State v Uviri [2008] PGNC 286; N5468 (16 October 2008)

N5468

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 984 0F 2007

THE STATE

V

NANCY LEAH UVIRI

Kimbe: Cannings J
2008:14 August, 7, 16 October

CRIMINAL LAW – sentence – Criminal Code, Subdivision VI.1.C (offences analogous to stealing) – Section 383A (misappropriation of property) – sentence on plea of guilty – offender pleaded guilty to misappropriating K536,134.00 from her employer; clear evidence of approximately K300,000.00 in depositions – sentence of 7 years.

The offender pleaded guilty to misappropriation of K536,134.00 in cash from her employer, over an 18-month period. She engineered a scheme of presenting bogus invoices and obtaining cash. There was clear evidence of misappropriation of K300,000.00 and she was sentenced on the basis that that was the amount that had been misappropriated.

Held:

(1) The starting point range for sentencing for the amount misappropriated is six to ten years imprisonment.

(2) Mitigating factors are: co-operated with police; repaid some money; pleaded guilty; first-time offender. Aggravating factors are: very large amount of money; transactions committed over long period; severe breach of trust; money not put to good use.

(3) A sentence of seven years was imposed. No part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Augustine Seckry CR 376 of 2005, 19.04.05
The State v Joyce Gulum CR 1620 of 2005, 06.04.06
The State v Paul Taro CR 237 of 2006, 03.08.06
The State v Rictor Naiab CR 387 of 2005, 08.09.05
The State v Steven Lasin CR No 1631 of 2006, 17.08.07
Wellington Belawa v The State [1988-89] PNGLR 496

SENTENCE

This is a judgment on sentence for misappropriation.

Counsel

F Popeu, for the State
R Beli, for the offender

16th October, 2008

1. CANNINGS J: This is a decision on sentence for a woman, Nancy Leah Uviri, who pleaded guilty to one count of misappropriation. She was an employee of one of the biggest companies operating in West New Britain, Kimbe Bay Shipping Agencies Limited. In 2005 she was in charge of the section of the company that received invoices from fishermen, who were selling fish to the company, which would then hold the fish in its freezer department. Over a 19-month period, from July 2005 to February 2007, she issued invoices in bogus names and then used the invoices to obtain cash from the accounts section of the company, ostensibly to pay the fishermen. In the case of the bogus invoices, instead of paying out the cash to fishermen, she converted it to her own use. She has pleaded guilty to misappropriating K536,134.00. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted her of misappropriation under Section 383A of the Criminal Code.

2. Since entering the conviction, I have more closely considered the depositions and concluded that there is clear evidence of misappropriation of about K300,000.00. I do not consider, however, that this means that the conviction should be vacated. There is clear evidence of the elements of the charge and the offender has pleaded guilty to misappropriation of a substantial amount of money. I have decided to proceed with the sentence.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. She said:

I am very sorry about what has happened. The company has got back some of our property, worth about K120,000.00. I am now employed again, elsewhere, and I ask the court to consider me for probation. I am willing to pay back what is still owed to the company.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty she will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). As I pointed out earlier, I will take into account as a mitigating factor that the amount actually misappropriated is about K300,000.00; which is significantly less than the amount that the offender pleaded guilty to misappropriating: about K536,134.00. I also take into account that she made full admissions when interviewed by the police and she appears to have co-operated with the police. Furthermore, it is not disputed that the company has, with the assistance of the police, recovered property from the offender to the value of about K120,000.00.

PRE-SENTENCE REPORT

6. A pre-sentence report prepared by the Kimbe branch of the Community Based Corrections Service shows that Nancy Uviri is 29 years old, married, with one child. She is of mixed West and East New Britain parentage. She grew up at Buluma, between Kimbe and Hoskins. She has strong family support and is well regarded in the local community. She was educated to grade 10 at Hoskins High School. She has been employed fairly regularly since 1999, first with the Spirit of West New Britain Company, then she joined KBSA in 2000, where she was employed until 2007. She was sacked over the misappropriation matter that is now before the court. She has since started a new job as a supervisor with Buluma Mart. She is recommended for a long period of probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Beli highlighted the guilty plea and the offender's preparedness to repay the money to the company. A sentence of around four years imprisonment, fully suspended, would be appropriate, he submitted.

SUBMISSIONS BY THE STATE

8. Mr Popeu submitted that a sterner sentence is required, in view of the amount misappropriated. A sentence of five to eight years is warranted, he submitted.

DECISION MAKING PROCESS

9. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. As the amount of money misappropriated is more than K2,000.00 the maximum penalty under Section 383A(2)(d) is ten years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. The Supreme Court set out some starting point ranges in Wellington Belawa v The State [1988-89] PNGLR 496, depending on the amount of money misappropriated. Thus:

• K1.00 to K1,000.00 – a jail term should rarely be imposed;
• K1,000.00 to K10,000.00 – two years imprisonment;
• K10,000.00 to K40,000.00 – two to three years imprisonment;
• K40,000.00 to K150,000.00 – three to five years.
  

12. However, since that case, circumstances in Papua New Guinea have changed. There is an enhanced level of community concern about corruption, dishonesty and misappropriation both in the public sector and in the private sector. In my view this should be reflected by doubling the tariffs suggested in Belawa. That is:

• K1.00 to K1,000.00 – suspended sentence usually appropriate;
• K1,000.00 to K10,000.00 – four years imprisonment;
• K10,000.00 to K40,000.00 – four to six years imprisonment;
• K40,000.00 to K150,000.00 and beyond – six to ten years.
  

13. The present case falls into the last category, which means a range of six to ten years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

14. Before I fix a sentence, I will consider other misappropriation sentences I have handed down recently. These cases are shown in the table below.

TABLE 1: SENTENCES FOR MISAPPROPRIATION, 2005-2007

No	Case	Details	Sentence
1	The State v Augustine Seckry CR 376/2005, 19.04.05	Guilty plea – offender employed as an accounts clerk by NBPOL – dishonestly cashed company cheques that were supposed to have been cancelled – applied monies to his own use – K18,000.00 misappropriated.	4 years
2	The State v Rictor Naiab CR 387/2005, 08.09.05	Guilty plea – cashed cheques in his custody as an accounts clerk, employed by Hargy Oil Palms – used the money in hotels – K2,000.00 misappropriated.	18 months
3	The State v Joyce Gulum CR 1620/2005, 06.04.06	Guilty plea – employed as accounts clerk by Hargy Oil Palms, deposited company cheques and cash into private bank account and applied to her own use – K14,000.00 misappropriated.	2 years
4	The State v Paul Taro CR 237/2006, 03.08.06	Guilty plea – over a period of three months monies paid in cash for hire vehicles were not receipted – offender was acting branch manager of Hertz Hire Car, Kimbe – K22,000.00 misappropriated.	4 years
5	The State v Steven Lasin CR 1631/2006, 17.08.07	Guilty plea – offender given custody of two cheques worth K10,888.00 intended for 28 individual electoral officers as allowances – cashed the cheques and applied the proceeds to his own use.	4 years

STEP 4: WHAT IS THE HEAD SENTENCE?

15. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be strongly mitigating. Others may be mildly mitigating. The same goes for aggravating factors. Three sorts of considerations are listed. Numbers 1 to 7 focus on the circumstances of the incident. Numbers 8 to 12 focus on what the offender has done since the incident and how he has conducted himself. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Was only a small amount of money misappropriated? No, it was a very large amount of money, even after I have given the benefit of the doubt to the offender on the amount actually misappropriated.
   
2. Was the offender in no special position of trust? No. She was a supervisor in a large company.
   
3. Did the transactions take place over a short period? No. There was a long-term pattern of deceit.
   
4. Was the money that was misappropriated applied to a good use? No. A lot of it appears to have been spent on travel and accommodation.
   
5. Did the offender's actions have only a small adverse effect on other persons? This is unclear.
   
6. Did the offender's actions have only a small adverse effect on public confidence in the integrity of the public sector, the banking system or the private sector or a company? This is a neutral factor.
   
7. Have the offender and her family already paid a heavy price for her actions? This is a neutral factor.
   
8. Did the offender give herself up before being detected? No.
   
9. Did the offender cooperate with the police in their investigations? Yes.
   
10. Has the offender done anything tangible towards repairing her wrong, eg repaying the money misappropriated or making a serious attempt to do so, personally or publicly apologising for what she did? Yes, some of the money has been recovered by the company.
    
11. Has the offender pleaded guilty? Yes.
    
12. Has the offender genuinely expressed remorse? Neutral. I have not detected genuine remorse.
    
13. Is this her first offence? Yes.
    
14. Can the offender be regarded as a youthful offender or are her personal circumstances such that they should mitigate the sentence? No, she is an educated and intelligent person and she should have known better.
    
15. Are there any other circumstances of the misappropriation or the offender that warrant mitigation of the head sentence? No.
    

16. To recap, the mitigating factors are:

• No 9 – co-operated with police;
• No 10 – repaid some money;
• No 11 – pleaded guilty;
• No 13 – first-time offender.
  

17. Aggravating factors are:

• No 1 – very large amount of money;
• No 2 – severe breach of trust;
• No 3 – transactions committed over long period;
• No 4 – money not put to good use;
• No 8 – did not give herself up;
• No 14 – educated and intelligent person who should have known better.
  

18. The other factors are neutral. After weighing all these factors and bearing in mind that there are more aggravating factors (which are very weighty) than mitigating factors, and comparing this case with other misappropriation sentences I have imposed, this is easily the most serious case of misappropriation that I have dealt with. The head sentence should be above the bottom of the starting point range. I impose a head sentence of seven years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. The offender has spent no time in custody, so there is nothing to deduct.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20. The offender has received a reasonably favourable pre-sentence report. However, I have not been persuaded that any part of the sentence should be suspended. This was a very serious crime, displaying all the attributes of deceit, dishonesty and deception that can be otherwise described as corruption. This was not corruption in the public sector, it was corruption in the private sector. But wherever it takes place, this sort of conduct eats away at the fabric of our society, which must be based on honesty and decency, and fairness. In the Preamble to the Constitution the People of Papua New Guinea assert "that our national wealth, won by honest, hard work be equitably shared by all". Such serious criminal conduct must be deterred and the best way of doing that is to imprison offenders. I do not consider that her proposal to repay the company is realistic and it has not been documented. The best thing is for the offender to spend a substantial period in custody.

SENTENCE

21. Nancy Leah Uviri, having been convicted of one count of misappropriation, is sentenced as follows:

Length of sentence imposed	7 years
Pre-sentence period to be deducted	Nil
Resultant length of sentence to be served	7 years
Amount of sentence suspended	Nil
Time to be served in custody	7 years
Place of custody	Lakiemata Correctional Institution

Sentenced accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender