PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2021 >> [2021] PGNC 329

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

State v Jarick [2021] PGNC 329; N9000 (10 August 2021)

N9000


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) No. 50, 51 & 52 OF 2020


THE STATE


V


DOROTHY JARICK, WILMA DONGO & TERRY LAKA


Waigani: Berrigan J
2021: 22nd July and 10th August


CRIMINAL LAW–SENTENCE – GUILTY PLEAS – S 407(1)(a) of the Criminal Code – Conspiracy - S 383A(1)(a)(2)(b)(d) of the Criminal Code – Misappropriation by three cashiers employed by Air Nuigini of cash received from ticket sales in the amounts of K230,000, K230,000 and K96,956.90, respectively, over an extended period of time. Head sentences of 5 years, 5 years and 4 years imposed, partially suspended on conditions.


Cases Cited:
Papua New Guinean Cases


Sanawi v The State (2010) SC1076
David Kaya and Philip Kaman v The State (2020) SC2026
Goli Golu v The State [1979] PNGLR 653
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
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
Allan Peter Utieng v The State Unreported SCR No 15 of 2000
The State v Benson Likius (2004) N2518
The State v Niso (No 2) (2005) N2930
The State v Ludwina Tokiapron (2005)
State v Eliakim (2007) N3190
The State v Karo (2008) N3521
The State v Emba (2011) N5012
State v Yegiora (2012) N4641
State v Vagi (2014) N5697
The State v Kintau & Anor (2014) N5761
The State v Tanner & Anor (2014) N5808
The State v Pohien (2016) N6564
The State v Hevelawa (No 2) (2017) N6875
The State v Dumo (2018) N7574
The State v Ruth Tomande (2019) N8153
The State v Moses Karnhick (2020) N8341
State v Wai (2020) N8452
The State v Bobby Leva (2021) N8801
The State v Vavine Elizabeth Emil (2021) N8789


Overseas Cases


Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295


Legislation and other materials cited:


Sections 19, 383A(1)(a)(2)(d) and 407(1)(b) of the Criminal Code


Counsel


Ms T. Kametan, for the State
Mr N. Hukula, for the Accused


DECISION ON SENTENCE


10th August, 2021


  1. BERRIGAN J: The offenders, Dorothy Jarick, Wilma Dongo and Terry Laka, each pleaded guilty to one count of misappropriating monies belonging to Air Nuigini Limited, contrary to s. 383A(1)(a)(2)(b)(d) of the Criminal Code. The offenders also pleaded guilty to one count of conspiracy to defraud contrary to s 407(1)(b) of the Criminal Code.
  2. The offenders admitted the following facts, which were supported by the depositions. At the time the offenders were employed by Air Nuigini as cashiers with the Business Travel Centre at Waterfront, Konedobu. They implemented a scheme whereby they would take some of the cash received from ticket sales and instead of banking them would dishonestly apply them for their own use and the use of others, manipulating the reconciliation sheet by using the previous day’s cash sales to balance the sales return, and delaying banking, to disguise the shortfalls.
  3. Between December 2016 and 16 April 2019 Dorothy Jarick misappropriated a total of K230,000. Between March 2017 and 16 April 2019 Wilma Dongo misappropriated a further K230,000. Terry Laka misappropriated K96,956.90 between September 2017 and 16 April 2019.

Allocutus


  1. On allocutus Dorothy Jarick said: I apologize for what I have done. I take full responsibility of my actions and as a new mom and a mother of a six month old, I regret what I’ve done, I regret my actions. I kindly ask if the court could grant me minimum sentencing and if they could suspend some years. I promise I won’t do it again. I would also try to be a good role model and a mother and a wife, mother to my six month old.
  2. Wilma Dongo said: I would like to take this opportunity to humbly and sincerely apologise for my actions which have brought me standing here today. It has taken me over two years since my termination from the company to really felt the pain of unemployment especially since I am a mother of 5 young children. I look back and whole heartedly regret my actions which I thought at that time was making life easier instead has put me in a situation that has caused a lot of hurt to my loved ones and especially to the company, for that I’m sorry. I have admitted my mistakes right from the beginning to the company, to the police and standing here today. And I maintain that the monies taken were and is still with every intention of repaying back to the company if given a chance. Thank you.
  3. Terry Laka said: I would like to take this time to apologise to the Court and especially to Air Niugini for what I did. I’m a first time offender, a father to a child, a husband to a wife and I also have a mortgage that I’m currently paying and I ask the court for second chance to repay the money and not to take my freedom away. Thank you.

Sentencing Principles and Comparative Cases

  1. The offenders have each been convicted of one count of misappropriation contrary to s. 383A(1)(a)(2)(b)(d) of the Criminal Code for which the maximum penalty is 10 years of imprisonment. In addition, conspiracy to defraud attracts a maximum penalty of 7 years pursuant to s 407(1)(b) of the Criminal Code.
  2. 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 of misappropriation, including:
    1. the amount taken;
    2. the quality and degree of trust reposed in the offender;
    1. the period over which the offence was perpetrated;
    1. the impact of the offence on the public and public confidence;
    2. the use to which the money was put;
    3. the effect upon the victim;
    4. whether any restitution has been made;
    5. remorse;
    6. the nature of the plea;
    7. any prior record;
    8. the effect on the offender; and
    1. 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.
  3. Having regard to the tariffs outlined in that case, and following amendments to s 383A, the Supreme Court (Batari and Berrigan JJ) in David Kaya and Philip Kaman v The State (2020) SC2026 suggested that the following scale of sentences may usefully be accepted as a base, to be adjusted upwards or downwards according to the factors outlined in Wellington Belawa, such that where the amount misappropriated is between:
    1. K1 and K1000 a gaol term should rarely be imposed;
    2. K1,000 and K10,000, a gaol term of up to two years is appropriate;
    1. K10,000 and K40,000, two to three years’ imprisonment is appropriate;
    1. K40,000 and K100,000, three to five years of imprisonment is appropriate;
    2. K100,000 and K500,000, five to seven years’ imprisonment is appropriate; and
    3. K500,000 and K999,999.99, seven to 10 years of imprisonment is appropriate, bearing in mind that the maximum under s 383A(2) should be reserved for the worst types of offending involving amounts less than K1 million.
  4. Defence counsel acknowledged in aggravation the substantial amount of money taken, the breach of trust, the prevalence of the offences and the fact that none of the monies had been recovered. He asked the court to take into account in mitigation the offenders’ early guilty pleas, cooperation with police, expressions of remorse and the fact that each were first time offenders. He submitted that sentences of 5 years in the case of Ms Jarick and Ms Dongo would be appropriate on the misappropriation counts, and 3 years in the case of Mr Laka. On conspiracy, it was submitted a sentence of 1 year in each case was appropriate. He asked the court to wholly or partially suspend the sentences.
  5. He relied upon the following cases to support his submissions:
    1. The State v Emba (2011) N5012, Kawi J: the prisoner pleaded guilty mid-trial to one count of misappropriating K286,491.71 in ticket sales. She was employed as a cashier with Air Niugini, based in Kimbe, and was responsible for collecting cash monies from the sale of airline tickets. To avoid detection the prisoner got the ticket coupons and destroyed them, and then applied the monies to her own use. She was sentenced to 6 years to be spent in light labour at the Lakiemata Prison. The sentence was wholly suspended on conditions including restitution;
    2. The State v Tanner & Anor (2014) N5808, Salika DCJ (as he then was). The prisoners were convicted following trial of one count of misappropriation of K292,663.50, the property of Post PNG Limited. Between the 1st of January 2012 and the 31st August 2012, the prisoners conspired with each other and fraudulently obtained an amount of K292,663.50 using the mobile SMK (Salim Moni Kwik) system. Clayton Tanner manipulated the system by entering false cash entries on Telepin (the mobile money system) purporting to be monies sent from another province, which were then cashed out in Port Moresby by Alex Solon. Tanner was sentenced to 4 years’ imprisonment, 2 years of which was suspended upon payment of his share of restitution. Solon was sentenced to 3 years’ imprisonment, 2 years of which was suspended upon payment of his share of restitution of K146, 331.75;
    1. The State v Ruth Tomande (2019) N8153, Berrigan J. The offender pleaded guilty during trial to misappropriating K300,933.71 from her employer, BSP, of which K40,000 was recovered by the bank. At the relevant time the accused was employed as a Home Loan Officer with BSP. Between 30 April 2017 and 1 January 2018 the accused falsified 14 loan applications which had previously been declined by the bank and altered them to manipulate the system into approving the loans. The monies were then transferred by the offender to accounts belonging to her relatives and other bank customers. The monies were also credited back to the loan accounts to fund repayments and avoid detection. She was sentenced to 5 ½ years of imprisonment.
    1. State v Yegiora (2012) N4641, Kangwia AJ (as he then was): The prisoner was convicted on two counts of conspiracy to defraud and one count of misappropriation of K300, 000.00. The prisoner was sentenced to 1 year for conspiracy to defraud and 2 years for misappropriation the sentences to be served concurrently but were wholly suspended on good behaviour.
    2. State v Eliakim (2007) N3190, Cannings J: A man pleaded guilty to one count of conspiracy of defraud and one count of stealing money from his employer. The amount involved was K3, 369.01. He was a field supervisor in a company and he planned with two others to submit false attendance sheets for ghost employees and obtain pay cheques. He put the plan into action over a three-month period until caught. He was sentenced to 18 months, all but three months of which was suspended;
    3. State v Wai (2020) N8452, Berrigan J: The prisoner was convicted after trial of conspiring with others to defraud the complainant of gold valued at K105,340.50 and then misappropriating the gold to his own use. The matter was a re-trial. Having regard to the ceiling principle, the offender was sentenced to 2 years for conspiracy to defraud and 4 years for misappropriation as imposed at the first trial;
    4. The State v Paroa Kaia (1995) N1401, Sawong J: The prisoner pleaded guilty of one count of misappropriating a sum of 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 sentence to 4 years’ imprisonment;
    5. The State v Karo (2008) N3521, Paliau AJ: the prisoner, a cashier, pleaded guilty to misappropriating K99,600.53 belonging to her employer, Badili Hardware Limited. She was sentenced to 6 years’ imprisonment, wholly suspended on conditions including restitution;
    6. The State v Kintau & Anor (2014) N5761, Salika DCJ: the prisoners pleaded guilty to misappropriating K87,500 belonging to another. Each were sentenced to 4 years’, wholly suspended on the restitution of 50% of the monies;
    7. 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.
  6. The State submitted that a sentence in the range of three to five years would be appropriate. In addition to Emba, Kai and Tomande (supra), the State referred to the following cases:
    1. The State v Niso (No 2) (2005) N2930, Gavara-Nanu J, in which the prisoner was found guilty following trial of conspiracy, fraudulently uttering a false document, and the misappropriation of K500,000.00 belonging to his employer, the Bank of Papua New Guinea. The offences took place over a period of about 3 weeks. At the time he was the Senior Clerk and Supervisor in the General Ledgers Section. The prisoner was sentenced to an effective term of 7 years, 6 months of imprisonment (from which 8 months spent in custody was deducted).
    2. The State v Ludwina Tokiapron (2005), Salika DCJ (as he then was), unreported, in which the prisoner was sentenced to 6 years’ imprisonment after pleading guilty to misappropriating K200,000.00. The monies were obtained from the victims on the pretext that they would be invested in a pyramid scheme in Singapore but were used by the prisoner instead. He was sentenced to 6 years’ imprisonment;
    1. The State v Pohien (2016) N6564, Liosi AJ (as he then was). The accused was convicted of one count of misappropriation of hardware materials valued at K462,864.00 the property of his employer, Sika Limited. The prisoner whilst employed in the company’s hardware section as the supervisor, misappropriated hardware materials worth K462, 864.00, over a period of 6 months. He was sentenced to 5 years’ imprisonment;
    1. The State v Bobby Leva (2021) N8801, Berrigan J: The accused was convicted of one count of misappropriating K290, 199.00 belonging to Buk Bilong Pikinini following trial. He was sentenced to six (6) years’ imprisonment in hard labour;
    2. The State v Hevelawa (No 2) (2017) N6875, Salika DCJ: Jacob Hevelawa was the Director General of the Office of Library and Archives (OLA). Timothy Numara was the Manager, Corporate Services, OLA. Miriam Hevelawa was the wife of Jacob Hevelawa and the owner and sole Director of a company called Paja Sisters Trading. It was alleged that the three conspired to defraud the State by submitting inflated invoices for grass cutting, landscaping and removal of rubbish services through Paja Sisters Trading. Salika DCJ (as he then was) found all three guilty of misappropriation of State monies, and the two OLA officers guilty of abuse of office for approving the contract when there was a clear conflict of interest. They were each sentenced to 2 years of imprisonment in hard laboru for abuse of office, s 92(1), and 5 years for misappropriation of abut K120,000. Three years of the sentences were suspended upon restitution.
  7. I have also had regard to the following cases:
    1. The State v Moses Karnhick (2020) N8341, Berrigan J: the offender pleaded guilty. The offender was a Mortgage Specialist Officer with Australia and New Zealand Bank Limited (ANZ) and became a trusted contact for the Kuabini Land Owners Association Incorporated when conducting its banking. K800,000 belonging to the Kuabini Landowners Association was deposited into the bank account of the offender’s company for safe keeping. K500,000 was returned to the Association but the balance of K300,000 was misappropriated by the offender on a continuous basis from the company’s account until there were no monies left in the account. He cooperated from a very early stage with authorities and pleaded guilty. He was sentenced to 5 years of imprisonment;
    2. The State v Benson Likius (2004) N2518, Lenalia, J: The prisoner pleaded guilty to one (1) count of misappropriation a sum of K68, 679.06. He was a payroll clerk he misappropriating the property of his employer Lihir Management Company using a scheme applied over a period of 20 months. There were assets from which substantial restitution could be made immediately. A sentence of five years was imposed, two years of which was suspended upon conditions including restitution;
    1. The State v Vavine Elizabeth Emil (2021) N8789, Berrigan, J: the prisoner pleaded guilty to misappropriating K117, 788.87 over a period of seven months whilst employed to process payments and invoices. Using the ANZ electronic transaction system she directed funds intended to legitimate service providers to her personal bank account. She was sentenced to four years, two years of which was suspended;
    1. The State v Dumo (2018) N7574, Berrigan J: The offender was the Manager of Operations at the Education Department pleaded guilty to one count of misappropriating K87, 731.00, the property of the State. The offender received the funds as a refund but failed to pass them on to the Department. He was sentenced to 4 years of imprisonment, 2 years of which was suspended upon conditions, including restitution.

Considerations on Sentence


  1. 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.
  2. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are very relevant considerations, every sentence should be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
  3. Having regard to the considerations outlined in Wellington Belawa, the following matters have been taken into account.
  4. Dorothy Jarick is 29 years old. She is from Ali Village, Aitape/Lumi District, West Sepik. She lives with her husband and other family members in Tokarara. She and her husband have one child who is 6 months old. The offender completed Grade 12 and then graduated in 2014 with a Certificate in Computing and Accounting from IBS College. She was employed by Westpac Bank Boroko between 2013 and 2015. In 2016 she started working with Air Nuigini.
  5. Wilma Dongo is also 29 years old. She is from Mapos Village, Bulolo District, Morobe Province. She lives with her parents, her husband and five children, aged between 2 and 10 years of age in NCD. She completed Grade 12 in 2009 and achieved a Certificate in Accounting from IBS in 2013. She is currently unemployed and relies on informal marketing. She was previously employed as a teller with May Bank and then joined Air Nuigini in 2014.
  6. Terry Laka is 36 years old. He is from Kapari Village, Abau District, Central Province. He lives at Edai Town with his wife, their 6 year old son, and the offender’s younger brother. He completed Grade 12 in 2005. It is unclear when he commenced employment with Air Nuigini. He is currently unemployed.
  7. 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. The offences in this case involve substantial amounts of money: K230,000 in the case of each of Dorothy Jarick and Wilma Dongo, and K96,956.90 in Terry Laka’s case.
  8. Whilst the offenders did not hold senior positions within Air Nuigini, nevertheless, the offences involved serious breaches of trust for personal gain on the part of each of them in their role as tellers.
  9. Dorothy Jarick’s offending started the same year she started with Air Nuigini and continued from December 2016 for two years, four months until it was detected. Wilma Dongo’s offending took place for a little more than two years, and Terry Laka’s for just over 18 months. The offences were planned and ongoing and involved some level of sophistication, the offenders manipulating Air Nuigini’s records, and deliberately delaying the banking process, to conceal their crimes.
  10. The monies in each case were applied for the offenders’ own use, for the benefit of themselves and their families. They took smaller amounts, between K500 and K2000, on an ongoing basis. There is some suggestion in their statements that they initially hoped to repay the monies without being detected but they do not deny, and there is no doubt, that they acted dishonestly when they took the monies. Each of them knew they were not entitled to those monies in the first place, regardless of whether or not they intended to repay them. They concealed their conduct, and continued to take the monies for an extended period. To date there has been no restitution.
  11. Air Nuigini regards the offending as very serious. The monies are large. Both the General Manager, Commercial Services and the Company Secretary asked for the maximum to be imposed. I accept that the offences, and ones like them, have a very detrimental effect on business. As I have said, however, this is not a case warranting the maximum.
  12. In mitigation this is the offender’s first offence in each case. Each of them are of prior good character.
  13. Peter Simbago, a community leader of 15 years standing said that Dorothy Jarick was a quiet member of the community in Tokarara with no history of any wrong doing. He, together with the offender’s husband and father begged the court to suspend her sentence.
  14. Village Court magistrate, Rex Gene, has known Wilma Dongo for three years. He regards her as a law abiding citizen actively cooperates to many community activities. I assume he, like her family, is supportive of probation.
  15. Probation services was unable to interview anyone from within Terry Laka’s community. Nevertheless, I am satisfied that he too is previously of good character. His family pleas for suspension.
  16. Very significantly, each of the offenders cooperated from a very early stage. They made full admissions to Air Nuigini when the offences were detected and pleaded guilty at the first opportunity before this Court. I take this into account as demonstrating their genuine remorse. Their guilty pleas have also saved this Court and the State, the time, cost and inconvenience of a trial. As above, there was some intention to repay the monies. In fact they kept records of how much they had taken. As I have said that does not alter the fact that they dishonestly applied the monies to their own use at the time, and whilst it is a relevant consideration, the weight to be attached to it is greatly diminished by the fact that they continued to take the monies over an extended period of time until they were detected.
  17. It is very clear to me that the impact of the offences on each of the offenders has been and will continue to be grave.
  18. I accept their submission that the offending will bring shame and a loss of standing to both them and their families. In addition, jobs are hard to come by. The offenders have lost secure positions in a large organisation. In my view it will difficult for them to find formal employment in the future, particularly where money is involved. Dorothy and Wilma will struggle to find employment using their formal qualifications in accounting. Custodial detention will be very difficult for them and their families. Each of them have parents, spouses and regrettably, very young children.
  19. There are, however, no matters of mitigation special to the offenders.

Sentence


  1. In determining the sentences to be imposed, I have taken into account each of the offender’s personal circumstances. I have also taken into account their lack of previous conviction, prior good character, very early cooperation, early guilty plea, and sincere remorse. These are factors in their favour but they are outweighed by the aggravating factors in this case, namely the quantum of the offence, the planning involved, the period over which the offences were conducted, and the position of trust held by the offenders. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.
  2. It is also necessary to consider the principles governing parity, which were clarified in Sanawi v The State (2010) SC1076 applying Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; affirmed recently in David Kaya and Philip Kuman v The State (2020) SC2026: (emphasis mine):

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. ..

Discrepancy or disparity is not simply a question of imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their degrees of criminality..."

  1. There are no great differences between the offender’s personal circumstances. They come from similar educations and backgrounds. Both Dorothy and Wilma are young women, who were about 26 years old at the time the offending started. Terry Laka was somewhat older at 33.
  2. As for the offences themselves the offending started with Dorothy Jarick. I have thought about whether Dorothy Jarick’s sentence should reflect a greater level of culpability on her part. The State did not proceed on this basis and when Wilma Dongo discovered what Dorothy Jarick was doing, not only did she not report the matter but she started to do the same. Her offending extends over a similar period to Dorothy’s and involves the same amount of money. In all the circumstances there should be no marked disparity between the sentences imposed on each of Dorothy and Wilma. I also note that the State did not seek to charge Dorothy or Wilma with the total amount misappropriated by invoking s 7 of the Criminal Code. As for Terry Laka his sentence must reflect the lesser period of offending and the amount of money involved.
  3. Having considered all of the above matters, including comparative cases, I sentence Dorothy Jarick and Wilma Dongo to 5 years of imprisonment on the counts of misappropriation. Terry Laka is sentenced to 4 years of imprisonment on the count of misappropriation.
  4. In my view the conspiracy charge was unnecessary on a plea matter. It is not the case that the offenders conspired to defraud Air Nuigini of the combined amount of K555,956.90. They conspired to defraud Air Niugini of cash monies from ticket sales, albeit the effect of putting the ongoing conspiracy into effect was to defraud Air Nuigini of that sum. Furthermore, Terry Laka joined at a later stage and his culpability in the conspiracy is of a lower level than his co-accused. The amount of monies involved is not an essential element of the offence, however, and as above, the charge is supported by the depositions.
  5. Having regard to the considerations outlined above, I sentence Dorothy Jarick and Wilma Dongo to 3 years on the conspiracy count, and Terry Laka to 2 years of imprisonment. The sentences will be served concurrently with the sentences on misappropriation.
  6. I understand that to date the offenders have not spent any time in custody.
  7. The question remains whether any or all of the sentences should be suspended.
  8. 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.
  9. Probation Services report that whilst Dorothy Jarick is suitable for probation she does not have the means to make restitution.
  10. Wilma Dongo purchased a PMV in January 2019 using a loan of K106,000 with the intention she says of repaying the monies. To date, however, she has not repaid any monies. According to the information provided by her to Probation Services a large proportion of the earnings go to maintenance, fuel and crew costs. Her husband indicated he is entitled to receive an allowance sometime this year that he could contribute but he did not provide further details. There is also the bank loan, now at K83,000, for the PMV itself which remains to be repaid. Wilma hopes to use the PMV and income from her mini trade store to repay the monies over five years. On the material provided that is not realistic. The period is also unreasonably long.
  11. Terry Laka has asked for one year to repay the monies applied by him. Probation Services reports that he does not have the means to do so. He has no savings or current income. There is a company of which he is a joint owner with a relative. The Shadow Minister for State Enterprises confirms that the company was awarded a road maintenance contract in January this year for the Wanigela village feeder road. The contract itself was not provided to Probation Services. The offender said the total contract is expected to be worth K275,000 but work cannot start as the District Development Authority is waiting on release of funds from the National Government. After labour material and other costs, he hopes to have a balance of K172,300 from which he could repay Air Nuigini. No views from the co-owner of the company were obtained.
  12. In my view none of the offenders have the financial capacity to make restitution within a reasonable time. To order restitution would also impose an unreasonable financial burden on the offender’s families, which is in any event unlikely to be met and would only see the offenders serving their sentences at a later time. In the circumstances it is my view that suspension in the interests of restitution is not appropriate.
  13. It is also my view that a wholly suspended sentence is not appropriate in the circumstances of this case given the nature and quantum of the offence. All of the offenders are in good health and there is nothing to suggest that the offenders would suffer excessively in prison. Whilst I appreciate that detention will cause great distress to them and separation from their parents, spouses and in particular, their very young children, it is well established that except in very extreme circumstances, it is not ordinarily a relevant consideration on sentence: see for example Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
  14. I am, however, satisfied that each of the offenders have very good prospects of rehabilitation. This is demonstrated by their early and full cooperation with their employer and their early pleas before this Court. The offenders are relatively young and I am satisfied that partial suspension of the sentence will promote their rehabilitation into the community. This is not an exercise in leniency but an order made in the community interest: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320. The offenders will need to perform community service during the period of suspension.
  15. In the circumstances I make the following orders.

Orders


  1. Dorothy Jarick is sentenced to:
  2. Wilma Dongo is sentenced to:
  3. Terry Laka is sentenced to:

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2021/329.html