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State v Viambu [2022] PGNC 390; N9933 (21 September 2022)

N9933

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 51 OF 2022

STATE

V

FREDRICK VIAMBU

Popondetta: Wawun-Kuvi, AJ
2022: 14^th, 20^th & 21^st September

CRIMINAL LAW–SENTENCE –S 383A(1)(a)(2)(b) of the Criminal Code – Guilty plea - Misappropriation of K3, 110.22 – Sentence of 2 years imprisonment imposed.

Cases Cited

Belawa v The State [1988-89] PNGLR 496

David Kaya and Philip Kasman v The State [2020] SC2026
Goli Golu v The State [1979] PNGLR 653
Liprin v The State [2001] PGSC 11; SC673

State v Hevelawa (No.2) [2017] PGNC 198; N6875

State v Balim [2015] PGNC 223; N6028
State v Emba (2011) N5012
State v Bae [2010] PGNC 152; N4076
State v Boas [2004] PGNC 144; N2608

State v Maso Uto (2022) N9612
State v Tardrew [1986] PNGLR 91

Reference

Criminal Code, Ch 262

Counsel

Mr A Kaipu, for the State
Mr E Yavisa and Mr S Kuruwalo, for the Defence

DECISION ON SENTENCE

21^st September, 2022

1. WAWUN-KUVI, AJ: Fredrick Viambu is a 39-year-old police officer attached to the Popondetta Police Station. In June of 2021, he was the Officer In Charge of transport.
   
2. He is from a mixed parentage of Hohorita Village in Ward 4 of the Higaturu LLG, Northern Province, and the Autonomous Region of Bougainville.

Between 22 June 2021 and 24 June 2021, he sold 3 fuel drums belonging to the Popondetta police and obtained K6, 220.45. Of that amount he used K3, 110.22 to purchase fuel for his private vehicle as well as purchasing groceries and alcohol. The remaining balance was used to repair his police issued vehicle and to purchase ink for his office printers.

3. He pleaded guilty misappropriating the sum of K3, 110.22 of which he applied to his own use.
   
4. I must now decide the appropriate penalty.
   

The Charge

5. The offender was convicted following a guilty plea on the charge of Misappropriation under section 383A (1) (a) and (2) (b) of the Criminal Code.

Penalty

6. The maximum penalty is 10 years imprisonment.

I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653. This is not such a case.
Submissions

The State

7. The State submits for a term of imprisonment between 3-4 years. That the Court should exercise its discretion and wholly suspend the sentence with conditions for restitution within a timeframe of 3 months.
   
8. In mitigation it was submitted that the offender has no prior convictions, he has expressed genuine remorse, the monies were not substantial, the offence occurred in a day, and that he used half the money for State purposes.
   
9. The aggravating factors were that the monies belonged to the State, the offender occupied a position of trust, and he abused it, he was an experienced police officer, there was a high level of deceit, dishonesty, and fraud and that the offence is prevalent.
   
10. It was submitted that the Court consider the sentencing principles and guidelines in Belawa v The State [1988]^[1] when determining an appropriate sentence.
    
11. Whilst the State has submitted that the case of David Kaya and Philip Kasman v The State (2020) SC2026 has revised the sentencing tariffs, the submission is misconceived. The Supreme Court did not revise the sentencing tariffs but included additional guidelines following the amendment to the penalty provisions.
    
12. The State submitted the following comparable cases:

State v Hevelawa (No.2) [2017]^[2], Salika DCJ (as he then was): The offenders were convicted following a trial. The offenders conspired by creating a fictious company under the pretext that it would provide gardening and landscaping services. As a result of their conspiracy the amount of K63, 120.50, K20, 000 and K35, 725.80 were paid. The offenders applied the monies to their own use and the use of others. They were sentenced to 5 years imprisonment. Three years of the sentence was suspended with conditions of restitution and the balance was ordered to be served.

13. State v Bae [2010]^[3], Kawi J: The Offender pleaded guilty to misappropriating K15, 625.14. He was employed as a Credit Administrator–Cash Sales for Inter Oil Limited. Within a period of 7 months the offender received payments from customers but did not give the monies to the cashier to bank. The offender was sentenced to 2 years imprisonment which was wholly suspended with conditions.
    
14. The comparable cases involve amounts that are much more significant than the present case. The present case is also distinguished in that whilst the offender dishonestly applied part of the monies of the sale of the fuel drums, he had put the other part back for office use. And that this was a one-off incident that occurred in one day. This in my view reduces the degree of his dishonesty.
    

Defence submission

15. The defence submit for a term of imprisonment of 18 months and that it be wholly suspended.
    
16. The defence concede that the offence involve fraud by an employee, that the employer suffered loss and that there was an abuse of authority. In mitigation, it was submitted that the offender pleaded guilty plea, that he had no prior convictions, he showed remorse, and there is a willingness to restitute.
    
17. The following comparable case were submitted:
    

State v Boas [2004]^[4], Sevua J: The Offender negotiated money for fuel and misappropriated the proceeds of the cheque in the sum of K1, 373.59. He refunded the monies through payroll deductions. He pleaded guilty and was sentenced to 18 months imprisonment. The sentenced was wholly suspended and he was placed on a good behaviour bond. He was also fined K500.00.

18. State v Emba (2011)^[5], Kawi J: The offender pleaded guilty in the middle of the trial to misappropriating K286,491.71. She was employed as a cashier with Air Niugini and was responsible for collecting cash monies from the sale of airline tickets. She received monies and destroyed the ticket coupons. She was sentenced to 6 years imprisonment. The sentence was wholly suspended on conditions including restitution.
    
19. State v Boas [2004]^[6] is distinct in that the offender made restitution but is similar because the offence was one off and the amount misappropriated was not significant. State v Emba (2011)^[7] is quite distinct to the present case because the offender pleaded guilty during the trial, the amount misappropriated was significant, the fraud was committed over some time which indicates a higher degree of dishonesty.
    

Sentencing Guidelines and Principles

20. Sentencing guidelines assist the Court in determining an appropriate sentence however it is the peculiar circumstance of each that is the relevant consideration.
    
21. In the case of Belawa v The State [1988]^[8], the Supreme Court suggested the following guidelines:

“(1) where the amount misappropriated is between K1 and K1,000, a gaol term should rarely be imposed;

(2) where the amount misappropriated is between K1,000 and K10,000, a gaol term of up to two years is appropriate;

(3) where the amount misappropriated is between K10,000 and K40,000, two to three years imprisonment is appropriate;

(4) where the amount misappropriated is between K40,000 and K150,000, three to five years imprisonment is appropriate.”

22. This case would fall within the second category which attracts a sentence up to two years imprisonment.
    
23. Belawa v The State [1988]^[9], also suggested the following considerations when determining sentences for cases involving dishonesty:
    

“(1) the amount taken;

(2) the quality and degree of trust reposed in the offender including his rank;

(3) the period over which the fraud or the thefts have been perpetrated;

(4) the use to which the money or property dishonestly taken was put;

(5) the effect upon the victim;

(6) the impact of the offences on the public and public confidence;

(7) the effect on fellow-employees or partners;

(8) the effect on the offender himself;

(9) the offender’s own history;

(10) restitution; and

(11) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.

Comparable cases:

24. I have also found the following comparable cases:
    

State v Maso Uto (2022)^[10], Wawun-Kuvi AJ: The offender pleaded guilty to misappropriating K14, 509.56. He was a driver for the company. He would obtain the fuel card and refuel the vehicle. He would proceed to park the vehicle and let the pump attendant obtain cash from unsuspecting customers and refuel their vehicle with the fuel card. The pump attendant would then share the proceeds with the offender. He has used his final entitlements to make restitution to the satisfaction of his employer. He was sentenced to 2 years for each count to be served concurrently. The sentence was wholly suspended, and he was placed on GBB for 2 years.

25. State v Kisua (2018)^[11], Koeget J: The offender pleaded guilty to misappropriating K30, 000.00. The accused was the Officer in Charge of PNG Microfinance Ltd in Daru. Over a period, he directed tellers to lend him monies. He did not reimburse the monies. The offender has restituted K25, 000.00 prior to sentence. He was sentenced to 18 months imprisonment, which was wholly suspended with conditions.
    
26. State v Balim [2015]^[12], Cannings, J: The offender pleaded guilty to misappropriating K11, 680.00. The money belonged to the school in which the offender was a teacher. During a six-week period the offender forged the signature of the head teacher and cashed four cheques. He restituted K3000.00 prior to sentence. He was sentenced to 3 years imprisonment, which was suspended with conditions.
    
27. The above cases involve amounts which are significantly higher in value than the present case. Furthermore, the sentences were suspended on account that either the offenders had made some form of restitution prior to sentence or that they had the finically means to make restitution. In the present case, the offender has not made any form of restitution, but he does have the means to make restitution and is willing to make restitution.
    

Personal Particulars

28. The offender is 39 years old and is mixed parentage of Northern and Bougainville. He is married but does not have any children.
    
29. He attends the Catholic Church. His father is deceased, and his mother is still alive. He worked for the District Court and later joined the police force. He has been a police officer for 10 years. He is now in charge of the ICT section.
    

Allocutus

30. The offender stated in allocutus:
    

“Firstly, I want to say sorry to the Court for the offence I have committed. For myself I thought I was doing what was right, but I have come to realize that I am guilty for what I have done. I ask for mercy and a good penalty. If I have to refund, I will refund. If the Court gives me time, I will refund.”

31. I accept his statement as a genuine sign of remorse. This is based on his early plea of guilty, his cooperation with the arresting officer and his statement to make restitution. The circumstances surrounding his case show that he was always willing to make restitution but for the disagreement as to the amount that he should restitute. This was because he used half of the proceeds from the sale to pay for essential work related items that the police department was slow in purchasing.
    

Pre-sentence Report

32. The Probation Officer interviewed the offender, his spouse, and the Police Station Commander. The offender has expressed remorse and his wife is concerned about the impacts of incarceration on their family. The Police Station Commander asks for the offender to make restitution.
    
33. The Offender is currently on probation for another offence. The Probation Officer states that he is complying with the conditions of his probation. The Probation Officer recommends that the offender be placed on probation.
    

Victim Impact Statement

34. Inspector Aiso Avese is the Acting Police Station Commander. He states that policing was affected because of lack of fuel and that cases were thrown out of court because investigators could not reach witnesses.
    

Mitigating Factors

35. I accept in mitigation that the offender pleaded guilty, that he has no prior convictions, that he has shown genuine remorse for his actions and that he has cooperated with the police.
    
36. I find that he does not have a prior conviction as the depositions reveal that the offence for which is presently on probation arises out of the same charge as the present charge. That is, he was interviewed for the same charge and was committed at the same time.

Aggravating Factors

37. In aggravation, I find that the amount taken was significant, he was given a high degree of trust which he breached, he applied the monies to his own use, and he has not made restitution since June 2021. He should have at least taken some step to restitute what he had personally used. Furthermore, the offence is very prevalent.
    
38. The offender is also a police officer. His position affords him a higher degree of responsibility to uphold the law and to conduct himself with integrity. By his conduct he has not only tarnished his reputation but brought into disrepute the Royal Papua New Guinea which he represents.

Additionally, by his conduct he has affect a number of police cases.

Consideration

39. Corruption is a serious problem in this country. It is like a cancer that is rotting away the fabric of a once decent and honest society. As a police officer it was the offender’s duty to uphold and protect the law of this country. Instead, he broke his oath.
    
40. His actions cannot be trivialized by stating that the amount taken was not significant. The consequences and the enormity of his actions are significant. As the Police Station Commander stated, police in Popondetta were deprived of fuel. This has affected cases pending in court and I have no doubt that it also affected police responding to new cases. Lives of people were affected by the offender’s selfish decision. It has become a common practice in Papua New Guinea for people to be turned away because police vehicles do not have fuels. Or people must pay for fuel for police to attend to their duties. It is a tragic and sad situation. The offender making restitution does not cure the unfortunate consequences of his actions.
    
41. In applying the Belawa principles, I find that the offender was the OIC of Transport and was given significant trust which he abused, the fraud was perpetrated over a day indicating a lesser degree of dishonestly, he applied it to his personal use, it has a significant impact on public and public confidence because he is a police officer, it has affected his colleagues and also brought their reputation into disrepute, he was otherwise a law abiding citizen and he intends to make restitution.
    
42. I consider all the foregoing matters and find that a sentence of 2 years imprisonment is appropriate.
    
43. The question now is whether the sentence should be suspended. I have considered the principles as they relate to suspension and in light of the cases of State v Tardrew [1986] PNGLR 91 and Liprin v The State [2001]^[13] which promote restitution as a basis for suspension of sentence, the whole sentence is suspended, and the offender is placed on a good behaviour bond for 2 years with surety of K500.00 with conditions.
    

Orders

44. The Orders are as follows:
    
    1. The Offender is sentenced to imprisonment for 2 years for Misappropriation under section 383A (1) (a)(2)(b) of the Criminal Code.
    2. Furthermore, execution of the sentence is pursuant to section 19 of the Criminal Code suspended on the offender entering into a recognisance in the amount of K500.00 subject to the condition that the offender is of good behaviour and complies with the following conditions for a period of 2 years:
       • He shall keep the peace.
       • He shall not commit any other offences.
       • He shall pay to Islands Petroleum Limited in Popondetta the sum of K3,110.22 for fuel credits to the account of Popondetta Police by 22 December 2022.
       • He shall file an affidavit confirming that he has made full restitution and serve the affidavit on the State and the Police Station Commander.
       • He shall appear at the first sittings of the National Court in 2023 for review of the restitution payment.
    3. Bail is converted to surety.

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

^[1] PGSC 6; [1988-89] PNGLR 496 (1 December 1989)
^[2] PGNC 198; N6875 (15 September 2017)
^[3] PGNC 152; N4076 (25 March 2010)
^[4] PGNC 144; N2608 (10 May 2004)
^[5] N5012
^[6] Refer to note 4
^[7] Refer to note 5
^[8] PGSC 6; [1988-89] PNGLR 496 (1 December 1989)
^[9] Refer to note 8
^[10] N9612
^[11] N7513
^[12] PGNC 223; N6028 (22 July 2015)
^[13] PGSC 11; SC673 (9 November 2001)