N8321

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 104 of 2019

THE STATE

V

FELIX LUKE SIMON

Waigani: Berrigan J
2020: 4th March & 30th April

CRIMINAL LAW–SENTENCE –383A(1)(a)(2)(d) of the Criminal Code – Employee convicted following trial ofmisappropriation of K60,550 – sentence of 4 years of imprisonment imposed. 

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91 
Wellington Belawa v The State [1988-1989] PNGLR 496
The State v Niso (No 2) (2005) N2930
The State v Marita Rama Miria, unreported, CR 1275 of 2010
State v Chillen (2008) N3549
State v Etami (2012) N4769
State v Vagi (2014) N5697
State v Tiensten (2014) N5563
State v Kom (2018) N7362

Legislation and other materials cited:

Sections19, 383A(1)(a)(2)(d) of the Criminal Code

Counsel

Ms. T. Aihi, for the State with Mr B. Sabarei
Offender in person 

DECISION ON SENTENCE

30 April, 2020

1.	BERRIGAN J: The offender was convicted following trial of one count of misappropriating K60,550.00 belonging to Joshua Ipi, contrary to s.383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (the Criminal Code). 

2.	At the time the offender was employed as the caretaker of a number of rental properties owned by Mr Ipi in Port Moresby.  The evidence established that between the 6th day of July 2017 and the 3rd day of January 2018 the offender dishonestly applied to his own use six cheques received on behalf of his employer from the tenants of three different properties for the payment of rent.  Instead of depositing the cheques to his employer’s account he deposited them to a bogus account set up in the name of the complainant for his own use.  
Sentencing Principles and Comparative Cases
3.	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.

4.	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 misappropriated 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.

5.	It is also 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. Nevertheless, the principles to be applied when determining sentence remain relevant and applicable.

6.	Mr Simon represented himself on sentence and effectively sought asuspended sentence.  The State submitted that a sentence in the range of three to five years is appropriate.The State relied primarily on the case of The State v Marita Rama Miria, unreported, CR 1275 of 2010, Toliken AJ (as he then was), in which the offender pleaded guilty to misappropriating K75,570.40 over a one year period from her employer, BSP.  She was sentenced to 5 years of imprisonment.

7.	I have also had regard to the following cases:

a)	State v Benson Likius (2004) N2518, Lenalia J, in which the offender misappropriated K68,674.06, the property of his employer, Lihir Management Company using a scheme applied over a period of more than 20 months. He was sentenced to five years of imprisonment, three of which was suspended upon conditions including restitution;

b)	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;

c)	State v Chillen (2008) N3549, Davani J, in which the prisoner pleaded guilty to the misappropriation of K65,000. He applied to the National Gaming and Control Board (NGCB) for funding on behalf of his church group to build a church.  The prisoner collected the cheque and opened a new bank account in his name with three others, deposited the cheque and made several withdrawals thereafter to his own use.  He was sentenced to 4 years’ imprisonment;

d)	State v Etami (2012) N4769, David J in which the prisoner pleaded guilty to one count of misappropriation of K165,086.18, the property of his employer, Oilmin Field Services.  Whilst employed as a Taxation Officer and Accounts Payable Assistant he incorporated three bogus companies with similar names to those of his employer’s three main creditors, drew up false requisitions, altered the payee and deposited the cheques to the accounts of those companies.  He was sentenced to four years, wholly suspended on conditions, including restitution;

e)	State v Vagi (2014) N5697, Salika DCJ (as he then was) in which the prisoner was sentenced to 3 years’ imprisonment after he pleaded guilty to one count of misappropriation of K65,924.90, the property of her employer, PNG Gardener. She was employed as an accounts clerk and banked monies received from flower sales to her own account;

f)	State v Kom (2018) N7362, Miviri AJ (as he then was).  The prisoner was sentenced to 4 years upon pleading guilty to misappropriating K41,859. He was employed by ANZ Bank as a Small Medium Relation Officer and put a stop on the account of a deceased person. He instructed his colleagues to lift the stop and linked the deceased’s account with his own phone before applying the monies through the mobile banking system to his own use.

8.	The sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Considerations on Sentence

9.	Having regard to the principles outlined in Wellington Belawa, the following matters have been taken into account.

10.	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. This case concerns a substantial amount of money in the sum of K60,550, and falls within the fourth category of Wellington Belawa.

11.	The offence also involved a serious breach of trust by an employee who abused his position for personal gain.  The offence was committed over a period of 6 months, and involved a number of transactions and deposits to a bogus account.  It clearly involved planning and ongoing dishonesty.  It is not in dispute that the offender applied the monies to his personal use.    The victim has suffered the loss of a significant amount of money as a result of the offending. Other than the usual concerns about the prevalence of dishonesty offences, the offence had no particular impact on the public and public confidence in my view.  

12.	The offender himself is from Birip, Wabag in Enga Province and is 23 years old.  He completed Grade 10 at Porgera High School.  He then moved to Port Moresby in 2013 to work as the complainant’s caretaker and lived in one of the complainant’s properties until he was dismissed for reasons unrelated to this matter. He is single but provided some support to his elderly parents until he lost his job.  He says that they have suffered and are on medication as a result of his imprisonment.  That is, however, a regrettable consequence of the offender’s own behaviour. 

13.	In mitigation this is the offender’s first offence.  Despite several attempts, Probation Services was unable to make contact with community leaders in the offender’s village but I accept that he is previously of good character.  Mr Ipi gave evidence at trial that the offender was recommended to him from amongst his local church community by one of his relatives, and that the offender was a trusted employee for a number of years.

14.	In addition, the offender expressed remorse on allocutus and in submissions, which I accept as genuine.  He apologised to God, to the Court and to the State.  He apologised to the complainant for the “stress and unnecessary pressure” caused, and for expenses that may have been incurred as a result of the court case. He apologised to his family and to others affected by the offending. He agrees that he deserves to be punished and believes that his experience with the criminal justice system will mould him into a better person in the future. 

15.	The Spiritual Coordinator at Bomana Corrective Institution states that since his detention in 2018 the offender has changed a lot and now actively participates in spiritual rehabilitation programs.  He is a member of the Seventh Day Adventist Church in the prison and in addition to regularly attending service, has taken on a number of leadership roles as Choir Master, assisting with dedication and crusade programs, and conducting morning and evening cell devotions.

16.	The impact of the offence on the offender has been and will continue to be significant.  I have no doubt that the conviction has brought both shame and a loss of standing to he and his family, particularly in Enga. In my view it will be difficult for him as a result of the conviction to find employment in the future.  

17.	The offender also submits that the complainant accepted K11,000 in settlement of the matter at the Village Court.  In support he produces a statutory declaration dated 2 July 2018 in which he admits to misusing K54,150, confirms the payment of K7000 in cash, together with a number of goats and a cassowaryto the value of K4000.  Notably, he promises in the statutory declaration to repay the balance.  Probation Services says that they were unable to confirm the payment with those present but the document appears to be properly endorsed by a Commissioner for Oaths, and the matter is not expressly disputed in the complainant’s letter or comments to Probation Services. 

18.	At trial the offender’s case was that the monies were applied for his own needs.  The offender now submits that he used the monies to purchase some real property and a motor vehicle, both of which have been reclaimed by the complainant.  He claims this was witnessed by the same persons who are named in the statutory declaration.  Neither properties are mentioned in the statutory declaration, which as above talks about an outstanding balance.  Furthermore, there is no evidence of his claim, and both the value of the properties and the suggestion that the complainant has taken possession of them are expressly disputed by the complainant.  In the circumstances I am prepared to accept that restitution to the total value of K11,000 was made in 2018 and take this into account in the offender’s favour.  

19.	The offender is mistaken in his belief in any event, however, that the restitution paid at the Village Court represents an end to any punishment that should be imposed in these proceedings.  First of all, the Village Court has no jurisdiction to decide, or impose a sentence in, an indictable matter.  Furthermore, whilst prior restitution, or compensation, whether made at the Village Court or otherwise, may be relevant in terms of demonstrating remorse and prospects for rehabilitation, it remains for this Court to determine an appropriate sentence for an offence under s 383A of the Criminal Code. Nor does restitution automatically entitle a person to a partly or wholly suspended sentence.  It should be remembered that whilst the impact of the offence on an individual victim is a relevant consideration, the offence, like all crimes, is one against the State.  It is important for the protection of society at large, and in the interests of business development and the broader economy that appropriate punishments are imposed to provide both general and specific deterrence of this kind of behaviour.  Nor, as it has been said before, should someone with the means to repay dishonest gains be able to “buy” their way out of prison.  That would undermine the objectives of deterrence, and public confidence in the administration of justice. See for example the comments of Sevua J in The State v Alice Wilmot (2005) N2857.

20.	The offender did cooperate with the police to the extent that he admitted misusing the monies for his own purpose in his record of interview but claimed that he was entitled to do so. He did not deny that he acted dishonestly at trial. Whilst not articulated in the terms of s 23(2) of the Criminal Code, I explicitly rejected any defence of honest claim of right without intention to defraud.  Similar issues have been raised on sentence. He blames the complainant for not supporting his education in Port Moresby. He told Probation Services he was not happy with some decisions that the complainant and his management team made and that he was not properly compensated for the amount of effort he put into raising revenue for the business and making “major significant improvements in terms of investment portfolios”.  He also blames the complainant for the assault of his brother and when he got no explanation about that matter from the complainant, decided to commit the offence.  The evidence at trial established that he abused the complainant’s trust to dishonestly apply the monies to his own use knowing that he was not entitled to do so for the reasons set out in my earlier decision.  The matters referred to above, do not, even if established, which they were not, excuse the offending, nor do they mitigate against its seriousness.  

21.	The offender further submits that the complainant has destroyed his properties, animals, houses and evicted his parents but again there is no evidence of this and, despite several attempts, Probation Services were unable to speak to his family. 

22.	There are no matters of mitigation special to the offender.

Sentence

23.	The offender has been convicted of one count of misappropriating K60,550, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code. Section19 of the Criminal Code provides the Court with broad discretion on sentence.  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 remains a serious one. 

24.	I have taken into account the offender’s personal circumstances, his lack of previous conviction, prior good character, earlier partial restitution and cooperation, and sincere expression of remorse. These are significant factors in his favour but they are outweighed by the aggravating factors in this case, namely the nature and quantum of the offence, the substantial period over which it was conducted, the planning involved, the position of trust held by the offender, the use to which the monies were put and the impact on the victim. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.

25.	Having considered all of the above matters, including comparative cases, I sentence the offender to 4 years of imprisonment in hard labour.

26.	The offender has pleaded for his sentence to be suspended so that he may make restitution.    

27.	In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may 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 an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. 

28.	It is clear from the report by Probation Services that the offender does not have the means to make further restitution.  As I have said above, the offender will struggle to obtain employment in the future.  It is clear that he retains aspirations to further his education.  He is still young and clearly an intelligent person with ambition.  I would encourage him to pursue his education when he completes his sentence and move on with his life.  There is nothing to suggest that he will suffer excessively in prison.    

Orders

29.	In the circumstances I do not intend to order further restitution.  Given the early partial restitution of K11,000 made in 2018, however, I make the following orders.  

(1)	The offender is sentenced to 4 years of imprisonment. 
 
(2)	Time spent in custody, namely1 year, 8 months, 7 days, since 23 August 2018, will be deducted from the time to be served.

(3)	Of the balance of 2 years, 3 months, 23 days, 1 year is suspended on the following conditions:

a.	the offender enter into his own recognisance upon release to keep the peace and be of good behaviour for the balance of his sentence; 

b.	the offender shall perform appropriately designed community work under the supervision of Probation Services for the balance of his sentence, one day per week in either Port Moresby, National Capital District or Wabag, Enga Province as agreed; and

c.	Probation Services is to provide 6 monthly reports following his release.

(4)	Thus 1 year, 3 months, 23 days is to be served in custody.

Orders accordingly.

________________________________________________________________
Public Prosecutor:   Lawyer for the State		
Offender in person