The State v Seilala Ipai (2006) N3169

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 23 October 2006
• Citation: (2006) N3169
• Docket Number: CR No. 274 OF 2006
• Court: National Court
• Year: 2006
• Judgement Number: N3169

Full Title: CR No. 274 OF 2006; The State v Seilala Ipai (2006) N3169

National Court: Kandakasi, J

Judgment Delivered: 23 October 2006

N3169

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 274 OF 2006

THE STATE

-V-

SEILALA IPAI

Kerema: Kandakasi, J.

2006: 19 and 23 October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Misappropriation – Cashing cheque meant for public expenditure by president of a local level government – Applying proceeds of K2,000 to personal use – Guilty plea – First time offender – Prisoner willing to restitute and has means to do so - Pre-sentence report supportive of community based sentence – 3 years fully suspended sentence on conditions imposed - Criminal Code Sections 383A (1)(a) and (b) and 19.

Cases cited:

The State v. Robert Lorou Sevese (CR No. 250 of 2006) delivered 23rd October 2006.

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.

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

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

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

The State v. Micky John Lausi (27/03/01) N2073.

The State v. Jimmy Solomon (6/7/01) N2100.

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

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

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

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

The State v. Lucas Yovura (29/04/03) N2366.

The State v. Donald Poni (22/09/04) N2663.

Counsels:

Mr. D. Mark, for the State.

Mr. P.Kapi, for the Prisoner.

23 October, 2006

1. KANDAKASI, J: You pleaded guilty to one charge of misappropriation contrary to s.383A (1) (a) and (b) of the Criminal Code, presented by the State on the 19th of this instant. Since your arrest, you have been on a cash bail of K500.

The Facts

2. The relevant facts as put to you during your arraignment and as they appear from the depositions are these. In 2005, you were the president of Baimuru Local –Level Government. Between 18th and 21st March of that year, you were on leave and whilst on leave, you picked up a cheque for K2000 from the Gulf Provincial Administration. Your then vice president, Hon. Solomon Lae was the payee named on the cheque. You argued with the officers of the Provincial Administration, saying the cheque should have been made out in your name and not Hon. Solomon Lae, knowing at the relevant time that you were on leave and that the money was intended for refreshments for officials of the Electoral Boundaries Commission visiting Baimuru on 18 March 2005.

3. After taking delivery of the cheque, you went with it to Port Moresby and presented it at the Teri Trading at Gordons and had it cashed and purchased some store goods worth K300. You presented yourself as the payee of the cheque, Hon. Solomon Lae. You indicated in Court that you are now prepared to restitute the funds you misappropriated.

Allocutus and Submissions

4. In your address on sentence, you said sorry for committing the offence and promised not to do it again. You also said you are now prepared to reimburse the money you misappropriated. You wish to do that by an immediate payment of K500 and a forfeiture of your cash bail of K500. You propose to have the balance paid within 3 months. Additionally, you asked the Court to take into account the fact that you pleaded guilty and that this is your first ever offence. Further, you outlined your family background, in terms of you being married to 3 wives and a total of 10 children, 4 of whom have been adopted. Most of your children are attending various educational institutions from high schools and vocational schools. Finally, you ended your address by asking for good behaviour bond.

5. Your lawyer added by drawing the Court’s attention to the pre-sentence report which outlines more of your personal and family backgrounds. That outline reveals your educational, work, personal and family backgrounds. Most notably, it reveals that, until the commission of the offence and consequently being voted out, you were the President of the Baimuru Local-level Government, by reason of which you were also a member of the Gulf Provincial Assembly. The pre-sentence report also highlights that you are the only bread winner for your large and extended family. Sending you to prison will result in serious hardship for the members of your family. Finally, the report also shows that you have some assets such as dinghy and outboard motors and so on from which you could generate some income to repay the balance of the monies you misappropriated. This is in addition to one of your daughters who is willing to assist you.

6. Also, your lawyer urged the Court to note in your favour, your guilty plea, your preparedness to fully reimburse the monies you misappropriated, that the amounts of money you misappropriated are no where near the kinds of money misappropriated by people like Daniel Mapiria running into millions of Kina and yet allowed out on a mere six years sentence with orders for restitution. At the same time, your lawyer correctly pointed out the factors against you, namely, the fact that, as an elected leader, you were in a position of more trust, you committed an offence in breach of the trust placed in you and that the offence you committed is a prevalent one. Weighing the factors for and against you, he submitted that your case warrants a non custodial sentence of 3 years suspended on conditions. Counsel for the State endorsed these submissions.

7. The question before me now is, does this mean that I must accept your lawyer’s submissions with the endorsement of the State and impose a non custodial sentence of 3 years fully suspended on conditions? An answer to that question is dependant on a consideration of the particular facts of your case, the sentencing guidelines and tariffs. Hence, I turn to those aspects now commencing with the sentencing trend and tariffs.

The Offence, Sentencing Trend and Tariffs

8. The offence of misappropriation is prescribed by s. 383A (1) and (2) of the Criminal Code. This provision states in relevant parts:

“383A. Misappropriation of property.

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

(a) property belonging to another; or

(b) …

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:—

(a) …; or

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

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

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.”

9. As I just mention in the decisions I have just handed down in The State v. Robert Lorou Sevese,

1 (CR No. 250 of 2006) delivered 23rd October 2006.

1 I reviewed most of the cases on misappropriation in my earlier decision in the case of The State v. Mahuva Jimmy and Uta Helisha,

2 (02/09/04) N2632.

2 which I wish not to repeat in any detail, suffices only to do so in a summary manner.

10. The Supreme Court in Wellington Belawa v. The State

3 [1988-89] PNGLR 49.

3 set the relevant guidelines for sentencing in misappropriation cases. It held that, where the amount of money or the value of property involved is lesser, the sentences should be lesser and where the amount of money or value of property involved is higher, the sentence should be higher. Where a person commits the offence in breach of some trust placed in him, his sentence should be higher. Other factors such as the position of the offender and the time taken to commit the offence are also relevant. Further, the application of the money stolen or misappropriated, its effect on the victim and the public, or fellow-employees or partners are also relevant considerations. At the same time, the Court held that, the effect of the offence on the offender himself, the offender’s own history; restitution; illness; being placed under great strain by excessive responsibility or the like and co-operating with the police are further relevant factors in mitigation of the offender.

11. Subsequently, the courts imposed sentences between 18 months to say 3 years as in Lawi v. The State,

4 [1987] PNGLR 183.

4 for misappropriations of K10,000, bearing the Wellington Bellawa guidelines. Others have imposed sentences of 4 years on a guilty plea with good mitigating factors for a misappropriation of K94, 478.31 as in The State v. Paroa Kaia

5 N1401.

5 and The...