N8000
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. (FC) N0. 132, 133, 134 of 2016

THE STATE

V

JANET MOLONG POSAKEI

Kokopo:   Susame, AJ
2019:  14, 22, 24 May, 12 August

CRIMINAL LAW – Sentence On Plea – Offence Of Misappropriation –S383a Criminal Code – K143 812.46 Misappropriate – Employer & Employee Relationship – Acting Human Resource Manager - Serious Breach Of Trust - Amount Not Restituted - Prisoner An Asthmatic – Special Feature – 6 Years Sentence Imposed Wholly Suspended With Conditions. 

Cases Cited:

Doreen Liprin v The State (2001) SC675	
Meaoa v The State (1996) SC 504
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91    
State v Tiensten [2014] PGNC 224; N5563 (28 March 2014)
State v Yaip Joshua Avini & Parido Nonoi Acosta Unreported and un-numbered National Court Judgment 1996)
The State v Robyn Emba [2011] PGNC 297; N5012 (14 August 2011)
The State v Neville Miria (2013) N5102	
Wellington Belawa v The State [1988-89] PNGLR 496

Counsel:

Mr. C. Sambua, for the State
Mr. R.  Asa, for the Prisoner 

DECISION ON SENTENCE
	
12th August, 2019

1.	SUSAME AJ: You pleaded guilty to a charge of misappropriation on 14 May 2019. You are now in court to receive your sentence. 

Facts

2.	The facts of you were on which you were convicted. You were employed with the East New Britain Provincial Administration (ENBPA) as the Human Resource Advisor. Names of 07 officers were used in the illegal scheme you devised. Five of them were under suspension without pay. The other two were deceased persons. Between 1 May 2014 and 31 March 2015 you manipulated the Alesco Human Resource Payroll System had their names back on the payroll system. Salaries paid under the 07 names were diverted into your two personal accounts, one with BSP account no. 1003669395 and the other with Westpac Bank account no. 6002749414. You then accessed the funds totaling K143 812.46 for your personal benefit. 

3.	Your fraudulent scheme was detected when the name of one of the suspended officers was found back on the payroll system while he was still under suspension without pay. You were subsequently arrested and charged.  

Allocutus	

4.	In your address on sentence this is what you stated.  Firstly you expressed your apology to the court, the State, East New Britain Provincial Administration and the immediate families of the people you had manipulated through the system. You were truly sorry for your actions that has really caused your investigation and termination of your employment. Of all the things you have done that was the reason you pleaded guilty. The reason you had done such a terrible mistake is that you were having a marital problem with your husband. That made you not to think right because of all the financial constraints you were facing. You said you were born with an asthmatic condition. You normally experience attacks 2 – 3 months. You are not good with dust and cold. You asked court to have pity on you and give you time to repay the money. You assured the court to comply with whatever condition court orders to repay the funds misapplied. You and your family have some contributions to repay the money.  You said you have 2 small girls and a sick father. 

Court’s View on Sentence

5.	What sentence should I pass on you? 

6.	Court has considered the submissions. Counsels have assisted the court with sentencing considerations and tariffs in decided cases. I will make reference to them a bit later. First let me   consider the penalties available at law for offence of misappropriation under s 383A. 

7.	For property worth below K10 000.00, 5 years is the maximum penalty. For property worth K2000.00 and upwards maximum penalty is 10 years. For property worth 10 million Kina and above maximum penalty is imprisonment for life. [Criminal Code (amendment) Bill September 2013]

8.	You misappropriated K143 812.46.  Hence, you have attracted upon yourself maximum penalty of 10 years imprisonment. Whether you get the maximum penalty is matter of court’s discretion subject to settled sentencing principles and circumstances of the case. With regard to maximum penalty the law is settled.  It is reserved for a case considered the worst type.  Your case does not consist of very grave aggravating features to be rated as the worst type deserving the maximum penalty. A penalty lower than 10 years imprisonment will be considered in the exercise of my discretion under s 19.  

Sentencing Considerations and Sentencing Trends 

9.	The case of Wellington Belawa v The State [1988-89] PNGLR 496 is the leading authority on sentencing considerations in stealing and misappropriation cases.  The considerations are:  

(1)	Amount taken.

10.	A substantial amount of K143 812.46 was stolen. This factor weighs against you.           

(2)	The quality and degree of trust reposed upon the offender including his rank.

11.	You occupied a Senior Managerial and Supervisory position with ENBPA. You performed your duties with less supervision.  Your subordinate officers looked upon you as a leader for direction and advice.  There was greater degree of trust expected of you by your employer and your insubordinates.  In that regard there was a serious breach of that fiduciary relationship.  That factor weighs heavily against you and makes you more culpable. 

(3)	The period over which the frauds or the theft was perpetrated.

12.	This was not a one-off incident. You cleverly planned executed the fraudulent scheme and committed the offence over period of about 11 months.  You then deposited the funds into your two personal accounts, one with Westpac Bank and the other with Bank of South Pacific and accessed the funds for your personal benefit. This factor also weigh against you. 

(4)	The use to which the money or property dishonestly taken was put into.
 
13.	You applied the money for your personal use.

(5)	The effect upon the victim.

14.	None of the 5 workers under suspension were adversely affected by your deceptive scheme. But your employer suffered a loss which has not been restituted. That factor weighs against you. 

(6)	The impact of the offence on the public and public confidence.
	
15.	There is so much public concern about corruption and squandering of public funds by Politicians Bureaucrats in positions of trust. What you did no doubt has had serious effect upon public confidence in what goes on in East New Britain Provincial Administration and if not in the whole system of government administration. This is portraying a negative image of our country nationally and internationally. This factor weighs heavily against you. 
 
(7)	The effect on fellow employees or partners.

16.	Information is not available if your fellow employees were seriously affected by your fraudulent scheme in terms of loss of unpaid salary.   I doubt very much they were seriously affected.              

(8)	The effect on the offender herself.

17.	You have lost your job which is a natural consequence of you stealing from your employer. You have brought shame and disgrace upon yourself. The conviction will seriously affect your prospects of securing employment in future. You will be fortunate enough to find one. 

(9) The offender's own history.

18.	You have no prior convictions. That is a factor in weighs in your favour. 

(10)	Restitution 

19.	The amount stolen has not restituted. That would have weighed in your favour. You have made an undertakings to do so in the near future when funds becomes available to you with some assistance from your family members.  

(11)	These matters of mitigation special to himself such as illness; rely on the sentencing guidelines  and tariffs and decided cases. 

20.	You are an asthmatic since birth. You have a marital problem and a mother of 2 little daughters.   

21.	Going by the guidelines there are more factors weighing against you than those in your favour to mitigate your sentence. 

22.	The same court also prescribed sentencing scale depending on the amount stolen or misappropriated set out below. 

1.	Stolen thing of value between K1.00 – K1000.00: a goal term should rarely be imposed.
      2.	Stolen thing of value between K 1000.00 – K10 000.00: a goal term of 2  	years. 
      3.	Stolen thing of value between K 10 000.00 – K40, 000.00: a goal term of up         
    	to 2 to 3 years.
      4.	Stolen thing of value between K40 000.00 – K150 000.00: a goal term up to 3 to 5 years.

Pre-Sentence and Means Assessment Reports

23.	Mr. Asa submitted in recent times there has been a development of a trend favoring the suspension of sentences allowing more time for the offender to be reemployed and to repay the money misappropriated. He made reference to the Supreme Court case of Doreen Liprin v The State (9 November 2001) SC675 and endorsed the views expressed by Amet CJ for alternatives to custodial sentence which will still achieve the purposes of retribution, restitution and rehabilitation in misappropriation cases  which are nonviolent offences. In achieving that court should give serious consideration to the Probation Officer’s recommendations for community services orders. 

24.	Mr. Sambua argued otherwise. Recommendations in the pre-sentence report are not legally binding on the courts. It is merely a report that will assist the court in arriving at a just and fair sentence on the prisoner.  Mr. Sambua referred the court to s 13 of the Probation Act.  

25.	Section 25 of the Act gives confidentiality to the reports. The reports   are not public documents. Reports are available for inspections by persons listed from (a) to (h). The provision criminalizes publication or disclosure of information contained in the report by unauthorized person. 

26.	Section 13 is explicitly clear. Where court requires assistance in deciding the most suitable method of dealing with a convicted person Probation officer will provide a report containing information of the convicted person and advise the court whether the person is likely to respond satisfactorily to probation. 

27.	The pre-sentence and means assessment report I agree are not legally binding to the sentencing court. But they provide valuable information of the convicted person which the sentencing court may rely on to arrive at an appropriate sentence.  Court may decide against endorsing recommendations by the Probation Officer and consider a custodial sentence other a probation considering the aggravating factors and gravity of the offence.  

28.	Both reports have been filed. Information in the reports have been considered.  Prisoner is without any formal employment. She lost her job with ENBPA as a direct consequence of the offence she committed. She is expecting her a payment of K 75 000.00 in lieu of her termination from her former employer. Whether she will ever be paid is in question. There is a possibility her former employer might withhold the payment to off-set the monies stolen. You are expecting a sum of K30, 239.34 from Nambawan Super Ltd.  There were undertakings made by you, your husband and family members to assist you repay the funds stolen. The report does not state if you have made some payments towards restitution of monies stolen. Counsel representing you told court no amount has yet been repaid.   

Restitution and Compensation

29.   The law is clear on compensation or restitution in a criminal case. It cannot operate as a substitute for a penalty court is entitled to impose on a prisoner. Rather it is considered as part of the penalty. I concur with Mr. Sambua.   Restitution of property as compensation is discretionary depended on offender’s ability to pay and what the court is trying to achieve in sentencing the offender.  Courts have considered payment of compensation as mitigating factor. Payment of compensation does not prevent the court from sending the prisoner to jail considering the aggravating factors and the gravity of the offence. 

30.	You have separated from your husband. Your husband had remarried and is living with her at Kinabot.  You are living with your relatives at Malaguna No.1 village Rabaul. The 2 children of your marriage are living with their father. 

31.	Tariffs in Wellington Belawa were prescribed 30 years ago. They have been considered outdated and inappropriate in recent times due to frequency and prevalence of misappropriation cases.  The current trend of sentences imposed has gradually increased over and above those suggested in Wellington Belawa.    

32.	Misappropriation no doubt is a non-violent offence. Mr. Sambua argued non-violent offenders are far more serious than violent offenders. In misappropriation cases where there is a serious breach of trust penalties imposed should be similar to violent offenders.  

33.	With respect that argument or view is not supported by judicial thought and sentencing trend. When you consider offences involving violence law provides much heavier penalties. For example aggravated robbery by latest amendment carries a maximum death sentence subject to s 19 because the offence consists of threats of violence. Whereas offence of misappropriation carries 5 years maximum penalty in an ordinary case but 10 years maximum penalty in situations spelt out in s 383A. Generally, in offences consisting of violence like aggravated robbery sentences imposed are quite stiffer.  

34.	In misappropriation cases decided cases show that most received wholly suspended sentences with condition of restitution. In others particularly those involving substantial amount of money by persons in breach of positions of trust and greater responsibility sentences were partially suspended with condition of restitution. For example in State v Tiensten [2014] PGNC 224; N5563 (28 March 2014)   court imposed a 9 years sentence, 4 years was suspended upon restitution K10 million within 4 years leaving balance of 5 years to serve.  Needless to say that is the general sentencing trend in misappropriation cases. I concur with Mr. Asa on this point. 

35.	All the cases referred to were decided on their own merits and peculiar set of facts.  Sentences imposed in decided cases are not binding upon this court. They serve as useful guide towards reaching an appropriate sentence.

36.	The State v Robyn Emba [2011] PGNC 297; N5012 (14 August 2011). This was a plea case. The female prisoner was employed as a cashier with Air Niugini. She was convicted for one count of conspiring to defraud Air Niugini under s 515 and one count of misappropriation under s 383A for sum of K286, 491.71 which was never restituted.  Theft occurred over period of 2 years.  Prisoner was sentenced to 6 years. Court took into account prisoner had an 18 months old infant and another child with physical impairment and wholly suspended the sentence with condition for restitution.   

37.	In The State v Neville Miria (2013) N5102 the prisoner pleaded guilty and was sentenced to 4 years imprisonment for stealing K100, 000 from his employer the Bank South Pacific with 2 years suspended.  He served a balance of 1 year 11 months. 

38.	I note that sentences imposed ranged from as low as 2 years, 4 years, 5 years, 6 years, 8 years and 9 years.  Most of the sentences imposed are around mid-point from 10 years maximum sentence depending on the amount stolen or misappropriated and level of trust of prisoners involved. 

39.	The sentence I shall imposed on you is to reflect the seriousness of the crime and its prevalence in our society. It is serious because there was a greater degree of trust placed on you in the position you were serving as the Acting Human Resource Advisor and stole substantial amount of money which has not been fully restituted.  It was a pre-mediated well executed plan when you manipulated the Alesco Human Resource Government Pay System   over a period of time. It is hoped that sentence imposed upon you will serve as a deterrence against you committing similar offence in future and other would be offenders like you. Sentence I will impose will be slightly higher than 3 -5 years range in Wellington Belawa.

40.	I endorse the call by some Senior Judges of the bench and members of the civil society that stiffer penalties should be imposed on a person in breach of position influence, authority and trust irrespective of whether he be a politician, senior bureaucrat or manager to protect the integrity of the government administrative system against corruption at high places in corridors of power. (Meaoa v The State (1996) SC 504 & State v Yaip Joshua Avini & Parido Nonoi Acosta Unreported and un-numbered National Court Judgment 1996)   

41.	Accordingly, you are sentenced to 6 years imprisonment. 
The next question is should the sentence be wholly or partially suspended. Suspension of sentence is discretionary properly exercised under s 19 considering extenuating factors and features unique to the case being decided.   Suspension of a sentence of imprisonment cannot be construed as show of leniency. Court is entitled make suspension orders in the proper exercise of its powers under s 19 in the interest of the community with an objective to prevent re-offending or deterrence, towards restitution and reformation. I endorse with approval what the court held in Public Prosecutor v William Bruce Tardew [1986] PNGLR 91 “that suspension of part of a sentence under s 19 (6) is, or maybe, appropriate in three broad categories, which are not exhaustive; 
•	Where suspension will promote the personal deterrence, reformation or rehabilitation of the offender.
•	Where suspension will promote the repayment or restitution of stolen money or goods.
•	Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.”

42.	You have expressed remorse and I accept that as genuine. The only thing that you have not done is full restitution of funds stolen which I reiterate weighs against you. 

43.	Your marital issues may have emotionally affected you. But I do not considered that as a special feature or extenuating factor to you committing the offence. You were holding a senior position and on a good salary. You should have been content and lived within your means. I think your failure was when you chose to live a life way beyond your means and started stealing from your employer not on the spur of the moment but over period of time. The need for general and specific deterrence outweigh your personal factors in cases involving persons in breach of positions of trust.   

44.	That said you are an asthmatic. That is also stated in the pre-sentence report.  No medical report is available to this court as proof of that although you were allowed few adjournments to obtain one. In spite of that I will accept that you have such a condition.  You are not critically ill though. You appear healthy and normal. There are no adequate medical facilities at the Kerevat jail for you to receive medication in the event of a sudden asthma attack except for you to be rushed to the nearest clinic at Kerevat, Nonga or Vunapope General Hospitals to receive treatment. That is a bit of a distance. 

45.	You made undertakings to make good the loss your former employer suffered with assistance from your family. That is taken into account. I think it is for the best interest of East New Britain Provincial Administration and people of East New Britain prisoner make full restitution of the sum of K143 812.46. 

46.	In my considered view circumstances of your case satisfy all three categories of William Bruce Tardew case for the court to suspend the sentence. The sentence is intended to achieve or promote general and perusal deterrence as well as your rehabilitation and reformation and to allow you to restitute the monies stolen.

47.	Following on from the above discussions in the exercise of my powers under s 19. I order that 6 years is wholly suspended upon prisoner being released on Probation for the entire period of the suspended sentence with these additional conditions: 

1)	That Prisoner to fully restitute the amount of K143, 812.46 by 12 August 2020. 
2)	That all the monies shall be paid into ENBPA operating account. 
3)	That your bail of K5000.00 shall be refunded and paid to ENBP Administration Operating account and receipt made available to the Assistant Registrar for record purposes towards restitution of monies stolen.
4)	That you are to report to the Senior Probation Officer Kokopo within 24 hours for purposes of your supervision and monitoring
5)	That you are not to change your usual residential address without the knowledge of the Senior Probation Officer. 
6)	That you are restraint from taking all forms of alcohol while serving out your Probation Sentence. 
7)	That you are to attend regular Church Service with the Church you are member of. 
8)	In the event of you failing to restitute the full amount stolen and breaching any or all of the conditions of your Probation Sentence you will be arrested and brought to court to serve out your 6 years suspended sentence at Kerevat jail with hard labour.

Summary of Sentence

1)	6 years sentence.
2)	Sentence wholly suspended with conditions.
 
_________________________________________________________________
Public Prosecutor:	  Lawyer for the State				
Public Solicitor:	 Lawyer for the Prisoner