The State v Paul Guli

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ
• Judgment Date: 17 August 2017
• Citation: (2017) N6866
• Court: National Court
• Year: 2017
• Judgement Number: N6866

Full : CR (FC) Nos 195,196 & 202 of 2014; The State v Paul Guli, Gogumi Kimin and Andrew Kama Alake (2017) N6866

National Court: Salika DCJ

Judgment Delivered: 17 August 2017

N6866

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 195,196 & 202 OF 2014

BETWEEN:

THE STATE

AND:

PAUL GULI, GOGUMI KIMIN AND ANDREW KAMA ALAKE

Kundiawa: Salika DCJ

2017: 17th August

CRIMINAL LAW – Practice and Procedure – Charge of misappropriation – S.383A (1) of Criminal Code Act – dishonest procuring of money – resulted in dishonestly application of the money.

Case Cited:

Doreen Liprim v. The State

State v. Paul Tiensten N5563

State v. Lawrence Puliali

State v. Peter Tokunai (2015)

State v. Janet Oba (2016)

State v Glenda Nugai (2017)

State v Ivori Veraga N2849

State v. Christopher Hulape and Agnes Hulape (2016)

State v. Jeffrey Yalopya

State v. Gibing Yawing N6836 (2017)

The State v. Nancy Leads Uviri (2008) N5468

Wellington Belawa v. The State (1988-89) PNGLR 496

Counsel:

Miss. H Roalakona, for the State

Mr. M Yawip, for the Accused

SENTENCE

17th August, 2017

1. SALIKA DCJ: INTRODUCTION: This Court found the 3 men guilty on one count of misappropriation of K473, 575.00 the property of the State after a trial in Kundiawa on 11th August 2017.

The Facts

2. Between July and September 2010, the accused, Paul Guli accountant and Gogumi Kimin District Administrator were employed as District Accountant and District Administrator respectively for the Anglimp/South Waghi District, then in the Western Highlands Province but now Jiwaka.

i. At the material time, various claims were submitted to the District Office by Gogumi Kimin who signed as the authorised requisitioning officer for accused, Andrew Kama Alake to be paid for vehicle hire, road maintenance and travel allowances.

ii. The accused, Paul Guli and Gogumi Kimin as the District Accountant and District Administrator in breach of the Public Finance (Management) Act and Finance Instruction 3C/2008, went on to sign and approve the payment of a sum of K473,575.00 under cheque no. 000999. Out of that K473, 575.00, Andrew Kama Alake received K105, 400.00 for his four claims and both accused persons also paid themselves from this payment under cheque no. 000999 K2, 000 for Paul Guli and K107, 000 for Gogumi Kimin.

iii. The accused, Andrew Kama Alake received another payment of K60, 000 under cheque no. 1075 again for fraudulent claims for another vehicle hire and K10,000.00 for Independence Celebrations at East Kambia.

iv. All these payments were made from the Anglimp/South Waghi District Services Improvement Program without any approval from the Joint District Planning and Budget Priorities Committee (JDP & BPC).

v. The State alleged that when the accused, Paul Guli and Gogumi Kimin approved the payment for the K473, 575 for various claims it was in breach of the Public Finances (Management) Act and the Finance Instructions, and when they benefited from the payment they dishonestly applied the money to their own use and to the use of others.

vi. The State alleged that when the accused, Andrew Kama Alake submitted the fraudulent claims and received the payments he dishonestly applied the sum of K165, 400.00 to his own use and the use of others and that the funds were not used for the intended purpose.

vii. The actions of the accused persons, it is alleged by the State contravened Section 383A (1) and (2) of the Criminal Code Act.

viii. The State invoked section 7 of the Criminal Code against each accused.

The Issue

3. After having found each of the prisoners guilty to the charge. I am now left with the task of imposing a sentence on each of them. What then is the appropriate sentence to impose in each of them?

The Law

4. The starting place to go to is Section 383 A (2) (d) that says:-

Section 383 (2) (d). An offender guilty of a crime of misappropriation of property is liable to imprisonment for five years except in any of the following cases when he is liable to imprisonment for ten years

(d) where a property dishonestly applied is of a value of K2, 000 or upwards.

Elements of Charge

5. The State submitted therefore that since the amount misappropriated was more than K2, 000.00 the maximum penalty under S.383 (2) (d) is ten years imprisonment.

The Belawa Tariffs

6. The Supreme Court in Wellington Belawa v. The State (1988-89) PNGLR 496 set the same tariffs depending on the amount of money misappropriated. It stated the following:-

· K1-00 to K1000 – no jail term imposed

· K1000 to K10,000.00 – 2 years imprisonment

· K10,000.00 to K40,000 – 2 to 3 years imprisonment

· K40,000 to K150,000 – 3 to 5 years imprisonment

7. The Supreme Court in Doreen Liprim v. The State suggested that alternative other than imprisonment terms should be imposed on offenders who stole money in the vicinity of K6, 000.00 to K7, 000.00.

8. However, since those case circumstances in PNG have changed. There is an increase level of fraud cases, cases of dishonesty, deceipt, stealing and the killing being perpetrated in the communities, in the public service and in the private sector. Perhaps it is now overdue that sentencing tariffs imposed in the Belawa case be increased. Cannings J in The State v. Nancy Leads Uviri (2008) N5468 suggested the following:-

· K1-00 to K1000 – a suspended sentence would be imposed

· K1000 to K10,000.00 – 4 years imprisonment

· K10,000.00 to K40,000 – 4 to 6 years imprisonment

· K40,000 to K150,000 and beyond – 6 to 10 years imprisonment

Cannings J effectively doubled the sentencing tariff from the Belawa tariff.

9. Parliament in 2015 amended the penalty provisions for stealing and misappropriation under S372 and 383 respectively. Anyone who stole or misappropriated over K1 million up to K10 million is liable to be imprisoned for up to 50 years. Parliament obviously listened to community views and decided to impose very high penalties for stealing or misappropriation of millions of kina.

10. The Belawa tariff did not mentioned beyond what the penalty should be for amounts of say K150,000 to K300,000. Maybe that should be 5 to 7 years and from K300, 000 to K500, 000 should attract 7 years to 9 years. Big amounts of money are now being stolen or misappropriated and in my respectful opinion so should the sentences of imprisonment be increased. Public Servants who are convicted of criminal offence of stealing and misappropriation should be sentenced to imprisonment term and not be reemployed in the public service especially where they are entrusted with the public money and have breached the trust and confidence of the public.

11. In the State v. Nancy Leah Uviri (supra) Cannings J imprisoned the prisoner to 7 years imprisonment for misappropriation of K300, 000.00. The prisoners in this matter misappropriated K473, 575, 00. If I were to use the Cannings J tariff in Uviri case, I would have to sentence the prisoners to 8 to 9 years.

Case Precedents

Name of Case	Offence	Sentence	Remarks
Wellington Belawa v. State (1988-89) PNGLR 496	Misappropriation of K1,979.00	2 years imprisonment	Provincial Secretary In a position of trust and breached of that trust
State v. Paul Tiensten (2014) N5563	Misappropriation of K10 million	8 years imprisonment after trial	Minister for National Planning and Monitoring issued a directive to his Department Secretary to facilitate the release of K10 million
State v. Lawrence Pukali (2014) N5695	Misappropriation of K405,600	5 years imprisonment after trial	Sold gold belonging to another and used up the K405,600
State v. Peter Tokunai (2015) N6039	Misappropriation of K1.5 million	7 years imprisonment after a trial	Obtained K1.5 to help build church destroyed by volcano eruption but used only K100, 000 and misappropriated the rest.
State v. Janet Oba (2016)	Misappropriation of K1.2 million	5 years imprisonment after a trial	Obtained money from the Department of National Planning and Monitoring for project. Money not used for intended purpose and misappropriated
State v Glenda Nugai (2017)	Misappropriation of K232,000.00	4 years imprisonment after a trial	Stole electronic credits to the value of K232,000.00
State v Ivori Veraga -N2849	1.Conspiracy to defraud 2. Misappropriation of K144,955.00	7 years for conspiracy to defraud 2 years for misappropriation after a trial	Valuer compared with others to inflate value of land
State v. Christopher Hulape and Agnes Hulape (2016)	Misappropriation of K1.6 million	5 years imprisonment after a trial	Obtained K1.6 million for Department of National Planning and Monitoring for projects but money not used on projects
State v. Jeffrey Yalopya	Misappropriation of K5million	9 years imprisonment after all State evidence he decided to plead guilty.	Obtained K5 million from National Planning and Monitoring Department for projects but money not spent on projects
State v. Gibing Yawing (2017) N6836	Stealing K14,955.00	2 years imprisonment plea of guilty	Accountant of a company stole K14, 955.00. In position of trust. Breached that trust.

SENTENCING CONSIDERATIONS IN MISAPPROPRIATIONS

CASES

12. The following...