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State v Kandambao [2019] PGNC 317; N8025 (19 September 2019)

N8025

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 107of 2019

THE STATE

V

JONAH KANDAMBAO

Waigani: Berrigan J
2019: 7, 23August and 19September

CRIMINAL LAW – Sentence –S. 383A(1)(a)(2)(d) of the Criminal Code – Misappropriation.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
State v Frank Kagai [1987] PNGLR 320
The State v Tardrew[1986] PNGLR 91
The State v Lukeson Olewale (2004) N2758
The State v Benson Likius (2004) N2518
The State v Niso(No 2) (2005) N2930
The State v Christian Korei (2005) N2946
The State v Philip Wiamai (2007) N5492
The State v Teka (2008) N3509
The State v Tiensten (2014)
The State v Gibing Yawing (2017) N6836
The State v Simon Savoa Feaviri, CR (FC) 103 of 2017, unreported 8 December 2017
The State v Felix Kautete (2018) N7544
The State v Chapau & Anor (2019) N7783
Wellington Belawa v The State [1988 – 1989] PNGLR 496

References cited

Section 383A (1) (a) (2) (d) of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms. L. Jack, for the State
Mr. G. Pumuye, for Offender

DECISION ON SENTENCE

19 September, 2019

1. BERRIGAN J: The offender pleaded guilty to one count of dishonestly applying to his own use and the use of others monies in the sum of K12,955, the property of Helai Willie, contrary to section 383A (1)(a)(2)(d)of the Criminal Code (Ch. 262) (the Criminal Code), also known as misappropriation.
   

Facts

2. The offender owns and operates Sauoxtron Education Consultancy PNG, a business which makes arrangements for students from Papua New Guinea to study at universities in China under scholarship.
   
3. In early 2018 the offender told the complainant, a Grade 12 student at Kila Kila Secondary School that he had been selected to undertake studies in China. The offender met with the complainant and his parents in February 2018 where he informed them of the fee and other requirements, including the deadline for applications. The offender met with the complainant and his parents again in March 2018 where they gave him the completed application form together with supporting documentation. With assistance from his parents, the complainant paid a total of K12,955 into the bank account held with Bank South Pacific (BSP) in the name of Sauoxtron Education Consultancy PNG for fees, airfares and on the basis that the offender would make the necessary arrangements, including obtaining travel documentation. The offender cut communication with the complainant following the final payment. He was subsequently apprehended by police on 29 November 2018 and admitted that he had failed to deliver the services promised and had instead used the monies for his own use.
   
4. The issue to be determined today is an appropriate sentence.
   

Sentencing Considerations and Comparative Cases

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:
   
   • (a) the amount taken;
   • (b) the quality and degree of trust reposed in the offender;
   • (c) the period over which the offence was perpetrated;
   • (d) the impact of the offence on the public and public confidence;
   • (e) the use to which the money was put;
   • (f) the effect upon the victim;
   • (g) whether any restitution has been made;
   • (h) remorse;
   • (i) the nature of the plea;
   • (j) any prior record;
   • (k) the effect on the offender; and
   • (l) 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.
     
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:
   
   • (a) K1 and K1000, a gaol term should rarely be imposed;
   • (b) K1000 and K10,000 a gaol term of up to two years is appropriate;
   • (c) K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
   • (d) K40,000 and K150,000, three to five years’ imprisonment is appropriate.
     
7. This case falls within the third category of Wellington Belawa. 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; and The State v Tiensten(2014) N5563.
   
8. Defence counsel submitted that a sentence in the range of two to three years would be appropriate, wholly suspended on conditions. In support of his submissions he referred to the following cases:
   
   • (a) The State v Lukeson Olewale(2004)N2758, David AJ (as he then was), 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, wholly suspended on conditions including restitution with assistance from his family;
     
   • (b) The State v Benson Likius (2004) N2518, Lenalia J, in which the prisoner was sentenced to 5 years’ imprisonment 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; and
     
   • (c) The State v Christian Korei (2005) N2946, Lay J, in which the prisoner pleaded guilty to misappropriating K82,202.73 donated for the purposes of building a classroom for his community. After receipt of the money, the offender withdrew the money and applied the money to his own use. Upon discovery of the misappropriation the offenders account was frozen by the bank. At the time of freezing his account, there was a balance of K51,493.46 remaining. The money was later transferred to the community school’s account. He was sentenced to 4 years’ imprisonment, wholly suspended on conditions including full restitution.
     
9. The State also submitted that a sentence in the range of two to three years of imprisonment would be appropriate. In support of its submissions it referred to the following cases:
   
   • (a) The State v Philip Wiamai (2007) N5492, Cannings J, in which the prisoner pleaded guilty to one count of misappropriating K16,848.70 from his cousin brother. The prisoner was sentenced to 4 years’ wholly suspended on conditions, including restitution;
     
   • (b) The State v Teka (2008) N3509, Makail AJ (as he then was), the prisoner pleaded guilty to misappropriating K37,000 provided to her for the purchase of a vehicle once one was in stock. The prisoner deposited the monies to her account and withdrew them over time until her account was depleted. The prisoner was sentenced to 5 years’ imprisonment, wholly suspended on conditions, including restitution; and
     
   • (c) The State v Felix Kautete (2018) N7544,in which the prisoner pleaded guilty before me to one count of misappropriation. The prisoner received K24,000 on the basis that he would purchase a vehicle on behalf of the complainants but instead applied the monies to his own use. He repaid K9,000 prior to sentence. He was sentenced to 3 years’ imprisonment wholly suspended on conditions, including restitution.
     
10. I also have regard to the following cases:
    
    1. The State v Simon Savoa Feaviri, CR (FC) 103 of 2017, unreported 8 December 2017, in which the prisoner was found guilty by Kandakasi J (as he then was) following trial of one count of misappropriating K18,931.25 belonging to Bank South Pacific. He was sentenced to 3 years’ imprisonment wholly suspended on conditions including restitution;
       
    2. The State v Gibing Yawing (2017) N6836, Salika DCJ (as he then was), where the prisoner, an accountant, was sentenced to 2 years’ imprisonment upon pleading guilty to one count of misappropriating K14,955 from his employer, Simbu Farming and Marketing Ltd; and
       
    100. The State v Chapau & Anor (2019) N7783, in which both offenders pleaded guilty before me to one count of misappropriating K22,252.55, belonging to the Independent State of Papua New Guinea. Both offenders were sentenced to 3 years’ imprisonment IHL, wholly suspended on conditions including restitution.
         
11. The sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    

Nature and Circumstances of the Offence, including Matters of Aggravation

12. Applying the considerations set out in Wellington Belawa, the following matters have been taken into account.
    
13. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. K12,955 is a substantial amount of money. The offence was committed over a period of months and involved a number of transactions, involving ongoing dishonesty during the period. There was some suggestion that the offender was unable to immediately transfer the funds due to some issue with the Chinese university’s account but it is not in dispute that the monies were applied for the offender’s personal use instead of for the purpose intended, nor that the application was dishonest.
    
14. The impact on the victim has been significant in terms of financial loss.
    
15. It has been submitted that the offence involved a breach of trust. I don’t agree that there was any special relationship of trust in this case, fiduciary or otherwise. The offender received the monies on the basis that he would provide a service. Nor does it appear that there was any close familial or other such relationship between the offender and the complainant. The matter was not in the agreed facts to which the offender pleaded guilty and accordingly the offender is given the benefit of a reasonable doubt in that regard: Saperus Yalibakut v The State (2006) SC890; Tanabo v The State (2016) 61.
    
16. Given its nature, it is not suggested that the offence will have any significant impact on the public or public confidence.
    

Personal Circumstances and Matters in Mitigation

17. The offender is 25 years old and is married with one child. He comes from Yaibos in the Enga Province. He completed his secondary education in Port Moresby before taking up studies in China in 2015, where he attended Wuhan University. In mid-2016 he returned from China, and enrolled at Don Bosco Technical Institute, where he graduated with a Diploma in Electronics in 2017.
    
18. As discussed above, the offender operates his own business, Sauoxtron Education Consultancy PNG, which makes arrangements for students from PNG to study on scholarship in China.
    
19. In mitigation this is the offender’s first offence. He is previously of good character. According to his pastor, the offender is an active member of the Four Square Church at Gerehu, Stage 2 and takes part in many church activities. The offender has not previously been involved in anti-social behaviour in the community and his pastor regards him as a committed father, husband, church and community member. The comments are echoed by the Community Leader/Peace Officer for Erima Settlement, where the offender resides. He says that the offender is an active member of the community and works with young people to promote peace and unity.
    
20. In addition, the offender cooperated with police at a very early stage and admitted the offence. He pleaded guilty before this Court and saved the State the cost and inconvenience of a trial. Furthermore, the offender repaid K7,500 to the complainant prior to pleading guilty and has committed to repaying the balance.
    
21. I also take this into account as indicative of his remorse, which he expressed on allocutus, and which I accept as genuine. He apologised to the Court and the complainant. He seeks mercy and a suspended sentence.
    
22. I accept that the offence will have a serious impact on the offender, causing shame and a loss of standing to himself and his family, and that this may very well have an impact on his business in the future. I also accept that any custodial term will have a significant impact on his dependents, including his wife and young child for whom he is the sole breadwinner, and his mother and younger siblings, who rely heavily on the offender for financial support.
    
23. There are no matters of mitigation special to the offender.
    

Sentence

24. The offender has been convicted of one count of misappropriation, contrary to s. 383A (1) (a) (2) (d) of the Criminal Code, the maximum penalty for which is 10 years’ imprisonment. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Although this case does not fall within that category, the offence nevertheless remains serious. The aggravating factors, namely the amount of money involved, the period over which it was committed, and the personal use to which the monies were put, outweigh those in mitigation, namely the offender’s prior good character, that he has no prior record, co-operated with police, pleaded guilty, expressed remorse and made partial restitution prior to pleading guilty. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.
    
25. Having considered all of the above matters, I sentence the offender to 2 years’ imprisonment in hard labour.
    
26. The offender has pleaded for his sentence to be suspended so that he may continue to operate his business and complete restitution. This call is supported by the complainant with whom the offender has reconciled.
    
27. In The State v Tardrew[1986] PNGLR 91, the Supreme Court set out three broad, but not exhaustive categories where it would be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
    
28. Having regard to the substantial restitution already made, I am satisfied that suspension of the sentence will promote the repayment of the outstanding monies. I am also satisfied that it will promote the offender’s rehabilitation. Courts in this jurisdiction have made it clear that suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation: The State v Tardrew[1986] PNGLR 91; The State v Frank Kagai[1987] PNGLR 320.The pre-sentence and means assessment reports confirm that he is suitable for probation and has the means to make restitution within a reasonable period.
    
29. In the circumstances I make the following orders. The offender is sentenced to two years of imprisonment, wholly suspended on the following conditions:
    
    • (a) the sum of K5,455 is to be restituted to the complainant, Helai Willie, within 6 months from today;
      
    • (b) the offender shall perform appropriately designed community work under the supervision of Probation Services;
      
    • (c) the work and supervision regime is to be undertaken for the balance of his sentence, on weekends;
      
    • (d) Probation Services is to supervise the payment of restitution and provide 6 monthly reports; and
      
    • (e) on completion of restitution, the offender shall immediately enter into his own recognisance to keep the peace and be of good behaviour for the period of his sentence.
      
30. Any bail monies are to be immediately refunded.
    

Orders accordingly.

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Public Prosecutor: Lawyer for the State
Emmanuel Lawyers: Lawyer for the Prisoner