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State v Nori [2016] PGNC 258; N6447 (23 September 2016)

N6447

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 125 OF 2015

BETWEEN

THE STATE
AND:
THOMAS JIM NORI

Waigani : Salika, DCJ
2015: 22, 23 & 25 September
2016: 5^th April; 23^rd September

PRACTICE AND PROCEDURE – Criminal law – application of a motor vehicle for his own use –misappropriation of property – s.383A of the Criminal Code – appropriate sentence – Belawa considerations taken into account.

Cases cited:
Belawa v The State (1988-89) PNGR 496
State v Ansong Insing (2005) N2994

Counsel:
Mr J Apo, for the State
Mr J Kolowe, for the Defendant

SENTENCE

23^rd September, 2016

Introduction

1. SALIKA, DCJ; This court found Thomas Jim Nori guilty to one count of dishonestly applying to his own use a motor vehicle a Toyota Land cruiser registration number CAX 332, the property of the State on 5 April 2016. After the conviction a pre-sentence report was ordered to be prepared by the Probation Service. The Probation Service prepared the pre-sentence report and submissions on sentence have now been made. The allocatus was also administered the prisoner is now here for sentence.
   

Issue

2. The issue for the Court then is what the appropriate sentence to impose on the prisoner is.

Brief Facts

3. The prisoner was employed by the Minister for Commerce and Industry Hon Gabriel Kapris as his First Secretary from 2007 to August 2011. He resigned to contest the 2012 National Elections. Before he resigned in August of 2011, on 13 August 2011 he wrote a letter without the knowledge and approval of the Minister for Commerce to the Managing Director of Small Business Development Corporation (SBDC) Mr Diri Koblo attaching a quotation from Ela Motors, Port Moresby Branch requesting the Managing Director for SBDC to purchase a motor vehicle for use by the Commerce and Industry Ministry.
   
4. The Managing Director approved the purchase of the motor vehicle and the motor vehicle was purchased. The vehicle was delivered to the prisoner on 26 January 2011. The vehicle was used in Port Moresby in the month of February 2011. In March/April 2011 the vehicle was shipped to Mt Hagen by the prisoner himself. He resigned in August 2011. By then the prisoner would have made up his mind to contest the 2012 National Elections. Effectively then, the vehicle was purchased for the prisoners election campaigns and other purposes. The Court is of the opinion that the prisoner dishonestly applied the use of the Motor Vehicle for his own benefit.
   

Personal Particulars

5. The prisoner is now 45 years old. He hails from Rauna village, Dei District in the Western Highlands Province. He is married and has 4 children from the marriage. He also has two other concubines Joyce Ottur from the Southern Highlands and Marilyn Genora from Enga and has 2 children from Joyce Ottur and 3 children from Marilyn Genora. All up he has a family of 12 to take care of. None of his three wives are employed. The prisoner’s father is still alive while the mother has passed on.
   
6. The prisoner’s first wife and children from the first wife all speak highly of the prisoner as a caring husband and father. They all said that if a custodial sentence was imposed on the prisoner, they will be disadvantaged because he is the only one who provides for them. His eldest son attends the University of Parduleras, Bagion city in the Philippines and is sponsored by the prisoner. The second son is at the University of Papua New Guinea. Both sons will be affected in their studies if the father is put away in jail.
   

Allocatus Statement

7. The prisoner expressed remorse and apologised for what he did. He said he is prepared to pay compensation to the State for the use of the vehicle.
   

The Offence

8. While the prisoner has been convicted of dishonestly applying to his own use property belonging to the State, this prisoners case is not one of applying money to his own use, as is usually the case rather it is for misuse of a motor vehicle for his own use. The motor vehicle was used by the prisoner from second May 2011 to about July of 2012 but as he resigned from his position in August 2011, I will calculate the time from September 2011 to around July of 2012. He therefore would have had the use of the motor vehicle for his own use for a period of 10 months.
   

Monetary Value of use of Motor Vehicle

9. I have decided to use the hire rate of motor vehicles in 2011 and 2012 to determine the value of the use of the motor vehicle for 10 months. Vehicle hire car rates vary from hire car companies. Some hire at net rate of about K1000 per day. Some from K600 to K1000 per day. Some hire on day hire K500 per to about K900 per day. I have decided to use K300 per day because that appears to be the lowest hire rate for a vehicle in that year and I think that is a generous rate.

The calculation would then be;

K300 per day for 10 months.

30 days per month x 10 months= 300 days

30 days x K500-00 per day = K9, 000 per month

300 days x K500-00 per day = K90, 000 for 10 months

10. If the prisoner were to hire the vehicle from the State for his election campaign purpose at K300 per day for 300 days he would be liable to pay the State K90, 000.00. I would therefore require him to pay the State K90, 000. The vehicle was bought for K145, 446. It was returned to the State still in good condition. The prisoner would now be required to pay the State K90, 000. I consider this to be fair assessment of the use of the vehicle for his election campaign.
    
11. Under the Wellington Belawa v The State (1988-89) PNGCR 496 formula he would be liable to imprisonment for a term of 2 to 3 years imprisonment.
    

Mitigating Factors

12. The only mitigating factor for the prisoner is that he is a first time offender. He has no prior convictions. He has expressed remorse for what he did. He has apologised to the court, the Ministry of Commerce and Industry, the State and his family for bringing shame and embarrassment.
    

Aggravating Factors

13. The prisoner was in a position of trust. He was the eye and mouth piece of the Minister for Commerce and Industry but he abused that trust by making private arrangements using the name of the Minister to get what he wanted. He knew who to approach for his plans to stand for elections in 2012. He made private arrangement with the Managing Director of Small Business Development Corporation (SBDC) to buy the motor vehicle without the authority of the Minister for Commerce.
    
14. I can only guess what might have been had one officer of SBDC not forgotten about the vehicle and made enquiries about it but credit must go to the officer who did not forget. These are some ways government monies are misused and abused.
    
15. The prisoner blames the Ministry and the Department of Commerce and Industry for not acting quickly to bring the vehicle back to Port Moresby. That may have been true but the Department and the Ministry did not take the vehicle to Mt Hagen in the first place. It was the prisoner who took the vehicle to Mt Hagen with his own money and kept it there. No one else knew about his arrangement from the Ministry or the Department. These were his private arrangements. It was upon him to take the vehicle back even before he resigned from his post. His blame on the Ministry and the Department are in my respectful opinion misguided, mischievous and misconceived.
    

The Belawa Considerations

16. The Supreme Court in Wellington Belawa v The State (1988-89) PNGCR 496 laid some factors the courts should take into account when considering appropriate sentences on those convicted of dishonestly applying money to their own use or to the use of others.
    
17. The factors are :-
    
    1. Amount taken.
    2. Degree of trust held by the prisoner.
    100. Period over which the offence is committed.
    4. Use to what motor vehicle was put to.
    5. Effects on the victims.
    6. Effects on the offender himself.
    7. Effect on public confidence.
    8. Restitution.
       

(a) Amount Taken:

The prisoner misappropriated a Ministerial vehicle for his own benefit for a period of about 10 months after he had resigned from that office.

(b) Degree of trust held by prisoner

The prisoner in this matter was a Ministerial staff of a Government Minister. He was accountable to the Minister and the running of the relevant Ministerial Office. He in my respectful opinion was in a position of trust. He was also in my view in a position of influence being a Ministerial Staffer and First Secretary to the Minister.

(c) Period offence was committed:

The offence of the misappropriation of the motor vehicle was from September 2011 to July 2012, a period of 10 months.

(d) Use to which the motor vehicle was put to.

The motor was used for campaign purposes before and during the election period and for his own purpose after the election.

(e) Effect on victim

The victim in this case was the Ministry of Commerce. The office did not have the use of the vehicle for about a year when it was retrieved. The office has the full use of the motor vehicle now.

(f) Effect on the offender himself:

The prisoner regrets what happened and is prepared to pay compensation for the period he used the motor vehicle for.

(g) Impact of offence on the Public and public confidence:

There is no evidence on this aspect.

(h) Restitution

The prisoner is prepared to pay compensation for period he had use of the motor vehicle.

SENTENCE

18. I consider this offence to be rather careless and a display of arrogance. He was a senior officer in the Ministerial Office. He had no respect for the Office he held. He was a public servant and resigned to contest the elections. After he resigned he failed to return the subject motor vehicle to the Minister. He instead used the motor vehicle for his election purposes. Honesty is a virtue of human character which we all must strive to attain from the early development of our lives and maintain from our early lives to adulthood and beyond. If we do not attain this character track, we are lesser beings and as lesser beings we will not be able to discern right from wrong. In this case the prisoner failed to return the vehicle and kept it even after he resigned from public service and used it for his own purposes.
    
19. This case is a demonstration of a serious dereliction of duty to return government property and a serious display of dishonesty. It also is a case that demonstrates a no care attitude of a public servant. Some public servants would say - samting blo government – and have no sense of duty or responsibility to do the right thing – return the vehicle to its owner. This attitude is rampant in the public service, dare I say.
    
20. I agree with the State submission that the Courts have generally followed the approach taken by the Supreme Court in Belawa v The State (1988-89) PNGR 496 in determining sentences relating to offences involving dishonest application of property. However, sentencing is not a science nor is it a mathematical formula. Sentencing is really going into the mind of a judge or magistrate and his or her feelings or mood which are dependent on the particular nature and circumstances of a case. The judge or magistrate will use case precedents to help him or her and use sentencing principles and guidelines to come to an appropriate sentence. Supreme Court case precedents are binding on the National Court in relation to what type of sentence to impose.
    
21. The Belawa case itself decided by the Supreme Court is a precedent on sentencing principles and guidelines and what the judge should consider when considering a sentence. That is why it is a leading case precedent involving dishonest application of property. Belawa was sentenced to 2 years for misappropriation of about K2, 000.00.
    
22. In the matter of State v Ansong Insing (2005) N2994 the prisoner pleaded guilty to misappropriation of a motor vehicle. The motor vehicle was purchased from Ela Motors by Enga Provincial Government and the prisoner who was the District Administrator for Kandep gave the motor vehicle away to another person, one Awas Kendi. Kendi claimed the vehicle was involved in an accident and that he had spent K4, 295.00 for the damages to the vehicle. Kendi asked the prisoner to either reimburse him or transfer ownership to him. The prisoner transferred ownership to Kendi and for Kendi to put some money into the prisoners account. In that case the prisoner was sentenced to 3 years imprisonment.
    
23. In all the circumstances of the case and all the mitigating circumstances and the case precedents I impose a sentence of 2 years imprisonment. However, I will suspend all of that term and have him pay a fine of K10, 000-00 to the State.
    

_________________________________________________________
Public Prosecutor : Lawyer for State

Public Solicitor : Lawyer for Defendant