The State v Mahuva Jimmy and Uta Helisha (2004) N2632

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 02 September 2004
• Court: National Court
• Citation: (2004) N2632
• Year: 2004
• Judgement Number: N2632

Full Title: The State v Mahuva Jimmy and Uta Helisha (2004) N2632

National Court: Kandakasi J

Judgment Delivered: 2 September 2004

1 CRIMINAL LAW—Sentencing—Misappropriation—Amount misappropriated K2,000.00—First time advanced aged offenders—Pre–sentencing and means assessment reports recommending restitution and community service orders—Prisoners not having means right away but will find means to repay amounts misappropriated—Community prepared to supervise community work and rehabilitation—Orders for restitution of full amount by the prisoners with relatives and community support and non–custodial sentence with terms imposed.

2 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 Gibson Haulai (25/03/04) N2555, 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, Wellington Belawa v The State, James Mora Meaoa v The State [1996] PNGLR 280, The State v Benson Likius (08/03/04) N2518, The State v Paroa Kaia (1995) N1401, Acting Public Prosecutor v Don Hale (1998) SC564, The State v Jamie Campbell Fereka (07/04/03) N2359, The State v Oa Seseka (19/10/90) N921 referred to

___________________________

N2632

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1035 and 1064 of 2003

THE STATE

-V-

MAHUVA JIMMY and UTA HELISHA

GOROKA: KANDAKASI, J.

2004: 24th and 27th August

2nd September

CRIMINAL LAW – Sentencing – Misappropriation – Amount misappropriated K2, 000.00 – First time advanced aged offenders – Pre-sentencing and means assessment reports recommending restitution and community service orders - Prisoners not having means right away but will find means to repay amounts misappropriated - Community prepared to supervise community work and rehabilitation - Orders for restitution of full amount by the prisoners 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. Dobi Ao (No 2) (2002) N2247.

The State v. Gibson Haulai (25/03/04) N2555.

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.

Wellington Belawa v. The State.

James Mora Meaoa v. The State [1996] PNGLR 280.

The State v Benson Likius (08/03/04) N2518.

The State v. Paroa Kaia (1995) N1401.

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

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

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

Counsel

J. Kesan for the State

T. Ohuma for Prisoners

Decision on Sentence

02nd September 2004

KANDAKASI, J: Both of you pleaded guilty to one charge each of misappropriating K2, 000.00 belonging to Cliffy Moses on 3rd June 2002. After having satisfied myself independently from the depositions that your guilty pleas had the support of the evidence in the depositions, the Court accepted both of your guilty pleas. The Court then heard both of you in your allocutus and then your lawyers and reserved a decision on your sentence to today. This is the decision of the Court.

Facts

The relevant facts start with Jenny Moses coming to you Mahuva Jimmy on 27th July 2001, with a sum of K2, 000.00 and asking you if you could take it and keep it for her child, Cliffy Moses’ school fees. She did that to avoid herself using up the money if it remained in her hands. You agreed and Jenny Moses let the money with you, Mahuva Jimmy.

On 03rd June 2002, one of your relatives died at the Goroka Base Hospital from an illness. Both of you however, suspected Jenny Moses, who is a daughter-in-law to you of sorcery. Therefore, you chased her and her husband, one of your sons and his family, out of his house and the village and had some of your other relatives’ burn down their house. They lost all of their properties through the burning down of their house.

While Jenny and her family were out of the way, Mahuva Jimmy informed your brother, Uta Helisha about the money, you were keeping for Cliffy’s school fees. You, Uta Helisha then in need of money for the funeral expenses of your deceased son got the money from Mahuva Jimmy and used it all up for the funeral expenses. When you did that, you did not get any approval from Jenny Moses or her son, Cliffy Moses.

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 other intangible property; and …”

As earlier as the late 1980’s, the Supreme Court set guidelines for sentencing in this kinds of cases in Wellington Belawa v. The State.

[1988-89] PNGLR 496.

1 It clearly provided, depending on the amount of money or the value of property involved, the sentences could be lesser where the amount of money involved is lesser and higher if the amount of money or value of property involved is higher. Other factors such as degree of trust reposed in the offender, his position and time taken to commit the offence are also relevant. The application of the money stolen or misappropriated, its effect on the victim and the public, or fellow-employees or partners are also relevant considerations. At the same time, the Court held that, the effect of the offence on the offender himself, the offender’s own history; restitution; illness; being placed under great strain by excessive responsibility or the like and co-operating with the police are also relevant factors but in mitigation of the offender.

Cases subsequent to the Supreme Court judgment have imposed sentences between 18 months to say 3 years as in Lawi v. The State

[1987] PNGLR 183.

2 for misappropriations of K10,000.00. Others 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.

3 and The State v. Bygonnes Tuse Nae,

(18/09/96) N1474.

4 for misappropriation of amounts exceeding K100, 000.00.

This has then developed into a line of sentencing favoring suspension and giving of more time to an offender to repay the money or property, he or she misappropriated. The Supreme Court judgment in Doreen Liprin v. The State

(9/11/01) SC675 (?).

5 represents that. In that case, the National Court convicted the offender after a trial on one count each of forgery, uttering and misappropriation of a sum of K6, 000.00. It then imposed a sentence of one year each for the first 2 offences and 3 years for the misappropriation, all made concurrent. It then suspended the sentence on conditions of restitution within a period of 2 months on the prisoner’s request.

The offender did not meet the condition for her suspended...