The State v Philip Wiami

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 18 October 2007
• Citation: (2007) N5492
• Court: National Court
• Year: 2007
• Judgement Number: N5492

Full : CR NO 1031 0F 2006; The State v Philip Wiami (2007) N5492

National Court: Cannings J

Judgment Delivered: 18 October 2007

N5492

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1031 0F 2006

THE STATE

V

PHILIP WIAMAI

Madang: Cannings J

2007: 2, 12, 15, 18 October

CRIMINAL LAW – sentence – Criminal Code, Subdivision VI.1.C (offences analogous to stealing) – Section 383A (misappropriation of property) – sentence on plea of guilty – offender collected and put to his own use the final entitlements of his cousin, a former schoolteacher – K16,848.79 misappropriated – sentence of 4 years.

A man pleaded guilty to misappropriation. He collected and applied to his own use K16,848.79 which belonged to someone else.

Held:

(1) The starting point range for sentencing for the amount misappropriated is four to six years imprisonment.

(2) Mitigating factors are: transactions committed over short period; private arrangement; co-operated with police; repaid some money; pleaded guilty; remorse; first-time offender.

(3) Aggravating factors are: large amount of money; severe breach of trust; money not put to good use; impact on victim; has not yet been punished; did not give himself up; educated and intelligent man who should have known better.

(4) A sentence of four years was imposed. The pre-sentence period in custody was deducted and all of the remaining period of the sentence was suspended on conditions, including payment of the money misappropriated, plus a sum of compensation, to the victim, within four months.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

The State v Augustine Seckry CR 376 of 2005, 19.04.05

The State v Joyce Gulum CR 1620 of 2005, 06.04.06

The State v Paul Taro CR 237 of 2006, 03.08.06

The State v Rictor Naiab CR 387 of 2005, 08.09.05

The State v Steven Lasin CR No 1631 of 2006, 17.08.07

Tom Longman Yaul v The State (2005) SC803

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

SENTENCE

This was a judgment on sentence for misappropriation.

Counsel

M Ruarri, for the State

A Turi, for the offender

18th October, 2007

1. CANNINGS J: This is a decision on sentence for a man, Philip Wiamai, who pleaded guilty to one count of misappropriation. His cousin, John Sakiap, is a former schoolteacher who retired some years ago. John was having trouble getting all his finish pay, his final entitlements, so he asked Philip for assistance. Philip agreed to help and on 1 April 2005 obtained K16,848.79, which was deposited into his personal bank account. Philip never passed on the money to John. He kept it and used it for his own purposes. He deprived John of the use of the money and acted dishonestly. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted Philip Wiamai of misappropriation under Section 383A of the Criminal Code.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I say sorry to the court. This problem should not have arisen as John and I had an arrangement for the use of this money. We were going to buy a vehicle. He is my cousin-brother and in good time and bad times I look after him. The money was there waiting for him, for ten years, and he did not know how to get it. I am sorry that I did not tell him once I got the money. I have already paid him K1,500.00. I tried to give him another K7,000.00 but he refused to accept it. I ask the court for time to pay him all his money.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). I accept that he has paid the victim K1,500.00.

PRE-SENTENCE REPORT

5. To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Madang office of the Community Corrections and Rehabilitation Service. Philip Wiamai is 49 years old. He comes from Tangu in the Bogia district of Madang Province. His parents are deceased and he has eight brothers and sisters. He is married with nine dependants. He is educated to grade 8 and has been employed in various positions over many years. He is now self-employed, deriving his income from property rentals, a PMV business (he runs a bus on the Madang-Lae route) and sells cocoa. His health is OK. He has served two terms as a member of the Yawar LLG in the Bogia District. The victim, John Sakiap, was interviewed and said that he had tried many times to get the money back from the offender, to no avail. He doubts whether he can pay him but feels that his chances of getting the money back will be improved if the offender is given a suspended sentence. The offender is recommended for probation, on conditions including repayment of the money to the victim.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Turi highlighted the guilty plea and the offender’s preparedness to repay the money to the victim. A sentence of three years imprisonment, fully suspended, would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Ruarri agreed that three years would be a proper sentence and that it should be suspended to improve the chances of the victim getting his money.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the head sentence?

· step 5: should the pre-sentence period in custody be deducted?

· step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. As the amount of money misappropriated is more than K2,000.00 the maximum penalty under Section 383A(2)(d) is ten years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. The Supreme Court set out some starting point ranges in Wellington Belawa v The State [1988-89] PNGLR 496, depending on the amount of money misappropriated. Thus:

· K1.00 to K1,000.00 – a jail term should rarely be imposed;

· K1,000.00 to K10,000.00 – two years imprisonment;

· K10,000.00 to K40,000.00 – two to three years imprisonment;

· K40,000.00 to K150,000.00 – three to five years.

11. However, since that case, circumstances in Papua New Guinea have changed. There is an enhanced level of community concern about corruption, dishonesty and misappropriation both in the public sector and in the private sector. In my view this should be reflected by doubling the tariffs suggested in Belawa. That is:

· K1.00 to K1,000.00 – suspended sentence usually appropriate;

· K1,000.00 to K10,000.00 – four years imprisonment;

· K10,000.00 to K40,000.00 – four to six years imprisonment;

· K40,000.00 to K150,000.00 and beyond – six to ten years.

12. The present case falls into the third category, which means a range of four to six years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

13. Before I fix a sentence, I will consider other misappropriation sentences I have handed down recently. These cases are shown in the table below.

TABLE 1: SENTENCES FOR MISAPPROPRIATION, CANNINGS J, 2005-2007,

No	Case	Details	Sentence
1	The State v Augustine Seckry CR 376/2005, 19.04.05	Guilty plea – offender employed as an accounts clerk by NBPOL – dishonestly cashed company cheques that were supposed to have been cancelled – applied monies to his own use – K18,000.00 misappropriated.	4 years
2	The State v Rictor Naiab CR 387/2005, 08.09.05	Guilty plea – cashed cheques in his custody as an accounts clerk, employed by Hargy Oil Palms – used the money in hotels – K2,000.00 misappropriated.	18 months
3	The State v Joyce Gulum CR 1620/2005, 06.04.06	Guilty plea – employed as accounts clerk by Hargy Oil Palms, deposited company cheques and cash into private bank account and applied to her own use – K14,000.00 misappropriated.	2 years
4	The State v Paul Taro CR 237/2006, 03.08.06	Guilty plea – over a period of three months monies paid in cash for hire vehicles were not receipted – offender was acting branch manager of Hertz Hire Car, Kimbe – K22,000.00 misappropriated.	4 years
5	The State v Steven Lasin CR 1631/2006, 17.08.07	Guilty plea – offender given custody of two cheques worth K10,888.00 intended for 28 individual electoral officers as allowances – cashed the cheques and applied the proceeds to his own use.	4 years

STEP 4: WHAT IS THE HEAD SENTENCE?

14. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a...