The State v Felix Kautete

• Jurisdiction: Papua New Guinea
• Judge: Berrigan, J
• Judgment Date: 26 October 2018
• Citation: (2018) N7544
• Court: National Court
• Year: 2018
• Judgement Number: N7544

Full : CR (FC) 41 OF 2018; The State v Felix Kautete (2018) N7544

National Court: Berrigan, J

Judgment Delivered: 26 October 2018

N7544

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 41 OF 2018

THE STATE

V

FELIX KAUTETE

Waigani: Berrigan, J

2018: 26 September& 22, 26 October

CRIMINAL LAW – Sentence – Misappropriation – Plea of guilty – No prior conviction – Suspension - Restitution - Section 383A(1)(a)2(d) of the Criminal Code.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653

Lawrence Simbe v The State [1994] PNGLR 38.

The State v Alice Wilmot (2005) N2857

The State v Augustine Sekry (2005) unnumbered, unreported

The State v Benson Likius (2004) N2518

The State v Christian Korei (2005) N2946

The State v Denis Vela, CR 43 of 2004, unreported

The State v Elizabeth Teka (2008) N3509

The State v Frank Kagai [1987] PNGLR 320

The State v Gibing Yawing (2017) N6836

The State v Lukeson Olewale (2004) N2758

The State v Nancy Leah Uviri (2008) N5468

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

The State v Philip Wiamai (2007) N5492

The State v Simon Savoa Feaviri, CR (FC) 103 of 2017, unreported 8 December 2017

The State v Tardrew [1986] PNGLR 91

The State v Tiensten (2014) N5563

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

Counsel:

Ms Lilly Jack, for the State

Mr Edward Sasingian, for the Prisoner

DECISION ON SENTENCE

26th October, 2018

1. BERRIGAN, J : INTRODUCTION: The prisoner, Felix Kautete, pleaded guilty to one count of misappropriation, that on 9 September 2013 he dishonestly applied to his own use and the use of others cash money in the sum of K24,000, the property of Maria Laka, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code.

Facts

2. The brief facts are that on or about 8 September 2013 the complainant, Maria Laka, and her husband met the prisoner at the offices of the National Capital District Commission (NCDC), Lagatoi Haus, Waigani in the National Capital District, following advice by her uncle, Heagi Morea, that NCDC was selling vehicles on tender.

3. The prisoner showed them a vehicle, Toyota Hilux, 5th Element, dual cab, white in colour, without number plates. The prisoner advised the complainant that the vehicle was internally tendered for sale and all they needed to do was make a cash payment to him and he would sort out all the paper work, including transfer of ownership, registration and other matters with the Motor Vehicle Insurance Limited (MVIL). On that basis the complainant agreed to make payment the following day.

4. On 9 September 2013 the prisoner met with the complainant, her husband, Heagi Morea and his wife at NCDC office. The complainant gave him K24,000 in cash for the purchase of the vehicle.

5. The prisoner advised them to wait at the ground floor of the building whilst he went to sort out the paperwork. At around 4.10 pm he returned and advised the complainant that cash payments were not accepted for registration and so he was going to arrange for a cheque to be raised by NCDC for MVIL for that purpose. He said it should all be sorted out the following day. The prisoner never returned and instead applied the money for his own use.

Maximum Penalty

6. Pursuant to s. 383A(1)(a)(2)(d) of the Criminal Code the offence carries a maximum penalty of ten years’ imprisonment. The maximum penalty should usually be reserved, however, for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. This is not such a case.

Sentencing Considerations

7. 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

8. 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;

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

9. 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: The State v Niso (No 2) (2005) N2930; The State v Tiensten (2014) N5563.

10. Both counsel referred me to cases in support of their respective submissions. The defence cited a number of cases, most relevantly: The State v Denis Vela, CR 43 of 2004, unreported, Mogish J in which the prisoner, a police officer, was sentenced to 4 years’ imprisonment for misappropriation of K28,000 from the State.

11. The State has also helpfully referred me to:

a. The State v Nancy Leah Uviri (2008) N5468 in which it was suggested the guidelines in Wellington Belawa might be adjusted upwards such that a sentence of between 4 and 6 years’ imprisonment would be appropriate where a sum of between K10,000 and K40,000 is involved;

b. The State v Elizabeth Teka (2008) N3509 in which the prisoner pleaded guilty to misappropriating K37,000 in cash from the victim, her brother in law, both of whom were from Ialibu in Southern Highlands Province. The victim came from the village with K40,000 to purchase a PMV but there were none in stock at Ela Motors in Mt Hagen. He approached the victim and asked her to hold K37,000 until a bus became available for sale. The prisoner deposited it to her account and applied it over a period of time for her own use until it was depleted from her account. On conviction, the prisoner was sentenced to 5 years’ imprisonment which was wholly suspended on conditions including full restitution;

c. The State v Simon Savoa Feaviri, CR (FC) 103 of 2017, unreported 8 December 2017, in which the prisoner was found guilty by Kandakasi J following trial of one count of misappropriating K18,931.25 belonging to BSP. He was sentenced to 3 years’ imprisonment wholly suspended on conditions including restitution;

d. The State v Alice Wilmot (2005) N2857 in which the prisoner pleaded guilty to one count of misappropriating K19,960 systematically over a period of 17 months whilst a bank teller from her employer, ANZ. The prisoner failed to express remorse and was sentenced to 3 years’, partially suspended to take into account restitution; and

e. The State v Philip Wiamai (2007) N5492 in which the prisoner pleaded guilty to one count of misappropriating K16,848.70. The prisoner agreed to assist his cousin brother, a retired school teacher, obtain his finish pay but once he did put it into his bank account and applied it to his own use. The prisoner was sentenced to 4 years’ wholly suspended on conditions, including restitution.

12. I have also had regard to the following which may provide guidance in determining sentence:

a. The State v Lukeson Olewale (2004) N2758, in which the prisoner pleaded guilty to one count of uttering and one count of misappropriating a cheque for K40,000 against the account of the Fly River Provincial Government, his employer. The prisoner conspired with others including a bank manager and was sentenced to 4 years’ imprisonment by David AJ (as he then was) wholly suspended on conditions including restitution with assistance from his family;

b. The State v Benson Likius (2004) N2518 in which Lenalia J sentenced the prisoner to 5 years’ for misappropriating K68,674.06 the property of his employer, Lihir Management Company using a scheme applied over a period of more than 20 months. Three years of the sentence was suspended on conditions including restitution;

c. The State v Christian Korei (2005) N2946 before Lay J in which the prisoner pleaded guilty to misappropriating a sum of K82,202.73 donated for the purpose of building a classroom for his community. On discovery the prisoner made restitution of K65,000. He was sentenced to 4 years’ imprisonment on conditions including full restitution; and

d. The State v Gibing Yawing (2017) N6836 in which the prisoner was sentenced to 2 years’ imprisonment by Salika DCJ. The prisoner, an accountant, pleaded guilty to one count of misappropriating K14,955 from his employer, Simbu Farming and Marketing Ltd.

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