The State v Solomon Junt Warur

• Jurisdiction: Papua New Guinea
• Judge: Berrigan, J
• Judgment Date: 26 October 2018
• Citation: (2018) N7545
• Court: National Court
• Year: 2018
• Judgement Number: N7545

Full : CR (FC) 185 OF 2018; The State v Solomon Junt Warur (2018) N7545

National Court: Berrigan, J

Judgment Delivered: 26 October 2018

N7545

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 185 OF 2018

THE STATE

V

SOLOMON JUNT WARUR

Waigani: Berrigan, J

2018: 19 September, 17 & 26 October

CRIMINAL LAW – Sentence – Misappropriation – Plea of guilty – No prior conviction – Serious offence – Position of trust – Impact on victim, public and public confidence – Plea of guilty to be taken into account on utilitarian grounds – Attributing plea of guilty with specific numerical or proportionate value - Section 383A(1)(a)2(d) of the Criminal Code.

Facts:

The prisoner pleaded guilty to one count of misappropriation of K811,969.53, the property of the State, whilst an employee of Correctional Services, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262.) (the Criminal Code). The State submitted that the prisoner was entitled to a substantial discount on sentence on the basis that he had pleaded guilty at an early stage following committal to the National Court. The State further submitted that the court should articulate the sentence that would have been applied but for the guilty plea.

Held:

(1) It is well established in this jurisdiction that a guilty plea is ordinarily a matter to be taken into account in mitigation on sentence. It may be indicative of remorse and a willingness to facilitate the course of justice on the part of the offender. It may also be taken into account on the separate utilitarian or objective ground that it has saved authorities and the court the time and expense of a trial and spared witnesses the inconvenience, and in some cases the distress, of testifying. In general terms, the earlier the plea the greater its weight and the more favourable it will be for the offender. In some cases a guilty plea when taken in combination with other relevant factors will be of little to no weight. Kalabus v The State [1988] PNLGR 193 applied. Signato v The Queen (1998) 194 CLR 656 considered.

(2) Whilst a plea of guilty may be taken into account in mitigation, a sentence must never be made more severe because a convicted person has insisted on his or her rights under ss. 37(4) and 37(5) of the Constitution, including the right under s. 37(4)(a) to have the charge proved according to law. SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122 considered.

(3) To single out a plea of guilty from the other factors to be taken into account on sentence and attribute it with a specific numerical or proportionate value is inconsistent with the proper approach to sentencing which requires the court to have regard to the aggregate effect of all the relevant considerations and then to determine the appropriate penalty for the particular offence. Rex Lialu v The State [1990] PNGRL 487; Lawrence Simbe v The State [1994] PNGLR 38; and Kumbamong v The State (2008) SC1017 applied. Markarian v R (2005) 228 CLR 357 and Barbaro v The Queen (2014) 253 CLR 58 considered.

(4) Sentence of 7 years’ imprisonment appropriate in all the circumstances.

Cases Cited

Papua New Guinea Cases

Goli Golu v The State [1979] PNGLR 663

SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122

Kalabus v The State [1988] PNGLR 193

Wellington Belawa v The State [1988-1989] PNGLR 496

Rex Lialu v The State [1990] PNGLR 487 at 489

Lawrence Simbe v The State [1994] PNGLR 38

The State v Daniel Mapiria, unreported, 7 September 2004

The State v Iori Veraga (2005) N2849

The State v Niso (No 2) (2005) N2930

The State v Aike (2006) N3455

Kumbamong v The State (2008) SC1017

The State v Tiensten (2014) N5563

The State v Lawrence Pukali (2014) N5695

The State v Seki (2014) N5847

The State v David Poholi (2016) N6214

The State v Christopher Hulape No 2 (2017) N7173

The State v Janet Oba (2016), unreported

The State v Paul Guli & Ors (2017) N6866

The State v Sakaponi (2017) PGNC 240 N6902

The State v Tracy Tiran (2018) N7336

Overseas Cases

R v Duncan [1983] 3 VR 208

R v Pantano (1990) 49 A Crim R 328

Signato v The Queen (1998) 194 CLR 656

Markarian v R (2005) 228 CLR 357

Barbaro v The Queen (2014) 253 CLR 58

Counsel

Ms Wilma Malo with Mr Tom McPhee, for the State

Mr Edward Sasingian, for the Prisoner

DECISION ON SENTENCE

26th October, 2018

1. BERRIGAN J: INTRODUCTION: The prisoner, Solomon Junt Warur, pleaded guilty to one count of misappropriation, that he between 1 July 2010 and 12 March 2014 dishonestly applied to his own use and to the use of others K811,969.53, the property of the State, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262.) (the Criminal Code). The offence carries a maximum penalty of ten years’ imprisonment.

Facts

2. At the relevant time the prisoner was an officer with Correctional Services (CS) holding the rank of Sergeant. As a Communications Officer in its Information and Communication Technology (ICT) Section, he was responsible for the administration of telephone accounts and bills, supply of telicards for CS Headquarters, telephone line services and maintenance.

3. In 2010 the prisoner incorporated a company known as Merc-Tech Electronic Ltd (Merc-Tech) and opened a bank account with the Bank of South Pacific, Waigani Branch, in the name of the company, to which he was the sole signatory.

4. Between 1 July 2010 and 12 March 2014 the prisoner placed fictional orders on behalf of CS with the company for printer and copying equipment, toner and ink, batteries for radios and other radio equipment. On 66 occasions during the period the prisoner issued invoices to CS for amounts payable to Merc-Tech. In total a sum of K811,969.53 was paid to his company for which no goods or services were ever supplied to CS. Instead the prisoner dishonestly applied the funds in the company account for his own use or the use of others.

Sentencing Considerations

5. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:

a. the amount taken;

b. the quality and degree of trust reposed in the offender;

c. the period over which the offence was perpetrated;

d. the impact of the offence on the public and public confidence;

e. the use to which the money was put;

f. the effect upon the victim;

g. whether any restitution has been made;

h. remorse;

i. the nature of the plea;

j. any prior record;

k. the effect on the offender; and

l. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.

Comparable Cases

6. In addition the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:

a. K1 and K1000, a gaol term should rarely be imposed;

b. K1000 and K10,000 a gaol term of up to two years is appropriate;

c. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and

d. K40,000 and K150,000, three to five years’ imprisonment is appropriate.

7. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; The State v Tiensten (2014) N5563.

8. In this regard s. 383A of the Criminal Code was amended in 2013 to reflect community views that very high penalties should be imposed for misappropriation of amounts above K1 million: see the comments of Salika DCJ in The State v Guli (2017) N6866.

9. Moreover, guidelines like those in Belawa are just that, guidelines. They are not prescriptive: Kumbamong v The State (2008) SC1017.

10. Both counsel referred me to cases in support of their respective submissions. The defence cited The State v Niso (No 2) (2005) N2930 in which the prisoner was found guilty following trial of four counts relating to conspiracy, fraudulently uttering a false document and misappropriation of a sum of K500,000.00 belonging to her employer, the Bank of Papua New Guinea. The offences took place over a period of about 3 weeks. At the time she was the Senior Clerk and Supervisor in the General Ledgers Section. Gavara-Nanu J sentenced the prisoner to an effective term of 7 years’ 6 months’ imprisonment.

11. The State has helpfully referred me to a number of authorities, including the following which are most relevant:

a. The State v Tracy Tiran (2018) N7336, Miviri AJ, in which the...