The State v Joseph Guai [1990] PNGLR 162

• Jurisdiction: Papua New Guinea
• Judge: Brunton J
• Judgment Date: 30 April 1990
• Citation: [1990] PNGLR 162
• Court: National Court
• Year: 1990
• Judgement Number: N837

Full Title: The State v Joseph Guai [1990] PNGLR 162

National Court: Brunton J

Judgment Delivered: 30 April 1990

N837

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

GUAI

Goroka

Brunton J

5 April 1990

30 April 1990

CRIMINAL LAW — Sentence — Misappropriation of property of State — Public servant — Sentencing of — Mandatory dismissal of for indictable offence — Procedure on sentence — Presumption of dismissal — Misappropriation of K100.00 — Senior public servant — Fine of K650.00.

The Public Service General Orders, Order 8.10, provides:

"Where an officer is convicted of a criminal offence which relates to the duties of his office, he shall be dismissed from the Public Service by the Departmental Head on Form 8.2."

The Commander of the Bihute Corrective Institution, an officer of the Public Service, pleaded guilty to and was convicted of misappropriation of K100, the property of the State contrary to s 383a of the Criminal Code (Ch No 262).

Held:

(1) On a plea of guilty by an officer to whom Order 8.10 of the Public Service General Orders applies, the court should first convict, and proceed to sentence only after evidence is given that the officer has been dismissed from the Public Service: in the absence of such evidence the presumption of regularity binds the court and the court should proceed as if the prisoner had been, or would be, dismissed.

(2) In the circumstances a fine of K650, in default of two months imprisonment, should be imposed.

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

Cases Cited

The following case is the only case cited in the judgment:

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

Judgment on sentence

The following reasons for sentence were delivered on an adjourned plea of guilty to one charge of misappropriation under s 383a (2) (b) of the Criminal Code (Ch No 262).

Counsel:

D Ashton-Lewis, for the State.

D Umba, for the prisoner.

30 April 1990

BRUNTON J.: The prisoner has pleaded guilty to one charge of misappropriation under s 383a (2) (b) of the Criminal Code (Ch No 262). The amount alleged was K100. The money was part of the funds allocated by Corrective Institutions for the expenses arising for detainees studying with the College of Extension Studies.

The sentencing principles for an offence of this sort were recently discussed by the Supreme Court in Wellington Belawa v The State [1988-89] PNGLR 496. For offences in which the amount of money stolen or misappropriated is under K1000 a gaol sentence should rarely be imposed; by Bredmeyer J, at 500. This tariff was generally agreed to by the other members of the Supreme Court (Woods J, at 502, Barnett J, at 505).

However the tariff is not immutable. In cases where the position of a prisoner is such that he or she occupies a strategic place in the state system, deterrence may well outweigh the quantum of the sum misappropriated and previous good character, because of the impact of the loss of public confidence and also the loss of confidence of those within the institutions of state wherein the offence took place.

This prisoner, apparently had a good work record. That is invariably so in cases like this. The Acting Commissioner for Corrective Institutions, Mr Michael Mondia, OBE, has completed a statutory declaration.

Mr Mondia lists the prisoner's qualities and finds that he:

· [Is] very diligent and dedicated. He has an incredible capacity, which is indeed a rare feature in we National Officers;

· Reasonably thorough;

· [He] has shown by dint of hard work and application a positive improvement in the Bihute Corrective Institution;

· Has displayed a flair to liase easily with departments related to the Correctional Services.

·...