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State v Togumagoma [2023] PGNC 29; N10129 (17 February 2023)

N10129

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 69 OF 2022

THE STATE

V

RODNEY TOGUMAGOMA

Waigani: Berrigan J
2023: 17^th February

CRIMINAL LAW– SENTENCE – GUILTY PLEA - S 383A(1)(a)(2)(d) of the Criminal Code – Guilty plea - Misappropriation of K68,400 – Monies paid in three tranches from old school friend for the purpose of purchasing gold – Some monies applied for daughter’s urgent medical expenses – Sentence of 3 years’ imprisonment imposed, suspended on conditions including restitution.

Cases Cited:

Wellington Belawa v The State [1988-1989] PNGLR 496
David Kaya and Philip Kaman v The State (2020) SC2026
The State v Felix Kautete (2018) N7544
The State v Joseph Ande (2018) N7536
Doreen Liprin v The State (2001) SC673
The State v Chillen (2008) N3549
The State v Felix Kautete (2018) N7544
State v Gani (2008) N4177
The State v Wiama (2007) N5492
The State v Kandambao (2019) N8025
The State v Simon Paul Vurmete (2000) N2008
The State v Benson Likius (2004) N2518
The State v Paroa Kaia (1995) N1401
The State v Dumo (2018) N7574
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91

Legislation and other materials cited:

Sections 19, 383A(1)(a)(2)(d) of the Criminal Code.

Counsel

Ms J. Siminji, for the State
Mr J. Kolowe, for the Offender

DECISION ON SENTENCE

17^th February, 2023

1. BERRIGAN J: The offender, Rodney Togumagoma, was convicted after pleading guilty to one count of misappropriating K68,400 belonging to Tony Christie Waisi, contrary to Section 383A(1)(a)(2)(d) of the Criminal Code, for which the maximum penalty is 10 years of imprisonment.
   
2. In July 2020 the complainant, Mr Tony Waisi, contacted the offender after hearing from a mutual friend, Mr Diweni, that the offender was operating a gold-buying business. Discussions followed and the offender convinced the complainant to join the business.
   
3. On 22 July 2020 the complainant made an initial deposit of K2000 to an account nominated by the offender for the purposes of buying gold. On 24 July 2020 the complainant made a second deposit of K22,400 to the same nominated account. After the second deposit the complainant bought airline tickets for the offender to travel with some gold to Port Moresby. The offender gave excuses and did not board the flight. On 4 August 2020 the offender informed the complainant that his daughter was going into surgery at Pacific International Hospital. The complainant transferred K1000 to the offender. On 12 August 2020 the complainant made a third deposit of K44,000 to the same nominated account to buy more gold. In total K68,400 was deposited by the complainant into the nominated account for the purpose of buying gold.
   
4. On 9 September 2020 the offender informed the complainant that he had sold 600 gm of gold for K94,600 cash and that he would deliver the amount to the complainant when he arrived in Port Moresby. The offender arrived two days later but avoided the complainant until about 3pm when the complainant confronted him. The offender told him that he must have left the money in a bag at the backseat of a taxi when he got on to travel to Gurney Airport, Alotau. The complainant was not convinced by the offender’s explanation and had him arrested. Not long afterwards the offender sent a message to the complainant and Mr Diweni admitting that he used up the money without buying any gold.
   

Allocutus

5. On allocutus the offender apologised to the Court, the State and the complainant. He was pushed into a situation where he needed to attend to his daughter’s medical situation. He expended much of the money on his daughter as well as attendant sundries, travel and other things. He has been self-employed since 2014 and does a lot of community work back in Alotau. He begged for leniency and a non-custodial sentence to allow him to restitute the complainant’s money which were applied for a purpose other than originally intended. He is able to do that and has been prevented from doing so only because his bail conditions restricted his ability to travel back to his place of business. It has been difficult and he has lived between three homes in Port Moresby whilst also trying to support his family back in Alotau.

Sentencing Principles and Comparative Cases

6. 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;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. 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.
       
7. Having regard to the scale 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;
   100. K10,000 and K40,000, two to three years’ imprisonment is appropriate;
   4. K40,000 and K100,000, three to five years of imprisonment is appropriate;
   5. K100,000 and K500,000, five to seven years’ imprisonment is appropriate; and
   6. 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.
      
8. Defence counsel submitted in mitigation that the prisoner is a first-time offender and has expressed genuine remorse. He has no prior convictions and pleaded guilty. As said during allocutus, the offender has known the complainant for a long time. They have been friends since university days. The offender was in a difficult situation and used the money to save his daughter. He acknowledged in aggravation that the offence is prevalent, involved a large amount of monies and the abuse of the trust of his friend. Having regard to Wellington Belawa, an appropriate sentence fell between 2 and 3 years.
   
9. He referred to the following cases:
   
   1. The State v Felix Kautete (2018) N7544, Berrigan, J: The prisoner, the prisoner pleaded guilty 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 K9,000.00 prior to sentence. He was sentenced to 3 years’ imprisonment wholly suspended on conditions, including restitution. He also referred to another case The State v Wilma Mai, unreported. In both cases the amount involved was lower.
      
   2. The State v Joseph Ande (2018) N7536, Miviri AJ: The offender pleaded guilty to falsely representing himself to be another person with intent to defraud Westpac Bank. He deposited two PNG Electoral Commission cheques for the sum of K 41, 000 and K 20, 000 into this account and made withdrawals from it. He deposited an Electoral Commission Cheque in the sum of K121,000 to an account in the same name but attempts to withdraw funds were unsuccessful. The bank discovered his false identity and referred him to Police where he was charged with the offence. He was sentenced to: 1 year for impersonation; 4 years for misappropriation of K41,000; 2 years for misappropriation of K20,000; and 2 years for attempted misappropriation, all to be served concurrently, less time spent in custody. The sentence was wholly suspended on strict conditions including restitution.
      
10. Counsel submitted that suspension in this case was appropriate having regard to the above cases, and the fact that in this case the complainant and the offender remained friends. He asked the Court to have regard to the comments of Amet J in Doreen Liprin v The State (2001) SC673 concerning K6000 in which he said in:
    

“I believe it is time to consider seriously whether offences of misappropriation of amounts of this kind warrants custodial sentences. I do not believe so. I believe the Court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment.”

“wherever a person is charged for a crime of non-physical violence such as misappropriation, the judge should for the purposes of imposing any effective punishment that will rehabilitate the offender it must explore all options for taking what might be regarded as a drastic step of imposing a prison sentence.”

11. Counsel asked the Court to allow the offender to be given an opportunity to repay the monies.
    
12. The State submit in aggravation that the amount involved was substantial, the offence involved a breach of trust involving a gross level of dishonesty, the offender is a lawyer by profession, there have been no attempts to restitute, and the offending involve three separate transactions. The offence is prevalent. The State acknowledged in mitigation that the offender is a first-time offender and that he used the money for his daughter’s medical expenses. It submitted that a sentence of three to five years imprisonment was appropriate. In addition, the sentence should be suspended on the basis that the offender make restitution within three months. It relied on the following cases:
    
    1. The State v Chillen (2008) N3549, David J, the prisoner pleaded guilty to the misappropriation of K65,000. He applied to the National Gaming and Control Board (NGBC) 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 3 others, deposited the cheque and made several withdrawals thereafter to his won use. He was sentenced to 4 years imprisonment;
       
    2. The State v Felix Kautete (2018) N7544, Berrigan J, the offender pleaded guilty to receiving K24,000 from his sister in law and her husband on the basis that he would purchase a vehicle on their behalf but instead applied the monies to his own use. He repaid K9, 000.00 prior to sentence. He was sentenced to 3 years’ imprisonment wholly suspended on conditions, including restitution;
       
    100. State v Gani (2008) N4177, Manuhu J, the offender pleaded guilty to one count of dishonestly applying to his own use the sum of K35, 000 belonging to the State. He was the President of the Wuvulu/Aua LLG in 1999 when the alleged offence occurred. He arranged for the sale of the MV Thomas, a boat belonging to the LLG and applied the proceeds to his own use. He was sentenced to 4 years’ imprisonment;
         
    4. The State v Wiama (2007) N5492, Cannings, J, the offender helped his uncle, a retired schoolteacher, obtain his final entitlements. K16,848.70 was deposited to the offender’s account and applied for his own use. He was sentenced to 4 years of imprisonment, wholly suspended on conditions;
       
    5. The State v Kandambao (2019) N8025, Berrigan J, the offender pleaded guilty to misappropriating K12,955 received for the purpose of fees, airfares and travel documentation to undertake studies in China. The offender was sentenced to 2 years imprisonment wholly suspended with conditions.
       
13. The State submitted that having regard to Wiama and Kaute where there was a breach of trust the sentence imposed was 3 and 4 years, wholly suspended. The amount is more similar to that of Chillen where 4 years was imposed but this case is different because the offender is a learned person who represented that he was applying the monies to his own use when he was not.
    
14. I have also had regard to the following cases:
    
    1. The State v Simon Paul Vurmete (2000) N2008 in which the offender was sentenced to 3 years’ imprisonment after pleading guilty to misappropriating K41,233.24 from his employer, the Water Board, over a period of 8 months involving a complex scheme;
       
    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;
       
    100. The State v Paroa Kaia (1995) N1401, Sawong J: The prisoner pleaded guilty of one count of misappropriating as 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;
         
    4. 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.
       

Consideration

15. 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. This is not a case of the worst kind warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653 applied.
    
16. Having regard to the principles outlined in Wellington Belawa, the following matters have been taken into account.
    
17. 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 offence in this case involves a substantial amount of K68,400.
    
18. In aggravation the offence was conducted over a period of several weeks between late July and August before the offender was arrested in early September. Contrary to the State’s submission, this is not a case involving a complex scheme. The important points are that this was not a spur of the moment offence and that it involved ongoing dishonesty during the period in which the offender received three separate deposits intended for the purchase of gold.
    
19. The offence did involve a breach of trust in the sense that the offender and the victim were old friends. It is clear from Mr Waisi’s statements to Probation Services that he and the offender have not reconciled. The impact on the victim has been significant. He has lost a large amount of his savings and suffered embarrassment and a loss of standing when his family and friends found what had happened. He complains that to date no restitution has been made but that is not a factor in aggravation. If restitution had been made that would be a factor in mitigation but the converse does not follow
    
20. The offender is 50 years of age. He is from Kiriwina, Goodenough Island in Milne Bay Province but has been living with family in Port Moresby whilst awaiting trial.
    
21. The offender’s parents are deceased. He is the youngest of six siblings, most of whom are living in Milne Bay. He is married with five children. The oldest attend UPNG, Kokopo Business College and Sogeri School of Excellence. The youngest is at primary school in Alotau.
    
22. He is well educated. He graduated in law in 1995. He was employed with the National Judiciary and Staff Services from 1995 to 2003 and with Magisterial Services from 2004 to 2013 until he resigned to pursue his own business. His role in each of the organisations is unclear but there can be no doubt given his education and experience that he well understood the seriousness of his conduct.
    
23. In mitigation this is the offender’s first offence. He is of prior good standing. Senior Pastor Wamalia, Alotau, informed Probation Services that the offender is a respected leader who helps those within his community whenever he can. David James, a longest serving employee of Magisterial Services and the offender’s cousin brother, says that the offender is a well-respected community leader in Moresby and Alotau. Both pleaded with the Court to suspend the offender’s sentence to allow him to repay the monies.
    
24. The impact of the offence on the offender has been significant. Prior to his arrest he operated his own businesses, working in real estate and the buying and selling of gold. As a result of the charge he has lost most of his clients. He has struggled to maintain his family financially whilst staying in Moresby pending the outcome of his case. I am also sure that the offence has impacted on his standing in the community.
    
25. Very significantly, the offender cooperated from a very early stage. He fully cooperated with authorities and pleaded guilty at the first opportunity before this Court. I am satisfied of his genuine remorse, as indicated by his early admissions to both the complainant and Mr Diweni. His guilty plea has also saved this Court and the State, the time, cost and inconvenience of a trial.
    
26. Whilst it does not excuse the offender’s behaviour it is a relevant consideration that a significant amount of the monies were applied to meet the urgent medical expenses of his daughter in Pacific International Hospital. Whilst it would have assisted the Court to have greater details about this, including the amount involved, this is not in dispute.
    
27. There are no matters of mitigation special to the offender.
    
28. I have had regard to the offender’s personal circumstances, and the matters in mitigation, namely his lack of previous conviction, and prior good character, together with the fact that this case, unlike most which come before me are motivated purely by greed. Those factors must be weighed against the aggravating factors in this case, namely the quantum of the offence, the period over which it was conducted, and the breach of trust involved. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.
    
29. Having regard to the above matters, I impose a sentence of three years of imprisonment.
    
30. Having regard to the fact that the offender is normally resident in Milne Bay, I ask that Correctional Services give consideration to the offender serving his sentence in that province.
    
31. In 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.
    
32. There is no evidence before me to suggest that the offender will suffer excessively in prison.
    
33. After giving the matter very careful consideration, I have decided to suspend the sentence and order restitution in this case. In my view it will promote personal rehabilitation and restitution.
    
34. The report from Probation Services recommends that the maximum be imposed. That is not a matter for Probation Services. The report itself is somewhat contradictory. The basis for the conclusion that the offender is a threat to the complainant, the community and others is not set out. The fact that restitution has not been made to date does not justify that conclusion. The report appears to be heavily influenced by the views of the complainant who “begged the Court to impose the maximum” because “he wants nothing less”. That is not a matter for him.
    
35. Putting aside the report’s conclusion, the information provided in the report itself establishes that the offender is a suitable candidate for serving his sentence under supervision outside of custody. He is a mature man of previously good record and standing in the community. He is still supported by his community here and in Alotau. The offence was not motivated entirely by greed and he has shown genuine remorse from a very early stage.
    
36. I have considered carefully whether the offender has the means to restitute. He has no income presently but it also appears from the information, supported by documentation, provided to Probation Services that he has been engaged to sell two properties, one in Port Moresby and the other in Alotau, the commission from which would more than cover the monies owed to the complainant. It is also the case he has held the commission for some time and is yet to do so but against that the offender has been prevented from returning to Alotau where his business is primarily based. On balance I am satisfied that sufficient basis exists to order that the offender make restitution within a reasonable time. The three months sought by the State, again it appears at the behest of the complainant, is not a reasonable time frame.
    
37. Accordingly, I suspend the sentence upon condition of restitution. 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. I also intend that the offender serve a period of community service.
    
38. In the circumstances I make the following orders.
    

Orders

(1) The offender is sentenced to three years of imprisonment without hard labour.
(2) The sentence is to be served at Gili Gili Correctional Institution subject to the determination of the Commissioner for Correctional Services.
(3) The sentenced is wholly suspended on condition that:

1. Restitution in the sum of K68,400 is paid into the National Court Trust Account for payment to the Tony Waisi within one year of today’s date;
2. The offender serve a total of 80 hours of approved community service under the supervision of Senior Pastor Wamini during the first 12 months of his sentence;

100. The offender enter into his own recognisance to keep the peace and be of good behaviour for the period of his sentence.
     

(4) The offender’s bail monies are to be refunded.

(5) Any sureties lodged by the offender’s guarantors are to be immediately refunded.

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