The State v Elizabeth Teka (2008) N3509

• Jurisdiction: Papua New Guinea
• Judge: Makail, AJ
• Judgment Date: 22 October 2008
• Citation: (2008) N3509
• Docket Number: CR NO 1116 OF 2007
• Court: National Court
• Year: 2008
• Judgement Number: N3509

Full Title: CR NO 1116 OF 2007; The State v Elizabeth Teka (2008) N3509

National Court: Makail, AJ

Judgment Delivered: 22 October 2008

N3509

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1116 OF 2007

THE STATE

v

ELIZABETH TEKA

Mendi: Makail, AJ

2008: 8 October

: 14, 15 & 22 October

CRIMINAL LAW - Sentence - Misappropriation - Criminal Code - Section 383A (1)(a) - Maximum penalty of 10 years - Aggravating factors - Breach of trust - Victim an ordinary villager and relative of prisoner - Substantial amount of money - K37,000.00 - No restitution - Prevalence of offence - Mitigating factors - First offender - Early guilty plea - Remorseful - Pre sentence and Means Assessment Report recommended non custodial sentence - Ability to make restitution - Opportunity to make restitution to victim - Sentence of 5 years appropriate - personal deterrence - wholly suspended on strict conditions - Including full restitution within 4 months - Criminal Code - Sections 19 & 383A(1)&(2).

Cases cited:

Acting Public Prosecutor -v- Don Hale (27/08/98) SC564

Wellington Belawa -v- The State [1988-89] PNGLR 496

The State -v- Roslyne Wambie: CR No 1049 of 2005 (Unnumbered & Unreported Judgment of 26 March 2008)

The State -v- Dobi Ao (No 2) (2003) N2247

The State -v- Nakikus Konga: CR No 32 of 2001 (Unnumbered & Unreported Judgment of 24 May 2002)

The State -v- Daniel Mapiria: CR No 1118 of 2000 (Unnumbered & Unreported Judgment dated 1 October 2004)

Doreen Liprin -v- The State (2001) SC637

Counsel:

Mr J Kesan, for the State

Mr P Kumo, for the Prisoner

SENTENCE

22 October, 2008

1. MAKAIL AJ: On Tuesday 8 October 2008, the prisoner pleaded guilty to one count of misappropriation of K37,000.00, the property of one George Kaima contrary to section 338A(1)(a) of the Criminal Code.

2. After the arraignment and administration of allocutus of the prisoner, at the request of Mr Kumo of counsel for the prisoner, I adjourned the matter to 14 October 2008 at 9:30 am for further hearing pending the Probation Officer to provide to the Court a Pre Sentence Report and a Means Assessment Report for the Court to consider. On 14 October 2008 at 9:30 am, when the matter was called, the Probation Officer appeared and informed the Court that the two reports were not ready to be presented to the Court and requested a little more time to complete the reports. I further adjourned the matter to 15th October 2008 at 9:30 am to allow the Probation Officer to complete the reports.

3. On 15 October 2008, the Probation Officer provided the reports and I heard both counsel’s submissions and also considered the reports and adjourned to today for my decision. This is my decision.

RELEVANT FACTS

4. I now proceed to deal with the relevant facts in this case, which are straight forward as follows: The prisoner and the victim are from Kowagil village in Ialibu of the Southern Highlands Province. The victim lives in the village whilst the prisoner was then living in Mt Hagen. On 27th July 2006, the victim named George Kaima brought with him to Mt Hagen cash of K40,000.00 to purchase a PMV bus. The bus he wanted to buy is a toyota coaster but there was none in stock at Ela Motors in Mt Hagen. The victim approached the prisoner and gave her the money to keep until such time when the bus becomes available for sale at Ela Motors. Upon trusting her, the prisoner left the money with her but the prisoner returned K3,000.00 to the victim. She kept K37,000.00 and deposited it into her bank account.

5. The prisoner then applied the money to her personal use by removing variable amounts from the bank account over a period of time until the entire money was depleted from the account. When she applied the money in that manner, the victim did not authorize her to do so, hence she acted in contravention of section 383A(1)(a) of the Criminal Code.

ALLOCUTUS

6. On allocutus, the prisoner says that she was an employee of Wamp Nga Group of Companies in Mt Hagen and held the position of Personal Assistant Executive Secretary to the Managing Director of that company.

7. She says that the victim is her brother in law. The victim gave her the money to keep but she told him that as it was a substantial amount, she will put it in her bank account. The victim agreed and she deposited the money into her bank account. After the victim returned to his village, she encountered a big problem. She says that she was attacked by a criminal in Mt Hagen and the police gave chase and shot dead the criminal. It was big news in town and she went into hiding.

8. After the death of the criminal, she feared for her life and that of her family. The relatives of the dead criminal might avenge the death of the criminal on her and her family. She sought permission of her employer to take time off work to sort the problem which was readily granted.

9. She paid compensation to the relatives of the dead criminal. The compensation payment was substantial. She used the money of the victim to buy pigs and gave to the relatives of the dead criminal. She also gave some money of the victim to the relatives of the dead criminal. After the compensation payment, she continued to use the rest of the money in the account for her personal use.

10. She further says that she is the sole bread winner of her family. Her husband is not working. Her family depends on her for a living. She also says that it was a temptation that she failed to resist and as a result she finds herself in this situation. She says that as the victim was a relative, she thought that it was well for her to use the money as she would repay it later.

11. She says sorry to God and to the Court for breaking the laws of Papua New Guinea. She also says sorry to the victim for offending him. She says sorry to the victim for not obtaining his permission before using the money. She says that she is willing to repay the money to the victim if given sufficient time by the Court. She also says that her employer is willing to assist her repay the money if she is given the opportunity to return to work.

12. Finally, she says that she went to Port Moresby to look for money to repay the money when she was arrested by the police and it was not her intention to run away from the Court.

THE RELEVANT LAW

13. The prisoner has been charged under section 383A(1)(a) of the Criminal Code, for misappropriating K37,000.00, money belonging to George Kaima which carries a maximum of 10 years imprisonment. The provision reads:

“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) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:-

(a) where the offender is a director of a company and the property dishonestly applied is company property;

(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 a value of K2,000.00 or upwards.

(3) For the purposes of this section -

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and

(b) a person's application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property; and

(c) a person's application of property shall be taken not to be dishonest, except where the property came into his possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps; and

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender's application of the property, had control of it”. (Emphasis is mine).

REASONS FOR DECISION

14. The prisoner acknowledges that the offence committed is serious. Her case falls under section 383A(1)(a),(2)(c)&(3)(a) of the Criminal Code. By that I mean, the money is the property of the victim and was given to the prisoner for a specific purpose and that is to purchase a toyota coaster bus. She was to hold the money in trust for the victim and to purchase the bus when one becomes available at Ela Motors.

15. As the prisoner has pleaded guilty and convicted on one count of misappropriation, by section 383A(2)(c), the sentence I am to impose on her shall automatically be above 5 years but not more than 10 years because she dishonestly applied the money whilst it was placed in her trust, upon a...