The State v Eric Emmanuel Vele (2002) N2252

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 24 July 2002
• Citation: [2002] PNGLR 74
• Court: National Court
• Year: 2002
• Judgement Number: N2252

Full Title: The State v Eric Emmanuel Vele (2002) N2252

National Court: Kandakasi J

Judgment Delivered: 24 July 2002

N2252

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 420 of 2002

THE STATE

-V-

ERIC EMMANUEL VELE

WAIGANI: KANDAKASI, J.

2002: 19th and 26th April

3rd and 7th May

24th July

CRIMINAL LAW – Sentence – Misappropriation of K16, 499.77 from employer in breach of trust – First time offender – Restitution and non-custodial sentence with community work orders possible sentences - Community willing to supervise any community work orders – Appropriate to make orders to accommodate such preparedness because sentencing is a community responsibility.

Cases cited:

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

The State v. Dobi Ao (N0.2)(unreported judgement delivered 01/04/02) N2247.

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.

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

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

Counsel

Ms. Johnston, Gani and Mr. C. Sambua for the State

Mr. D. Dotaona for the Prisoner

Decision on Sentence

24th July 2002

KANDAKASI, J: On the 9th of April 2002, you pleaded guilty to one charge of misappropriation contrary to section 383A (1)(a) of the Criminal Code. You misappropriated a total of K16, 499.77 from the Westpac Bank (the “Bank”) your then employer. I convicted you for that offence and heard submissions on sentence on 7th of May 2002 after two earlier adjournments. I then reserved a ruling on you sentence to a date when I am ready. This is now the judgement of the Court.

Between the 2nd and 26th of April 2001, you were in the employ of the Bank as Supervisor, International Business Centre at its Port Moresby branch. You debited various accounts of your employer and credited them to both your own, your wife and a cousin namely Eric Warren’s personal accounts. You then took the money out of those accounts and applied them to your own personal use. The Bank discovered what you were doing in early April. You also became aware that the Bank discovered your offences and you started to stay away from work until the 18th of May 2001, when you were terminated.

You have repaid a total of K11,091.23, leaving you with a balance of K4, 008.77. You are now prepared to repay the remaining amounts by fortnightly installments until the full amount is repaid. That is possible if the Court does not impose a custodial sentence and you continued to be in paid employment. You therefore, ask for a non-custodial sentence with orders for restitution.

The State is prepared to accept an order for restitution as the appropriate penalty for the offence you have committed and are in Court for. In view of that, I asked for a pre-sentencing report in line with authorities such as Acting Public Prosecutor v. Don Hale (27/08/98) SC564, before determining an appropriate sentence for you. After all, as I observed in a number of my own judgements with the latest in The State v. Dobi Ao (N0.2)(unreported judgement delivered 01/04/02) N2247 criminal sentencing is a community responsibility. As such, the Courts must be responsive to the wishes of the community, which can be obtained through a pre-sentencing report.

The pre-sentencing report recommends a non-custodial sentence with community work or service orders under Probation Services supervision. At about the time of ordering a pre-sentencing report on your case, I received advice from the author of the report now before me that, previous such orders I have made are being faithfully complied with and is having a positive impact on the prisoners.

In your case, there is indication from members of your community, especially the Ela United Church of its preparedness to help you to become a better law-abiding citizen. That Church is prepared to supervise any community service orders this court might order. You have expressed deep remorse both in person before me and in writing for what you have done and are desirous of not repeating the same mistake or for that matter, get into trouble with the law again. You have a family that is supportive and willing to assist you to overcome you problems. You also have an employer who is prepared to keep you employed as long as you will this time, remain very faithful. Keeping that employment will be necessary to meet your undertaking to repay the balance of what you took away from the Bank.

Bearing the above in mind I consider sending you to prison will do you more harm then see you come out a reformed offender. As I said in the Dobi Ao (supra) case, prisons are appropriate places to keep most violent offenders like murders, rapists and armed robbers. Cases of misappropriation do not require imprisonment if an order for restitution will be complied with and or other forms of punishment will do.

I came to that decision bearing in mind the relevant Supreme Court set guidelines in Wellington Belawa v. The State [1988-89] PNGLR 496, in cases such as yours. 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.

I also noted that, since then, subsequent judgements 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. Paroa Kaia N1401 and The State v. Bygonnes Tuse Nae (18/09/96) N1474, for misappropriation of amounts exceeding K100, 000.00.

I also had regard to a most recent Supreme Court judgement on this kind of cases. That was the judgement in Doreen Liprin v. The State (9/11/01) SC675 (?). In that case, Doreen was convicted on one count each of forgery, uttering and misappropriation of a sum of K6, 000.00. She was given a sentence of one year each for the first two offences and 3 years for the misappropriation, all to be served concurrently. However, the sentences were suspended on the condition that she repays all of the monies she stole within a period of 2 months. She did not meet the condition for her suspended sentence and she was taken into custody to serve her sentence. Whilst in prison she lodged her appeal to the Supreme Court. Although her appeal was out of time, the Supreme Court in the exercise of its powers under s. 155(2)(b) of the Constitution proceed to deal with the matter.

The Chief Justice dismissed the appellant’s appeal against conviction but up held her appeal against sentence. He had the sentence reduced to 18 months. With respect that sentence was arrived at, without having regard to the sentencing trends in this sort of cases. The Deputy Chief Justice and Justice Los did have regard to the relevant sentencing trends and concluded that the cumulative sentence of three years was appropriate as it was within the range. Despite his views on the sentence, Justice Los accepted the Chief Justice’s proposal on sentence. With respect this does not provide any assistance as to determining appropriate sentences.

It is an important aspect in criminal law sentencing that,...