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State v Yegiora [2012] PGNC 362; N4641 (20 April 2012)

N4641

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1326 of 2010

THE STATE:

V

FRANCIS YEGIORA

Waigani: Kangwia, AJ
2011: 10 - 17 October
2012: 02 April

CRIMINAL LAW – Sentence – Conspiracy to defraud – prisoner compelled to be in a conspiracy - Sentence – Misappropriation – Applied money to the use of others – prisoner received no benefit from money for his part Prisoner former provincial treasurer – first time offender – all accomplices scot free – Directions of superior followed despite knowing it to be wrong – Prisoner not gullible or corrupt - Offences border more on foolishness and negligence of duties – Restitution unfair and inappropriate – non custodial sentence appropriate.

Cases cited:

Wellington Belawa v the State [1988-89] PNGLR 496;
The State v Andrew Mapea CR No 517 of 2007 (Unnumbered & Unreported Judgement of 13 September 2010);
The State v Andrew Epei, CR No 1007 of 2008 (Unnumbered & Unreported Judgement of15 April 2011;
The State v Francis Ipuke (No 5) CR No 829 of 2008 (Unnumbered & Unreported Judgement dated 15 April 2011);
Goli Golu v the State [1979] PNGLR 653;
The State v Daniel Mapiria (2004) CR 1118 of 2000,(Unnumbered & Unreported Judgement dated 01 October 2004);
Doreen Liprin v the State [2001] PNGLR 6;
The State v Dobi Au (No 2) (2002) N2247;
Yaip Jushua Avini & Anor v the State [1997] PNGLR 212;
The State v Iori Veraga (2004) N 2921;
The state v Derrick Sakatea Niso (2005) N2849;
The State v Martha Agua, CR No 1252 of 2007 (Unnumbered & Unreported Judgement of 17 November 2011).

Counsel:

J. Waine, for the State
T. Ohuma, for the prisoner

02 April, 2012

1. KANGWIA AJ; Prisoner Francis Yegiora was convicted after a trial on two counts of conspiracy to defraud the State of K300, 000: 00 and one count of misappropriation of the same amount to the use of others pursuant to s.407 and 383A of the Criminal Code Act respectively.

2. To better appreciate the offences the prisoner was charged with and their corresponding prescribed penalties, I reproduce the relevant provisions which are as follows:

S 407 Conspiracy to defraud

(1) A person who conspires with another person –

(a)...

(b) to defraud the public, or any person (whether or not a particular person); or

(c) ...

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

S 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; or

(b)...

is guilty of the crime of misappropriation.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for five years except in any of the following cases when he is liable to imprisonment for ten years –

(a)...

(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 the value of K2,000: 00 or upwards.

3. The prisoner is liable to imprisonment to a maximum of 7 years for Conspiracy to Defraud and 10 years for Misappropriation under the prescribed penalties provided. This is of course subject to the courts discretion permitted by s.19 of the Criminal Code.

BRIEF FACTS:

4. The brief facts are these.

The prisoner was the Provincial Treasurer for Simbu at the time of the alleged offences. Two persons named as Robert Bartho and Peter Kuman brought two cheques with a total value of K300, 000: 00 to the prisoner in his Kundiawa office. The cheques which originated from the National Planning Department were for road improvements in Gumine and Kundiawa/Gembogl Districts and payable to the District Administrators of the two Districts.

5. The prisoner directed deposits to be made of the cheques and for payments to be made from the Provincial operating account. A cash payment of K100, 000: 00 was made to Mr. Robert Bartho and K200, 000: 00 was paid to Peter Kuman. The payments were made in the prisoner's office. At the time of payment Robert Bartho and Peter Kuman were neither the respective District Administrators nor were they public servants in the Gumine and Kundiawa/Gembogl District Administrations.

6. Acquittals were made through the Department of Works but some officers in the Provincial Treasury declined or could not examine or certify them after false information were discovered in the acquittal documents.

7. The prisoner denied any wrongdoing based on an assertion that he was given directions by his superior Mr. Gabriel Yer from the Finance Department headquarters to make the payments to the two men.

PERSONAL PARTICULARS:

8. The prisoner is aged 58 years. His father comes from Harua village, Kubalia. Yangoru, East Sepik Province and his mother is from Koge village Kamtai, Sinesine, Simbu Province. He is married with 05 children and 06 grand children. He is a church elder with the Assemblies of God church in Kundiawa and has been for the past 25 years. He is currently unemployed after he was terminated for this same matter. Since his termination from employment, he has been doing church work and living in Kundiawa. He has no record of any prior convictions.

ALLOCATUS:

9. On his allocatus the prisoner presented a written statement which he preferred to rely on. Briefly his statement stated that he was a first time offender. He had been a public servant for 34 years. He apologised for what transpired and promised never to repeat such acts.
He stated that he thought what he did was right because he followed orders from his superior.

10. His reputation and the trust people had on him were now at stake and it would take many years to rebuild it. His prospects of future employment was jeopardised and he is unlikely to secure any employment.

11. Others who were associated with this matter at the Department of Finance and National Planning along with the two persons who collected the money and those who made false acquittals should be dealt with as it is a serious matter. It was unfair for the State to have him charged when the others are scot free. He was willing to assist the State to this effect.

12. He stated that the Secretary for Finance punished him severely with the termination of his employment from the same allegation already. He asked the court to take the disciplinary punishment into account in determining a penalty for his case.

13. He has incurred personal time and expenses to the church and his status as a church elder is jeopardised. His health condition has deteriorated with high blood pressure that affected his heart condition. He did not personally benefit from the money alleged but spent a lot of money to defend this case. The money in question was eventually reimbursed and no one suffered any loss.

Given the above he asked the court to exercise its discretion to impose a suspended sentence.

SUBMISSION FOR THE PRISONER:

14. On his behalf Ms Ohuma submitted that the prisoner was subjected to disciplinary action by his employer for these same offences arising out of the same set of facts. He was suspended after police charged him of misappropriation and official corruption in 2006. The suspension was removed after the committal court at Waigani and Kundiawa discharged him of the offences on 14 June 2006 and 29 August 2006 respectively.

15. Three years after his suspension was lifted he was suspended again and charged with an internal disciplinary charge on 13 November 2009. He was finally terminated from employment on 01 December 2009 after serving 34 years with the department. He was not paid any contract entitlements upon termination.

16. He did not benefit in any way from the money paid. He was only facilitating payments in his official capacity just like the other officers in the treasury department.

17. He has been charged on an ex officio indictment for the three offences and found guilty. Many have been involved in the whole conspiracy but he will be the only one to be punished.
These matters should be taken into account in determining a sentence for the prisoner.

18. Ms Ohuma also submitted that the relevant factors in sentencing for these offences were as stated in the case of Wellington Belawa v The State [1988-89] PNGLR 496 which the Court should consider in sentencing.

19. The maximum penalty was reserved for the worst kind of the offence. In that respect it was submitted that the court had discretion under S 19 of the Criminal Code Act to impose a sentence other than the one prescribed.

20. The court was also asked to consider a concurrent sentence on the three counts; that the sentence be suspended with probation order as the pre sentence report showed him to be a suitable person for probation.

SUBMISSION FOR THE STATE

21. On behalf of the State Mr. Waine sought a custodial sentence of 4 to 5 years to deter others, as a suspended sentence would send a wrong signal to the public.

22. It was submitted that the prevalence of the offence committed in government agencies as in this case by employees and persons in positions of trust demanded a custodial sentence. Fines and suspended sentences or probation should not be readily available to persons like the prisoner.

23. The court was referred to the case of the State v Andrew Mapea CR No 517 of 2007 (Unnumbered &Unreported Judgement of 13 September 2010); The State v Andrew Epei CR No 1007 of 2008 (Unnumbered & Unreported Judgement dated 15 April 2011); and the State v Francis Ipuke (No 5) CR No 829 of 2008 dated 15 April 2011) as appropriate guides for sentencing involving persons holding positions of trust.

24. Mr. Waine further submitted that the prisoner knowingly used his authority to have persons not entitled to have access to the money which was intended for road projects. He used his delegated financial limit to sign many claims to total K300, 000: 00 which was a substantial amount. It was a case of conspiracy that bore fruit into misappropriation.

25. No restitution was made and is unlikely. This was a trial case and a discount available to a person who pleaded guilty was not available to the prisoner. His only mitigating factor was his being remorseful.

DECISION

26. This is an odd case. It is odd in the sense that the key players in the conspiracy and misappropriation are still at large since the offences were committed in 2003. Police have not charged anyone else relating to the theft and misappropriation of public funds by persons not entitled to the money. I fail to see why Robert Bartho and Peter Kuman who are supposedly well known were not charged.

27. This leads me to form the view that the prisoner was caught on a witch hunt for reasons other than bringing an offender to justice. The charge and indictment of the prisoner reflects selective prosecution and favouritism on the part of the police and prosecution.

28. As for sentencing, it is a general principle of law that the maximum penalty prescribed is reserved for the worst type of each offence. See for example Goli Golu v the State [1979] PNGLR 653. It is in the discretion of the court to determine the type of offence that would fall into the "worst type" category to attract the maximum prescribed penalty.
However the offences against the prisoner do not fall into the worst category of their kind and therefore the maximum prescribed penalty shall not apply.

29. Guidelines in sentencing for offences involving dishonesty are settled in the Wellington Belawa case (supra). The sentencing tariffs suggested in that case have been held in many recent cases to be outdated as in the State v Andrew Epei (Supra) and The State v Francis Ipuke (Supra).

30. However the factors to be considered in sentencing as suggested by the Supreme Court in Wellington Belawa (supra) are appropriate and ought to be considered for most dishonesty cases. The factors relevant for consideration in the present case includes, the amount involved, the plea entered, the use of the money, remorse shown, the effect on the offender, public image, restitution and any mitigating factor special to the prisoner. I consider each factor briefly.

31. Firstly, I accept that the prisoner has no prior conviction. He had an unblemished record as a public servant for 34 years until this offence. He has a strong Christian background and continues to perform in his Christian callings. As to the money in question the prisoner did not benefit or apply any of it for himself. As stated earlier he is the only one from the many that were involved in the conspiracy and misappropriation to be charged. I should give him credit in mitigation in that regard for being unfairly singled out.

32. However there are also serious aggravating factors operating against him.

33. As to the use of the money I accept that the money was never put to its intended purpose. Only on paper was it shown as having been put to its intended purpose. In reality the money was squandered. It was used by people not entitled to it. The prisoner played a leading role to enable the misapplication to occur. He failed to display professionalism and prudence in the discharge of his duties in public office. He applied the money to the use of others for unintended purposes and this factor operates against him.

34. The amount involved is substantial and it belonged to the taxpayers which included the prisoner. None of it has been recovered. Despite the prisoner pleading that no one suffered any loss because the money was reimbursed I am unable to agree.
The bottom line is that the State lost K300, 000: 00. There is no evidence of how the State recovered the money if at all. The prisoner played a big role in which the State incurred the loss. The people of Gumine and Kundiawa/Gembogl were supposed to be beneficiaries but as colloquially termed "they missed out". This factor operates against the prisoner.

35. The prisoner pleaded not guilty but was convicted after a seven day trial. That caused the Court and the State to incur expenses and time. Any discount available to a person who pleaded guilty is not available to the prisoner.

36. There has been no offer of restitution. None has been attempted by the prisoner. It is unlikely that the prisoner would make restitution. Courts have treated restitution as an important consideration in sentencing. (See The State v Daniel Mapiria (2004) CR 1118/2000; Doreen Liprin v the State [2001] PNGLR 6; The State v Dobi Au (2002) N2247). Restitution for the prisoner in my view is not an appropriate consideration in the sentence to be imposed. It would be grossly unfair for him to be made to make restitution because he did not benefit either directly or indirectly from the actual money.

37. The charges have greatly brought into disrepute the standing and reputation the prisoner had and built over his long period of public service. He has been subjected to various charges both criminal and disciplinary in nature. He has lost his job through the disciplinary process already. He hasn't secured a job since his termination. The welfare of his family would have been adversely affected. He may have difficulty in securing a job in future. These are the obvious effects on the prisoner.

38. That would not be the case had the prisoner discharged his duties professionally and with due diligence. He held a very important position of mammoth responsibility and trust. The public confidence and trust he carried was enormous. He allowed himself to be compromised through negligent participation in fraudulent actions under the guise of his professional responsibility. Any adverse effect the charges may have caused him is a natural consequence of his negligent and fraudulent acts brought upon by himself.

39. He has shown remorse in his allocatus and promised not to repeat it. He only obeyed directions given by his superiors which in effect were his defence at trial. It is in my view not a genuine expression of remorse but more a point raised to avoid punishment after conviction.

40. The prisoner asked the court to consider in sentence the fact that he was terminated from his employment contract without any entitlements. That termination was based on the same offences for which he is to be sentenced. I accept that the disciplinary charge and penalty related to the same charges for which the prisoner is to be sentenced by this court. He was given the ultimate disciplinary penalty available under the public service general orders. On top of that he was subjected to criminal charges out of the same facts again.

41. The penalty under the General Orders was neither criminal nor civil in nature. It was for misconduct in office which is not a criminal offence under the criminal code. The penalty of dismissal imposed was not a penalty prescribed under S. 18 of the Criminal Code also.
42. Therefore it cannot be legally said that he would be subjected to punishment twice, for the same offence.

43. The question that arises is; "What is the desired outcome sought from these criminal charges?" Is it to achieve deterrence, retribution, restitution, rehabilitation, mere punishment or a combination of these?

44. In my view the desired outcomes could have been achieved through the criminal process without subjecting the prisoner to the disciplinary action which eventually imposed the maximum penalty of dismissal.

45. Although the types of penalties prescribed under S 18 of the Criminal Code are different from those in the Public Service General Orders, to impose a second penalty through the criminal process on the same set of facts would amount to gross unfairness. Unfair in the sense that the maximum prescribed penalty under the General Orders was imposed against the prisoner. It affected his employment, family welfare and a host of related problems personal to him.

46. Common sense would dictate that an offender gets punishment from one source of lawful authority. It would be more appropriate for the prisoner to de dismissed from the public service on the basis of a criminal conviction by the court. It seems unfair for the prisoner to be dismissed from the public service and then appear for sentencing for a criminal offence. I accept that the disciplinary penalty was not a conviction. He has now been convicted of offences arising out of the same set of facts. He is facing sentence after he was punished with the maximum penalty under the public service General Orders for the same actions.

47. The only difference is that in this court the actions are termed criminal offences while under the General Orders they are termed disciplinary offences. Surely he doesn't deserve two different punishments for the same and only wrong given the circumstances of this case. In view of the discussion on the disciplinary penalty imposed on him I consider this to be a mitigating factor special to the prisoner.

48. Having said all the above, the offences involving dishonesty are prevalent. It is more so in the public service. The present case is not an isolated case. The impact of the offence on the public is that the prevalence of dishonesty offences diminishes public trust and confidence in public servants and the service delivery mechanisms for the public. It strengthens the belief that no one is to be trusted to look after and properly apply public funds. On the back of that belief the general view would be that persons involved should be punished.

49. For purposes of sentencing, Courts have increased the sentences from the tariffs suggested in the Wellingtom Belawa case (supra) for offences relating to misappropriation, conspiracy to defraud, false pretence and other means of dishonesty.

50. Increases included custodial sentences. In Yaip Joshua Avini & Anor v the State [1997] PNGLR 212 the Supreme Court affirmed a sentence of 8 years for the prisoners for misappropriating K100, 000: 00 of road project money.

51. In the State v Iori Veraga (2004) N2921 the prisoner who was a Registered Valuer was sentence to 6 years in total for misappropriation and conspiracy to defraud the NPF of K144, 955.

52. In the State v Derrick Sakatea Niso (2005) N2930 the prisoner was sentenced to 7 years for misappropriation and stealing by false pretence monies totalling K300, 000: 00.

53. In the State v Andrew Mambea; CR No 517 of 2007 (Unnumbered & Unreported Judgement of 13 September 2010) the prisoner was sentenced to 5 years for misappropriating K8, 070:00 monies belonging to Kuare Local Level Government. The same person was later sentenced by Makail J to 4 years for misappropriating K10, 000: 00 belonging to the same Local Level Government (LLG). The prisoner was the president of the LLG and the money came into his possession for public purposes in his LLG area.

54. Courts have also imposed suspended sentences with condition for restitution. This seems to be the sentencing trend of the courts in a majority of dishonesty cases. In the State v Daniel Mapiria (supra) the court suspended the whole sentence of 9 years with conditions for restitution of more than K1 million from the money that the prisoner misappropriated as a Chairman of the National Gaming Control Board.

55. In the State v Dobi Au (No 2) (2002) N2247 where the prisoner who misappropriated K37, 526.58 was sentenced to 3 years but the sentence was wholly suspended with conditions and orders for restitution. In Doreen Liprin v the State [2001 PNGLR 6 a sentence of 6 years was suspended with restitution of the K6, 000 misappropriated within two months.

56. In the State v Martha Agua; CR No 1252 of 1007 (Unnumbered and Unreported judgement of 17 November 2011) I suspended a concurrent sentence of 4 years for false pretence and conspiracy offences with conditions for restitution of K50, 400: 00 within two years for misapplying money from the HHRRP.

57. Whether a prisoner is sentenced to a custodial sentence or a non custodial sentence it is dependent more in the exercise of the courts discretion under the given circumstances of each case. A plea for a noncustodial sentence does not follow as a matter of course. Before a person is given a custodial sentence the court would be duty bound to pause and ask whether a custodial sentence was relevant and most importantly appropriate. I say this in light of what his honour Kandakasi J in the State v Dobi Au (No 2) (supra) stated in sentencing that;

"Prisons are appropriate places to keep 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."

58. That proposition should be the general principle in sentencing for dishonesty offences. That is because by the time an offender faces sentencing he will have most probably than not, used up or applied the money that he was charged for. In most cases it would be a chasing game to order restitution to be made by the court as a means of recovery only.

59. What would be of concern though would be those instances that give rise to an offender who is let go on a suspended sentence to enjoy the spoils of his loot, especially public funds that the offender did not lawfully earn. In my view the public good would dictate that the courts do not permit those rare instances from being let go without a custodial sentence that would be so wanting.

60. In the present case an order for restitution in my view is not appropriate as it would be unfair. The prisoner did not benefit from the money either directly or indirectly even though he played a vital role in ensuring that the money went into the hands of persons not entitled to it.

61. I am quite certain the prisoner acted the way he did knowing full well that what he was doing was unlawful, improper, dishonest and most importantly fraudulent but the fear of sanction from his seemingly overbearing boss struck more fear in him to comply regardless.
He had every opportunity to walk away but he chose not to. He did not heed the consequences as a respected and experienced public servant because of the feeling of security in obeying his boss. That was where he fell into error. Accordingly I find him to be more foolish and negligent than gullible or corrupt in his actions.

62. A gullible or corrupt action should for all intended purposes attract a custodial sentence. A foolish or negligent action should attract a non custodial sentence. In the present case the prisoner's actions were foolish and negligent.

63. All of the cases cited above were for offenders who actually benefitted either directly or indirectly and are not comparable to the present case for purposes of sentencing. Given the circumstances of the present case the prisoner in my view should be treated differently in sentencing. The different sentencing should be a non custodial sentence and the exclusion of restitution orders.

64. On the basis of what has been discussed and determined the formal orders are;

(a) For the offence of Conspiracy to defraud I find his role in the offence to be very small. He was under compulsion to be a part of a bigger conspiracy. For that reason it is appropriate that the prisoner is sentenced to one year.

(b) For the two offences relating to the application of funds to the use of others, I find his role was vital to land the money in the hands of people not entitled to it. He played a prominent role and therefore a sentence of two years for each offence is appropriate.

(c) Since the offences arose out of the same incident the sentence of two years for the two misappropriation offences shall be concurrent to each other to give a sum total of two years.

(d) The sentence of one year for the conspiracy offence shall be concurrent to the sum total of two years.

(e) The total sentence therefore shall be two years.

(f) In the exercise of discretion the whole two years shall be suspended on the condition that the prisoner is placed on probation for a period of one year without any special conditions.

(g) His bail shall be refunded forthwith.
______________________________________________________________
Public Prosecutor: Lawyer for the Prosecution
Public Solicitor: Lawyer for the Prisoner