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State v Posa [2024] PGNC 407; N11076 (8 February 2024)

N11076

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 347-356 OF 2017

THE STATE

v

JONAH POSA

Mt Hagen: Salika CJ
2021: 8^th February, 5^th July
2022: 8^th February

CRIMINAL LAW – particular offence – misappropriation – offender misappropriated total sum of K1,317,015,16 property of the State – offender acted in his official capacity as provincial accountant – offender signatory to government operating accounts held at Bank South Pacific

CRIMINAL LAW – particular offence - offender charged under s 383A(1) (a) of the Criminal Code Act.

CRIMINAL LAW – PRACTICE AND PROCEDURE - NO CASE SUBMISSION – three charges dismissed - appropriate punishment to impose on the prisoner for each of the remaining 36 counts - sentencing principles – consideration of - prisoner held a position of trust to safe keep the finances of the Western Highlands Provincial Government – mitigating and aggravating factors considered – personal particulars considered – prisoner sentenced to 10 years imprisonment – two months deducted – prisoner to serve balance of 9 years and 10 months in hard labour

Cases Cited:
Belawa v The State [1988-89] PNGLR 196
The State v Niso (No. 2) (2005) N2930
The State v Paul Tiensten (2014) N5568
Lawrence Simbe v The State [1994] PNGLR 38

Counsel:
Mr F Popeu, for the State
Mr Pepson, for the Accused

DECISION ON SENTENCE

8^th February 2024

1. SALIKA CJ: INTRODUCTION: The prisoner was charged with 39 counts of misappropriation of K1,317,015,16, the property of the State. At the end of the prosecution case, the Defence made a no case submission and three of the charges were dismissed at that stage. With that dismissal, the amount misappropriated was reduced to K1,199,015.16. The charges were all laid under Section 383 A (1) (a) of the Criminal Code Act.
   

THE FACTS

2. The following were the findings of the Court in relation to the 36 remaining charges:
   

The prisoner was at all material times between December 2013 and August 2014, the Acting Provincial Accountant with the Western Highlands Provincial Treasury Office in Mt Hagen. On occasions he was the Supervisor of all the Treasury Officers during those times.

He was signatory to all WHP Government Operating Accounts held at the BSP Mt Hagen Branch namely:

1. WHPG Operating Account No. 1000321067;
2. WHPG Operating Account No. 1001584852; and

100. WHP Treasury Operating Account No. 100874179.
     

Two female officers, Wilma Pole and Linah Mark, were counter signatories to the above named operating accounts.

The Court found on the evidence that on occasions there was need to raise Finance Forms 3 and 4 to cheques in the names of officers of the Treasury as cash advances. Upon the act of raising the cash advance cheques, and the cash obtained, they were misappropriated by the prisoner and the various Treasury officers involved in the scheme they devised. By that scheme, the prisoner and others misappropriated K1,199,015.60.

The scheme was detected and uncovered by an Audit Team from the Treasury Department in Waigani which led to the charging of the prisoner and two others.

The State invoked Section 7 of the Criminal Code Act in laying the 39 charges against the prisoner. The prisoner denied the charges but was found guilty of the remaining 36 counts.

THE ISSUES

3. The issue for the Court to determine is the appropriate punishment to impose on the prisoner for each of the 36 counts.
   

THE LAW

4. The relevant law is Section 383 A (1), (2) and Section 383 A (1A) of the Criminal Code (Amendment) Act 2013.
   

Those provisions provide:

“Section 383 A (1): MISAPPROPRIATION OF PROPERTY.

[122](1) A person who dishonestly applies to his own use or to the use of another person–

(a) property belonging to another; or

(b) . . .

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation is liable to imprisonment for a term not exceeding five years except in any of the following cases where he is liable to imprisonment for a term not exceeding 10 years:

(a) Where the offender ...

(b) Where the offender is an employee of the company and the properly dishonestly applied is the property of his employer

(c) Where ...

(d) Where the property dishonestly applied is of a value of K2,000.00 or upwards.

(3) For ...”

Section 383 A (1A) says – Notwithstanding Subsection (2), an offender guilty of the crime of misappropriation shall be sentenced – (Criminal Code Amendment) Act 2013)

(a) To imprisonment for a term of 50 years without remission and without parole, if the property misappropriated is of a value of K1 million; or upwards but does not exceed K10 million; and

(b) ...”

The maximum penalty the Court may impose as a result of the 2013 Amendment of the Criminal Code is 50 years imprisonment with no remission and no parole where the amount misappropriated is K1 million and above, but not exceeding K10 million.

5. The offence of misappropriation is created by and under s. 383 A (1) of the Criminal Code Act. Subsections (2) and Section 383 A (1A) of the 2013 Amendment are only penalty provisions. There is no requirement to plead the penalty provision in the offence charged. That only becomes necessary after a conviction is recorded against an accused.
   

SENTENCING PRINCIPLES AND CONSIDERATIONS

6. The Supreme Court in Belawa v The State (1988-89) PNGLR 196 identified the following factors when considering an appropriate sentence:
   
   1. Amount taken;
   2. Quality and degree of trust reposed in an officer;
   100. Period over which the offence was perpetrated;
   4. Impact of crime on public and public confidence.
   5. The use to which the money as put to;
   6. Offence of crime on the victim;
   7. Whether restitution has been made;
   8. Remorse;
   9. Nature of plea;
   10. Prior record, if any.
   11. Effect on offender;
   50. Mitigating factors, extenuating factors, ill health, age, long delay in bringing matter to Court.
       

With respect those considerations are relevant today.

7. The Supreme Court in the same case suggested the following scale of sentences to be adjusted upwards or downwards according to the factors identified above. It said where the amount misused is between:
   
   1. K1.00 and K1,000, a jail term is not to be imposed.
   2. K1000 to K10,000, a jail term of up to 2 years is appropriate.
   100. K10,000 to K40,000, a jail term of two to three years was appropriate.
   4. K40,000 to K150,000, three to five years imprisonment was appropriate.
      
8. The Belawa formula or scale of sentence referred to above is now considered outdated. See The State v Niso (No. 2) (2005) N2930 and The State v Paul Tiensten (2014) N5568. The sentencing principles and considerations are still relevant and applicable.
   
9. It is an accepted principle in sentencing in dishonesty offences that, the greater the amount stolen or misused, the more serious the offence, and therefore attracting a higher penalty. On hindsight, with respect, I believe the Criminal Code (Amendment) Act of 2013 was enacted to take into account huge amounts of monies being misappropriated. The maximum sentence before the 2013 Amendment was considered to be inadequate and Parliament accordingly passed the amendment. The case of Paul Tiensten (supra) was decided in 2014 after the 2013 Amendment, but the offence itself was committed in 2010, thus the 2013 Amendment did not apply. The Paul Tiensten case involved K10 million kina. The prisoner himself did not benefit from the K10 million.
   
10. This case involved misuse of K1,199,015.16, an amount over K1 million thus attracting a 50 years maximum penalty.
    
11. The prisoner held a position of trust to safe keep the finances of the Western Highlands Provincial Government and the Western Highlands Provincial Administration. He breached the high trust reposed on him.
    
12. The offences were committed between December of 2013 and August of 2014, a period of 9 months. Cash advances were paid on over 36 occasions. Proper procurement processes under the Public Finance Management Act were not complied with and the cash monies advanced misappropriated.
    
13. There was no evidence on the effect of the crime on the public and public confidence.
    
14. Likewise, there was no evidence on what the money was used for. The prisoner maintains he is innocent and never misused the money.
    
15. The prisoner will feel the full effect of the crime soon.
    
16. The prisoner is adamant he is innocent and has made no restitution and has expressed no remorse. He challenged the charges and allowed his counsel to cross-examine the State witnesses but he himself exercised his rights to remain silent. He did nothing to create any reasonable doubt on the State case when the occasion presented itself.
    

MITIGATING FACTORS

17. The only mitigating factor the prisoner has in his favour is that he has no prior convictions. I do not and cannot find any extenuating circumstances.
    

AGGRAVATING FACTORS

18. The following aggravating factors are noted:
    
    1. A large sum of State monies was misappropriated.
       
    2. He was in a high position of trust.
       
    100. He circumvented the proper legal procurement process.
         

PERSONAL PARTICULARS

19. The prisoner is 42 years old from Pak Island, Manus Province. He is married with 3 children. He has lived most of his life in Mt Hagen. He attended Primary Schools in Mt Hagen and high school, completing Grade 10 in 1992. From 1996 up to 2010, he was employed by the WHPG Treasury Office making his way to be the Provincial Accountant for Western Highlands Province (WHP).
    

SENTENCE

20. I have been referred to a number of case authorities by both the State and the Defence counsel. Much of the cases referred to the Court were for misappropriation offences with lesser amounts, below K1 million and before the 2013 Criminal Code (Amendment) Act came into being amending Section 383 A (2) of the Criminal Code Act.
    
21. The sentence to be considered is dependent on the particular circumstances of each case as stated by the Supreme Court in Lawrence Simbe v The State (1994) PNGLR 38. With respect, I agree with the proposition by the Supreme Court that the imposition of a penalty on an offender is dependent on the particular, peculiar circumstances of each case.
    
22. I am mindful of the circumstances of this case, that is that, there were three main offenders who benefitted from this scheme. One of them has been given immunity by the State and will not be prosecuted. Only one remains to be prosecuted. I am also mindful of the application of Section 7 of the Criminal Code Act in this case. The prisoner was a major player in the commission of all the 36 counts. He was the authority who approved the PGAs cheques to be drawn out in the name of the Treasury officers with willing and able assistance from the other two major players in the scheme.
    
23. The Pre-Sentence report does not really assist the prisoner. First of all, he still denies he committed the offences. However, he has offered restitution. For what, if he is innocent? How is he going to pay the restitution? To suggest that his friends and relatives will help him to make the restitution to me, with respect, is not going to materialize going by the past experiences in such cases as this, where restitution was promised with the help of family members but never paid. I do not rely on that promise.
    
24. In the circumstances taking into account all the mitigating factors, the aggravating factors, the pre-sentence report and how the offences were perpetrated and executed, I impose a sentence of 10 years imprisonment on each of the 36 counts to be served concurrently in hard labour. Two months are taken off from the 10 years from each of the 36 counts. The balance of the sentences to serve is 9 years, 10 months imprisonment in hard labour. All the sentences are to be served concurrently.
    
25. His K10,000.00 is to be refunded to him.
    

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