The State v Robert Lorou Sevese (2006) N3453

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 23 October 2006
• Docket Number: CR NO. 250 of 2006
• Citation: (2006) N3453
• Court: National Court
• Year: 2006
• Judgement Number: N3453

Full Title: CR NO. 250 of 2006; The State v Robert Lorou Sevese (2006) N3453

National Court: Kandakasi, J

Judgment Delivered: 23 October 2006

N3453

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 250 of 2006

THE STATE

-V-

ROBERT LOROU SEVESE

Kerema: Kandakasi, J.

2006: 4 and 23 October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Misappropriation of K8,000 - Offence committed by elementary school board chairman – Guilty plea by first time offender - Prisoner prepared to restituted – Means and pre-sentence report recommend non- custodial sentence without prove of prisoner’s ability to restitute and against community wish – Sentencing guides and trends discussed – Serious need to reconsider and increase sentences given prevalence of offence and its serious negative impact on society - Custodial sentence of 2 years imposed - Criminal Code Sections 383A (1) (a) and (b) and 19.

Cases cited:

Acting Public Prosecutor v. Don Hale (27/08/98) SC564.

The State v. Irox Winston (21/09/00) N2304.

Edmund Gima v. The State & Siune Arnold v. The State (03/10/03) SC730.

The State v. Mahuva Jimmy and Uta Helisha, (02/09/04) N2632.

Wellington Belawa v. The State [1988-89] PNGLR 49.

Lawi v. The State [1987] PNGLR 183.

The State v. Paroa Kaia N1401.

The State v. Bygonnes Tuse Nae (18/09/96) N1474.

Doreen Liprin v. The State (9/11/01) SC675.

The State v. Dobi Ao (No 2) (2002) N2247.

The State v. Gibson Haulai (25/03/04) N2555.

The State v. Eric Emmanuel Vele (24/07/02) N2252.

The State v Louise Paraka (24/01/02) N2317.

The State v. Makeu Kig (21/06/01) N2177.

The State v. Kuk Kuli (CR 399 of 2004)

The State v. Ajex Bia

The State v. Sabarina Yakal [1988-89] PNGLR 129.

Dori Inaria v. The State (10/07/02) SC 688.

The State v. James Gurave Guba (12/99) N2020.

The State v. Jimmy Banes Ere (24/7/02) N2254.

The State v. Nason Samban (25/03/04) N2598.

The State v. Peter Yawoma N2032.

The State v. Attiock Ishmel (12/10/01) N2294.

Sakarowa Koe v. The State (01/04/04) SC73.

Counsels:

Mr. D. Mark, for the State.

Mr. P.Kapi, for the Prisoner.

23 October, 2006

1. KANDAKASI J: The State charged you with one count of misappropriation of K8,000.00 belonging to the Karaeta Elementary school. You pleaded guilty to the charge soon after its presentation on 4 October 2006. The Court then heard yourself and your lawyer as well as that of the State as to the kind of sentence you should receive. You applied for an order for restitution and suspended sentence. I therefore ordered a pre-sentence report and means assessment report from the probation service. The probation service submitted its report on 12th and the next day, the 13th of this instant, the Court received further submissions from your lawyer and that of the State and reserved its decision on sentence. This is now the decision of the Court.

The Facts

2. The relevant facts as put to you during your arraignment and as they appear from the depositions are these. Between March and November 2005, you were the chairman of the Board of the Karaeta Elementry School, here in Kerema. On 6th March 2005, the people of Karaeta village gathered at the village. At that gathering, the Governor for this Province, Honourable Chris Haiveta presented a cheque for K15,000 from the District Support Grant toward the construction of a classroom at the school. You received the cheque on behalf of the school in your capacity as chairman of the school’s board.

3. On 7 March 2005, you deposited the cheque into the school’s bank account number 1000937857, kept with the Bank South Pacific, here in Kerema. You were a signatory to the account as the school’s board chairman. Between 15 March and 7 November 2005, you made several withdrawals out of the account without the prior knowledge and approval of the board and its other members, until a full draw down of substantially the whole amount of K15,000 purportedly, for the intended purpose of building the school’s classroom. Of those funds, you applied to your own use and purpose a sum of K8,000.

4. The village people and the full school board’s attempts to meet with you for you to fully account for the use of the funds failed. You were constantly flying to Port Moresby. The school, the village people and the Gulf Provincial leadership referred the matter to the police. The police carried out their investigations and found that you misappropriated the school’s funds and had you arrested and charged on 16 December 2005. You have been in custody since that time.

Allocutus and Submissions

5. In your address on sentence, you spoke of being a first time offender and pointed out that you have been in custody in relation to this offence for about 10 months now. You went on to say that, during the period of your incarceration, your family has been suffering with school age children not going to school and being without a father. Accordingly, you asked for a suspended sentence so you could provide for your family and an opportunity to repay the funds you misappropriated. In so pleading, you also claimed that, half of the material you purchased from the initial K15,000 are still in Port Moresby and that you need to be outside the prison system to see to a delivery of those material to the school.

6. Your lawyer added by reminding the Court that you plead guilty to the charge and that you are 55 years old. He went on to point out that you come from Karaeta village here in Kerema, Gulf Province. You have two wives and 9 children in total. You have successfully entered Australian University courses out of Flinders University. By way of religion, you follow the United Church. Further, your lawyer informed the Court that you have no prior convictions.

7. Your lawyer than submitted that, you committed an offence that is not worse of its kind and so therefore you should not be given the maximum sentence prescribed under the relevant provisions of the Criminal Code. He then referred to a number of Supreme and National Court decisions including one or two of my decisions and submitted that you should be given a sentence not exceeding 5 years, the whole or part of which should be suspended with orders for restitution. The State did not seriously oppose these submissions.

Pre-sentence Report

8. In the light of your lawyer’s submission, the Court requested a pre-sentence and means assessment report. The probation service furnished a means assessment and pre-sentence report in one single report. I then received further submissions from your lawyer as well as that of the State. Turning to the pre-sentence report, I note that it has inputs from yourself and members of the community. Those representing the community point out that you have no garden or any other means to generate an income to restitute what you misappropriated. They have also expressed the view that you acted in isolation and in defiance of the other members of the board and community’s wishes in relation to the spending of the K15,000. Accordingly, the community’s view in effect is that you must receive your just punishment in prison.

9. Against what the community is saying, you indicated a preparedness to repay the K8,000 you misappropriated by selling betel nuts in instalments. However there is no evidence of your betel nut gardens, and the volume of betel nut that are there and how much that will produce. Despite that, the report recommends a repayment schedule by instalments of K1200 commencing 24 November, 2006 and ending 31 May 2007. This proceeds purely on the basis of your statement which runs contrary to inputs from the members of the community who say you have no means to pay.

10. In Acting Public Prosecutor v. Don Hale (27/08/98) SC564, the Supreme Court said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. The Supreme Court in that case said:

“If a judge is to consider some leniency on sentence … it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. … Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment.”

11. Going by the authority of the above Supreme Court decision, I held in The State v. Irox Winston (21/09/00) N2304 that:

“…[I]f the Court is minded to give a lenient sentence because of tender age or...