings. According to the evidence of the Bureau of Management Services clerk whose attention was drawn to an irregularity and who then made a check at the Court House on 29th June, 1977, a deficit in all, at that time, of K236.00, was discovered. He stated that the accused, when questioned, admitted he had taken K139.00 for his own purposes and that K95.00 had been �borrowed� by the Supervising District Court Magistrate. A small amount had been given to the cleaner and the typist. The accused told this witness he had financial problems.

In his record of interview, the accused explained that he took the monies over a period, but �on a credit basis or borrowed with full intention of paying it back�. The existence of such an intention would not prevent the abstractions from amounting to theft (s. 377(2)(f) Criminal Code). It is a most common feature of stealing by clerks and servants. Nevertheless it is here, together with actual repayment, made the foundation for a submission that the prisoner should not remain in gaol. Stealing by clerks in the Public Service in Papua New Guinea is all too common. Its prevalance is such and the need for deterrence such, that I consider only in the most exceptional cases may a custodial sentence be avoided. A particularly stern view must, I feel, be taken in regard to court clerks or judicial officers stealing monies which have been collected by them or imposed by them respectively, by way of fines. Most regrettably, the roll of court clerks who have been charged with stealing from court monies is increasing. I can immediately recall those instances in the National Court, Port Moresby, and in the last few months in the District Courts at Kainantu and Goroka (all of which were met with substantial gaol sentences); and I think such incidents happened in Mount Hagen and other places as well.

Before entering upon the hearing of this matter, I had become aware that the particular magistrate whom this accused implicated, had appeared in the District Court at Madang that day before a visiting magistrate, had elected to plead guilty to stealing amounts totalling K55.00, and to be dealt with summarily. The magistrate�s case was dealt with by fines, after representation made by the Public Solicitor�s counsel who appeared for him. Now the attitude which courts should adopt towards the stealing of court monies by magistrates was set out in the case of Reg. v. Pia Afu[cclxxxvi]¹�� in which I, as the trial judge, had originally granted the convicted magistrate a bond. The appropriate passage is as follows in the Full Court�s judgment:

�In a case such as this in which a judicial officer has misappropriated public funds which he has caused to come into his hands it seems to us to be only too clear that if the requisite standard of probity is to be maintained punishment of appropriate severity is called for. It goes without saying that a very high standard is rightly to be expected in persons holding such an office and if they fall below that standard they must expect to suffer the consequences.

Ordinarily an offence of this nature would call for a longer period of imprisonment than that which we propose to impose in this case ...� (6 months� sentence.) (Emphasis mine.)

The most recent case of stealing by a magistrate which I recall was that of a Local Court Magistrate imprisoned by Raine J. in March 1977, for 11 months, in respect of stealing K300.00 from a club which he ran. It will be noted that the pre-Independence Full Court would presumably have regarded such a theft as less serious in its nature than one involving stealing court monies. Since Pia Afu�s case[cclxxxvii]²�I have become aware of two other cases in which magistrates were convicted of stealing yet were granted bonds. On inquiry from the Acting Judge sitting in West New Britain, and the District Court magistrate sitting at Boroko, who were concerned with these two adjudications, I was informed that Pia Afu�s case[cclxxxviii]³�was not put to either of them, and they each acted in ignorance of it. I understand that a similar course was followed in the case of the magistrate pleading guilty here in Madang. I am informed that the State Prosecutor who was not the prosecutor in this case (but one who had come here specially for that case) did not refer Pia Afu�s case[cclxxxix]⁴�to the learned presiding magistrate who was apparently unaware of its ruling. Stealing of court monies by court clerks must come very close to thefts by magistrates in seriousness � as indicated perhaps by the gaol sentences imposed on court clerks to which I have referred above.

I am not aware of the detailed submissions put in the magistrate�s stealing case here at Madang; and I would not wish to nor would it be appropriate for me to comment on its outcome. But I find I am unable to escape keen concern at the prospect of the court clerk going to gaol for an offence which he contends his senior officer the magistrate was implicated in and condoned, if that magistrate having pleaded guilty to thefts of court monies was not himself ordered to be imprisoned. Such a result would offend my sense of propriety and justice (cf. Winugini Uruqitaru v. The Queen [ccxc]⁵). More particularly, as only a week ago I considered it my duty to sentence a police prosecutor at Samarai to three months� gaol for stealing K40.00 in bail monies, under somewhat similar circumstances.

In the upshot, I consider this accused, Alphonse Sema, should go to gaol, and that his offence calls for a sentence of six months I.H.L.; but it would cause grave disquiet in the community and to me in the circumstances, I believe, if he were to serve a custodial sentence when the magistrate did not.

Entertaining as I do a clear feeling of the inadequacy of what I propose to do, as punishment in the circumstances, I yet feel constrained to order as follows:

Impose (1) Fine of K100 payable in four months from today�s date, in default 100 days� imprisonment;

In addition: (2) Sentence of six months� I.H.L.

Order: he be imprisoned for a period of sentence expiring today (i.e. two days) and execution of remaining portion be suspended upon his entering into a recognizance in the amount of K50.00 to be of good behaviour and keep the peace for two years from today�s date and to come up if called upon in that period to receive judgment in respect of the balance.

Orders accordingly.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for the accused: W. J. Andrew, Acting Public Solictor.