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State v Yamog [2025] PGNC 177; N11311 (14 May 2025)

N11311

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) NO. 161-200 AND 204-287 OF 2022

THE STATE

V

OLIVIA YAMOG

MT HAGEN: BERRIGAN J
14 MAY 2025

CRIMINAL LAW – SENTENCE – MISAPPROPRIATION – K16,976 – 3 years of imprisonment without hard labour, partially suspended on conditions.

Cases cited:
Wellington Belawa v The State [1988-89] PNGLR 496
David Kaya and Philip Kaman v The State (2020) SC2026
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
The State v Likius (2004) N2518
The State v Alice Wilmot (2005) N2857
The State v Philip Wiamai (2007) N5492
The State v Iralu (2008) N3710
The State v Emba (2011) N5012
The State v Simon Savoa Feaviri, CR (FC) 103 of 2017, unreported
The State v Mercy Lohia (2018) N7614
The State v Jarick (2021) N9000
The State v Mamando (2008) N3709
The State v Teka (2008) N3509
The State v Haulai (2004) N2555
The State v Ao (2002) N2247
The State v Zuvani (2004) N2641
The State v Peni (2014) N5932

Counsel
J Kesan, for the State
W Oa, for the offender

DECISION ON SENTENCE

1. BERRIGAN J: The offender was found guilty following trial of misappropriating K16,976, contrary to s 383A(1)(a)(2)(d), Criminal Code for which the maximum penalty is 10 years of imprisonment.
   
2. The offender was employed as the front counter cashier with PNG Power Limited (PPL) in Mt Hagen. The offender took cash intended to meet PPL’s charges for her own use and moved other monies about from one PPL customer account to another on PPL’s computer system(s) to cover her tracks.
   
3. In particular, in January 2020 the offender took K4088 in cash paid by customer Wops Ltd for herself. In July 2020 she applied K4088 from a cheque that should have been applied to Dae Won Trading Limited’s account to Wops Ltd’s account on the system to cover the shortfall from January. In June 2020 the offender applied K8800 from the account of another customer, Monpi Coffee, to Wops Ltd account to cover up the fact that she had taken that amount of cash for herself at an earlier time instead of recording it against Wops Ltd’s account.
   

Submissions and Comparative Cases

4. Sentencing in such cases is properly guided by the principles outlined in Wellington Belawa v The State [1988-1989] PNGLR 496 in which the Supreme Court identified the following factors which might be taken into account, 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.
       
5. The Supreme Court also 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 involved is between:
   
   1. K1 and K1000, a gaol term should rarely be imposed;
   2. K1000 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; and
   4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
      
6. That guide is unchanged for our purposes: see David Kaya and Philip Kaman v The State (2020) SC2026.
   
7. The State sought a sentence of four to six years having regard to the amount, duration and use of monies. It referred to the following cases in support of its submissions:
   
   1. The State v Likius (2004) N2518, Lenalia J: The State v Benson Likius (2004) N2518, Lenalia, J: The prisoner, a payroll clerk with Lihir Management Company, pleaded guilty to one count of misappropriating a sum of K68, 679.06 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;
   2. The State v Alice Wilmot (2005) N2857, Sevua J, in which the prisoner pleaded guilty to one count of misappropriating K19,960 systematically over a period of 17 months whilst a bank teller from her employer, ANZ. The prisoner failed to express remorse and was sentenced to 3 years’, partially suspended to take into account restitution;
   100. The State v Philip Wiamai (2007) N5492, Cannings J, in which the prisoner pleaded guilty to one count of misappropriating K16,848.70. The prisoner agreed to assist his cousin brother, a retired school teacher, obtain his finish pay but once he did he put it into his own bank account. The prisoner was sentenced to 4 years’ wholly suspended on conditions, including restitution;
   4. The State v Iralu (2008) N3710, David J: the offender pleaded guilty to stealing K9000 from her employer. She was sentenced to 3 years of imprisonment, wholly suspended on conditions including restitution and community service;
   5. The State v Emba (2011) N5012, 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, wholly suspended on conditions including restitution;
   6. The State v Simon Savoa Feaviri, CR (FC) 103 of 2017, unreported 8 December 2017, in which the prisoner was found guilty by Kandakasi J following trial of one count of misappropriating K18,931.25 belonging to BSP. He was sentenced to 3 years’ imprisonment, wholly suspended on conditions including restitution;
   7. The State v Mercy Lohia (2018) N7614, Berrigan J: the prisoner was an accounts officer with the Papua New Guinea Red Cross Society. On various occasions between 1 December 2017 and 31 March 2018 the prisoner forged the signature of the Society’s authorised signatories on 25 Bank of South Pacific (BSP) cheques belonging to her employer and uttered those cheques at BSP to obtain K19,151.75 from its account which she dishonestly applied to her own use and the use of others. She pleaded guilty and was sentenced to 3 years for each count, to be served concurrently, wholly suspended on conditions, including restitution and community service;
   8. The State v Jarick (2021) N9000, Berrigan J: Dorothy Jarick, Wilma Dongo, and Terry Laka pleaded guilty to misappropriating funds while working as cashiers at Air Niugini. They implemented a scheme to divert cash from ticket sales for personal use, manipulated reconciliation sheets, and delayed banking to conceal shortfalls. Over the period of several months, Dorothy misappropriated a total of K230,000, Wilma misappropriated K230,000 and Terry misappropriated K96,956.90. Dorothy and Wilma were sentenced to 5 years imprisonment while Terry was sentenced to 4 years imprisonment, of which 18 months was suspended in each case on conditions, including community service.
      
8. Defence counsel submitted that a sentence of two to three years was appropriate having regard to the following:
   
   1. The State v Mamando (2008) N3709, David J: The offender pleaded guilty, whilst a cashier to misappropriating K34,326.75 paid to her employer. She was sentenced to 4 years’ imprisonment, of which 3 years was suspended on conditions;
   2. The State v Teka (2008) N3509, Makail AJ: the prisoner pleaded guilty to misappropriating K37,000 in cash from the victim, her brother in law. The victim came from the village with K40,000 to purchase a PMV but there were none in stock at Ela Motors in Mt Hagen. He approached the victim and asked her to hold K37,000 until a bus became available for sale. The prisoner deposited it to her account and applied it over a period of time for her own use until it was depleted. The prisoner was sentenced to 5 years’ imprisonment which was wholly suspended on conditions including full restitution;
   100. The State v Haulai (2004) N2555, Kandakasi J: the offender whilst in the employ of Air Niugini as a Cargo Officer in Vanimo over a period of 9 months applied to his own use the sum of K27,320.00 constituting ticket and cargo sales. On several occasions he received cash, of which he kept a small amount and falsified deposit slips to cover his tracks. He was sentenced to 3 years, wholly suspended on conditions, including restitution and community service;
   4. The State v Ao (2002) N2247, Kandakasi J: the offender was found guilty, whilst employed as the second in charge of the Department of Education’s Overseas Staff Section, of eight counts of misappropriating funds totalling K37,526.58, and a further charge of attempted misappropriation of K5,980.70, all of her employer. Over a period of two months she raised false schedules for a number of overseas contract and volunteer officers employed with the Department against which cheques were raised. She then forged signatures of the named payees and had the cheques cashed. The prisoner applied the funds towards meeting family and community needs. She was sentenced to three years imprisonment which was fully suspended on terms including orders for full restitution and community service;
   5. The State v Zuvani (2004) N2641, Cannings J: the offender pleaded guilty to misappropriating K22,685.43 belonging to her employer Bank of South Pacific Limited into a relative’s account and subsequently withdrawing the monies. She had almost made full restitution of the money by the time of sentencing. She was sentenced to 4, wholly suspended on conditions;
   6. The State v Peni (2014) N5932, Kawi AJ: the offender was found guilty following trial of dishonestly applying K2.4 million in public funds obtained for the purpose of a water project to his own use. He was sentenced to 8 years imprisonment wholly suspended on condition of restitution within 5 years.
      

Consideration

9. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. Applying the principles outlined in Wellington Belawa, the following matters have been taken into account in determining an appropriate sentence.
   
10. The amount in this case places the offence in the third category of Wellington Belawa, attracting a range of between two and three years of imprisonment as a starting point. This is not a case warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653 applied.
    
11. In aggravation, this was an offence involving a breach of trust for personal gain. The offender was an employee of PNG Power and whilst not holding a senior position she obviously held a critical and highly trusted position as cashier which she abused. The misappropriation involved some planning and took place on a number of occasions over several months. There is no suggestion that the monies were taken out of any need. To date there has been no restitution but since conviction the offender has secured the funds with assistance of her family and is able to make full restitution.
    
12. Regrettably, Probation Services has been unable to speak to the Manager of the PNG Power Limited officer here in Mt Hagen despite numerous attempts. I have no doubt, however, that the impact of the offence on PNG Power Limited has been significant. At the higher level I am sure it affected the company’s reputation and it spent significant time and resources on the investigation. It was also clear to me during the trial that the offence has created a sense of mistrust and affected morale within the local office.
    
13. The offender is 32 years of age. She is from East Sepik Province but has been living in Mt Hagen for over nine years. She is married with one three year old girl with whom she was pregnant at the time of her arrest. She is educated to Grade 12, which she completed in Jiwaka Province. Her first and only employment has been with PNG Power Limited, which she commenced in 2015. She is currently unemployed.
    
14. In mitigation this is the offender’s first offence. She expressed remorse on allocutus, which I accept is genuine. She is of prior good character. Her referees, Pastor Angela Yakumb, Mt Hagen City Church, and Superintendent Richard Lokalyo, both say that she is a dedicated member of the Church and a person of high moral standing and dedication. Those references are of limited weight. There is nothing in those references to suggest that Ms Yamog has informed them of the offence of which she has been convicted and they appear to have been references created in the nature of job references.
    
15. The impact of the offence on the offender has been significant. It has been some five years since the offences were committed. The offender has spent a little time in custody. She lost a secure position in a national company that many Papua New Guineans would be envious of. Having regard to her limited qualifications and the nature of the offence I have no doubt that she will struggle to find formal employment in the future, as has already been demonstrated by her failed attempts to obtain employment since termination.
    
16. Dishonesty offences are prevalent, and this case calls for both general and specific deterrence.
    
17. Having considered all of the above matters, including comparative cases, I sentence the offender to three years of imprisonment without hard labour. I exercise my discretion to deduct the time spent in custody to date.
    
18. The offender pleads for the sentence to be suspended. The State opposes it. Probation Services considers the offender to be suitable for supervision. At the time the report was prepared the offender had gathered K7000 to pay restitution and there is evidence before me to confirm that she now has the funds available to make full restitution with the assistance of her family.
    
19. I was initially disinclined to suspend sentence. On balance, however, I intend to do so. It is my view that this is the best way of promoting the rehabilitation of the offender. The offender has already gathered the funds to make restitution, which it appears has not been easy, and which shows her commitment to the matter. The order will enable her to continue to care for her young child whilst also undertaking community service. The offender will not easily forget the seriousness of her offending. This is not an act in leniency but a form of punishment to be served outside the prison system in the community interest: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.
    
20. Accordingly, I make the following orders.
    

Orders

(1) The offender is sentenced to three years of imprisonment without hard labour.
(2) Time spent in custody, namely four days is deducted from time to be served.
(3) The sentence is wholly suspended on condition that:

1. Restitution in the sum of K16,976 is paid into the National Court Trust Account for payment to PNG Power Limited within two weeks of today’s date;
2. The offender undertake 200 hours of community service under the supervision of Probation Services within the first year of her suspension; and

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

(4) Any deposited bail monies are to be immediately refunded.

Sentence accordingly.

_______________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyers for the offender: Palem Onom Lawyers