The State v Konte Morosake

• Jurisdiction: Papua New Guinea
• Judge: Auka, AJ
• Judgment Date: 01 September 2016
• Citation: (2016) N6462
• Court: National Court
• Year: 2016
• Judgement Number: N6462

Full : CR (FC) No 163 of 2014; The State v Konte Morosake (2016) N6462

National Court: Auka, AJ

Judgment Delivered: 1 September 2016

N6462

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 163 OF 2014

THE STATE

V

KONTE MOROSAKE

Popondetta: Auka, AJ

2016: 19th, 21st & 27th July

& 1st September

CRIMINAL LAW – Sentence – Accused a Policeman place in charge of looking after bail monies – Placed in position of trust and authority – Pleaded guilty to charge of Misappropriation – Monies applied to his own use – Restituted amount dishonestly applied before sentence – Appropriate sentence considered – 2 years head sentence – Fully suspended on condition that offender enter into his own recognizance without surety to keep the peace and be of good behaviour during the period of suspension.

Case Cited:

Aria Aihi v. The State [No.3] [1982] PNGLR 92

Doreen Lipirin v. The State (2001) SC 673

Lawrence Simbe v. The State [1994] PNGLR 38

Public Prosecutor v. Bruce Tardew [1986] PNGLR 91

The State v. Alphonsa Magun (2011) N4524

The State v. Emba (2001) N5012

The State v. Livingstone Haurahaela (2006) N 100

Wellington Belawa v. The State [1988-89] SC 496

Counsel:

Ms Babra Gore, for the State

Mr. E Yavisa, for the Accused

DECISION ON SENTENCE

1st September, 2016

1. AUKA AJ: The accused pleaded guilty to one count of Misappropriation Contrary to S. 383 A (1) (a) (2) (c) of the Criminal Code Act.

2. The brief facts of the case as put to the accused during the arraignment were that the accused is a Policeman based at Popondetta Police Station and at the relevant time was attached to the prosecution section and was tasked to look after bail monies for various applicants. Between the 10th of February 2012 and 13th March, 2013 a total of 44 defendants paid bail monies totalling to K30, 800. 00. The accused was the only person who had access to the key of the door to the room where the monies were kept. Having easy access to these monies, the accused took K4, 600. 00 and used it to his own purposes. Investigation was carried out and it concluded that the accused took the missing money of K4, 600. 00 and used it for himself. Therefore the accused was charged for misappropriating K4, 600. 00, the property of the 44 bail Applicants. And the accused committed the offence in breach of a position of trust.

3. On his statement on Allocatus, the accused said sorry for his action and asked the Court to have mercy on him and place him on probation. He said he has the money and is ready to make the repayment within a week.

4. On the request of Mr. Yavisa of Counsel for the accused, the court directed the Probation Officer to prepare and file both the Probation Report and Means Assessment Report and directed the matter to return on Thursday, 21st July, 2016 at 1:30pm. I am now in possession of both reports. I have perused both reports and I find that the reports are in favour of the accused. His financial situation was covered in the means assessment report showing that he is capable of repaying the full amount. The probation report strongly recommended that the offender is a very suitable person to be considered for probation.

5. On 21st July, 2016 the court heard Counsels on Sentence. Mr. Yavisa submitted that the accused is 40 years old from Koseno village in Kainantu area of Eastern Highlands Province. He is married with six (6) children who are mostly of young age and attending school. He is a member of the Lutheran Church. He has been a Policeman for 20 years and of the 20 years, he has served 17 years as a police prosecutor at Popondetta Police Station.

6. Mr. Yavisa submitted and urged the Court to consider in accused’s favour the following matters;

1. That accused pleaded guilty to the charge and saved court’s time and money.

2. That the accused freely admitted the offence to the police during the Record of Interview.

3. That he showed remorse

4. That he is a first time offender

5. That he is a long serving policeman for 20 years

6. That he has children who are mostly young and attending school

7. That the accused have fully repaid the amounts of money misappropriated.

7. Mr. Yavisa referred the Court to the National Court case of The State v. Emba (2011) N5012. In that case the accused misappropriate K50, 000. 00. He pleaded guilty to the charge and was sentenced to six (6) years and the sentence was fully suspended on conditions including restitution of the money misapplied. Counsel submitted that a suspended sentence should be imposed on the accused.

8. Ms. Gore of Counsel for the State submitted that the following aggravating factors should be considered against the accused in deciding the appropriate sentence;

1. That accused acted in breach of a position of trust which is a serious matter. However she submitted that the court has discretion to impose a appropriate sentence.

2. That the accused have repaid the money fairly late and as such his expression of remorse is not genuine.

9. Ms. Gore referred the court to the National Court case of The State v. Livingston Haurahaela (2006) NC 100. In that case accused pleaded guilty to the charge of misappropriating K1200. 00. The accused was employed by the National Department of Finance and Treasury as an acting examiner based at Kikori, Gulf Province. One of his duties was to collect public monies into the state treasury through the Kikori District Treasury office. Such funds included police and court bails and court fines. Instead of completing the relevant collectors statements for those monies and have them paid into the trust account kept at Kerema, he kept them in safe and applied them to his own use. The court sentenced him to 18 months. The sentence was fully suspended with conditions.

10. The offence of misappropriation is prescribed by s. 383A (1) and (2)(c)(d) of the Criminal Code. This provision states in relevant parts:

“ 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) ...........................

Is guilty of the crime of misappropriation of property’

(2) 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) ................; or

(b) Where the offender is an employee and the property dishonestly applied is the property of his employer; or

(c) Where the property dishonestly applied was subject to a trust, direction or condition; or

(d) Where the property dishonestly applied is of a value of K2, 000. 00 or upwards

11. It is an established principle that the maximum penalty should be reserved for the worst type of case, Goli Golu v. The State [1979] PNGLR 653. In my view the accused case is not the worst type of case.

12. Is is also an established principle that each case should be considered on its own facts and circumstances, Lawrence Simbe v. The State [1994] PNGLR 38.

13. The Supreme Court decision in the case of Wellington Belawa v. The State [1988-89] PNGLR 496, is the leading case authority in this jurisdiction for the offence of misappropriation and its sets out the sentencing guidelines for that offence inclusive of the factors that are to be considered and the tariff to apply.

14. In the case of Wellington Belawa (supra), the Supreme Court recommended that the following factors should be taken into account when determining which penalty to impose on an offender and these are;

1. The amount taken;

2. The quality and degree of trust reposed in the offender;

3. The period over which the offence was perpetrated;

4. The use of which money or property dishonestly taken was put;

5. The effect upon the victim;

6. The impact of the offence on the public and public confidence;

7. The effect on fellow employees or partners;

8. The effect upon the offender himself or herself

9. The offender own history

10. Whether restitution was made to the victim;

11. Matters of mitigation special to the offender himself or herself such as ill health, young or old age, effect of excessive nervous strain, cooperation with police

15. The Supreme Court in the same case of Wellington Belawa (supra) also recommended a tariff of sentences to be adjusted upward or downward depending on the various factors mentioned above. The Supreme Court said that where the amount misappropriated is between;

1. K1. 00 and K1, 00. 00, a gaol term should rarely be imposed;

2. K1, 000. 00 and K10, 000. 00, a gaol term of up to 2 years;

3. K10, 000. 00 and K40, 000. 00, a gaol term of 3 to 5 years;

4. K40, 000. 00 and K150, 000.00, a gaol term of 3 to 5 years.

16. It is generally accepted now that while the factors set out in Wellington Belawa’s case are still relevant, the tariff recommended is outdated and therefore there is a need to impose increased sentences due to the prevalent of the offence. However, the Court still has a considerable discretion under...