The State v Miriam Hevelawa (No 2)

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ
• Judgment Date: 15 September 2017
• Citation: (2017) N6875
• Court: National Court
• Year: 2017
• Judgement Number: N6875

Full : CR (FC) 221 of 2016 & CR (FC) 222 of 2016 & CR (FC) 223 of 2016; The State v Miriam Hevelawa, Jacob Hevelawa and Timothy Numara (No 2) (2017) N6875

National Court: Salika, DCJ

Judgment Delivered: 15 September 2017

N6875

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 221 OF 2016

CR (FC) 222 OF 2016

CR (FC) 223 OF 2016

BETWEEN:

THE STATE

AND:

MIRIAM HEVELAWA, JACOB HEVELAWA AND TIMOTHY NUMARA

(NO. 2)

Waigani: Salika, DCJ

2017: January 24;

February 6, 13, 15;

March 24, 22;

April 12;

May 30;

September 15;

CRIMINAL LAW – Practice and Procedure – Section 515 of Criminal Code - Conspiracy to defraud – Section 92 of the Criminal Code Act – Abuse of authority of office – Section 383A (1) and (2) of the Criminal Code – Misappropriation – what is the appropriate sentence – sentencing trend in dishonesty cases.

Case Cited:

Belawa v. The State (1988-89) PNGLR 486

Goli Golu v The State (1979) PNGLR 653

The State v David Kang (2009) N3603

The State v Iori Veraga (2005) N2921

The State v Nancy Leah Uviri (2008) N5468

State v Augustine Sekry CR 376 of 2005) (Unreported National Court decision)

State v Rictor Naiab (CR 387 of 2005) Unreported National Court decision

State v Joyce Gulum (CR 1620 of 2005) Unreported National Court decision

State v Paul Taro (CR 237 of 2006) Unreported National Court decision

The State v Steven Lasin (2007) N5052

Counsel:

Ms H Roalakona, for the State

Mr F Kirriwom, for the Accused

SENTENCE

15th September, 2017

1. SALIKA DCJ: INTRODUCTION: On 17th July 2017, I found Jacob Hevelawa and Timothy Numara guilty to 2 counts of abuse of authority of office pursuant to S.92 of the Criminal Code Act, one count of conspiracy to defraud under S.515 of the Criminal Code Act and three (3) counts of misappropriation under S383A(1) (a) of the Criminal Code Act.

2. On the same date and time I found Miriam Hevelawa guilty to one count of conspiracy to defraud under S.515 of the Criminal Code Act and three (3) counts of misappropriation under S.383A(1)(a) of the Criminal Code Act.

ISSUE

3. Having found each of them guilty to those various charges I am now left with the issue of sentence to impose on each of the prisoners on each of the counts.

4. I will also need to decide whether the sentences should be served concurrently or cumulatively.

THE LAW

5. Section 92 (1) of the Criminal Code Act says:-

“(1) A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding two years.

Section 515 of the Criminal Code Act says:-

A person who conspires with another to commit a crime or to do any act in any part of the world that-

(a) if done in Papua New Guinea would be a crime; and

(b) is an offence under the laws in force in the place where it is proposed to be done.

is guilty of a crime.

Penalty: If no other penalty is provided-

(a) imprisonment for a term not exceeding seven years; or

(b) if the maximum penalty for the crime in question does not exceed- to imprisonment for a term of seven years – not exceeding that penalty.

Section 383A (1) (a) of the Criminal Code says:-

(1) A person who dishonestly applies to his own use or to the use of another person –

(a) property belonging to another

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; or

(b) where the offender is an employee and the property dishonestly applied is the property of his employer; or

(c) where the property dishonestly applied was subject to a trust, direction or condition; or

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

In this case the value of the property dishonestly applied is more than K2,000.00 and so they are liable for up to 10 years imprisonment.

6. The provisions referred to above set the maximum imprisonment terms for each of the offences committed. The Court may in the exercise of its discretion impose lesser terms pursuant to S.19 of the Criminal Code.

7. It is also trite law that the maximum imprisonment terms are only to be imposed where it is shown that a case is the worst of its type and that the maximum penalty is warranted. A case should be made out for a worst case scenario in my respectful opinion. See Goli Golu v The State (1979) PNGLR 653.

FACTS

8. Before the Court deals with the issue of what penalty to impose, it is only fitting that the factual background be set out first to get an appreciation of what happened. The facts are:-

(a) Jacob Hevelawa was the Director General for the Office of Library and Archives from March 2011 to March 2014 and the co-accused, Timothy Numara was the Manager Corporate Services for the Office of Library and Archives. Miriam Hevelawa is the wife of accused Jacob Hevelawa and is the sole director of the company PAJA Sisters Trading which was registered with the Companies Office on 6th December 2012.

(b) The States allegation is that between the 1st day of December 2012 and 31st December 2013, the accused conspired to defraud the Independent State of Papua New Guinea for Mrs. Hevelawa to submit inflated invoices for grass cutting, landscaping and removal of rubbish through a contractor known as PAJA Sisters Trading of which the sole director is and was the accused, Miriam Hevelawa. The accused Jacob Hevelawa as the Director General of the Office of Library and Archives (OLA) and also the section 32 officer approved the payments knowing that the payments were to his wife’s company.

(c) The Contract of Agreement was signed by the Director General, Jacob Hevelawa and the Manager Corporate Service, Timothy Numara and Miriam Hevelawa on behalf of PAJA Sisters Trading on 2 January 2013.

(d) There was no agreed value of the contract but payments were to be made to PAJA Sisters Trading upon lodgement of its invoices to the OLA.

(e) Three invoices numbered 0005,0006 and 0008 all dated 21 June 2013 were submitted for payment by accused, Miriam Hevelawa to Timothy Numara for the sum of K103,250.00, K91,000 and K86,650.00 respectively all being for grass cutting, landscaping and removal of rubbish. These invoices did not specify the dates or periods when the alleged work was done. The amounts claimed were all inflated.

(f) These invoices were submitted to the OLA and the relevant Financial Forms (FF3) were processed for payment. The accused, Jacob Hevelawa signed off on all these claims as the Section 32 officer approving the payments.

(g) On 31 December 2013 three cheque payments were made to PAJA Sisters Trading in the amounts of K63,120.50 on BPNG Cheque no. 365 609; BPNG Cheque no. 365 473 for the sum of K20,000.00 and a third payment of K35,725.80 on BPNG Cheque no. 365 460.

(h) These payments were all deposited into the bank account of PAJA Sisters Trading in January 2014 and then dishonestly applied to their own use and to the use of others.

(i) The State says that the accused had conspired when they agreed to a cleaning contract without a value for the job done which allowed the accused Miriam Hevelawa to invoice for simple work done for inflated amounts; the accused Jacob Hevelawa and Timothy Numara had abused the authority of their offices by approving and processing of the inflated payments despite a conflict of interest in the awarding of the contract and that all their actions were dishonest and they dishonestly applied the sum of K63,120.50; K20,000.00 and K35,725.80 respectively, the property of the Independent State of Papua New Guinea.

The State invoked section 7 of the Criminal Code Act.

PERSONAL PARTICULARS

(a) Miriam Hevelawa

9. Miriam Hevelawa is the wife of Jacob Hevelawa. She is now 49 years old from Tounumbu, Wewak, East Sepik Province. She and her family reside at Section 85, Allotment 15 Nasfund Compound, 9 Mile. From their marriage they have 4 children. She was educated to grade 6 level

(b) Jacob Hevelawa

10. Jacob Hevelawa is the husband of Miriam Hevelawa. He is now 56 years old and from Sufenduo village, East Sepik Province. His residential address is the same as his wife’s. They have 4 children and have been married for 35 years. He has a Bachelors Degree in Social Work from the University of Papua New Guinea. He has served in the Ministry of Education for 32 years reaching the pinnacle of his career as the Director General of OLA for 9 years. He was displaced as a result of this case. He has no major health issues. He plays an active role in the community as a leader and is of sober habits.

(c) Timothy Numara

11. Timothy Numara is 57 years old and from Warapu...