The State v Rachael Tony

• Jurisdiction: Papua New Guinea
• Judge: Miviri AJ
• Judgment Date: 17 May 2018
• Citation: (2018) N7268
• Court: National Court
• Year: 2018
• Judgement Number: N7268

Full : CR (FC) No 303 of 2017; The State v Rachael Tony (2018) N7268

National Court: Miviri AJ

Judgment Delivered: 17 May 2018

N7268

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 303 OF 2017

THE STATE

V.

RACHAEL TONY

Waigani: Miviri AJ

2018: 30th April,

1st, 14th, 15th & 17th May

CRIMINAL LAW – Practice and Procedure – s383A Misappropriation CCA –Plea – Private Secretary to Chief Justice – falsely used name of Deputy Chief Justice – hired vehicles from private hire company – K25, 844.50 incurred – application to personal use – dishonesty – serious breach of trust–deterrent and punitive sentence.

Facts

The prisoner was private secretary to the chief Justice. She falsely used the deputy chief Justice’s name and secured the hire of two vehicles from a private company billing up to K 25, 844.50. She used both personally and also for the use of others.

Held

Plea

Very serious breach of trust

First offender

PSR discretion of court.

4 years IHL

Cases:

The State v Belawa [1988-89] PNGLR 49

Tardrew, Public Prosecutor [1986] PNGLR 91

The State v Vagi [2014] PGNC 254 ; N5697

The State v Eliakim [2007] PGNC 76; N3190

The State v Johnson Bale [2004] PGNC 161; N2626

The State v Kintau [2014] PGNC 55; N5761

The State v Hagei [2005] PGNC 60; N2913

The State v John Aubuku [1987] PNGLR 267

Counsel:

L. Jack, for the State

G. Tine, for the Defence

SENTENCE

18th May, 2018

1. MIVIRI AJ: This is the sentence of a woman who was employed in the office of the Chief Justice as Private Secretary who misappropriated K25, 844.50 in the hire of two vehicles.

Background

2. Prisoner was employed by the National Judicial Staff Services (NJSS) as Private Secretary to the office of the Chief Justice. Her duties included administration, general office work and duty travel arrangements for the Chief Justice. Part of which included the arrangement of hired vehicles for the Chief Justice and other Judges upon instructions. Unknown to Deputy Chief Justice Sir Gibbs Salika she used His Honour’s name to hire firstly a Toyota Prado registered number BEJ 415 for 10 days from 2nd February to 12th February 2016 at the cost of K 900 per day. Then a Toyota Land cruiser 5 door bearing registration number BDL 316 for 20 days from 12th February to 3rd March 2016 at K700 per day. The cost of both hires was K 25, 844. 50 invoice dated the 3rd March 2016 which was sent to the Deputy Chief Justice Sir Gibbs Salika’s chambers who never requested nor did he hire any vehicle from Islands Mobile Hire Cars during that period. She obtained the vehicles under the name of the Deputy Chief Justice Sir Gibbs Salika and used it for her personal use and to the benefit of others.

Charge

3. The charge on the indictment invoked section 383A of the Code which reads;

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

(a) Property belonging to another; or

(b) Property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to trust, direction or condition or on account of any other person,

is guilty of a crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for five years excerpt in any of the following cases when he is liable to imprisonment for ten years-

(a) where the offender is a director of a company and the property dishonestly applied is company property;

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

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

(d) where the property dishonestly applied is of a value of K2000 or upwards.

(3) For the purposes of this section-

(a) property includes money and all other property real or personal, legal or equitable including things in action and other tangible property;

(b) a person’s application of property maybe dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps;

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender’s application of the property, had control of it.

Penalty: Imprisonment for a term not exceeding one year.

(4)………

Plea

4. She admitted to police in the record of interview and maintained in court. The evidence tendered corroborated her guilty plea and accordingly I confirmed her plea. The maximum penalty was 10 years IHL. Because the property in this case was K25, 844.50 above K2000 warranting the maximum sentence above.

Antecedents

5. On the 20th July 2010 she started duties with the National Judicial Staff Services. Up to the date of the offence 1st February 2016 to the 4th March 2016 she would have been in the office for almost six years. She was 27 years old born on the 15th December 1990, and was originally from Hula, Rigo District, Central Province. She was a single parent with a young child. And was resident at the suburb of Gerehu Port Moresby with her brother. And the subject vehicle here was taken off her at Badili which she professed was where she lived. She was a united Church follower and her Pastor gave good reference on her involvement in church. She was educated at Badihagwa Secondary School up skilled with qualification from IEA College of Tafe in tourism and hospitality.

6. There were no reasons disclosed apparent or identifying as to why she did what she did. The offence was recurring starting from the 1st February 2016 to the 4th March 2016 a total of 33 days altogether culminating in K 25, 844.50 billed for the vehicles hired out. She used the name of the Deputy Chief Justice Sir Gibbs Salika to secure the hire.

Allocutus

7. When given an opportunity to address the court on sentence, she apologised to the Deputy Chief Justice and her colleagues for what she did and asked to repay that money back.

Aggravation

8. She committed the offence without regard for the integrity neither of that office nor of the office of the Deputy Chief Justice or even of other Judges who also used her services to get administrative arrangements of the like. She drew all that name and integrity down by her criminality without heed or regard of that fact. Since the 12th February 2016 to the 4th March 2016 she made no payments to the company Islands Mobile Hire Cars. Her presentence report was returnable on Monday the 14th May 2018 before the court. When the matter was called on that day counsel defending did not appear including the prisoner from Bail. Matter was adjourned to 15th May 2018 at 9.30am. Counsel and defendant appeared and advised court that the file had not been given for the 14 days granted to prepare the presentence report and therefore requested a further 5 days. The court granted 2 days only to Thursday the 17th May 2018. With the earlier grant of 14 days this was a total of 16 days granted for presentence report. When the court resumed 1.30 pm Thursday 17th May 2018 the presentence report was not before the court and was filed in the middle of the State counsel’s address on sentence. At the back of it was a bank of South Pacific deposit butt dated Saturday the 12th May 2018 for the sum of K1000 deposited to National Court Registry Trust Account number 1000583618. It was not clear who made this payment and even if it was the prisoner the National court was not owed any money by the prisoner. She did not steal from the National court or the Registrar. She had no obligation to pay them. What was misappropriated was owed by her to Islands Mobile Hire Cars. The obligation on her part was to pay them not the court registrar to his trust account on a Saturday 12th May 2018.

9. In my view this was a desperate and hasty attempt to pay in the face of pending determination of sentence. It was not and never was a genuine attempt to pay but payment made to avoid jail term in my view. It was made on a Saturday 12th May 2018 and on Monday 14th May 2018 when the matter was called neither the prisoner nor counsel defending was before the court. Hasty because Islands Mobile Hire Cars was owed money by the Prisoner not the Registrar of the National court so that it was paid into trust account in his name. For the two years 2 months 17 days since 1st February 2016 it was never paid to them at all. This was therefore not a genuine attempt in any case it was not to Island Mobile Hire Cars. They remained outstanding to be paid by the...