Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Guli [2017] PGNC 201; N6866 (17 August 2017)

N6866

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 195,196 & 202 OF 2014

BETWEEN:
THE STATE

AND:
PAUL GULI, GOGUMI KIMIN AND ANDREW KAMA ALAKE

Kundiawa: Salika DCJ
2017: 17^th August

CRIMINAL LAW – Practice and Procedure – Charge of misappropriation – S.383A (1) of Criminal Code Act – dishonest procuring of money – resulted in dishonestly application of the money.

Case Cited:
Doreen Liprim v. The State
State v. Paul Tiensten N5563
State v. Lawrence Puliali

State v. Peter Tokunai (2015)
State v. Janet Oba (2016)
State v Glenda Nugai (2017)
State v Ivori Veraga N2849
State v. Christopher Hulape and Agnes Hulape (2016)
State v. Jeffrey Yalopya
State v. Gibing Yawing N6836 (2017)
The State v. Nancy Leads Uviri (2008) N5468
Wellington Belawa v. The State (1988-89) PNGLR 496

Counsel:

Miss. H Roalakona, for the State
Mr. M Yawip, for the Accused

SENTENCE

17^th August, 2017

1. SALIKA DCJ: INTRODUCTION: This Court found the 3 men guilty on one count of misappropriation of K473, 575.00 the property of the State after a trial in Kundiawa on 11^th August 2017.
   

The Facts

2. Between July and September 2010, the accused, Paul Guli accountant and Gogumi Kimin District Administrator were employed as District Accountant and District Administrator respectively for the Anglimp/South Waghi District, then in the Western Highlands Province but now Jiwaka.
   
   1. At the material time, various claims were submitted to the District Office by Gogumi Kimin who signed as the authorised requisitioning officer for accused, Andrew Kama Alake to be paid for vehicle hire, road maintenance and travel allowances.
      
   2. The accused, Paul Guli and Gogumi Kimin as the District Accountant and District Administrator in breach of the Public Finance (Management) Act and Finance Instruction 3C/2008, went on to sign and approve the payment of a sum of K473,575.00 under cheque no. 000999. Out of that K473, 575.00, Andrew Kama Alake received K105, 400.00 for his four claims and both accused persons also paid themselves from this payment under cheque no. 000999 K2, 000 for Paul Guli and K107, 000 for Gogumi Kimin.
      
   3. The accused, Andrew Kama Alake received another payment of K60, 000 under cheque no. 1075 again for fraudulent claims for another vehicle hire and K10,000.00 for Independence Celebrations at East Kambia.
      
   4. All these payments were made from the Anglimp/South Waghi District Services Improvement Program without any approval from the Joint District Planning and Budget Priorities Committee (JDP & BPC).
      
   5. The State alleged that when the accused, Paul Guli and Gogumi Kimin approved the payment for the K473, 575 for various claims it was in breach of the Public Finances (Management) Act and the Finance Instructions, and when they benefited from the payment they dishonestly applied the money to their own use and to the use of others.
      
   6. The State alleged that when the accused, Andrew Kama Alake submitted the fraudulent claims and received the payments he dishonestly applied the sum of K165, 400.00 to his own use and the use of others and that the funds were not used for the intended purpose.
      
   7. The actions of the accused persons, it is alleged by the State contravened Section 383A (1) and (2) of the Criminal Code Act.
      
   8. The State invoked section 7 of the Criminal Code against each accused.
      

The Issue

3. After having found each of the prisoners guilty to the charge. I am now left with the task of imposing a sentence on each of them. What then is the appropriate sentence to impose in each of them?
   

The Law

4. The starting place to go to is Section 383 A (2) (d) that says:-
   

Section 383 (2) (d). An offender guilty of a 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

(d) where a property dishonestly applied is of a value of K2, 000 or upwards.

Elements of Charge

5. The State submitted therefore that since the amount misappropriated was more than K2, 000.00 the maximum penalty under S.383 (2) (d) is ten years imprisonment.
   

The Belawa Tariffs

6. The Supreme Court in Wellington Belawa v. The State (1988-89) PNGLR 496 set the same tariffs depending on the amount of money misappropriated. It stated the following:-
   
   • K1-00 to K1000 – no jail term imposed
   • K1000 to K10,000.00 – 2 years imprisonment
   • K10,000.00 to K40,000 – 2 to 3 years imprisonment
   • K40,000 to K150,000 – 3 to 5 years imprisonment
     
7. The Supreme Court in Doreen Liprim v. The State suggested that alternative other than imprisonment terms should be imposed on offenders who stole money in the vicinity of K6, 000.00 to K7, 000.00.
   
8. However, since those case circumstances in PNG have changed. There is an increase level of fraud cases, cases of dishonesty, deceipt, stealing and the killing being perpetrated in the communities, in the public service and in the private sector. Perhaps it is now overdue that sentencing tariffs imposed in the Belawa case be increased. Cannings J in The State v. Nancy Leads Uviri (2008) N5468 suggested the following:-
   
   • K1-00 to K1000 – a suspended sentence would be imposed
   • K1000 to K10,000.00 – 4 years imprisonment
   • K10,000.00 to K40,000 – 4 to 6 years imprisonment
   • K40,000 to K150,000 and beyond – 6 to 10 years imprisonment
     

Cannings J effectively doubled the sentencing tariff from the Belawa tariff.

9. Parliament in 2015 amended the penalty provisions for stealing and misappropriation under S372 and 383 respectively. Anyone who stole or misappropriated over K1 million up to K10 million is liable to be imprisoned for up to 50 years. Parliament obviously listened to community views and decided to impose very high penalties for stealing or misappropriation of millions of kina.
   
10. The Belawa tariff did not mentioned beyond what the penalty should be for amounts of say K150,000 to K300,000. Maybe that should be 5 to 7 years and from K300, 000 to K500, 000 should attract 7 years to 9 years. Big amounts of money are now being stolen or misappropriated and in my respectful opinion so should the sentences of imprisonment be increased. Public Servants who are convicted of criminal offence of stealing and misappropriation should be sentenced to imprisonment term and not be reemployed in the public service especially where they are entrusted with the public money and have breached the trust and confidence of the public.
    
11. In the State v. Nancy Leah Uviri (supra) Cannings J imprisoned the prisoner to 7 years imprisonment for misappropriation of K300, 000.00. The prisoners in this matter misappropriated K473, 575, 00. If I were to use the Cannings J tariff in Uviri case, I would have to sentence the prisoners to 8 to 9 years.
    

Case Precedents

SENTENCING CONSIDERATIONS IN MISAPPROPRIATIONS

CASES

12. The following sentencing considerations are relevant to assist the Court in coming to a proper sentence to impose:-
    
    • (a) what amount was misappropriated and what was a small amount and a large amount? K473, 575.00 was misappropriated and that is a large amount of money.
      
    • (b) whether the offence was committed in a position of trust?

yes they were. Paul Guli and Gogumi Kimin were the District
Accountant and District Administrator both positions of high trust.
Andrew Kama was a member of the JDP & BPC also a very high
position of trust.

(c) did they misappropriate the money over a long period of time?

There was a long period of time the crime was committed and there was a pattern designed to get the money.

(d) was the money put to good use?

There is no evidence how and what the money was used for.

(e ) did offender’s actions have any adverse effect on other persons?
Yes, the money was misappropriated during the chairmanship of one
governor and the new governor had to come into office to ensure he
was going to start off on a clean plate. The new administration would
be heavily affected in terms of its operation because the money has
been misappropriated.

(f) did the offender’s actions have any adverse effect on the public
confidence in the integrity of the public sector, the banking system or
the private sector or a company?

There is no evidence except bank records were obtained through a search warrant.

(f) have the offenders and their families paid a heavy price for their
actions?

yes all the offenders are married man with children and the District Administrator Kimin was suspended from work. Paul Gul the accountant will be affected by this.

(g) did the offenders voluntarily surrender to police before being detected?

No.

(h) did the offenders cooperate with the police in the investigations? Yes
(i) Have the offenders done anything tangible towards repairing the wrongs they have committed in terms of restitution and public apology?

No, but offers for restitutions have been made by all of them.

(j) did the offenders plead guilty to the charges? No.
(k) Have the offenders expressed remorse?

yes, but I do not know if they are genuine.

(l) are the offenders first time offenders? Yes

(m) are offenders youthful offenders? No.

Gogumi Kimin and Paul Guli are both educated men while Andrew Kama was educated to grade 3 level but is an astute self-made businessman and community leader. They are all very intelligent man in their own way and ought to have known better what not to do.

Mitigating factors.

13. The mitigating factors are:-
    

(a) they are first time offenders
(b) they all cooperated with police

(c) Andrew Kama had diabetes and is under medications and has made arrangements to go to the Philippines for further medications.

Aggravating Factors.

14. The following are the aggravating factors:-
    

(a) Paul Guli and Gogumi held senior positions in the District Administration and therefore held high position of trust and they abused that trust.

(b) Gogumi was the chief executive officer of the district and as such was the chief adviser to the JDP and BPC.

(c) Andrew Kama was member of the JDP and BPC and a community leader and as such he too held a high position of trust he too abused that trust.

(d) A big sum of money was misappropriated.

Personal Particulars

Paul Guli

15. Paul Guli, He is from Malda Village, Tambul Neblyer, Western Highlands Province. About 38 years old married with 5 children, the eldest of which is 14 years old and the youngest is 5 years old. Only last week he graduated from the University of Papua New Guinea with a Bachelor’s Degree in Public Finance and Accountancy.

He is employed by the Department of Finance as the District Finance Manager (formarly District treasurer) for the Talasea District in West New Britian Province.

No major health issues were raised by the prisoners.

Gogumi Kimin

16. Gogumi Kimin was the District Administrator and the Chief Executive Officer of the Anglimp South Waghi District. He is 52 years of age now. Was educated to grade 12 in 1976 at the Sogeri National High School and later got his Diploma in Public Administration from the Institute of Public Administration (formerly Administrative College) in Waigani in 1981-82. He is from Sigmul Village, Minj, Jiwaka Province. Has been employed by the Department of Western Highlands from 1978 to 2011 when he transferred to Jiwaka Province. He has 39 years of public service under his belt and is now on the Jiwaka Administration payroll. He is married with two wives. Has two sons from the first wife and his second wife operate a trade store in the village. He said he has the ability to repay the money.

Andrew Kama

17. Andrew Kama is about 40 years old, married with 5 children all living in Minj. He is from Gon village, Minj, Jiwaka Province. Andrew is a self-made business man and a community leader. He was educated up to grade 3 level and started his business by buying coffee cherries and farming. He bought a second hand vehicle in 1998 and started transporting and hired his motor vehicle out to individual and companies. He now has 5 vehicles, one ten seater, two open back trucks, a ford double cabin and a dump truck. He has commercial properties which he rents out once and are worth about K2.5 million. He currently has a health problem. He has diabetes and he is on medication and his doctors have arranged for him to go to Singapore for treatment.

Sentence

18. Sentencing is an exercise of judicial power bestowed in the National Judicial Systems of which this court is a part of (see S.158(1) of the Constitution) It is therefore an exercise of Judicial discretion after a person has been found guilty of an offence. In this case I found the 3 persons guilty of misappropriation.

19. The amount of money they misappropriated is large. Taking into account all the mitigating factors and the aggravating factors, I impose a term of 5 years imprisonment on Gogumi Kimin and Andrew Kama and I impose 2 years imprisonment on Paul Guli because his culpability in the commission of the offence was lesser than those of Gogumi Kimin and Andrew Kama.
________________________________________________________________
The Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the Accused