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State v Wiamai [2007] PGNC 252; N5492 (18 October 2007)

N5492

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1031 0F 2006

THE STATE

V

PHILIP WIAMAI

Madang: Cannings J
2007: 2, 12, 15, 18 October

CRIMINAL LAW – sentence – Criminal Code, Subdivision VI.1.C (offences analogous to stealing) – Section 383A (misappropriation of property) – sentence on plea of guilty – offender collected and put to his own use the final entitlements of his cousin, a former schoolteacher – K16,848.79 misappropriated – sentence of 4 years.

A man pleaded guilty to misappropriation. He collected and applied to his own use K16,848.79 which belonged to someone else.

Held:

(1) The starting point range for sentencing for the amount misappropriated is four to six years imprisonment.

(2) Mitigating factors are: transactions committed over short period; private arrangement; co-operated with police; repaid some money; pleaded guilty; remorse; first-time offender.

(3) Aggravating factors are: large amount of money; severe breach of trust; money not put to good use; impact on victim; has not yet been punished; did not give himself up; educated and intelligent man who should have known better.

(4) A sentence of four years was imposed. The pre-sentence period in custody was deducted and all of the remaining period of the sentence was suspended on conditions, including payment of the money misappropriated, plus a sum of compensation, to the victim, within four months.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Augustine Seckry CR 376 of 2005, 19.04.05
The State v Joyce Gulum CR 1620 of 2005, 06.04.06
The State v Paul Taro CR 237 of 2006, 03.08.06
The State v Rictor Naiab CR 387 of 2005, 08.09.05
The State v Steven Lasin CR No 1631 of 2006, 17.08.07
Tom Longman Yaul v The State (2005) SC803
Wellington Belawa v The State [1988-89] PNGLR 496

SENTENCE

This was a judgment on sentence for misappropriation.

Counsel

M Ruarri, for the State
A Turi, for the offender

18th October, 2007

1. CANNINGS J: This is a decision on sentence for a man, Philip Wiamai, who pleaded guilty to one count of misappropriation. His cousin, John Sakiap, is a former schoolteacher who retired some years ago. John was having trouble getting all his finish pay, his final entitlements, so he asked Philip for assistance. Philip agreed to help and on 1 April 2005 obtained K16,848.79, which was deposited into his personal bank account. Philip never passed on the money to John. He kept it and used it for his own purposes. He deprived John of the use of the money and acted dishonestly. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted Philip Wiamai of misappropriation under Section 383A of the Criminal Code.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I say sorry to the court. This problem should not have arisen as John and I had an arrangement for the use of this money. We were going to buy a vehicle. He is my cousin-brother and in good time and bad times I look after him. The money was there waiting for him, for ten years, and he did not know how to get it. I am sorry that I did not tell him once I got the money. I have already paid him K1,500.00. I tried to give him another K7,000.00 but he refused to accept it. I ask the court for time to pay him all his money.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). I accept that he has paid the victim K1,500.00.

PRE-SENTENCE REPORT

5. To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Madang office of the Community Corrections and Rehabilitation Service. Philip Wiamai is 49 years old. He comes from Tangu in the Bogia district of Madang Province. His parents are deceased and he has eight brothers and sisters. He is married with nine dependants. He is educated to grade 8 and has been employed in various positions over many years. He is now self-employed, deriving his income from property rentals, a PMV business (he runs a bus on the Madang-Lae route) and sells cocoa. His health is OK. He has served two terms as a member of the Yawar LLG in the Bogia District. The victim, John Sakiap, was interviewed and said that he had tried many times to get the money back from the offender, to no avail. He doubts whether he can pay him but feels that his chances of getting the money back will be improved if the offender is given a suspended sentence. The offender is recommended for probation, on conditions including repayment of the money to the victim.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Turi highlighted the guilty plea and the offender's preparedness to repay the money to the victim. A sentence of three years imprisonment, fully suspended, would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Ruarri agreed that three years would be a proper sentence and that it should be suspended to improve the chances of the victim getting his money.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. As the amount of money misappropriated is more than K2,000.00 the maximum penalty under Section 383A(2)(d) is ten years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. The Supreme Court set out some starting point ranges in Wellington Belawa v The State [1988-89] PNGLR 496, depending on the amount of money misappropriated. Thus:

• K1.00 to K1,000.00 – a jail term should rarely be imposed;
• K1,000.00 to K10,000.00 – two years imprisonment;
• K10,000.00 to K40,000.00 – two to three years imprisonment;
• K40,000.00 to K150,000.00 – three to five years.
  

11. However, since that case, circumstances in Papua New Guinea have changed. There is an enhanced level of community concern about corruption, dishonesty and misappropriation both in the public sector and in the private sector. In my view this should be reflected by doubling the tariffs suggested in Belawa. That is:

• K1.00 to K1,000.00 – suspended sentence usually appropriate;
• K1,000.00 to K10,000.00 – four years imprisonment;
• K10,000.00 to K40,000.00 – four to six years imprisonment;
• K40,000.00 to K150,000.00 and beyond – six to ten years.
  

12. The present case falls into the third category, which means a range of four to six years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

13. Before I fix a sentence, I will consider other misappropriation sentences I have handed down recently. These cases are shown in the table below.

TABLE 1: SENTENCES FOR MISAPPROPRIATION, CANNINGS J, 2005-2007,

STEP 4: WHAT IS THE HEAD SENTENCE?

14. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be strongly mitigating. Others may be mildly mitigating. The same goes for aggravating factors. Three sorts of considerations are listed. Numbers 1 to 7 focus on the circumstances of the incident. Numbers 8 to 12 focus on what the offender has done since the incident and how he has conducted himself. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Was only a small amount of money misappropriated? No, it was a large amount of money, especially from the point of view of the victim.
   
2. Was the offender in no special position of trust? No.
   
3. Did the transactions take place over a short period? Yes.
   
4. Was the money that was misappropriated applied to a good use? No.
   
5. Did the offender's actions have only a small adverse effect on other persons? No.
   
6. Did the offender's actions have only a small adverse effect on public confidence in the integrity of the public sector, the banking system or the private sector or a company? Yes, it was a private arrangement.
   
7. Has the offender and his family already paid a heavy price for his actions? No.
   
8. Did the offender give himself up before being detected? No.
   
9. Did the offender cooperate with the police in their investigations? Yes.
   
10. Has the offender done anything tangible towards repairing his wrong, eg repaying the money misappropriated or making a serious attempt to do so, personally or publicly apologising for what he did? Yes, he has made an attempt to do the right thing by repaying the victim K1,500.00.
    
11. Has the offender pleaded guilty? Yes.
    
12. Has the offender genuinely expressed remorse? Yes.
    
13. Is this his first offence? Yes.
    
14. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? No, he is an educated and intelligent man and he should have known better.
    
15. Are there any other circumstances of the misappropriation or the offender that warrant mitigation of the head sentence? Neutral.
    

15. To recap, the mitigating factors are:

• No 3 – transactions committed over short period;
• No 6 – private arrangement;
• No 9 – co-operated with police;
• No 10 – repaid some money;
• No 11 – pleaded guilty;
• No 12 – remorse;
• No 13 – first-time offender.
  

16. Aggravating factors are:

• No 1 – large amount of money;
• No 2 – severe breach of trust;
• No 4 – money not put to good use;
• No 5 – impact on victim;
• No 7 – has not yet been punished;
• No 8 – did not give himself up;
• No 14 – educated and intelligent man who should have known better.
  

17. The other factor (No 15) is neutral. After weighing all these factors and bearing in mind that there are seven mitigating factors and seven aggravating factors, and comparing this case with other misappropriation sentences I have imposed, the head sentence should be within the starting point range. I impose a head sentence of four years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one month.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. The offender has received a favourable pre-sentence report. The victim does not want to see the offender sent to jail as he thinks that if the offender serves the sentence outside he will have a better chance of getting his money back. I will therefore suspend the rest of the sentence and impose a deadline by which the money must be repaid. In addition to the repayment, the offender will have to pay extra money as compensation for the trauma and inconvenience incurred by the victim. In setting the amount the offender has to pay, I have taken account of the K1,500.00 he has already paid the victim. I will fix the amount to be paid at K20,000.00 and allow four months to pay.

20. The conditions of the suspended sentence are:

(a) must within four months after the date of sentence pay a total of K20,000.00 to the victim and participate in a reconciliation ceremony supervised by the Village Court and witnessed by the Ward Councillor and a Probation Officer;
(b) must attend the first sitting of the National Court at Madang four months after the date of sentence, to demonstrate compliance with condition (a);
(c) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(d) must not leave Madang Province without the written approval of the National Court;
(e) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
(f) must attend his local Church every weekend for service and worship and submit to counselling;
(g) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;
(h) must not consume alcohol or drugs;
(i) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;
(j) must have a satisfactory probation report submitted to the National Court Registry at Madang every three months after the date of sentence;
(k) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

21. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

22. Philip Wiamai, having been convicted of one count of misappropriation, is sentenced as follows:

Sentenced accordingly.
___________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender