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State v Tommy [2022] PGNC 216; N9678 (24 March 2022)

N9678

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 219-224 OF 2020

THE STATE

V

ELIUDA TOMMY

Kokopo: Tusais AJ
2021: 28^th September, 8^th November
2022: 24^th March

CRIMINAL LAW – Sentence – Criminal Code, Section 383A (misappropriation of property) – Sentence on plea of guilty – K33,262.90 misappropriated – Stealing whilst employed as Finance manager for Rabaul District - Offence very prevalent – Need for deterrence - sentence of 4 years appropriate.

Cases Cited

Wellington Balawa -v- The State [1988-1989] PNGLR 496
Avia Aihi vs the State (No 3) [1982] PNGLR 92
Goli Golu v the State [1979] PNGLR 653
Supreme Court Reference No 1 of 1984 [1984] PNGLR 418
Saperus Yalibakut v The State (2006) SC890
Public Prosecutor v Tardrew [1986] PNGLR 91
Doreen Lipirin v State (2001) SC673
State v Duk [2009] N3924
State v Ari Inatiah (2006) CR 1333 of 2003
Gabriel Laku v The State [1981] PNGLR 350
The State v. Joe Ivoro and Gemora Yavura [1980] PNGLR 1

Counsel

Ms T Kematen, for the State
Mr P Kaluwin, for the Accused

SENTENCE

17^th March, 2022

1. TUSAIS AJ: The prisoner pleaded guilty to misappropriation of K33,262.90, money belonging to the state, contrary to section 383A(1)(a)(2)(b)(d) of the Criminal Code Act. This is the court’s decision on sentence.
   

Facts

2. The offender while employed as the District Finance Manager (DFM) for Rabaul District applied to the District Administrator (DA) for K33,262.90 from the District Service Improvement Program Funds (DSIP). He submitted the claim just before close of 2018 Financial year, to pay for a Department of Finance specialist bank reconciliation officer, Regina Jerry to travel to Rabaul and update the Rabaul District Administration and Treasury operating accounts.
   
3. In November 2018 the offender emailed the First Assistant Secretary (FAS) in Department of Finance (DoF) responsible for the Provincial and District Financial Management Division, Mr Max Bruten. The offender requested for Mrs Jerry to travel from Port Moresby to Rabaul for two weeks in order to update the Accounts.
   
4. Mr Bruten responded favourably. On the 4^th of December 2018, the offender used the email sent by FAS Bruten to obtain the DA’s signature on the finance forms (FF3 ad FF4) and the payment endorsement letter. The DA was on recreational leave at the time.
   
5. Then on 28 December 2018, cheque number 000777 in the sum of K33,262.90, dated 18 December 2018, was raised from the Rabaul DSIP operating account and deposited into Bank of South Pacific account number 100066126 belonging to the offender. When the cheque was cleared the offender applied the funds to his own use and to the use of others and did not facilitate the travel and engagement of Regina Jerry to conduct the accounts update.
   
6. The issue for the court to decide is the penalty to impose on the prisoner. The punishment prescribed under section 383A(1)(a)(2)(b)(d) is a term of imprisonment not exceeding 10 years.
   
7. Maximum sentence for any offence is usually reserved for those crimes described as the worst of its kind. I refer to the cases of Avia Aihi vs the State (No 3) [1982] PNGLR 92, Goli Golu v the State (1979) PNGLR 653 and Supreme Court Reference No 1 of 1984 [1984] PNGLR 418, Kidu CJ said in SCR NO 1 of 1984 that .. “ It is not a rule of law that the maximum sentence for an offence should be reserved for the worst case, but a practice which has been accepted through the exercise of common sense in order to do justice.”
   

Antecedents

8. The following are the personal particulars of the prisoner as submitted by defence counsel and from the pre-sentence report. The offender is 40 years old and comes from Navunaram village in Gazelle District, East New Britain Province. He is married with five children aged 19 years to 2 years. The offender himself is the second-born child in a family of three brothers.
   
9. The prisoner went to Navunaram Primary School from 1988 to 1993 and completed grade 10 at Kokopo High School in 1997. He went on to Kerevat National High and finished grade 12 in 1999. The following year he enrolled at the Divine Word University and graduated with a Diploma in Business Studies in 2001. He continued his education at the Port Moresby Institute of Business Studies and attained a Bachelor in Business (Accounting) degree in 2014.
   
10. The offender started work in 2003 as a Revenue clerk with Kokopo District. In 2004 he was promoted to cash office clerk and a year later in 2005 he became the District Accountant for Kokopo. In 2006 he became a District Treasurer, grade 15 Public Service position.
    
11. Defence lawyer asked the court to take note of the following mitigating factors.
    
    1. He is a first-time offender.
    2. The crime committed, even though it involved public money, was not serious because he had obtained necessary authority to have it paid into his private account.
    100. The amount compared to other cases is low and can be repaid.
    4. The Means Assessment Report (MAR) stated that he is willing and able to make restitution of the monies he used.
    5. The MAR indicated that a large part of the money was actually put to its proper use.
    6. The prisoner is still employed by the Finance Department, so he is still regarded as trustworthy.
    7. This is not a serious offence as it did not involve the use of arms or result in bodily injury.
       
12. Mr Kaluwin seemed to suggest that there was minimal criminality involved in this case. Counsel relied heavily on a Probation Pre-Sentence Report compiled for consideration on sentence. The PSR suggested that the offender was a suitable candidate for probation. Included was an Acquittal Report on the use of the funds. That report compiled by the offender is of recent origin.
    
13. In guilty plea matters, it is the accepted practice that courts must give the benefit of doubt and act on the version of facts as stated by the offender, Saperus Yalibakut v The State (2006) SC890. However, those facts must not be beyond the bounds of common sense and credibility. I do not believe the offender’s recently produced report. For one thing a large part of the expenses seems to have been spent on fixing the office car. The attached invoices are all handwritten and the service provider is Allan Eliuda (a person with a similar name to the prisoner).
    
14. The DA also stated in his evidence that all the maintenance to office facilities including official accommodation of the offender were separately funded prior to December 2018. I do not believe that the offender used the money to pay for travel allowance and hire cars for himself and his colleagues while on duty travel in Port Moresby. It does not make any sense at all.
    
15. The offender made many electronic transfers of amounts to other bank accounts. He claims that these were to colleagues but that has not been verified. I accept state witnesses’ evidence that the offender was on leave in January 2019 and was busy completing his house at Navunaram village. He was seen making purchases at hardware shops in Kokopo almost daily during that month. His bank statement for the month of January 2019 confirms this. I am therefore inclined to find that the offender used all the money dishonestly on himself and others.
    
16. It is within the discretion of the court to grant leave to withdraw a plea of guilty after conviction and at any time up until the final disposal of the case by entry and recording of conviction and sentence: Gabriel Laku v The State [1981] PNGLR 350, The State v. Joe Ivoro and Gemora Yavura [1980] PNGLR 1. Defence lawyer, Mr Kaluwin is a very experienced defence lawyer. He did not make application for the court to vacate the plea and have the matter reset for trial. Furthermore, the prisoner himself did not raise any defence during arraignment and in allocutus. I will therefore proceed to consider sentence on the basis that the plea of guilty and the admission of criminal liability still remains unchallenged.
    
17. State lawyer referred to the case of Wellington Belawa v State [1988-1989] PNGLR 496 and submitted that dishonesty offences were becoming very prevalent throughout the country and a strong deterrent punishment is called for. Ms Kametan submitted that the range of sentence suggested by Belawa’s case for stealing amounts between K10,000 and K40,000 was imprisonment for terms between 2 to 3 years. Counsel submitted that the court suspend part of the sentence only on condition that the offender repay the monies within one year.
    
18. The suggested tariffs in Belawa’s case are considered as outdated given the prevalence of the crime and also the quantum leap in amounts stolen which now feature sums in millions instead of hundreds to hundreds of thousands in Kina, State v Duk [2009] N3924. However, the considerations expounded in Belawa’s case still apply to cases today. I refer to them under various headings below.
    

The quality and degree of trust reposed in the prisoner

19. The greater the degree of trust the more serious the offence. In this case the prisoner was in position of trust as the chief finance officer for the Rabaul District. He had the duty to expend government funds including DSIP funds properly for benefit of the people of Rabaul District. This is a factor calling for heavier punishment as a deterrent.
    

The period over which the fraud or misappropriations were perpetrated

20. A series of dishonest acts over a long period of time may indicate a more serious state of mind than a spur of the moment act. This offence was planned and executed from about November 2018 to January 2019 when the bulk of the money was spent within a period of 3 months. The offender set up an elaborate scheme to request assistance and got approval by email. Then he filled out the finance accountable forms (FF3 and FF4), signed certain parts himself and got the DA to sign off as section 32 officer at his house where he was on leave. A cheque was subsequently issued and deposited into his private account.
    

The use to which the money was put

21. This is not a case where the money was used for any worthwhile purpose. The money was used for the benefit of the prisoner and others.
    

The effect upon the victim

22. The effect of the loss of the fund affect the people of Rabaul District.
    

The effect upon the public and upon public confidence

23. The general public has already lost confidence in public servants after hearing stories in the news about corrupt public officials benefitting personally from public funds. The offenders actions further erodes what little integrity government workers and especially DoF officials have left.
    

The effect on the offender himself

24. People who commit crimes of this nature usually suffer loss. The conviction will taint his record and adversely affect prospects for future employment.
    

Restitution

25. If restitution is made, it is proper to take that into consideration in mitigation as it will reduce the suffering the victim will go through and may demonstrate remorse and that the offender is unlikely to offend again. There has been no restitution to date. The offender has not made any effort to repay. Instead, he is waiting for court orders to make fortnightly payments while still continuing in his current job.
    

Prisoner’s history

26. The prisoner has no prior convictions.
    

Matters of mitigation special to the offender

27. There are no mitigating factors special to the offender.
    

Comparable sentences

28. Sentences for these kinds of stealing by servants in both public and private sectors, range between 4 to 6 years. In the case of State v Duk [2009] N3924, Cannings J referred to the suggested tariffs in Belawa’s case and said that ... “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.”

His honour imposed a sentence of 4 years on the offender less the pretrial custody period. None of the sentence was suspended.

29. In the State v Ari Inatiah (2006) CR 1333 of 2003, the Prisoner collaborated with another policeman and filed a false traffic accident report. This bogus report was later used to claim 3^rd party insurance from MVIL. A total of K5000 was collected and used by the offender. Justice Mogish considered the offence as serious breach of trust by the offender misusing his position as OIC Highway patrol. The offender offered to repay the money. His honour made these remarks when imposing a sentence of 4 years for false pretence and 5 years for misappropriation:

“The mere fact that an offender is willing to make full restitution is no guarantee to a wholly suspended non- custodial sentence. Such a perception misconceives the underlying principle where there is a breach involving senior executive. In those cases deterrence should be the prime consideration. This consideration must take precedence over the considerations of rehabilitation of the offender. Breach of trust by employees involves a situation where in the public interest, sentences must be imposed with the object of stern general deterrence.”

30. Should the court suspend the whole or part of the sentence as suggested by both counsel? In Public Prosecutor v Tardrew [1986] PNGLR 91 the Supreme Court held that suspension of part of a sentence under s 19(6) of the Criminal Code may be appropriate in three broad categories. The categories are not exhaustive. First is where suspension will promote the personal deterrence, reformation or rehabilitation of the offender. Second reason is if suspension of sentence will encourage or lead to repayment or restitution of stolen money or goods. Finally suspended sentence is to avoid excessive degree of suffering to the particular offender, for example because of his bad physical or mental health.
    
31. Suspension of sentence in this case would be to encourage repayment of the money stolen. The prisoner told the Probation officer that he had savings with Nambawan Supa Limited, the Superannuation body for government workers previously known as Public Officers Superannuation Fund or POSF. The offender also had K9,000 savings with Teacher Savings and Loans Society.
    
32. The sentence for this type of case is between 4 years to 6 years. I find that the aggravating factors outweigh the mitigating factors in this case. I treat this particular offence as very serious. It is serious because of the breach of trust. The offence is becoming very prevalent and a deterrent sentence is warranted. The monies were also not put to any good use.
    
33. I note that the offender does not have any prior convictions. I accept the submissions made by his lawyer and do take into account some of the mitigating factors that were submitted. I also take into account the Probation report. The PSR is favourable to the offender and does recommend that he is a suitable candidate for probation.
    
34. I consider in his favour the guilty plea. I also take into account his lack of prior convictions. I do not accept the other factors submitted by his lawyer as mitigating the crime.
    
35. In this case I find that the amount is quite substantial. The offender has not made any effort to repay and I am of the view that this is because in the words of the probation officer, the offender is in denial. He does not accept that what he has done is criminal. In my view, this is a clear indication that the prisoner is likely to reoffend if allowed to continue in his current employment with Department of Finance.
    
36. The Supreme Court in Doreen Lipirin v State (2001) SC 673 stated that for misappropriation cases the sentencing court should consider non-custodial sentence first in order for the offender to make restitution. I consider however that in this case the need for individual and general deterrence is far greater.
    
37. I find that the case is aggravated by the serious breach of trust and abuse of his position. The theft was also well planned. He hoped no one would find out but his crime has now come to light. I reject his lawyers submissions that this offense is not serious. Misappropriation and theft of government funds is a very serious matter indeed. It is one of the main reasons why Papua New Guinea has not developed despite having great wealth and natural resources.
    
38. In all the circumstances I impose a sentence of 4 years in hard labour on the offender. None of the sentence will be suspended. I order that the prisoners’ bail monies be refunded.
    

Sentenced accordingly.

________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Pacific Horizons Legal Services: Lawyer for the Accused