The State v Francis Yegiora

• Jurisdiction: Papua New Guinea
• Judge: Kangwia, AJ
• Judgment Date: 02 April 2012
• Citation: (2012) N4641
• Court: National Court
• Year: 2012
• Judgement Number: N4641

Full : CR NO 1326 of 2010; The State v Francis Yegiora (2012) N4641

National Court: Kangwia, AJ

Judgment Delivered: 2 April 2012

N4641

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1326 of 2010

THE STATE:

V

FRANCIS YEGIORA

Waigani: Kangwia, AJ

2011: 10 - 17 October

2012: 02 April

CRIMINAL LAW – Sentence – Conspiracy to defraud – prisoner compelled to be in a conspiracy - Sentence – Misappropriation – Applied money to the use of others – prisoner received no benefit from money for his part Prisoner former provincial treasurer – first time offender – all accomplices scot free – Directions of superior followed despite knowing it to be wrong – Prisoner not gullible or corrupt - Offences border more on foolishness and negligence of duties – Restitution unfair and inappropriate – non custodial sentence appropriate.

Cases cited:

Wellington Belawa v the State [1988-89] PNGLR 496;

The State v Andrew Mapea CR No 517 of 2007 (Unnumbered & Unreported Judgement of 13 September 2010);

The State v Andrew Epei, CR No 1007 of 2008 (Unnumbered & Unreported Judgement of15 April 2011;

The State v Francis Ipuke (No 5) CR No 829 of 2008 (Unnumbered & Unreported Judgement dated 15 April 2011);

Goli Golu v the State [1979] PNGLR 653;

The State v Daniel Mapiria (2004) CR 1118 of 2000,(Unnumbered & Unreported Judgement dated 01 October 2004);

Doreen Liprin v the State [2001] PNGLR 6;

The State v Dobi Au (No 2) (2002) N2247;

Yaip Jushua Avini & Anor v the State [1997] PNGLR 212;

The State v Iori Veraga (2004) N 2921;

The state v Derrick Sakatea Niso (2005) N2849;

The State v Martha Agua, CR No 1252 of 2007 (Unnumbered & Unreported Judgement of 17 November 2011).

Counsel:

J. Waine, for the State

T. Ohuma, for the prisoner

02 April, 2012

1. KANGWIA AJ; Prisoner Francis Yegiora was convicted after a trial on two counts of conspiracy to defraud the State of K300, 000: 00 and one count of misappropriation of the same amount to the use of others pursuant to s.407 and 383A of the Criminal Code Act respectively.

2. To better appreciate the offences the prisoner was charged with and their corresponding prescribed penalties, I reproduce the relevant provisions which are as follows:

S 407 Conspiracy to defraud

(1) A person who conspires with another person –

(a)...

(b) to defraud the public, or any person (whether or not a particular person); or

(c) ...

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

S 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)...

is guilty of the crime of misappropriation.

(2) An offender guilty of the 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 –

(a)...

(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 the value of K2,000: 00 or upwards.

3. The prisoner is liable to imprisonment to a maximum of 7 years for Conspiracy to Defraud and 10 years for Misappropriation under the prescribed penalties provided. This is of course subject to the courts discretion permitted by s.19 of the Criminal Code.

BRIEF FACTS:

4. The brief facts are these.

The prisoner was the Provincial Treasurer for Simbu at the time of the alleged offences. Two persons named as Robert Bartho and Peter Kuman brought two cheques with a total value of K300, 000: 00 to the prisoner in his Kundiawa office. The cheques which originated from the National Planning Department were for road improvements in Gumine and Kundiawa/Gembogl Districts and payable to the District Administrators of the two Districts.

5. The prisoner directed deposits to be made of the cheques and for payments to be made from the Provincial operating account. A cash payment of K100, 000: 00 was made to Mr. Robert Bartho and K200, 000: 00 was paid to Peter Kuman. The payments were made in the prisoner’s office. At the time of payment Robert Bartho and Peter Kuman were neither the respective District Administrators nor were they public servants in the Gumine and Kundiawa/Gembogl District Administrations.

6. Acquittals were made through the Department of Works but some officers in the Provincial Treasury declined or could not examine or certify them after false information were discovered in the acquittal documents.

7. The prisoner denied any wrongdoing based on an assertion that he was given directions by his superior Mr. Gabriel Yer from the Finance Department headquarters to make the payments to the two men.

PERSONAL PARTICULARS:

8. The prisoner is aged 58 years. His father comes from Harua village, Kubalia. Yangoru, East Sepik Province and his mother is from Koge village Kamtai, Sinesine, Simbu Province. He is married with 05 children and 06 grand children. He is a church elder with the Assemblies of God church in Kundiawa and has been for the past 25 years. He is currently unemployed after he was terminated for this same matter. Since his termination from employment, he has been doing church work and living in Kundiawa. He has no record of any prior convictions.

ALLOCATUS:

9. On his allocatus the prisoner presented a written statement which he preferred to rely on. Briefly his statement stated that he was a first time offender. He had been a public servant for 34 years. He apologised for what transpired and promised never to repeat such acts.

He stated that he thought what he did was right because he followed orders from his superior.

10. His reputation and the trust people had on him were now at stake and it would take many years to rebuild it. His prospects of future employment was jeopardised and he is unlikely to secure any employment.

11. Others who were associated with this matter at the Department of Finance and National Planning along with the two persons who collected the money and those who made false acquittals should be dealt with as it is a serious matter. It was unfair for the State to have him charged when the others are scot free. He was willing to assist the State to this effect.

12. He stated that the Secretary for Finance punished him severely with the termination of his employment from the same allegation already. He asked the court to take the disciplinary punishment into account in determining a penalty for his case.

13. He has incurred personal time and expenses to the church and his status as a church elder is jeopardised. His health condition has deteriorated with high blood pressure that affected his heart condition. He did not personally benefit from the money alleged but spent a lot of money to defend this case. The money in question was eventually reimbursed and no one suffered any loss.

Given the above he asked the court to exercise its discretion to impose a suspended sentence.

SUBMISSION FOR THE PRISONER:

14. On his behalf Ms Ohuma submitted that the prisoner was subjected to disciplinary action by his employer for these same offences arising out of the same set of facts. He was suspended after police charged him of misappropriation and official corruption in 2006. The suspension was removed after the committal court at Waigani and Kundiawa discharged him of the offences on 14 June 2006 and 29 August 2006 respectively.

15. Three years after his suspension was lifted he was suspended again and charged with an internal disciplinary charge on 13 November 2009. He was finally terminated from employment on 01 December 2009 after serving 34 years with the department. He was not paid any contract entitlements upon termination.

16. He did not benefit in any way from the money paid. He was only facilitating payments in his official capacity just like the other officers in the treasury department.

17. He has been charged on an ex officio indictment for the three offences and found guilty. Many have been involved in the whole conspiracy but he will be the only one to be punished.

These matters should be taken into account in determining a sentence for the prisoner.

18. Ms Ohuma also submitted that the relevant factors in sentencing for these offences were as stated in the case of Wellington Belawa v The State [1988-89] PNGLR 496 which the Court should consider in sentencing.

19. The maximum penalty was reserved for the worst kind of the offence. In that respect it was submitted that the court had discretion under S 19 of the Criminal Code Act to impose a sentence other than the one prescribed.

20. The court was also asked to consider a concurrent sentence on the three counts; that the sentence be suspended with probation order as the pre sentence report showed him to be a suitable person for probation.

SUBMISSION FOR THE STATE

21. On behalf of the State Mr. Waine sought a custodial sentence of 4 to 5 years to deter others, as a suspended sentence would send a wrong signal to the public.

22. It was submitted that the prevalence of the...