The State v Paul Tiensten

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ
• Judgment Date: 28 March 2014
• Citation: (2014) N5563
• Court: National Court
• Year: 2014
• Judgement Number: N5563

Full : CR 402 of 2012; CR 403 of 2012; The State v Paul Tiensten (2014) N5563

National Court: Salika, DCJ

Judgment Delivered: 28 March 2014

N5563

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 402 of 2012

CR 403 of 2012

THE STATE

V

PAUL TIENSTEN

Waigani: Salika, DCJ

2013: 10, 11, 12, 17, 18 & 25 September, 22 November

2014: 19 & 28 March

CRIMINAL LAW – Section 383A of the Criminal Code – Misappropriation of K10 million – consideration as to what should be the appropriate sentence

CRIMINAL LAW – sentencing principles and guidelines

Cases Cited:

Belawa v The State (1988-89) PNGLR 496

Liprin v The State (2001) PNGLR 6

Tom Amaiu v The State (1979) PNGLR 576

Brian Kindi Lawi v The State (1987) PNGLR 183

Yaip Avini v The State SC 523

The State v Bae (2010) N4076

The State v Amonea (2012) N4688

The State v Nakikus Konga (2002) Unreported and Unnumbered National Court decision.

The State v Andrew Posai N2624

The State v Gabriel Ramoi (1993) PNGLR 390

Counsel

Mr A Kupmain, for the State

Mr G J Sheppard with Mr P Tabuchi, for the Defense

28th March, 2014

1. SALIKA DCJ: BACKGROUND: The prisoner was found guilty to one count of dishonestly applying to the use of another namely Travel Air K10 million the property of the State. The common language to describe the offence is misappropriation. He was convicted with one count of misappropriation under s.383A of the Criminal Code. He was convicted on 22 November, 2013.

2. The brief background information is that the prisoner who was then the Minister for National Planning and Monitoring issued a directive to his Department Secretary to facilitate the release of K10 million. The K10 million was approved to be paid to Travel Air and collected by Eremas Wartoto. The Court in convicting the prisoner was of the view that the prisoner began the facilitation process by giving the direction to his then Department Secretary. In convicting him I said:

“The direction from him and causing the department officers to bypass the proper appraisal process under the guidelines and by bypassing the Public Finance Management Act and the deliberate lies in the way appraisal process and the speed in which the facilitation of the release of the funds were orchestrated, I conclude that the accused and his officers in the department dishonestly applied K10 million to the use of Travel Air thereby contravening s.383A(1)(a) of the Criminal Code.”

BACKGROUND OF PRISONER

3. I adopt verbatim the personal information of the prisoner as outlined by his counsel. They are:

Family & Marital Status

Paul Tiensten was born in Wawas, Pomio District, ENBP, Papua New Guinea, on 26 July 1966. He is married to Julie, whom he married in 2005, in the Catholic Church in Kinabot in Kokopo, ENBP. They have three young children, a son and twin girls. The children are aged 8 and 4 years old respectively.

Educational background

He started his education at Sampun Community School then to Palmalmal Provincial High School and later to Aiyura National High School prior to successfully completing and graduating with a Bachelor’s Degree in Business Studies at the University of PNG (UPNG).

Employment History

Mr Tiensten joined the Department of Mining and Petroleum in 1989 as a Policy Officer after graduating from UPNG.

In the reorganizing of the Department in 1993 he joined the Policy Branch of the newly formed Policy Division. After completing a Degree of Master of Laws in Resource Law and policy specializing in Petroleum Law (LLM) at the centre for Energy, Petroleum, Mineral Law and Policy, University of Dundee, Scotland, UK in 1997, he became the first national head of the Petroleum Policy Branch. In 1998, he was subsequently promoted to director of the Petroleum division where he was as responsible as Project Manager for the World Bank – funded Gas Development and Utilization Technical Assistance Project. By virtue of his position, he was a Deputy Chairman Petroleum Advisory Board.

Mr Tiensten is also a keen and well known rugby player. He was the captain of the national team, the PNG Pukpuks in many international and domestic fixtures.

ISSUE

4. Having now gone through his personal particulars I now turn my focus on to the issue that is before the court. The issue is what is the appropriate sentence to impose on the prisoner.

MATTERS TAKEN INTO ACCOUNT WHEN ADDRESSING THE ISSUE

5. The offence of misappropriation carries a penalty of imprisonment for a term of 5 years except in circumstances provided under subsection 2 of s.383A which is a term of imprisonment of not exceeding 10 years. In this case therefore, the maximum penalty the court can impose is 10 years imprisonment but that is subject to s.19 of the Criminal Code which says inter alia that the court may impose a lesser term of imprisonment.

WHAT IS THE PROPER STARTING POINT

6. There is no mathematical or scientific formula used by the courts in arriving at a particular sentence. In the absence of any such formula (and I am not advocating for a formula for the obvious reason that the formula will take away the courts sentencing discretion in considering an appropriate sentence) the responsibility for determining the appropriate sentence in a case remains a discretion of the court.

7. In considering the appropriate sentence the court will be assisted by case precedents which in this case the court has been ably assisted. I am mindful of the statutory maximum penalty provision of 10 years for this case. The courts in this country have stated that misappropriation of public funds by public officials in positions of trust is a serious crime, however the statutory maximum of 10 years does not appear to support the courts pronouncements. It is in these types of cases where the maximum penalty is low that the principle that the maximum term be reserved for the worst of its kind is difficult to adhere to. This is because in this case there is not much room to maneuver from the lower level penalty to the maximum level. The maximum penalty is 10 years and the National Court is already imposing terms ranging from 4 to 8 years for misappropriation of public and private funds for thefts of much lesser amounts.

8. This in my respectful opinion has happened because of the tariff formula or guide suggested by the court in the celebrated cases of Belawa v The State (1988-89) PNGLR 496, in this area of the law, where it said:

(a) K1 – K1,000, a jail term should rarely be imposed.

(b) K1,000 and K10,000, a jail term of up to 2 years’ is appropriate.

(c) K10,000 and K40,000, 2 to 3 years imprisonment is appropriate.

(d) K40,000 and K150,000, 3 to 5 years imprisonment is appropriate.

It is this type of formula or guide in my respectful opinion that “snuffs out” any room for maneuvering. Going by the above Belawa guide the question is what then should the sentence be for those who are convicted for misappropriation of amounts between:

- K150,000 to K200,000? 5 to 7 years? using that formula

- K200,000 to K300,000? 7 to 9 years? Using that formula

- K300,000 to K400,000? 9 to 10 years? Using that formula

- K400,000 to K500,000?

By the time one comes to amounts of K400,000 to K500,000 there is no room to maneuver. You have reached your maximum - Perhaps it now is overdue to revisit the Belawa formula. What about misappropriation of more than K10,000,000.00 using the Belawa formula; what should be the sentence range there?

9. After this discussion the question arises as to whether or not it is a good idea to have a sentencing formula or guide for the courts to use and whether or not to ask what the starting point should be in considering an appropriate sentence. With respect, it is my view that it may not be a good idea to have a sentencing formula nor is it a good idea to discuss or ask the question: what the starting point should be: what in my respectful view should be discussed is, what the range of sentences are or should be, the sentencing patterns and the trends in sentencing using the case precedents. Mitigating factors and aggravating factors come into the mix at some point when considering the appropriate sentence.

10. Factors such as:

- The amounts taken

- The quality and degree of trust reposed on the prisoner

- The period over which the fraud or misappropriation was committed.

- The use for which the amount was put to.

- The effect upon the victim

- The effect upon the public and upon public confidence

- The effect on the offender.

- Restitution

- Prisoner history

Matters of mitigation special to the offender are all relevant and should be considered when determining an appropriate sentence.

WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCE

11. Counsel for the State in his submissions made useful reference to certain case precedents. I adopt that schedule of comparable sentences and list them here as follows:

SCHEDULE OF COMPARABLE SENTENCES

MISAPPROPRIATION

S...