The State v David Kaki (2008) N3458

• Jurisdiction: Papua New Guinea
• Date: 04 September 2008
• Citation: (2008) N3458
• Docket Number: CR No. 604 OF 2008
• Court: National Court
• Year: 2008

Full Title: CR No. 604 OF 2008; The State v David Kaki (2008) N3458

National Court: Paliau, AJ

Judgment Delivered: 4 September 2008

CRIMINAL LAW – Sentence – Dishonestly Applied to own use property belonging to another – Charge of – Guilty Plea – Criminal Code s383A (1)(a).

Cases cited:

Wellington Belawa v The State [1988–89] PNGLR 496; The State v Robert Lorou Sevese (2006) N3453; The State v Mahuva Jimmy (2004) N2632; Brian Kindi Lawi v The State [1987] PNGLR 183; The State v Bygonnes Tuse Nae (1996) N1474; The State v Paroa Kaia (1995) N1401; Doreen Liprin v The State (2001) PNGLR 6; The State v Dobi Ao (No 2) [2002] PNGLR 55; The State v Gibson Haulai (2004) N2555; The State v Eric Emmanuel Vele [2002] PNGLR 74; The State v Louise Paraka (2002) N2317; The State v Makeu Kig (2001) N2177

1. PALIAU, AJ: The prisoner pleaded guilty to one count of dishonestly applying to his own use K24, 388.08 in cash belonging to another. The money belonged to Lihir Gold Limited (LGL). At the time of misappropriation, the prisoner was a Senior Payroll Officer. It was because of his position that the money came into his possession.

2. The prisoner on 8th May 2008 raised a Lihir Gold Limited BSP cheque No. 112720 and written out as “Please Pay Cash” and had it cashed on 23rd May 2008. He then used this money for his own purposes.

3. I am now required to determine the type of penalty to be imposed on the prisoner.

Antecedent Report

4. The prisoner has no prior convictions.

Allocutus

5. The prisoner said on his behalf that he was under extreme pressure from his relatives at home at Teremanda village, Wabag, Enga Province, to contribute towards a compensation demand. He used this money for this purpose. He apologised to the Court and the State for making this trouble. He had an unblemished record during his previous employment and his ten (10) years of employment with Lihir Gold Limited. This is his first time to commit such an offence. He also said that this trouble has caused hardship to his children’s education, so much so that they have been withdrawn from their schools in the National Capital District. The prisoner urged the Court to be lenient and to be placed on probation so that he can repay the money.

Pre-Sentence Report

6. A pre-sentence report was prepared by the Community Based Corrections Services. Amongst other good things said about the prisoner, the Report recommended that the prisoner be placed on probation for one year and that he sells one of his assets, either the car or the house to offset the remainder of what is owed to Lihir Gold Limited.

Decision as to the appropriate penalty

7. Section 383A (1) and (2) of the Criminal Code provides that:

(1) A person who dishonesty 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 (5) years except in any of the following cases when he is liable to imprisonment for a term not exceeding ten (10) years –

(a) ……………; or

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