The State v Nerrius Boas (2004) N2608

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 10 May 2004
• Citation: (2004) N2608
• Court: National Court
• Year: 2004
• Judgement Number: N2608

Full Title: The State v Nerrius Boas (2004) N2608

National Court: Sevua J

Judgment Delivered: 10 May 2004

1 CRIMINAL LAW—Sentence—Misappropriation—Public servant—Cheque payable to British Petroleum for zoom—No authority to collect cheque—Negotiated cheque and used proceeds for personal use—Full restitution through payroll deduction—Whether suspended sentence appropriate in the circumstances—Criminal Code; s383A(2)(b).

2 Wellington Belawa v The State [1988–89] PNGLR 496, The State v Joseph Guai [1990] PNGLR 162 referred to

___________________________

N2608

PAPUA NEW GUINEA

[National Court of Justice]

CR 424 of 2004

THE STATE v. NERRIUS BOAS

Kavieng : Sevua, J

7th & 10th May 2004

CRIMINAL LAW – Sentence – Misappropriation – Public servant – Cheque payable to British Petroleum for zoom – No authority to collect cheque – Negotiated cheque and used proceeds for personal use – Full restitution through payroll deduction – Whether suspended sentence appropriate in the circumstances.

Criminal Code; s. 383A (2) (b)

Cases cited

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

The State v. Joseph Guai [1990] PNGLR 162

L.Rangan for State

A.Turi for Accused

10th May 2004

SEVUA, J : The accused pleaded guilty to one count of misappropriating the sum of K1,373.59 contrary to s. 383A (2) (b) of the Criminal Code.

The facts were that the Kavieng Club Manageress had requested financial assistance from the New Ireland Provincial Administration to buy fuel to provide sea transport for a cultural group from one of the islands to come and perform at the New Ireland Golf Tournament. The Deputy Provincial Administrator Corporate Services, Mr. Simon Passingan then approved that request and made available a cheque for the sum of K1, 373.59 for that purpose. The cheque was supposed to have been paid to British Petroleum however, the accused went and collected it and later negotiated it for cash at the Kavieng Hotel then spent the money for his own use.

In his allocutus, the accused said he has worked with the Department of New Ireland for twenty two (22) years. After the offence was discovered, he arranged for the money to be recovered from his salary through payroll deductions. He has repaid the amount in full, but continued to be on suspension without pay. He complained that other officers who had committed similar offences have not been placed in the same situation as him. He admitted that what he did was wrong but it was his own stupidity that led him to commit this offence. He regretted his action and said sorry for what he did.

His counsel, Ms. Turi, adopted the statement of her client during allocutus in her submissions and further submitted that this is the first offence committed by the accused in his forty one (41) years of service to the State, twenty two (22) of which were spent in the Provincial Administration here. Until then, he had been a loyal public servant

It was further submitted that the accused was still in suspension without pay, but had made full restitution. His plea of guilty is consistent with his admissions and that he is sorry for what he did. Counsel also submitted that the maximum penalty under s. 383A (2) (b) is five (5) years imprisonment however since full restitution has been made, it was submitted that a sentence of between 12 to 18 months to be suspended using the Court’s discretion under s. 19 of the Criminal Code, and a release on a good behaviour bond would be an appropriate punishment for her client.

Having heard the accused in allocutus and her counsel, and after reading the District Court depositions containing the evidence in this case including the accused’s admissions, the Court is of the view that there was no justification at all for the accused’s wrong doing. He was employed as the Executive Officer to the Deputy Provincial Administrator - Corporate Services, a position of responsibility and trust. Therefore, I consider that he was a very senior officer within the Department of New Ireland. I would assume also that he earned a good salary than most public servants in lower designations in the province.

Most importantly, the Court considers that the accused was in a position of trust and he betrayed that trust. That alone weighs heavily against him. The money was intended to bring some village people into town to display the rich cultural heritage that New Ireland Province, like all other provinces, are famous for, but the accused denied them that opportunity because, as he said, his own stupidity made him commit this crime and frankly, the Court has no sympathy at all for a person of the...