N11491

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) No. 91 OF 2024

THE STATE

V

JACKLYN BUNDI

WAIGANI: BERRIGAN J
9 JULY, 5, 22 SEPTEMBER 2025

CRIMINAL LAW– SENTENCE – GUILTY PLEA - S 407(1)(b) of the Criminal Code – Conspiracy to defraud – Limited participation by offender - Sentence of 3 years of imprisonment, less time spent in custody. Balance of 9 months, 14 days suspended having regard to prospects for rehabilitation and medical conditions. 

Cases cited
Wellington Belawa v The State [1988-1989] PNGLR 496 
David Kaya and Philip Kaman v The State (2020) SC2026
The State v Dau (2021) N9508
Roland Tom and Kalen Kopen v State (2019) SC1833
State v Wai (2020) N8453
The State v Niso (No 2) (2005) N2930
The State v Iori Veraga (2005) N2849
The State v Mathew Kana, CR No 843 of 2012, 11 June 2014, unreported
The State v David Poholi (2016) N6214
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38  
State v Namaliu (2020) N8506
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320

Counsel
L Jack for the State
J Sebby for the offender 

DECISION ON SENTENCE

1.	BERRIGAN J: 	The offender, Jacklyn Bundi, pleaded guilty to one count of conspiracy to defraud Steven Goraiye, contrary to s 407(1)(b) of the Criminal Code, the maximum penalty for which is 7 years of imprisonment.

2.	Mr Goraiye is the Managing Director of Api Builders and Contractors Limited. In 2023 the company was engaged by the Middle Ramu District to carry out infrastructure development. He was informed by the Member for Middle Ramu that a cheque for K7.5m was ready for collection and came to Port Moresby for that purpose. A person who identified himself as John Aure, Deputy Secretary for the Department of Treasury, contacted him via telephone and demanded K300,000 commission to release the cheque. The complainant agreed to pay K50,000. On 3 July 2023 he was directed by the person identifying themselves as John Aure to meet his secretary, Jacklyn, and deliver the monies in return for the cheque, which he did. Upon trying to deposit the cheque he was informed by BSP that they required further documentation from the Department of Finance. In response the person known to him as John Aure told him to pay the balance of the commission so that they could fast track the process. He withdrew another K100,000 and gave it to the offender at Vulupindi Haus. He was told the cheque would be cleared the next day. On examining the cheque again the complainant realised it was fake. On 6 July the complainant contacted John Aure and told him he would pay another K50,000. Instead, he set a trap and the offender was apprehended when she went to collect the cash. Her co-conspirators remain at large. 

Allocutus 

3.	On allocutus the offender apologised to the complainant, the police and the Court. She is a villager and they used her as a runner to commit the offence. The first round they gave her K2000 and the second time K3000. She did not know how much was in the envelope. In total she received K5000. She asked the Court for mercy. She has a young daughter. She is sick and has not taken medication or eaten good food whilst in custody.

Sentencing Principles and Comparative Cases
4.	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:

a)	the amount taken;
b)	the quality and degree of trust reposed in the offender;
c)	the period over which the offence was perpetrated;
d)	the impact of the offence on the public and public confidence;
e)	the use to which the money was put;
f)	the effect upon the victim;
g)	whether any restitution has been made;
h)	remorse;
i)	the nature of the plea;
j)	any prior record;
k)	the effect on the offender; and
l)	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.	Having regard to the scale outlined in that case, and following amendments to s 383A, the Supreme Court (Batari J and Berrigan J) 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:

a)	K1 and K1000 a gaol term should rarely be imposed;
b)	K1,000 and K10,000, a gaol term of up to two years is appropriate;
c)	K10,000 and K40,000, two to three years’ imprisonment is appropriate;
d)	K40,000 and K100,000, three to five years of imprisonment is appropriate;
e)	K100,000 and K500,000, five to seven years’ imprisonment is appropriate; and
f)	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.

6.	Whilst the principles are applicable generally to dishonesty offences it must be remembered when considering the tariffs suggested that the maximum penalty for misappropriation is ten years. 

7.	The State sought a sentence of two to three years. It does not oppose suspension. It refers to the following cases:

a)	State v Dau (2021) N9508, Berrigan J: the offender was convicted following trial of one count of official corruption and one count of conspiracy to defraud, contrary to ss 87(1)(a) and 407(1)(b), respectively. Whilst employed as a Cargo Officer with the PNG Customs Service the offender conspired with others to defraud the State of tax and customs duty payable on cigarettes brought into the country in a shipping container.  To this end she corruptly received K5000 on account of ensuring that the container would avoid inspection in the discharge of her duties, potentially enabling the importers to avoid payment of tax and customs duty of an estimated value of K2.8m.  Suspicions had been aroused, however, and the cigarettes were seized after they left the wharf and destroyed.
b)	Roland Tom and Kalen Kopen v State (2019) SC1833: the appellant Roland Tom moved into a property owned by the complainant as a tenant. He conspired with Kalen Kopen to defraud the owner of the title to the property. They uttered false documents, namely a contract of sale and transfer of title purporting ownership of the property by Ronald Tom and then falsely pretended to the NHC that Ronald Tom was the owner of the property. They were convicted of conspiracy, uttering and obtaining by false pretence and sentenced to four, three and four years, respectively, to be served concurrently. Their appeals against conviction and sentence were dismissed;
c)	State v Wai (2020) N8453, Berrigan J: the offender was convicted following re-trial of conspiring with others to defraud the complainant of gold valued at K105,340.50 and then misappropriated the gold to his own use.  He was sentenced following the first trial to 2 and 4 years of imprisonment, respectively, to be served concurrently, wholly suspended on condition of restitution.  The offender failed to make restitution by the due date.  He was taken into custody, subsequently released on remission subject to parole, the term of which is shortly to expire. The offender was sentenced in the same terms;

8.	Defence counsel also submitted that a sentence of two to three years was appropriate given her limited role and the extent to which she benefitted, together with her medical condition, which has significantly deteriorated whilst in custody. He sought to have the sentence backdated to the date of her arrest and have her sentenced to the rising of the Court or the sentence wholly suspended. 

9.	I have also considered the following authorities: 

a)	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);
b)	The State v Iori Veraga (2005) N2849, Sakora J, in which the prisoner was found guilty following trial of conspiracy to defraud and misappropriation of K144,955 from the National Provident Fund as a result of inflated land valuations.  He was sentenced to 7 years’ on the (4) conspiracy charges and 2 years’ on the corresponding misappropriation charges, to be served cumulatively, with an effective sentence of 6 years’ imprisonment; 
c)	The State v Mathew Kana, CR No 843 of 2012, 11 June 2014, unreported, Sakora J, in which the prisoner pleaded to one count of misappropriation and one count of conspiracy to defraud Twivey Lawyers of K164,570.30. He was sentenced to 5 years of imprisonment;
d)	The State v David Poholi (2016) N6214, Salika DCJ (as he then was), in which the prisoner pleaded guilty to one count of conspiracy to defraud and one count of misappropriation of K688,000.00 from BSP, his employer, whilst a Human Resource Benefits and Remuneration Officer, over a period of 18 months and involving 134 transactions.  He was sentenced to 3 and 5 years’ respectively on each count, to be served concurrently.

Consideration  

10.	This is not a case warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653 applied.  I remind myself that s 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 circumstances: Lawrence Simbe v The State [1994] PNGLR 38.  

11.	Applying the principles outlined in Wellington Belawa, the following matters have been taken into account in determining an appropriate sentence.

12.	There was no breach of trust. The offence was committed over a few days between 30 June 2023 and 6 July 2023.  The seriousness of this offence lies in a conspiracy to defraud another using information from the Department of Finance albeit the complainant should never have agreed to give a commission for the release of the funds. Whilst the State does not contend that the offender played a leading role in the offending she nevertheless agreed with her co-conspirators to defraud the complainant which resulted in the loss of a very large amount of money. 

13.	I accept, however, that the offender’s role was limited to being a runner for her co-conspirators and that her personal benefit was limited to K5000. Her culpability was therefore far less than those of the offenders referred to in the comparative cases above.

14.	Dishonesty offences like this one are increasingly prevalent and the offence calls for both specific and general deterrence.

15.	The offender is 34 years old. She is from North Waghi District, Jiwaka Province. She moved to Port Moresby after her husband divorced her to look for work to support her child, who was seven years old at the time of the offence. 

16.	In mitigation this is her first offence. She pleaded guilty at the first opportunity before the Court. I take this into account as indicative of her remorse, which she expressed on allocutus and which I accept as genuine.  I also take it into account on the basis that it has saved Court time and the State and its witnesses the cost and inconvenience of a trial. 

17.	According to Probation Services, the offender is illiterate. She left school at an early stage and was a subsistence farmer before moving to Port Moresby. She lived in a motel room in Port Moresby and survived by sub-letting the room to clients.

18.	I reject counsel’s submission that she fully cooperated with police in a way that warrants significant mitigation. Cooperation with authorities, like an early guilty plea, will only be a significant factor in mitigation when it constitutes genuine contrition and remorse, or reflects a willingness to assist authorities in their investigations and facilitate the course of justice. The nature and extent of the cooperation and its value to authorities are relevant factors in this regard: State v Namaliu (2020) N8506 at [52] to [53]. 

19.	Whilst I accept that she may have accompanied police following her arrest in some attempt to locate her co-conspirators that was unsuccessful and otherwise her assistance to police was limited. The offender exercised her right to remain silent during police interview. Even as a runner she must have information about the person or persons that she was dealing with beyond that which she was willing to share.  I appreciate that it appears from the phone records that she may have been threatened with violence and even death if she were to reveal the identities of those concerned but she decided to keep those secrets. 

20.	The impact of the offence on the offender has been significant. She has been in custody since her arrest on 6 July 2023 and separated from her daughter who is now living with the offender’s ex-husband. 

21.	There are no matters of special mitigation to the offender in terms of age or delay.  Her health is significant factor.  Reports from the OIC Medical Services, Inspector Gibson Darius, and Anglicare Port Moresby confirm that the offender is HIV positive. She was first diagnosed on 2 September 2020 by Anglicare and was receiving anti-retroviral medication. Whilst medication was made available for administration by the Correctional Services Medical Unit the offender declined to receive the medication fearing stigma and discrimination within the prison. Regrettably she was diagnosed with lymph node tuberculosis in August 2024. Since then she has completed treatment for TB and has resumed taking her ARV medication. She was recently diagnosed as being HPV positive, which places her at greater risk of developing certain cancer. Whilst assessed as having a high viral load in September 2023 due to poor adherence to medication she was assessed in May this year as generally asymptomatic and clinically stable.

22.	In all the circumstances I sentence the offender to three years of imprisonment.  I exercise my discretion to deduct time spent in custody.

23.	Probation Services confirms that the offender has no means to make restitution, even of the K5000 she received. She has no permanent address and supervision will be difficult. 
24.	I do not consider that the offender would suffer excessively in prison nor that her health situation is rapidly deteriorating in custody. The decision to refuse ARV was ultimately her own and since resuming treatment her health has stabilised. Nevertheless, I do intend to recognise the good prospects shown for rehabilitation by suspending the balance of the custodial term imposed, most of which she has already served, which will enable her to better access the medical care she requires. 

25.	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. 

26.	I make the following orders.

Orders

(1)	The offender is sentenced to three years of imprisonment to be served without hard labour.
(2)	Time spent in custody since 6 July 2023, namely two years, 2 months, 16 days, is deducted from time to be served. 
(3)	The balance of the sentence is suspended upon the offender entering into her own recognisance to keep the peace and be of good behaviour.

Sentence accordingly.

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