The State v Gibson Haulai (2004) N2555

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 25 March 2004
• Citation: (2004) N2555
• Court: National Court
• Year: 2004
• Judgement Number: N2555

Full Title: The State v Gibson Haulai (2004) N2555

National Court: Kandakasi J

Judgment Delivered: 25 March 2004

1 CRIMINAL LAW—PRACTICE AND 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—Community willing to contribute to supervision of community work orders—Appropriate to make orders to accommodate such preparedness as sentencing is a community responsibility.

2 CRIMINAL LAW—Sentencing—Misappropriation—Total amount stolen K27,320.00—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 for restitution of full amount stolen by the prisoner with relatives and community support—Non–custodial sentence with terms imposed.

3 Wellington Belawa v The State [1988–89] PNGLR 496, Brian Kindi Lawi v The State [1987] PNGLR 183, The State v Paroa Kaia (1995) N1401, The State v Bygonnes Tuse Nae (1996) N1474, Doreen Liprin v The State (2001) SC673, The State v Dobi Ao (No 2) (2002) N2247, The State v Micky John Lausi (2001) N2073, The State v Jimmy Solomon (2001) N2100, The State v Eric Emmanuel Vele (2002) N2252, The State v Louise Paraka (2002) N2317, The State v Makeu Kig (2001) N2177, The State v Ngetto Rex Rongo (2000) N2035, The State v Fredinand Naka Penge (2002) N2244, The State v Jamie Campbell Fereka (2003) N2359, Public Prosecutor v Don Hale (1998) SC564, The State v Oa Seseka (1990) N921 referred to

___________________________

N2555

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 9 of 2004

THE STATE

-V-

GIBSON HAULAI

VANIMO: KANDAKASI, J.

2003: 9th, 19th and 25th March

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 – Community willing to contribute to supervision of community work orders – Appropriate to make orders to accommodate such preparedness as sentencing is a community responsibility.

CRIMINAL LAW – Sentencing – Misappropriation – Total amount stolen K27, 320.00 – 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 for restitution of full amount stolen by the prisoner with relatives and community support - 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. Dobi Ao (No 2) (2002) N2247

The State v. Micky John Lausi (27/03/01) N2073.

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

The State v. Eric Emmanuel Vele (24/07/02) N2252.

The State v Louise Paraka (24/01/02) N2317.

The State v. Makeu Kig (21/06/01) N2177.

The State v. Rex Rongo (20/12/00) N 2035.

The State v. Fredinand Naka Penge (24/05/02) N2244.

The State v Jamie Campbell Fereka (07/04/03) N2359.

Acting Public Prosecutor v. Don Hale (1998) SC 564.

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

Counsel

F. K. Popeu for the State

D. Kari for the Accused

Decision on Sentence

25th March 2004

KANDAKASI, J: On Tuesday, 9th March 2004, you pleaded guilty to one count of misappropriation of a total sum of K27, 320.00 belonging to Air Nuigini Ltd, Vanimo branch to your own benefit.

Relevant Facts

Between 8th April and 31st December 2002, you were in the employ of Air Nuigini as its Cargo Officer here in Vanimo. Your duties entailed the charging, collecting, depositing with the bank and accounting to your employer ticket and cargo sales. During this period, you collected various sums of money, ranging from K1, 266.10, the lowest to K17, 703.17 at the highest. Out of the sums you collected, you deposited only part of them in Air Nuigin’s account, kept the balance to yourself and applied them to your own personal use. This totaled K27, 320.00. To conceal your theft of this money, you falsified the customer’s copy of the deposit slips to make it look as if you deposited the full amounts collect on each of the relevant occasions.

During the year-end closing of Air Nuigini’s finances for the year 2002, internal audits showed that their records could not be reconciled with the bank account statements. This necessitated an investigation. The investigation revealed what you did. Air Nuigini, therefore reported you to the police.

After its own investigations, the police eventually arrested and charged you with misappropriation. In your record of interview conducted with police on 25th March 2003, you admitted to committing the offences and gave details of what you did including the application of the money to your own personal use.

Address on Sentence

Based on your guilty plea and after the Court satisfied itself on the material in evidence before it, per the District Court Deposition, the Court accepted your guilty plea. In your address before sentence, you said sorry for what you have done and asked the Court to direct Air Niugini to re-employ you so that you could repay what you stole from them. Your lawyer then asked for a pre-sentence report as well as a means assessment report. I directed the Probation Services to provide these reports by the 16th of this instant.

The Probation Service furnished the reports as required. At that time, the Court required further inputs as to the method of repayment. Those further inputs came in on the 19th of this month, when I received your lawyer’s submissions on sentence.

Your lawyer adopted the submissions or the contents of these reports. These reports give your personal details, your commission of the offence, your attitude to it, your means and the way in which you wish to repay Air Niugini the money you stole from it. The report contains inputs from the community as well as Air Niugini as to the kind of sentence you should receive. Ultimately, the report recommends a repayment of the money you stole to Air Niugini, which is what Air Niugini prefers as well as a non-custodial sentence on terms.

These recommendations proceed in view of your guilty plea, you being a first time offender and that you have the means to meet any order for restitution and that you will comply with any terms the Court imposes for any non-custodial sentence. In view of this, the State is making no submissions against the recommendations and has chosen to leave it to the discretion of the Court.

The Law

Section 383A (1)(a) of the Criminal Code under which you have been found guilty, creates the offence and prescribes 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...