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State v Duk [2009] PGNC 247; N3924 (15 July 2009)

N3924

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 150 0F 2009

THE STATE

V

GRAHAM DUK

Madang: Cannings J
2009: 9 April, 8, 13, 15 July

SENTENCE

CRIMINAL LAW – sentence – Criminal Code, Subdivision VI.1.C (offences analogous to stealing) – Section 383A (misappropriation of property) – sentence on plea of guilty – K32,600.00 misappropriated – sentence of 4 years.

A young man pleaded guilty to misappropriation. He was an accountant employed by a bank and dishonesty obtained K32,800.00 in customers' deposits and applied it to his own use.

Held:

(1) The maximum penalty for the amount misappropriated is ten years imprisonment.

(2) The starting point is 4 to 6 years imprisonment.

(3) Mitigating factors are: co-operated with police; pleaded guilty; genuine remorse; first-time offender.

(4) Aggravating factors are: multiple transactions committed over a long period; serious breach of trust; large amount misappropriated; money not put to good use; did not give himself up; has not repaid any of the money.
(5) A sentence of 4 years imprisonment was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Wellington Belawa v The State [1988-89] PNGLR 496
The State v Danny Yannam CR 68/2008, 22.02.08
The State v Nancy Uviri CR 984/2007, 16.10.08
The State v Scholar Zuvani (2004) N2641
The State v Augustine Seckry CR 376/2005, 19.04.05
The State v Rictor Naiab CR 387/2005, 08.09.05
The State v Joyce Gulum CR 1620/2005, 06.04.06
Saperus Yalibakut v The State (2006) SC890
The State v Paul Taro CR 237/2006, 03.08.06
The State v Steven Lasin CR 1631/2006, 17.08.07
The State v Wilfred Aisa CR 363/2008, 27.10.08

SENTENCE

This was a judgment on sentence for misappropriation.

Counsel

M Ruarri, for the State
A Turi & N Los, for the offender

15 July, 2009

1. CANNINGS J: This is a decision on sentence for a young man, Graham Duk, who pleaded guilty to one count of misappropriation.

2. He was employed as an accountant at the Madang branch of the Wau Microbank. Over a four month period from March to July 2008 he dishonestly obtained K32,800.00 in customers' deposits and applied it to his own use.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court. He said:

I thank the Judge and the Court staff, my arresting officer, my lawyers, the State Prosecutor and everyone who has worked on my case. This is my first time to appear before the National Court. I have never before convicted an offence of this nature. I apologise to God and to the Wau Microbank – now Nationwide Microbank – and all the bank staff and the customers for what I did. I say sorry for spoiling the good name of the Bank. I thank my parents for supporting me.

I committed this offence out of personal pressures and frustrations. I have experienced the toughness of life in prison and this has taught me a lot and I promise not to commit such a crime again.

I promise that I will serve my family and my country as a young educated person to the best of my ability in the future. I ask for mercy and for leniency from the court as this was a non-violent crime and I would like to be considered for probation.

As a young, educated person I assure the court that I trust the Constitution and I will with humility and respect accept and abide by whatever decision the Court makes.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890).

6. It is apparent that he co-operated fully with the police. He was arrested in July 2008 and made full admissions when formally interviewed two months later. He acknowledged his guilt, said he knew that what he was doing was wrong and apologised to the police. He said that he had made false entries and failed to record some cash transactions out of frustration at being under-paid by the Bank.

PRE-SENTENCE REPORT

7. Graham Duk is 25 years old. He is from Krevin village in the Simbai area of the Middle Ramu District of Madang Province. His parents are alive and living in Lae and still support their son despite the crime he has committed. He has three brothers and sisters. He was living at Matupge Plantation near Madang prior to being remanded in custody. He has a steady partner to whom he is engaged to be married. He plans to marry and settle down as soon as his case is resolved.

8. He graduated from Divine Word University in 2005 with a Bachelor of Business Studies. He was employed by the Internal Revenue Commission in Lae for two years, then gained employment in Madang at the Wau Microbank in late 2007. His health is sound.

9. The report concludes that Graham Duk is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

10. Mr Los highlighted that the offender has no prior convictions and he pleaded guilty plea. He is willing to attempt to repay the money to the Bank. He committed the offence out of frustration. He stole from the institution – the Bank – not its customers, so the case is not in the worst case category. A sentence of 30 months imprisonment, fully suspended and subject to repayment of the money over a reasonable period would be sufficient, Mr Los submitted.

SUBMISSIONS BY THE STATE

11. Mr Ruarri suggested that the sentence contended for by the defence counsel failed to reflect the seriousness of the offence: the amount of money involved and the serious breach of trust that occurred. A sentence of four or five years is warranted.

DECISION MAKING PROCESS

12. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. As the amount of money misappropriated is more than K2,000.00 the maximum penalty under Section 383A(2)(d) is ten years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

14. The Supreme Court set out some starting point ranges in Wellington Belawa v The State [1988-89] PNGLR 496, depending on the amount of money misappropriated. Thus:

• K1.00 to K1,000.00 – a jail term should rarely be imposed;
• K1,000.00 to K10,000.00 – two years imprisonment;
• K10,000.00 to K40,000.00 – two to three years imprisonment;
• K40,000.00 to K150,000.00 – three to five years.
  

15. There is an enhanced level of community concern about corruption, dishonesty and misappropriation both in the public sector and in the private sector. In my view this should be reflected by doubling the tariffs suggested in Belawa. That is:

• K1.00 to K1,000.00 – suspended sentence usually appropriate;
• K1,000.00 to K10,000.00 – four years imprisonment;
• K10,000.00 to K40,000.00 – four to six years imprisonment;
• K40,000.00 to K150,000.00 and beyond – six to ten years.
  

The present case falls into the third category, which means the starting point range is four to six years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

16. Before I fix a sentence, I will consider other misappropriation sentences I have imposed.

TABLE 1: SENTENCES FOR MISAPPROPRIATION, CANNINGS J, 2004-2008,

STEP 4: WHAT IS THE HEAD SENTENCE?

17. Mitigating factors are:

• co-operated with police;
• pleaded guilty;
• genuine remorse;
• first-time offender.
  

18. Aggravating factors are:

• multiple transactions committed over a long period;
• serious breach of trust;
• large amount misappropriated;
• money not put to good use;
• did not give himself up;
• has not repaid any of the money.
  

19. One of the most serious aggravating factors is that the offender was a bank officer who betrayed the trust place in him by many people. The people trusting him included his colleagues and his branch manager; the shareholders in the bank; and, perhaps most importantly, the customers whose money he dealt with and misused. Everyone in Papua New Guinea who puts money into a bank account puts trust in the bank officer they deal with. This is so, whether the customer is a large multi-national corporation or a village trade store or a salaried employee or a grassroots person who just puts their vanilla money into an account whenever they get some. Bank officers are privileged because they are privy to a considerable amount of personal, sensitive and confidential information. In this case a bank officer abused his position of privilege. That goes very much against him.

20. After weighing all these factors and comparing this case with other misappropriation sentences I have imposed, the head sentence should be within the starting point range. I impose a head sentence of four years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

21. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is three months, two weeks.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

22. The offender has made an impassioned and articulate plea for a suspended sentence. He has highlighted that he was involved in a non-violent crime. As I pointed out in Scholar Zuvani's case there has been a trend of sorts towards suspended sentences for non-violent crimes in recent times.

23. A prison sentence costs the State money and exposes the offender to what is often not a conducive environment for rehabilitation. It does not involve the community very much in the sentencing process, compared with the direct community involvement that happens when, for example, an offender is forced to do community work as part of his or her punishment.

24. Against that, however, this was a very serious crime, motivated by frustration and greed. The offender did not give in to temptation on the spur of the moment. He engineered a deceitful fraud that was committed not only against his employer but the many customers who came in to the Bank and entrusted him with their money. He was a recent graduate of Divine Word University so he has spoiled the University's name by what he did. This is no small matter. Despite the recommendation in the pre-sentence report I cannot find a strong justification for a suspended sentence. The proposal to pay back the money to the Bank is unrealistic. I have therefore decided not to suspend any part of the sentence.

SENTENCE

25. Graham Duk, having been convicted of one count of misappropriation contrary to Section 383A(1)(a) of the Criminal Code, is sentenced as follows:

Sentenced accordingly.
___________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender