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State v Haru [2014] PGNC 314; N5660 (20 February 2014)

N5660

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 788 OF 2009

THE STATE

V

STANLEY HARU

Waigani: Salika, DCJ
2014: 20 February

CRIMINAL LAW – sentence – plea f not guilty – prisoner found guilty to the charge of false pretence and misappropriation after trial – prisoner sold land property of a sports club to third party – mitigating and aggravating factors considered – prisoner offered to give restitution but has not done so – prisoner sentenced to eight years – 4 years to be suspended if restitution is paid – failure to pay full restitution will render the prisoner liable to serve full sentence of eight years

Counsel:
Mr P Kaluwin, for the State
Mr M Norum, for the Accused

SENTENCE
20th February, 2014

1. SALIKDA DCJ: On 15 April 2013 the State presented an indictment charging Stanley Haru with one count of False Pretence pursuant to s.404(1) and one count of Misappropriation pursuant to s.383A(1) of the Criminal Code Act.
   
2. After a trial the court found the prisoner guilty on both counts charged. The matter was then adjourned for submission on sentence. The submissions were heard last year, 2013.
   
3. The prisoner thus comes back to court for sentence.
   

ISSUE

4. The issue for the court to determine is the appropriate penalty to impose on the two counts. The maximum penalty for the offence of false pretence is 5 years imprisonment subject to s.19 of the Criminal Code Act. In relation to the charge of misappropriation the offence carries a maximum penalty of imprisonment for a period of five years but is 10 years where among other factors the property dishonestly applied is of a value of K2,000 or more as in this case. In this case the prisoner is found to have misappropriated K2,628,825.18 the property of the Kone Tigers Rugby Football League Club.
   

PERSONAL PARTICULARS

5. The prisoner is now 48 years old and is married to one Annette Haru. The prisoner has 7 children of which 3 are from his former marriage, one is adopted and I take it that 3 are from the current marriage. His current wife is a Senior Legal Secretary with Young and Williams Lawyers based in Port Moresby. The following are the prisoner's 7 children:
   
   1. Delmay Haru – 26 years – married with 3 children and works for Dream Inn as a Financial Controller
   2. Symone Haru – 24 years – married – works for Dream Inn as Bouquette Manager
   3. Cathy Haru – 22 years – married – works for Gateway as Trainee Chef
   4. Lance Haru – 18 years – single – Grade 12, Port Moresby Grammar School
   5. Chantika Haru – 17 years – single – Grade 11, Tokarara High School
   6. Stanley Haru (Junior) – 14 years – single – Grade 9, Gordons High School
   7. Jordan Haru – 8 years – Prep at June Valley Adventist Academy.
      
6. The prisoner holds a Bachelor of Arts Degree majoring in Human Geography from the University of Papua New Guinea in 1990. In 1991, the prisoner worked as a town planner with the Department of Lands and Physical Planning. He worked for a short time there before he joined the National Capital District. He worked his way up at the National Capital District to be the Deputy City Manager Corporate Services. He resigned from the National Capital District Commission in 2007. Since 2007 he started his private Consulting service.
   
7. The Court has received character references from people who have come into contact with the prisoner and they all speak highly of him as a person of good character and that these criminal charges are uncharacteristic of him.
   

MITIGATION FACTORS

8. I note the following factors in his favour when considering the sentence:
   
   1. He has no prior criminal convictions – he is a first time offender.
   2. He has a big responsibility as a father and a parent to provide for his wife and his children who are attending schools in Port Moresby.
   100. The prisoner has done so much for Papua New Guinea in the area of sports in that he was a national Kumul player representing Papua New Guinea in the game of Rugby Football League between 1990 – 1995. Before he became a national Kumul player he started playing the game of Rugby Football League in 1979 while attending Gordons High School. He progressed in playing the game at the Inter City Cup, the Southern Zone representative games and eventually as a national Kumul player.
   4. After playing the game for 12 years, he retired as a full-time player went into the administration side of the game at his Kone Tigers Rugby Football League Club where he was elected President of the Club from 1996 to 2001. It was at this time that the tables were turned around so to speak, in that he thought he was still the President of the club and he thought he could sell the assets of the club. He was gravely mistaken.
   5. He is a mentor and father figure to many young people in the community.
      
9. The prisoner has offered restitution of the K2, 628,825.18 within 5 years. The money belongs to Bandon Limited which although a bona fide purchaser of the Kone Tigers Oval land cannot own the land because the prisoner who transferred the title to it did not have title to the property to pass on to Bandon Limited. Therefore Bandon Limited cannot have good title to the property in my respectful opinion. The title to the property must still belong to the Kone Tigers Rugby Football League Club.
   

AGGRAVATING CIRCUMSTANCES

10. Factors against him are:
    
    1. A large amount of money was misappropriated amounting to K2, 628,825.18.
    2. He stole from the Football Club that made him a star rugby football league player.
    100. It was a foolish plan to commit fraud to falsely claim that a Committee of the Football Club had resolved to sell the football field when in fact no committee of the football club had existed at the time. Moreover, it was foolish to assume by the prisoner that he was still the President of the Football Club when in fact he was not. The Club Constitution is very clear on that and that is a President and Committee are elected every year at an Annual General Meeting. In this case no annual general meetings had been held for a long time since 2002.
    4. The prisoner is a well-educated person by PNG standards. He is a university graduate and was doing post graduate studies when he committed the offences. His educational qualifications ought to have placed him in a position to know what he was doing was wrong.
    5. He ought to have considered the welfare of his wife and children before embarking on the scheme. In other words, he ought to have put his thoughts into the future and considered not only the good things that could come out of this plan but also the bad things.
    6. Whilst he has offered restitution he has not started the restitution process himself.
    7. This was a trial and not a plea of guilty case. On page 7 of the pre-sentence report, it is reported that the "offender admitted and regretted that he committed the offence and said he does not want to deny anything but blames himself and apologised that he was under pressure therefore thought it was right to sell the property". The fact of the matter is he pleaded not guilty to both charges and a full time trial was run and he was found guilty of the two charges.
       

THE PRE-SENTENCE REPORT

11. I have read the pre-sentence report prepared by the probation officer. The report recommends that having assessed all the factors and the fact that the prisoner is a first time offender and a non-violent person, he is a good candidate for probation supervision and that he be made to make restitution to the purchaser of the football club. I take note of the recommendation.
    

THE MEANS ASSESSMENT REPORT

12. I have also now read the means assessment report. The prisoner has asked that he pays restitution, but that he be made to restitute K1,000,000.00 only and not the full K2,628,825.18 that he was charged with and convicted for. There is no evidence that he offered to plead guilty to the misappropriation of K1, 000,000.00. He was however found guilty of misappropriation of K2, 628,825.18. K2, 000,000.00 of that he invested in BSP Capital which is now substantially gone as a result of a bad risky investment decision he made. He is lucky he was not charged with the misappropriation of the entire K3, 000,000.00. As the prisoner was found guilty of the misappropriation of K2, 628,825.18, he will be responsible for the restitution of the total for which he has been found guilty of.
    
13. The means assessment report says on page 3 that the prisoner "has the ability to repay the value of the money which he used" whether it is K1,000,000.00 or K2,628,825.18. A repayment schedule is been done for both amount-3 years on the lesser amount and 5 years on the higher amount. I however note that since the date of conviction on 3rd October 2013 to more than a period of 4 months has lapsed and nothing has been paid as yet.
    
14. Restitution is a mitigating factor. It is not and must not be seen as paying your way out of prison. Otherwise, we will have situations where the rich will be able to pay their way out of jail while the poor languish in jail. This will not be a just outcome.
    
15. Counsel for both the prisoner and the State have assisted the court to come to a just sentence by providing case precedents of similar cases. I will cite some of those cases here. Counsel referred the court to the case precedents of The State v Dennis Vela, CR 430 of 2004 in which a police officer was charged on one court of false pretence and one count of misappropriation. The prisoner was sentenced to 2 years for false pretence and 4 years for misappropriation of K28,000.00.
    
16. In the case of the State v Ari Inatiah – Unreported National Court case CR 1333 of 2003 wherein a police officer was charged with false pretence and misappropriation of K5,000.00. The prisoner there was sentenced to 4 years imprisonment for false pretence and 5 years for misappropriation.
    
17. In this case I make the same observations. The prisoner here has offered full restitution over a period of time. The fact that he has offered full restitution to the victim and hopefully put the victim back to the original position before the offence was committed is no guarantee to a wholly suspended non-custodial sentence. The prisoner must expect some time in prison especially when he was acting as the custodian of the property and when he himself had no authority to dispose of the property in the manner he did. Not only that but he benefited himself from the sale of the property by buying a motor vehicle for his own use. He also made a risky investment decision which wiped away the bulk of the investment in the form of K2,000,000.00.
    
18. In relation to the misappropriation charge the decision of the Supreme Court in Wellington Belawa v The State (1988-89) PNGLR 496 sets out the guidelines on sentencing in misappropriation cases. The Supreme Court then recommended sentences to be adjusted upward or downward depending on the amount taken and the circumstances it was taken. It recommended that where amounts of K40,000.00 and K150,000.00 are taken the term of imprisonment should be between 3 to 5 years. That was before 1988-89. The Supreme Court there listed down factors the courts should consider in sentencing. They are:
    
    • (a) Amount taken
    • (b) Degree of trust held by offender
    • (c) Period over which offence committed.
    • (d) The use of which money put to.
    • (e) Effects on the victim.
    • (f) Effects on the offender.
    • (g) Whether restitution was made to the victim.
      
19. Considering those factors in this case I note the following:
    
    • (a) Amount taken.
      

A total of K3,000,000.00 taken but convicted of taking K2,628,825.18.

(b) Degree of trust held by offender.

Some degree of trust in this case in that he was the custodian and looking after the property for an organisation which made him a champion player.

(c) Period over which offence committed.

Prisoner took sometime to plan the scheme and executed the plan. This was not a sudden decision.

(d) The use for which money put to.

The prisoner bought a motor vehicle for himself and paid for service providers and invested some to the detriment of the Kone Tigers Rugby League Football Club Incorporated.

(e) Effects on the victim.

There are a number of victims here in my view. The Kone Tigers Rugby League Football Club Incorporated and Bando Ltd are the primary victims. Both victims in my respectful opinion have suffered immensely. This is a cause for anxiety, frustration and anger. Bando has lost K3,000,000.00 because of the actions of the prisoner, the real estate company and the lawyer. It will most likely loose the Oval. Kone Tigers will not gain anything from this venture. It will probably get its oval back. Costs will be involved in all these by both Kone Tigers Club and Bandon. There are also other victims who may be affected one way or another. They are the real estate agents and the lawyers who did the conveyancing transactions for the deal. I reiterate here that John Endepnungo Kua is not a victim. He does not represent the Kone Tigers Rugby League Football Club Incorporated in any shape, form or manner. He as I earlier described him is a busybody. I emphasised this so there is no doubt as to his status in the Kone Tigers Rugby League Football Club Incorporated.

(f) Effects on the offender.

The prisoner appears to blame the lawyers and the real estate company. He admits he felt greedy at the time. He is now regretful for his actions. As he was self employed the conviction and sentence will have some bearing on him and his company. His business may be affected. By this conviction and sentence he and his family both immediate and extended will feel the shame and hurt in their lives.

(g) Whether restitution was made to the victim.

Restitution has been offered to Bando Limited but not paid. The prisoner has not offered to help return the title to the property to Kone Tigers Rugby League Football Club Incorporated and not offered to put right what he has done to the club.

20. The decision of the Supreme Court in the Belawa case was some 25 years ago. Time has moved on and the range of sentences have increased. We see examples of that in the State v Jimmy Kandi (No 2) Unreported decision of National Court N3131 where the prisoner was sentenced to 4 years for false pretence and 9 years for misappropriation of K4,298,037.33. In 2009 in the matter of the State v Moko Essi Koim CR N0 114/2008 the prisoner there misappropriated K3,780,000.00 and was sentenced to 8 years imprisonment.
    
21. The case precedents indicates a general trend not only in the rise of imprisonment terms but also an increase in more prisoners being ordered to restitute the victims of crime. These are usually matters of discretion of the court.
    
22. I have considered all the mitigating factors that were put to the court and have taken them into account. At the same time I have also considered and taken into account the aggravating circumstances and this is what I have decided to do with this prisoner. Considering again the case law precedents I sentence the prisoner to 4 years imprisonment for the first count of false pretence. For the second count I sentence him to 8 years imprisonment. Those imprisonment terms are to be served concurrently.
    
23. I further order suspension of 4 years of the sentence of 8 years. The prisoner is to serve 4 years of the sentence. While he serves the 4 years he is to pay restitution to Bando Limited in the amount of K2,628,825.18. I am making the orders this way because the prisoner is owed a lot of money for work he did for companies and organisations. Those companies and organisations must come good in making payments to the prisoner and his company. After serving his 4 years the prisoner will continue to pay restitution. He is given 4 years after he serves his 4 years to pay full restitution. Should he fail to pay full restitution 4 years after serving his time he will serve the full 8 Years imprisonment.
    

_________________________________________________________
Michael Norum Lawyers: Lawyer for Prisoner
Public Prosecutor: Lawyer for the State