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State v Dumo [2018] PGNC 484; N7574 (15 November 2018)

N7574

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 202 OF 2018

THE STATE

V

WILLIE MAMATA DUMO

Waigani: Berrigan, J
2018: 11 October, 7 & 15 November

CRIMINAL LAW – Sentence – Misappropriation – Early cooperation and plea of guilty – No prior conviction –– Position of trust – Impact on victim, public and public confidence - Suspension - Restitution

Cases Cited

Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Wellington Belawa v The State [1988-1989] PNGLR 496
Lawrence Simbe v The State [1994] PNGLR 38
The State v Paroa Kaia (1995) N1401
The State v Tova (1997) N1522
State v Imoi Maino (2003), N2773
The State v Benson Likius (2004) N2518
The State v Lukeson Olewale (2004) N2758
The State v Alice Wilmot (2005) N2857
The State v Christian Korei (2005) N2946
The State v Niso (No 2) (2005) N2930
The State v Tiensten (2014) N5563.
The State v Gibing Yawing (2017) N6836
The State v Andrick Yagro and Joan Kalama, unreported, 3 September 2018

Counsel

Ms H. Roalakona, for the State
Mr E. Sasingian, for the Prisoner

DECISION ON SENTENCE

15^th November, 2018

1. BERRIGAN J: INTRODUCTION: The prisoner, Willie Mamata Dumo, pleaded guilty to one count of misappropriation, that he between the 1^st and the 31^st of May, 2017 in Port Moresby, Papua New Guinea dishonestly applied to his own use the sum of Eighty Seven Thousand, Seven Hundred and Thirty One Kina, (K87,731.00) the property of the State, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code (Ch.262) (the Criminal Code).
   

Facts

2. On 4 May 2017 the Department of Education paid Spicta Travel Agency the sum of K97,590.84 for the purposes of hiring a helicopter to transport staff to Ialibu-Pangia in the Southern Highlands Province for the launching of the EQUITV Project, a project for enhancing the quality of teaching through television, in 30 schools. The launch did not go ahead because of the National General Elections.
   
3. The Spicta Travel Agency refunded the monies after removing an amount for administrative fees. The refund of K87,731.00 was paid in the form of cash cheques payable to the prisoner on 5 and 12 May 2017 instead of to the Department of Education. At the time the accused was the Manager, Operations, E-Learning Section, with the Department.
   
4. The prisoner did not provide the monies to the Department of Education but instead dishonestly applied them to his own use.
   

Sentencing Considerations

5. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
       

Comparable Cases

6. In addition the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:
   
   1. K1 and K1000, a gaol term should rarely be imposed;
   2. K1000 and K10,000 a gaol term of up to two years is appropriate;
   100. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
   4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
      
7. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; The State v Tiensten (2014) N5563.
   
8. Both counsel helpfully referred me to cases in support of their respective submissions. The defence cited The State v Andrick Yagro and Joan Kalama, unreported, 3 September 2018, Salika DCJ (as he then was), (2005) N2930, in which the prisoners were found guilty following trial of one count of misappropriating K138,226.10 belonging to the PNG Teachers Association by directing the payment of monies to the bank accounts of three people for their own use and the use of others. Both were very senior officers at the time and part of the interim management team that oversaw the running of the Association. They were each sentenced to 4 years’ imprisonment which was wholly suspended upon the restitution of K69,000 respectively, within 12 months.
   
9. The State referred me to the following:
   
   1. The State v Paroa Kaia (1995) N1401, Sawong J, in which the prisoner pleaded guilty to one count of misappropriating K94,478.31 belonging to ANZ Bank over a 2 month period. At the time he was an accounts supervisor with the bank. He was sentenced to 4 years’ imprisonment;
      
   2. The State v Tova (1997) N1522, Batari AJ (as he then was), in which the prisoner pleaded guilty to misappropriating K22,100, the property of Allens Arthur Robinson Lawyers, his employer. He was sentenced to 3 years’, wholly suspended on condition of restitution;
      
   100. The State v Imoi Maino (2003) N2773, David AJ (as he then was) in which the prisoner misappropriated K106,355.02 by drawing 16 cheques, over a period of about 14 months, in favour of others, one in favour of herself, whilst a payroll clerk with the Department of Education. She was sentenced to 4 years’ imprisonment, of which 2 years was suspended on conditions; and
        
   4. The State v Alice Wilmot (2005) N2857, Sevua J, in which the prisoner pleaded guilty to one count of misappropriating K19,960 systematically over a period of 17 months whilst a bank teller from her employer, ANZ. The prisoner failed to express remorse and was sentenced to 3 years’, 18 months of which was suspended upon full restitution. A further 6 months’ was suspended upon entering into her own recognizance with the balance of 12 months’ to serve.
      
10. I have also had regard to the following which may provide guidance in determining sentence:
    
    1. The State v Lukeson Olewale (2004) N2758, in which the prisoner pleaded guilty to one count of uttering and one count of misappropriating a cheque for K40,000 against the account of the Fly River Provincial Government, his employer. The prisoner conspired with others including a bank manager and was sentenced to 4 years’ imprisonment by David AJ (as he then was), wholly suspended on conditions including restitution with assistance from his family;
       
    2. The State v Benson Likius (2004) N2518 in which Lenalia J sentenced the prisoner to 5 years’ for misappropriating K68,674.06 the property of his employer, Lihir Management Company using a scheme applied over a period of more than 20 months. Three years of the sentence was suspended on conditions including restitution;
       
    100. The State v Christian Korei (2005) N2946 before Lay J in which the prisoner pleaded guilty to misappropriating a sum of K82,202.73 donated for the purpose of building a classroom for his community. On discovery the prisoner made restitution of K65,000. He was sentenced to 4 years’ imprisonment, wholly suspended on conditions including full restitution; and
         
    4. The State v Gibing Yawing (2017) N6836 in which the prisoner was sentenced to 2 years’ imprisonment by Salika DCJ (as he then was). The prisoner, an accountant, pleaded guilty to one count of misappropriating K14,955 from his employer, Simbu Farming and Marketing Ltd.
       
11. Whilst the above authorities provide useful guidance, the sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. I will now turn to the matters outlined in Wellington Belawa.
    

Nature and Circumstances of the Offence, including Matters of Aggravation

12. It is well established that in general terms, the greater the amount involved the more serious the offence. In this case a significant amount of money, K87,731.00, was misappropriated following payments received by the prisoner on two separate occasions, a week apart. This was not a one-off, spur of the moment, incident. The monies were applied for the prisoner’s own benefit including to meet personal liabilities.
    
13. The quality and degree of trust reposed in the prisoner at the time of the offending was high. He was a long term employee with the Department of Education and the Operations Manager with its E-Learning Branch, a senior position responsible for ensuring the effective functioning of the branch using its limited resources.
    
14. The offence involved the misappropriation of State funds intended for that most important of functions, the education of the country’s children. The impact of the offence is very serious. Critical and scarce funds have been lost to the Department, its teachers, and of course, to the children who would otherwise have benefited. The reputation and integrity of the Department has also suffered.
    
15. I also have no doubt that the offence has had a serious impact on the public and public confidence. The public relies, and is entitled to rely, on the State to manage the delivery of essential services effectively. When people holding middle-management positions like the offender dishonestly use limited public resources for their own benefit it can only have a serious impact on public confidence in the administration of government services as a whole.
    

Personal Circumstances and Matters in Mitigation

16. The Prisoner is 39 years of age and comes from Imbunatou Village, Rigo District in Central Province. He lives at Mahuru Village, at Kila Kila in the National Capital District with his first wife and three children. His second wife and their four children live with her relatives. All of his seven children are under the age of 18, the youngest being one year old.
    
17. The prisoner completed high school at Kwikila High School in 1998. He graduated with a Diploma in Primary School Teaching from Madang Teachers College in 2000 and since has spent almost 18 years with the Department of Education.
    
18. In mitigation this is the prisoner’s first offence. He is previously of good character. He was a valued and trusted member of the Department of Education and a teacher for many years before being deliberately pulled out from teaching and appointed as the Operations Manager in recognition of his hard work and potential. It was this position of trust, however, that provided him with the opportunity to conduct the offence, and which he abused.
    
19. The prisoner’s immediate supervisor at the Department of Education was shocked that the prisoner would commit such an offence. She spoke very highly of the prisoner’s work ethic and his leadership qualities. She credits him personally with the success of the Department’s EQUITV Project.
    
20. I have no doubt that the prisoner and his family will suffer a loss of standing in the community as a result of his conviction. It will be difficult for the prisoner to obtain employment in the future, particularly in education. Any term of imprisonment will, of course, have a significant effect on his wives and young children. That is, however, a matter he should have considered before committing the offence.
    
21. He expressed remorse on allocatus which I accept as genuine. In addition, the prisoner cooperated from a very early stage. He admitted the offence to his employer prior to the involvement of authorities, cooperated with police thereafter and then pleaded guilty at the first opportunity following committal. He saved the State and the court the cost and inconvenience of a trial. Those are significant matters on mitigation.
    
22. No restitution has been made to date and there are no matters of mitigation special to the prisoner.
    

Sentence

23. The prisoner has been convicted of one count of misappropriation contrary to s.383A(1)(a)(2)(d) of the Criminal Code for which the maximum penalty is 10 years’ imprisonment. The maximum penalty should usually be reserved, however, for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653.
    
24. The offence is nevertheless a very serious one. Offences of this type and involving much needed and scarce public resources are unfortunately also prevalent. I have had regard to the matters raised in mitigation but there is a need for both general and specific deterrence. Taking into account all of the matters outlined above, including the prisoner’s very early cooperation, I impose a sentence of 4 years’ imprisonment in hard labour.
    
25. The prisoner seeks to have the sentence suspended and has indicated his intention to make restitution. According to the Means Assessment Report he is not in a position to do so immediately and is currently unemployed. He would need to access the savings in his Nambawan Super Fund, the current balance of which is almost K73,000. It appears that pursuant to the Superannuation Act, 2000 he would not be able to do so for almost 12 months. Even then the funds would be insufficient. His 63 year old father will be retiring in early 2019 and has offered to surrender 100% of his savings to repay the Department of Education. Whilst I understand his father’s motivation, the proposal concerns me deeply.
    
26. It is not for the prisoner’s father, after 43 years of dedicated service to the National Fire Fighters Association, to provide the funds required for restitution. Moreover, those funds will be needed by him in his retirement and I am certainly not going to create a situation where the prisoner’s father effectively becomes entirely responsible for meeting the prisoner’s undertaking to make restitution.
    
27. I am, nevertheless, of the view that partial suspension will promote restitution by the prisoner, with some assistance by his father, and that given the prisoner’s age and personal and professional history it will also promote his rehabilitation into the community: see The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.
    
28. In the circumstances, with respect to the sentence of 4 years’ imprisonment, I further order that 2 years’ be suspended on condition the prisoner makes full restitution to the Department of Education within 18 months from today and enter into his own recognisance to keep the peace and be of good behaviour for the balance of his sentence. The Probation Service will supervise restitution until the money is fully repaid. I don’t see any reason why the prisoner cannot issue any necessary directions to his superannuation fund from prison with assistance from his family for this purpose. Any difficulties can be raised with Probation Service, which will provide a report in 12 months’ time and thereafter at 6 monthly intervals.
    
29. Bail monies are to be refunded.
    
30. The Court orders accordingly.
    

____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner