The State v Francisca Iralu (2008) N3710

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 10 July 2008
• Citation: (2008) N3710
• Docket Number: CR. NO. 269 OF 2007
• Court: National Court
• Year: 2008
• Judgement Number: N3710

Full Title: CR. NO. 269 OF 2007; The State v Francisca Iralu (2008) N3710

National Court: David, J

Judgment Delivered: 10 July 2008

N3710

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 269 OF 2007

THE STATE

V

FRANCISCA IRALU

Prisoner

Mt. Hagen: David, J

2008: 08 & 10 July

CRIMINAL LAW – sentence – misappropriation of K9,000.00 - monies belonging to employer – offence committed over a period of 5 months - guilty plea – no priors - expression of remorse – breach of trust - 3 years imprisonment in hard labour less period for pre-trial confinement – remaining term wholly suspended with strict conditions applying – ss. 19 & 383A (1)(a) and (2) (b) Criminal Code.

Cases cited:

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

The State v. Bluey Hanua (1997) N1625

Public Prosecutor v. Don Hale (1998) SC564

Doreen Liprin v. The State (2001) SC673

The State v. Micky John Lausi (2001) N2073

The State v. Robert Kawin (2001) N2167

The State v. Timothy Tio (2002) N2265

The State v. Dobi Ao (No.2) (2002) N2247

The State v. Margaret Donny (2004) N2609

The State v. Roselyn Waembi, CR.1049 of 2005, Unreported Judgment delivered by David, J on 26 March 2008

The State v. Ruth Mamando, CR.1652 of 2003, Unreported Judgment delivered by David J on 22 April 2008

Counsel:

J. Waine, for the State

P. Kapi, for the Prisoner

JUDGMENT

10 July, 2008

1. DAVID, J: INTRODUCTION: The Prisoner pleaded guilty to a charge upon an indictment that between 26 July 2006 and 21 December 2006 at Mt Hagen in Papua New Guinea, whilst employed by Niugini Oil Company (her former employer), she misappropriated the sum of K9,000.00, the property of her former employer contrary to s.383A (1)(a) and (2) (b) of the Criminal Code.

BRIEF FACTS

2. The Prisoner pleaded to these brief facts presented by the State.

3. The Prisoner was employed for a total period of 9 years by her former employer which is based at Kagamuga, Mt Hagen. She was the Office Manageress from 2003 to 2006 whose duties and responsibilities included keeping records of her former employer’s accounts, banking of takings and was also involved in the sale of fuel.

4. Between 26 July 2006 and 21 December 2006 the Prisoner dishonestly applied to her own use a total sum of K9,000.00, the property of her former employer. She did this by altering the cash sales figures on the yellow copies of the invoices in respect of 36 transactions to amounts less than what were actually stated. She would then go to the bank, do the deposits, but kept the difference of each of those transactions and used the moneys for her own benefit.

5. The amount of moneys which the Prisoner took on each occasion ranged from the first transaction of K552.57 to the last transaction of K481.56.

6. The Prisoner was suspended and consequently terminated sometime in January of 2007 because of the allegation.

THE RELEVANT LAW

7. Section 383A (1)(a) of the Code creates the offence and sub-section (2)(b) prescribes the penalty. I set out s.383A below.

“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; ……….”

8. The prescribed maximum sentence that can be imposed for the offence of misappropriation in this case is imprisonment for 10 years.

9. The case of Wellington Belawa v. The State [1988-89] PNGLR 496 is the leading authority in this jurisdiction for the offence of misappropriation and it sets out the sentencing guidelines for the offence. That case recommends that the following factors should be taken into account when determining what penalty to impose on an offender and these are; the amount taken; the degree of trust reposed in the offender; the period over which the offence was perpetrated; the use to which the money was put to; the effect upon the victim; the effect upon the offender himself; restitution; the offender’s own history; and matters of mitigation special to himself, such as ill health, young or old age, effect of excessive nervous strain, co-operation with the police.

10. Wellington Belawa also recommended a scale of sentences to be adjusted upward or downward depending on the various factors mentioned above and these are, where the amount misappropriated is between K1.00 and K1,000.00, a gaol term should rarely be imposed; between K1,000.00 and K10,000.00, a gaol term of up to 2 years; between K10,000.00 and K40,000, a gaol term of 2 to 3 years; between K40,000.00 to K150,000.00 a gaol term of 3 to 5 years.

11. It is generally accepted now that while the factors set out in Wellington Belawa are still relevant, the tariff recommended is outdated and therefore the need to impose stiffer sentences due to the prevalence of the offence. However, the Court still has a discretion under s.19 of the Code to impose an appropriate sentence depending on the facts or circumstances of a particular case.

12. I will refer to some other cases as well that have been decided in relation to the offence under discussion to assist the Court in determining the appropriate sentence for the Prisoner.

13. In Doreen Liprin v. The State (2001) SC673, the Prisoner was convicted by the trial judge on 3 counts of forging, uttering a bank withdrawal slip and misappropriation of a sum of K6,000.00. She was sentenced to 1 year each for forgery and uttering and 3 years for misappropriation all of which were to be served concurrently. The sentences were suspended on the condition that she repaid the money misappropriated within 2 months of sentence and in default she would be taken into custody to serve the sentences. She defaulted and was subsequently ordered to be taken into custody to serve the sentences. She lodged an appeal herself whilst she was in prison against conviction and sentence, but later engaged counsel to prosecute the appeal. Although her appeal was lodged out of time, the Supreme Court granted leave to review the matter in the exercise of its powers under s. 155 (2)(b) of the Constitution. The Supreme Court unanimously dismissed the appeal against conviction, but by a majority of 2-1 upheld her appeal against sentence which was reduced to 18 months.

14. In that case, Amet, CJ, as he then was, proposed that the prisoner be accorded more time to look for an alternative employment to repay the amount misappropriated and the Court consider making orders for free community work under the supervision of the Probation Service, Church Pastors community based organisations such as the Red Cross, etc. His Honour said:-

“I believe it is time to consider seriously whether offences of misappropriation of amounts of this kind warrants custodial sentences. I do not believe so. I believe the Court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment………………………………………..……………

For instance, if the Appellant were still employed, then a combination of alternatives that would enable her to continue working and to repay the full amount over an appropriate period of time in instalments. In that way the intention to impose a restitutionary order would be meaningful of attainment as well as a meaningful penalty upon the offender. Other social consequences are then accomplished in the process, that is that the offender would continue to be employed but pay her due to victims of the misappropriation and she could be further placed on additional supervised community work over a period of time as well. She would continue to be able to provide for and maintain her family and their need but be ordered to provide appropriately designed community work under supervision of Probation Officers, Church Pastors or other community based organisations such as the City Authority, the Red Cross, Saint Johns Ambulance Services and so on.

The offender is not a violent offender and not a threat to the community or society.

The converse implications of a sentence of imprisonment is, whilst the immediate effect is that of declaration of liberty and does a punishment, the cost to the State and community will exceed considerably the amount of money misappropriated. It would be of no benefit to society. The purpose of punishment can as easily be obtained in alternative...