The State v John Watangia

• Jurisdiction: Papua New Guinea
• Judge: Susame AJ
• Judgment Date: 29 March 2018
• Citation: (2018) N7175
• Court: National Court
• Year: 2018
• Judgement Number: N7175

Full : CR (FC) No 28 of 2016; The State v John Watangia (2018) N7175

National Court: Susame AJ

Judgment Delivered: 29 March 2018

N7175

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 28 OF 2016

THE STATE

V

JOHN WATANGIA

Kokopo: Susame , AJ

2018: 23 February, 29th March

CRIMINAL LAW – Sentence – S. 383A Offence of Misappropriation – Sentencing factors & guidelines – Comparable judgments – Prevalence of offence – the need for increase in baseline sentence – Offence serious but non violent – Alternatives to sentencing considered appropriate for misappropriation cases depending on its merits – suspension of sentence is not merely an exercise of leniency- Purpose of retribution, restitution & rehabilitation is still achieved – 3 years sentence imposed, but suspended upon probation with strict condition.

Cases cited:

Doreen Liprin v The State (2001) SC673

Goli Golu v. The State [1979] PNGLR 653)

Public Prosecutor v. Don Hale (1998) SC564

Taiba Maima v Sma [1971-1972] PNGLR 49,

The State v Cynthia Feria (2014) PGNC 74, N5600

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

The State v Eric Emmanuel Vele (2002) PGNC 93; N2252

The State v Francis Rarlu (2008) PGNC 241; N3710

The State v Siba Kua (2007) PGNC 103; N3230

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

Counsel:

Miss Batil, for the State

Mr. Paisat, for the Prisoner

JUDGMENT ON SENTENCE

29th March, 2018

1. SUSAME, AJ: The prisoner has been found guilty and convicted on 5th March 2018 for misappropriation of K9 000.00 in cash from his employer Oceanic Communications PNG Limited.

2. The prisoner was initially charged for misappropriating the sum of K17 114.50. That amount was reduced to K9, 000.00 after plea bargaining. So, the indictment charging him was that between months of July and September 2015 at Kokopo the prisoner whilst in the employ of Oceanic Communications Limited as the Operations Logistics Officer and Stock Controller, dishonestly applied to his own use sum of K9 000.00 in cash from Oceanic Communications Limited which the prisoner admitted stealing.

3. First I set out the facts, next the summary of submissions, the law and sentencing guidelines followed by factors in aggravation and mitigation. Then some discussion of comparable cases that have been decided.

FACTS

4. Facts agreed by the prosecution and defence and put to the prisoner on arraignment are as follows. Between the months of July and September 2015 the prisoner was employed by Oceanic Communications PNG Limited (OC PNG Ltd.) in Kokopo, East New Britain Province. He was overseeing and in charge of stock controlling, dispatching and sales of Digicel PNG products under a contract OC PNG Ltd had entered with Digicel PNG.

5. On 13th August 2015, the company’s operations manager Mr. Raj Pravin travelled in from Port Moresby on relieving duties conducted a full audit of the stock items on cell phones, flex cards, sim cards and other items. The ground manager at Kokopo office resumed duties from rec-leave and conducted another audit. Both audits revealed that K10, 300.00 in cash, pre-paid sim cards and phones valued at K6, 814.50 went missing when the prisoner was in charge and overseeing the office.

6. In line with the company policy, because the prisoner was then in charge of the office he was held responsible to make good the loss. On 28th August 2015, the prisoner in a deceitful way took K9000.00 from K20, 362.50 that was going to be deposited in the bank by another company employee namely Araurobo Veratau. He admitted using that amount to repay the money that was found missing following the audit instead of using his own funds.

7. Court read the evidence in the committal files tendered into court by the prosecution after provisional plea was entered. In addition to the other evidence court noted the prisoner’s confessional statements of guilt recorded in the record of interview. On the evidence I was satisfied it was safe for the court to enter a conviction. Accordingly, the prisoner was found guilty of the charge.

8. After prisoner’s antecedents was presented to court counsel of the prisoner sought an adjournment for submissions on sentence to be filed together with means assessment report and pre-sentence report. Adjournment was granted and parties to return to court again on 12 March at 9.30am for hearing of submissions. The reports and submissions were filed and court heard counsels of their respective submissions. When sitting commenced accused was heard on allocutus followed by hearing of submissions.

SUBMISSIONS

9. Set out below are summary of the submissions heard.

10. Miss Batil for the state filed an 11 page submission and provided valuable assistance. Court was reminded of sentencing principles and guidelines on misappropriation cases. References were made to a number of decided cases in PNG as guidance.

11. She submitted the present case falls within category 2 following Wellington Belawa v The State [1988-89] PNGLR 496 because the amount misappropriated fell between K1000.00 and K10, 000.00. Miss Batil submitted a strong deterrent sentence to be imposed and if sentence is to be wholly suspended it will be within the discretion of the court under s 19 of the Code.

12. In addition to her written submission she argued restitution is not possible because complainant has not cooperated to provide information on how the money can be repaid. As an alternative, court to impose a fine or custodial sentence. I will respond to this part of her submission later on.

13. Mr. Paisat’s submission is also noted. He cited the cases of The State v Francis Rarlu (2008) PGNC 241 N3710 and The State v Siba Kua (2007) PGNC103 N3230 which involved persons who were in authority to hold monies. The Court in those two cases imposed a 3 years suspended sentence on conditions for prisoner to make periodical restitution and do community service and prisoner to enter into a recognizance to be of good behaviour.

14. Mr. Paisat urged the court to consider the pre-sentence and means assessment reports and other mitigating factors favourable to the prisoner. He submitted for a 3 years to be wholly suspended upon prisoner entering into good behaviour bond for 2 years with condition for repayment of K9000.00 to the complainant or the state in periodical payment of K500.00 per month over a period of one year.

OFFENCE & PENALTY REGIME

15. Section 383A of the Criminal Code Act prescribes the offence of misappropriation in the following terms:

383A. MISAPPROPRIATION OF PROPERTY.

[122](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.

(Underlining Added)

AGGRAVATING FACTORS

Ø Stealing from employer in breach of trust

Ø Offence prevalent

Ø Offence pre-planned

Ø Offender used the money

MITIGATING FACTORS

Ø Prisoner is first time offender

Ø Prisoner’s early plea

Ø Prisoner’s exemplary good conduct and cooperation

ALLOCUTUS

16. In mitigation you stated you are married and have 2 children. Your wife is a nurse at Nonga Base Hospital. You said there are 7 of...