State v Maino [2004] PGNC 8; N2773 (1 October 2004)

N2773

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR NO. 340 OF 2003

BETWEEN:

THE STATE

AND:

IMOI MAINO
Prisoner

DECISION ON SENTENCE

WAIGANI : DAVID, A.J.
2004 : 8th & 22nd September, 1st October

CRIMINAL LAW – Sentencing – misappropriation of K106,355.02 – conspiracy with three (3) others who have also been convicted of misappropriation and sentenced in separate trials – Means Assessment Report shows that prisoner has no means to restitute whole amount – Four (4) years imprisonment in hard labour – First two (2) years to be served in gaol and the balance suspended with conditions – SS.19 & 383A(1) Criminal Code.

Cases Cited:
Brian Kindi Lawi v. The State [1987] PNGLR 183
Wellington Belawa v. The State [1988-89] PNGLR 496
Joseph Rokpa v. The State [1994] PNGLR 535
The State v. Paroa Kaia (1995) N1401
The State v. Bygonnes Tuse Nae (1996) N1474
The State v. Dobi Ao (No.2) (2002) N2247

Counsel:
Ms D. Ganai for the State
Mr J. Sasingan for the Prisoner

DAVID, A.J.: The indictment in this case was presented on 11th November 2003. Upon being arraigned, you pleaded guilty to one (1) count of misappropriation, such laid pursuant to Section 383A(1)(a) of the Criminal Code, the State alleging that between 1st May 2000 and 3rd July 2001 at Waigani, National Capital District in Papua New Guinea, you misappropriated a total sum of One Hundred and Six Thousand, Three Hundred and Fifty-Five Kina and Two Toea (K106,355.02) which was applied to your own use and to the use of other persons, property belonging to the Department of Education ("the Department").

The brief facts of the case as per the District (Committal) Court depositions ("the depositions") are that between 1st May 2000 and 3rd July 2001, you were employed by the Department as a Payroll Clerk based at its Headquarters at Fincorp Haus, Waigani, National Capital District. On various occasions whilst employed by the Department, you also acted in other positions as Payroll Dispatch Clerk, OIC Special Pays and 2IC Payroll Section.

While you were attached to the Payroll Section between 1st May 2000 and 3rd July 2001, you arranged for fifteen (15) cheques to be drawn fraudulently in favour of four (4) teachers namely, John Ak (2), James Mogia Baundi (1), Justin Goma (6) and Usan Erip (5) and one made payable to yourself. Usan Erip is the one and same person known as Susan Erip, the wife of Justin Goma but she had no idea of the fraud as the cheques were personally received by her husband who arranged encashment himself. The Means Assessment Report provided by the Probation Services dated 21st September 2004 confirms that Messrs Ak, Baundi and Goma have also been convicted and sentenced in separate trials for taking part and benefiting from the conspiracy with orders to restitute in each case and both Counsels acknowledge that in their submissions. Your admissions are contained in your answers to questions 18-23, 31-88 and 100-141 of the Record of Interview. There was no justification at all for the issuing of those cheques.

You, conspiring with Messrs Ak, Baundi and Goma, devised a scheme whereby you created a Manual Pay Schedule. The Payroll Section then raised all the fraudulent cheques which were typed at the typing pool, particulars of which were provided in the Manual Pay Schedule. Upon receiving the cheques, you would then destroy the Manual Pay Schedule and have the cheques stamped with the Secretary’s pre-made stamp and you then delivered them to your co-conspirators personally apart from the one made payable to yourself.

The Law

Section 383A(1)(a) of the Criminal Code, under which you have been charged and to which you have pleaded guilty, creates the offence and subsection 2 of that Section prescribes the penalty. Section 383A of the Criminal Code provides:-

"383A. Misappropriation of property.

(1) A person who dishonestly applies to his own use or to the use of another person—

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

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

(a) where the offender is a director of a company and the property dishonestly applied is company property;

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

(c) where the property dishonestly applied was subject to a trust, direction or condition;

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

(3) For the purposes of this section—

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and ..."

Sentencing guidelines for misappropriation cases are set out in Wellington Belawa v. The State [1988-89] PNGLR 496. In that case, the Supreme Court held that where the amount misappropriated is less, lesser sentence should be imposed whereas where a bigger amount was involved, the term of the sentence should be higher. The Court recommended the following sentencing tariff to be used as a base to be adjusted upwards or downwards where the amount taken is between K1,000.00 and K10,000.00 a gaol term of up to two (2) years, where the amount taken is between K10,000.00 and K40,000.00, a gaol term of two (2) to three (3) years and where the amount taken is between K40,000.00 and K150,000.00, a gaol term of between three (3) to five (5) years is appropriate.

The relevant factors to be taken into account in sentencing an offender for the offence of misappropriation are also set out in Wellington Belawa v. The State (supra) and in this case they are:-

1. The amount taken

The amount taken was K106,355.02 made up of fifteen (15) cheques issued fraudulently.

2. The degree of trust

The Department employed you as a Payroll Clerk. You acted in various capacities higher than your substantive position during the period of about 9 years whilst employed by the Department. You were trusted as an employee and a public servant to perform your tasks and duties in particular the payment of teachers’ salaries in the country. Unfortunately for the Department, you betrayed the trust placed upon you to its detriment and the Department has lost a substantial amount of money.

3. The period over which the offence was committed

The offence was committed over a period of over fourteen (14) months or one (1) year and sixty-three (63) days. The scheme was well disguised and if it had not been uncovered, further substantial losses would have been suffered by the Department.

4. The use to which the money was put

The evidence before the Court shows that you fraudulently arranged and issued fifteen (15) cheques payable to five (5) individuals including yourself. Out of the fifteen (15) cheques raised, a cheque for K699.04 was made out to your name. You benefited from that cheque and also from monies received from your co-conspirators including entertainment they provided. You purchased a motor vehicle too from those monies. There is evidence from the depositions that you in fact received and applied to your own use the sum of K23,773.76 out of the total amount of K106,355.02 misappropriated.

5. The effect on the victim

The loss of money by the Department of Education during the period alluded to above no doubt has caused it to suffer financially.

6. The effect on the offender

You are unemployed and that you have a wife, an adopted son and your aged mother to look after. Currently, you live on money received through your wife selling scones and cordial drinks every day at Nine (9) Mile. You have no other means of income. Having been charged, taken into custody, convicted and now awaiting sentence for the crime has no doubt affected your family as they would naturally suffer the humiliation and shame that is associated with a convicted person and having to fend for themselves when imprisoned. You lost your job as a result of this crime. I note that you served the Department well for about nine (9) years before your termination on 7th November 2002.

7. Restitution
   

The Means Assessment Report indicates that you are not able to restitute the whole amount misappropriated.

Your counsel has submitted that your final service entitlements of K5,205.92 and POSF contributions of K10,117.66 totalling K15,323.58 have been forfeited to the Department of Education.

As alluded to earlier, in Wellington Belawa v. The State (supra), the tariff for amounts misappropriated between K40,000.00 and K150,000.00 is three (3) to five (5) years imprisonment. You actually received and applied to your own use K23,773.76 although the total amount misappropriated is K106,355.02. That case was decided more than fourteen (14) years ago and the prevalence of the offence calls for increased sentences: The State v. Paroa Kaia (1995) N1401.

I am of the view that it will be unfair if you are to be made the scapegoat for the whole fraudulent scheme when others were also involved. However, you played a large role in the scheme therefore you must pay the price. This crime is prevalent in our society today and people who are placed in positions of trust such as you were and who betray that trust should be punished sternly by the Court.

Your counsel has submitted that a non-custodial sentence is appropriate. He has referred the Court to the case of The State v. Dobi Ao (No.2) (2002) N2247. In that case, His Honour Kandakasi,J found the accused guilty after trial of eight (8) counts of misappropriation totaling K37,526.58 and one (1) count of attempted misappropriation of K5,980.70. His Honour sentenced the prisoner to three (3) years imprisonment but the whole of the sentence was suspended with conditions. His Honour said:-

"Only an effective sentence can bring about a real achievement of aims or purposes of criminal sentencing. It is well accepted that an offender may be better reformed through community participation. Indeed, I have been told in the course of hearing submissions in this case, that two of my previous community-based sentences are doing well and a formal report is forthcoming. When placed with such information, it is far better to get community involved than not, if to do so will keep reform offenders whilst at the same time make them pay for their wrongs by rendering free service to the community rather than become a strain in the public purse. The onus is on the sentencing judge to device a sentence that will meet the interests of society in punishing offenders and at the same time the interest of the offender be treated fairly and to be given a chance to reform and become a better law abiding citizen."

Counsel for the State has submitted that the Court exercise its discretion as to what penalty to impose including any order for restitution considering the prevalence of the crime, the position of trust you held and that the crime was perpetrated over a period of over fourteen (14) months. She has also referred the Court to the cases of Brian Kindi Lawi v. The State (1987) PNGLR 183, Joseph Rokpa v. The State (1994) PNGLR 535, The State v. Bygonnes Tuse Nae (1996) N1474 to show that the sentencing tariff in Wellington Belawa v. The State (supra) is outdated. In Brian Kindi Lawi v. The State (supra), the prisoner was convicted for two (2) counts of misappropriating K6,000.00 and K10,000.00 and was sentenced to eighteen (18) months and three (3) years respectively. In Joseph Rokpa v. The State (supra), the prisoner was sentenced to three (3) years after being convicted for misappropriating K5,000.00. In The State v. Bygonnes Tuse Nae (supra) the prisoner was sentenced to four (4) years for misappropriating a total of K 103,587.71.

I have carefully considered whether I should suspend any part of the sentence I will impose. I have considered the submissions of your counsel and counsel for the State, the Means Assessment Report and what you expressed during allocatus, the fact that a trial did not take place because you pleaded guilty to the charge, your co-operation with the police including your admissions in the Record of Interview, your Antecedent Report including the fact that you are a first time offender, considerations regarding your family and other factors for and against you which I have been asked to consider for the purpose of sentencing, I consider that a sentence of four (4) years imprisonment in hard labour is appropriate. Having considered all the circumstances of the case and in exercise of the Court’s discretion under Section 19 of the Criminal Code, I make the following orders:-

1. That you serve the first two (2) years of the total term of four (4) years in Bomana gaol in hard labour.
   
2. Upon completion of service of the first two (2) years in gaol, you will be released to serve the further two (2) years on suspension.
   
3. Immediately upon completion of the first two (2) years, you are to contact the Chief Probation Officer.
   
4. You will then report to the Probation Officer as and when required by the Probation Officer to do so during the period of suspension.
   
5. You are to keep the peace and be of good behaviour during the period of suspension.
   
6. You are not to change your residential address at Nine (9) Mile Moitaka Ridge Settlement, National Capital District during the period of suspension unless you have given the Chief Probation Officer reasonable notice of your intention to do so and the reason for the proposed change.
   
7. You shall for the purpose of the Probation Act, allow a Probation Officer to enter your home during reasonable hours while serving the suspended sentence.
   
8. During the period of suspension, you will work two (2) full working days (8 hours per day) on Tuesdays and Thursdays at the Port Moresby General Hospital, National Capital District free of charge and subject to their directions and in consultation with the Chief Probation Officer. You must obey all instructions.
   

In the event that any one of the conditions of suspension above is not complied with, then your probation will be breached and you will be sent to gaol to serve the balance of the term which is being suspended.

I also order that bail monies be refunded to you.
_________________________________________________

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