The State v Tracey Tiran (No 2)

• Jurisdiction: Papua New Guinea
• Judge: Miviri AJ
• Judgment Date: 17 July 2018
• Citation: (2018) N7375
• Court: National Court
• Year: 2018
• Judgement Number: N7375

Full : CR (FC) 251 of 2017; The State v Tracey Tiran (No 2) (2018) N7375

National Court: Miviri AJ

Judgment Delivered: 17 July 2018

N7375

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 251 of 2017

THE STATE

V

TRACEY TIRAN

(No 2)

Waigani: Miviri AJ

2018 : 13th 16th 17th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation – Trial – K500, 000.00 – tariff & range adherence to – likened to legislative powers – each case determined on its own facts – worst case – what is – well planned offence – no substance in repayment–custodial term appropriate–no basis for suspension – punitive & deterrent sentence.

Fact

Accused dishonestly applied to her own use K500, 000.00 the property of the State of Papua New Guinea

Held

Well thought out organized sham

Little to nil recovery of money.

Very serious offence

Prevalent offence

Punitive and deterrent sentence,

Cases:

The State v Tony [2018] PGNC 155; N7268

Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91

The State v Belawa [1988-89] PNGLR 496

The State v Tiensten [2014] PGNC 224

The State Lawrence v Simbe [1994] PNGLR 38

The State v Kumbamong [2008] PGSC 51; SC1017

The State v Avia Aihi (No.3) [1982] PNGLR 92

The State v Goli Golu [1979] PNGLR 653

The State v Yaip Avini [1997] PNGLR 212

The State v Kaia [1995] PGNC 166 N1401

The State v Nae [1996] PGNC 34; N1474

The State v Kom [2009] PGNC 311; N6199

The State v Sylvanus Siembo & 2 others Unreported 30 May 2002 Cr 1220 of 2000.

The State v Allan Peter Utieng (Unreported Judgement delivered in Wewak on 23rd November 2000) SCR 15 of 2000

The State v Eric Emmanuel Vele [2002] PGNC 93; N2252

Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC 564

The State v Zuvani [2004] PGNC 127; N2641

The State v Duk [2009] PGNC 247; N3924

The State v Daniel Mapiria [2004] Cr 1118 of 2000

The State v Jimmy Kendi (No2) [2007] PGNC 32; N3131

The State v Niso [2005] PGNC 26 ; N2930

The State v Haru [2014] PGNC 314; N5660

The State v Lawrence Pukali [2014] PGNC 16; N5560

The State v Lawrence Pukali [2014] PGNC 252; N5695

The State v Rokpa [1994] PNGLR 535;

The State v Liriope [1990] PGNC 58; N916

Counsel:

T. McPhee, for the State

D. Wapu, for the Defendant

SENTENCE

20th July, 2018

1. MIVIRI AJ: This is the sentence of a woman who dishonestly applied to her own use K500, 000.00 the property of the Independent State of Papua New Guinea. She was found guilty after trial.

Short facts

2. Prisoner conspired with two others between the 1st day of June 2010 and the 25th day of October 2011, representing to the State through the office of the Minister for National Planning and Monitoring Department honourable Paul Tientsin MP then that a Coconut project would be set up in Manus. Pursuant to that K500, 000.00 was paid by cheque to the accused’s company Sits Up Services Limited who deposited the money into that account and used the money between the 1st day of March 2011 and 25th October 2011 personally and to the use of others. The subject coconut project was not set up.

Charge

3. The charge is pursuant to section 383A of the Criminal Code Act of misappropriation of 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 a trust, direction or condition or on account of any other person,

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 five years except 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 intangible property;

(b) a persons application of property may be 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 to 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. "

Allocutus

4. After trial and a finding of guilty on the charges the prisoner said, “Thank you your honour and everybody in this courtroom. Firstly I would like to apologise to this honourable court and to the People of this country and the Justice system. There was a process in place and this court has conducted its due process and has found me guilty of an appropriate sentence. And for that I humbly accept this court's decision. And I regardless of everything that's being presented I present to this court that I am sorry for any conduct on my part that showed to this court and to the people of this country that I misappropriated what belonged to the State and to the People in any way at all. I am not a murder and I don't effect people's personal lives or properties or even of the State. I've tried to I am not a liar naturally and I have tried to contribute to my community my family and kept myself in good conduct until this time. So I humbly seek this court consideration regardless if it be a custodial sentence or the consideration of a suspended sentence my family and I and my family stand behind me to restitute that money it is not ours State says it is not ours it did not belong to us we did not get it in a proper manner for that we respect the court's decision and whatever the court's decision is my family will do all their best to give back to the State what belonged to State. I thank everybody in this courtroom I thank you all for your time and I am sorry for wasting everybody's time. Thank you."

5. What is clear by her allocutus is that the prisoner has accepted that she is guilty of the crime of misappropriation. She now wants to pay back that money regardless of whatever sentence the court imposes upon her. But that money will be repaid in full back with her family. It is a moral responsibility not a legal one as they do not bear criminality in the matter in any way or form and therefore are not obliged to be bound in this relationship. " It is her wrong committed by her for which she stands before this court and it is her responsibility not her relatives or any other who are innocent of the conviction she has sustained. They will not bear her criminality for her that is not the law and has never been. In this regard therefore what has been placed in the presentence report by her relatives will not be considered." State v Tony [2018] PGNC 155; N7268.

6. K500, 000.00 is a lot of money for a family to pay without any real substance except pledge to pay. It was not taken initially when the matter arose back in 31st October, 2012 when the information was just laid. Since that date up to today 20th July, 2018 a period of six years nothing has been paid back to the State. No relative of the Prisoner has stepped forward of their own accord to make good and restitute the wrong. Just as the prisoner is about to be sentenced do they came forward with pledge not payment. In this manner it is no real genuine repayment or attempt to repay. In my view it will not be considered in that regard. Because there are no independent verification of the gist of what the prisoner contends. Figures on paper do not suffice because it is easy to put figures, words are easy, but merit and assets are different compared to determine real repayment. No independent verification has been put in the case of the vehicle proposed the registration papers and valuation by a reputed vehicle sales company. The same is so of the other properties proposed. There is no real value attached to the means assessment report in this regard. In Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91 (2 April 1986) the court had this to say in, "suspension of sentence pursuant to Section 19 (6) of the Criminal Code is, or maybe appropriate in three broad categories. The categories are not exhaustive (1) where suspension will promote the...