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

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 01 May 2002
• Citation: [2002] PNGLR 55
• Court: National Court
• Year: 2002
• Judgement Number: N2247

Full Title: The State v Dobi Ao (No 2) (2002) N2247

National Court: Kandakasi J

Judgment Delivered: 1 May 2002

N2247

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 845 of 2001

THE STATE

-V-

DOBI AO (N0.2)

WAIGANI: KANDAKASI, J.

2002: 1st May

CRIMINAL LAW – PRACTICE & PROCEDURE – Sentencing – Misappropriation – First time offender – Restitution and non-custodial sentence with community work orders possible sentences - Pre-sentencing report and means assessment reports must be called for – Report or an update on compliance of previous orders for non-custodial sentence with community work orders need to be called for and considered before making new orders – Community willing to contribute to restitution and supervise any community work orders – Appropriate to make orders to accommodate such preparedness because sentencing is a community responsibility.

CRIMINAL LAW – Sentencing – Misappropriation – Total amount stolen K37, 526.58 – First time adult offender –Pre-sentencing and means assessment reports called for and received – Such reports favoring restitution and non-custodial sentence with community work orders – Community prepared to contribute to restitution and supervision of community work orders – Sentencing a community responsibility - Orders of restitution of full amount by the prisoner with relatives and community support and non-custodial sentence with terms imposed.

Cases cited:

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. Micky John Lausi (27/03/01) N2073.

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

The State v. Henry Idab (17/12/01) N2172.

The State v. Abel Airi (28/11/00) N2007.

The State v. Nickson Pari (N0.2) (10/01/01) N2033.

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

Constitutional Reference N0.1 of 1977 (Sch.2.3) [1978] PNGLR 295.

The State v. Oa Seseka (19/10/90) N921.

The State v. Micky John Lausi (unreported judgement 2001) N2091

Counsel

Mr. J. Pambel for the State

Mr. D. Sakumai for the Accused

Decision on Sentence

1st April 2002

KANDAKASI, J: On the 12th of April 2002, I found you guilty after a trial on a total of eight charges of misappropriation contrary to section 383A (1)(a) and one count of attempted misappropriation contrary to s. 383A in association with s. 4 of the Criminal Code. You misappropriated a total of K37, 526.58 and attempted to misappropriate a further K5, 980.70 from the State.

The Commission of the Offences

You committed these offences by raising a number of false schedules for a number of overseas contract and volunteer officers employed with the Department of Education. Cheques were then raised against those schedules. Out of that, you forged the signature of the named payees and had them cashed. You denied having cashed and applying the proceeds to your personal use. After the trial I found that your denial could not be sustained and I found you guilty as I did.

Now in you interview with the probation officer under my orders for a pre-sentencing report, you are reported as saying you committed the offences to meet some pressing family needs and some needs in the community. The proceeds of your offence were therefore applied toward meeting the family and community needs. None of the family and community members knew of your commission of the offences but they did benefit from the proceeds.

Address on Sentence

After having found you guilty, I asked you to address the Court on the kind of sentence the Court should give you. You decided to let your lawyer do that for you. Your lawyer asked for an order requiring you to repay the amounts you were found to have misappropriated from the State and a non-custodial sentence. Prior to that submission, I asked for a pre-sentencing report and a means assessment report as I consider those were required in anticipation of such a submission.

The pre-sentencing reports were furnished to me on the 29th of April 2002, from the Probation Services. Yesterday, on the 30th of April 2002, I heard submissions of both the parties on sentence. There is agreement from both the State and you that restitution with a non-custodial sentence on terms is appropriate. I also heard briefly from two of the community leaders Rev. D. Kwalahu Lohia and Rev. Udutl Edea as to the communities preparedness to assist you and supervise your meeting of any terms this Court may impose against you, if it were to order a non-custodial sentence.

The Law

Section 383A (1)(a) and s. 4 of the Criminal Code under which you have been found guilty, describe the offence and prescribe the penalty in relevant parts as follows:

“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) 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 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) …;

(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 K2,000.00 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; and …”

“4. Attempts to commit offences.

(1) When a person, intending to commit an offence—

(a) begins to put his intention into execution by means adapted to its fulfilment; and

(b) manifests his intention by some overt act,

but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.”

The Supreme Court in Wellington Belawa V. The State [1988-89] PNGLR 496 set the sentencing guidelines for cases of misappropriation. In summary, the Supreme Court held that the lesser the amount of money involved the lesser the sentence terms should be. The converse of that is that, the higher the amount is the higher the sentence terms should be. The Court then held that the amount taken; the quality and degree of trust reposed in the offender including his rank; the period over which the fraud or the thefts have been perpetrated are relevant factors for consideration. The Court included in that list, the use to which the money or property dishonestly taken was put; the effect upon the victim; the impact of the offences on the public and public confidence; the effect on fellow-employees or partners. Further the Court held that the effect on the offender himself; the offender’s own history; restitution; and factors in mitigation such as illness; being placed under great strain by excessive responsibility or the like; co-operating with the police are also factors relevant for consideration.

Since then cases have imposed sentences between 18 months for misappropriation of K6,000.00 and 3 years for misappropriations of K10,000.00 as in Lawi v. The State [1987] PNGLR 183. Cases subsequent to that 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....