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State v Philip [2013] PGNC 229; N5386 (17 October 2013)

N5386

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 25 OF 2013

THE STATE

V

MIDDLETON PHILIP

Madang: Cannings J
2013: 21 August, 1, 17 October

CRIMINAL LAW – sentencing – Section 383A (misappropriation of property) – sentence on plea of guilty – K15,900.00 misappropriated – sentence of 2 years.

An employee of a large corporation pleaded guilty to misappropriation of K15,900.00 cash, the property of his employer. He collaborated with another employee to engage in four fraudulent transactions over a 15-day period. He cooperated fully with the Police when the matter was investigated.

Held:

(1) The maximum penalty for the amount misappropriated is ten years imprisonment; the starting point is four years imprisonment.

(2) Mitigating factors are: the amount of money involved was relatively small given the size of the corporation; had an unblemished employment record for five years; he cooperated fully with the Police; no prior convictions; pleaded guilty. Aggravating factors are: multiple transactions; serious breach of trust.

(3) A sentence of two years imprisonment was imposed, none of which was suspended due to there being no reasonable prospect of the money being returned to the victim.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Augustine Seckry CR 376/2005, 19.04.05
The State v Graham Duk CR 150/2009, 15.07.09
The State v Joyce Gulum CR 1620/2005, 06.04.06
The State v Paul Taro CR 237/2006, 03.08.06
The State v Philip Wiamai CR 1031/2006, 18.10.07
The State v Scholar Zuvani (2004) N2641
The State v Steven Lasin (2007) N5052
Wellington Belawa v The State [1988-89] PNGLR 496

SENTENCE

This was a judgment on sentence for misappropriation.

Counsel

M Pil, for the State
D Ephraim, for the offender

17th October, 2013

1. CANNINGS J: Middleton Philip pleaded guilty to misappropriation of the sum of K15,900.00, the property of Post PNG Ltd. He was a customer services officer with Post PNG at Madang Post Office. He collaborated with another employee to engage in four fraudulent transactions involving abuse of the Mobile SMK (Salim Moni Kwik) cash transfer system, over a 15-day period in 2012. He obtained cash in the amounts of K4,000.00, K4,000.00, K3,900.00 and K4,000.00 and applied it to his own use. He has been convicted of one count of misappropriation (as the Public Prosecutor elected to roll up what could have been four charges into one) under Section 383A(1)(a) of the Criminal Code, in circumstances of aggravation under Section 383A(2)(d) of the Criminal Code (in that the value of the dishonestly applied property was more than K2,000.00). This is the judgment on sentence.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

I apologise for what I did. This is my first time to be in court. I am facing financial difficulties as one of my uncles has died and also my sister has passed on and I have to look after her children. I ask for the mercy of the Court.

OTHER MATTERS OF FACT

4. 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). Ms Ephraim for the offender asked the Court to take account of three mitigating matters: that he cooperated fully with the Police and made early admissions; that he was not the mastermind of the scam; and that he only received a small amount of the money. I accept the first two matters but not the third. He has pleaded guilty and has been convicted of misappropriating to his own use the total sum of K15,900.00 and that is the basis on which he must be sentenced. Besides that it is not reasonably believable that he did not obtain all the money.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service. Middleton Philip comes from Palimbe village, East Sepik Province. He is aged 30 and is married with one child. He has a grade 10 school education and has obtained a certificate in banking from a training institute. He was employed by Post PNG for five years before losing his job because of this offence. He is facing financial difficulty without a regular income but has been trying to make ends meet with informal sector income. He has a stable marriage. He has no bad community record. A spokesman for Post PNG said the company's position was that the offender should be imprisoned. The total amount lost in the scam, which involved another employee who has so far evaded the Police, was K55,798.00. The offender says that he only received K2,000.00 of the K15,900.00 (a claim already rejected) and that he would be able to return that amount to Post PNG. He concedes that he would have great difficulty paying any more. The report concludes that he is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Ephraim highlighted that the offender has no prior convictions and he pleaded guilty. He cooperated fully with the Police. A sentence of no more than three years imprisonment, fully suspended, would be sufficient.

SUBMISSIONS BY THE STATE

7. Mr Pil stressed that the offence involved four separate transactions conducted over a 15-day period. The offender collaborated with another person to manipulate newly introduced technology and a strong deterrent sentence of at least four years was required. However, the State would agree to a fully suspended sentence if the offender was given a limited time to return the money.

DECISION MAKING PROCESS

8. 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?

9. 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?

10. 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. I have stated in previous cases that these should be increased and regarded as follows:

• 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.
  

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

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

12. It is useful to consider sentences imposed in cases involving similar amounts of money.

SENTENCES FOR MISAPPROPRIATION: AMOUNTS K10,000.00 – K40,000.00

STEP 4: WHAT IS THE HEAD SENTENCE?

13. The head sentence will reflect the following mitigating and aggravating factors.

Mitigating factors:

• the amount of money involved was relatively small given the size of the corporation;
• the offender had an unblemished employment record for five years;
• he cooperated fully with the Police;
• he made early admissions (the offence was committed in April-May 2012 and his formal admissions were made in August 2012);
• he has no prior convictions;
• he pleaded guilty;
• he has expressed remorse;
• he has cooperated with the Court by complying with bail conditions and attending court punctually.
  

Aggravating factors are:

• multiple transactions committed over a 15-day period;
• serious breach of trust.
  

14. After weighing all these factors, noting that there are more mitigating factors than aggravating factors and comparing this case with other misappropriation sentences, the head sentence should be below the starting point range of four to six years. I place great weight on the high level of cooperation with the Police and the Court and the early admissions made to the Police and of course the guilty plea. Because of these strong mitigating factors the sentence imposed is two years imprisonment.

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

15. There is nothing to deduct as the Court has not been informed of any time the offender has been in custody in connection with this matter.

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

16. There is nothing in the pre-sentence report or the allocutus to justify suspension of any part of the sentence, there being no reasonable prospect of the money being returned to the victim. I decline to suspend any part of the sentence.

SENTENCE

17. Middleton Philip, having been convicted of one count of misappropriation, contrary to Section 383A(1)(a) of the Criminal Code in circumstances of aggravation under Section 383A(2)(d) of the Criminal Code, is sentenced as follows:

Sentenced accordingly.
___________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender