State v Kom [2009] PGNC 311; N6199 (2 December 2009)

N6199

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 114 OF 2008

THE STATE

-v-

MOKO ESSI KOM
Prisoner

Waigani: David, J
2009: 29 & 30 September & 2 December

CRIMINAL LAW – sentence – misappropriation – monies belonging to the State – substantial amount taken – money used by prisoner and accomplices – no restitution - well-planned premeditated and sophisticated scam - offence committed over a period of 14 months – prisoner played a significant role - crime committed in concert with others who were public officials and a banker – State suffered greatly from substantial loss of money - delivery of goods and services to people of Papua New Guinea by public servants affected – people of Papua New Guinea missed out on goods and services – prisoner's conduct had some impact on banking system as an accomplice was a banker – systems and processes in Department of Finance & Treasury manipulated by accomplices who were public officials working there to commit crime – adult offender, should know better - prevalence of offence – plea of guilty – first time offender – co-operation with police – long delay in bringing prisoner to his trial - genuine remorse or contrition expressed or demonstrated – prior good character – welfare of family treated with caution – custodial sentence of 8 years imposed Criminal Code, Sections 19 & 383A (1)(a)(2)(d).

Cases cited:

Public Prosecutor v Tom Ake [1978] PNGLR 469
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92
The Public Prosecutor v Vangu'u Ame (1983) PNGLR 424
Ure Hane v The State [1984] PNGLR 105
Kalabus v The State [1988] PNGLR 193
Wellington Belawa v The State (1988-89) PNGLR 496
Lawrence Simbe v The State [1994] PNGLR 38
The State v Yaip Joshua Avini & Plaridel Nony Acosta, Unreported & Unnumbered Judgment dated 14 November 1996
Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997
Yaip Joshua Avini & Plaridel Nony Acosta v The State [1997] PNGLR 212
Public Prosecutor v Don Hale (1998) SC564
The State v Sylvanus Siembo & 2 Ors, CR 97/1999, CR 722/1999 & CR 1220/2000, Unreported & Unnumbered Judgment dated 30 May 2002
Edmund Gima and Siune Arnold v The State (2003) SC730
The State v Daniel Mapiria (2004) CR 1118 of 2000, Unreported & Unnumbered Judgment of Mogish, J delivered on 1 October 2004
The State v Iori Veraga [2005] N2921
The State v Derrick Sakatea Niso (No 2) (2005) N2930
The State v Ludwina Tokiopron (2005)
Richard Liri v The State (2007) SC883
The State v Jimmy Kendi (No 2) (2007) N3131

Counsel:

Ravunama Auka, for the State
John Mesa, for the Prisoner

SENTENCE

2nd December, 2009

1. DAVID, J: INTRODUCTION: The prisoner, Moko Essi Kom was charged upon an indictment that between the months of October 2004 and December 2005 at Port Moresby in Papua New Guinea, he dishonestly applied to his own use and to the use of others the sum of K3,780,000.00, the property of the Independent State of Papua New Guinea which contravened Section 383A (1)(a) of the Criminal Code. The State also alleged that the prisoner was deemed a principal offender by operation of Section 7 of the Code. The prisoner pleaded guilty to the charge. I was satisfied that the evidence contained in the committal depositions supported the charge and therefore accepted the prisoner's guilty plea and convicted him as charged.

BRIEF FACTS

2. The prisoner pleaded guilty to the following short facts which were put to him when arraigned.

3. Between the months of October 2004 and December 2005 in Port Moresby, Papua New Guinea, the prisoner was approached by others to use the name or pseudonym, Simon Wapo so that by using that name he and others would embezzle funds from the Department of Finance and Treasury. The prisoner willingly agreed to use that name to claim from the Department of Finance and Treasury. As a result of the agreement, it enabled the others to make up certain documents under the name of Simon Wapo which were then submitted to the Department of Finance and Treasury requesting payments to be made based on them. As a result of the use of the documents made under that name, certain payments totalling K3,780,000.00 were made by cheques payable to the prisoner under the pseudonym Simon Wapo.
   
4. A new current account number 1001013152 was opened at the Bank of South Pacific, Waigani Branch where various cheques collected by the prisoner from the Department of Finance and Treasury were deposited. The prisoner then made arrangements with a bank officer working at the bank called John Vailala who made the cheque clearances which then led to cash payments being made to the prisoner totalling K3,780,000.00. The prisoner and others took the money and used it.
   
5. The Prisoner by agreeing to use the name Simon Wapo as his name, he had assisted others to receive payments from the Department of Finance and Treasury which he and others benefitted from. The Prisoner therefore dishonestly applied to his own use the sum of K3,780,000.00, the property of the Independent State of Papua New Guinea.
   

ANTECEDENTS

6. The prisoner has no prior convictions.
   
7. The prisoner is aged about 38 years now and is originally from Mata village, Kamtai in the Simbu Province. He is married and has four children. He is unemployed. He was residing at Hohola No.1, Port Moresby in the National Capital District when he committed the offence. The prisoner was arrested on or about 8 August 2006. He has been in custody ever since and that works out to be about 3 years and 4 months. He was committed to stand trial in the National Court on 1 February 2008.
   

ALLOCUTUS

8. When I administered the allocutus, the prisoner said that; he was used by others to commit the crime; he was sorry for the trouble he had caused; and he was married and had a family. He then asked the Court to have mercy on him.

SUBMISSIONS FOR THE PRISONER

9. Mr. Mesa of counsel for the prisoner submitted that the aggravating factors going against his client were; first, a substantial amount of money had been misappropriated perhaps the second largest known in our jurisdiction so far; second, it was a well planned scam that the prisoner acting in concert with others had executed over a period of about 2 years; and third, the State has suffered greatly from such a substantial loss of money.

10. Counsel submitted that the mitigating factors that should be applied in favour of the prisoner were; first, his guilty plea; second, he has co-operated with the police investigations as is shown by the Record of Interview and has furnished information that has led to the arrest of the others involved in the crime; third, he was unemployed, semi-literate with no form of formal education; and fourth, he was married with 4 children living with relatives at Hohola in the National Capital District.

11. As to penalty, counsel submitted that this case should be considered and decided on its own merits. In this case, the prisoner was a "carrier mule" involved in a sophisticated scheme hatched by other persons using him under a pseudonym he said. The prisoner could not have planned the sophisticated scheme given his lack of sophistication inferred from his level of education he said. Counsel conceded that the prisoner did play a role in the crime, but it was minor notwithstanding that he was a principal offender within the meaning of Section 7 of the Code. Counsel submitted that the prisoner was unemployed and had a family to look after at the relevant time and therefore when money was offered he was lured into accepting what was proposed by the others.

12. Counsel brought to the Court's attention the case of The State v Jimmy Kendi (No 2) (2007) N3131 where the court determined the sentence of the prisoner who was found guilty and convicted on two counts after a trial, one for obtaining monies by false pretence and the other for misappropriation contrary to Sections 404 and 383A (1)(a) of the Code respectively. The total amount involved in the two counts was K4,298,037.33, the property of the State.
    

13. In that case, the prisoner operated an earthmoving company called Jimendi Enterprises Limited in Arawa on what used to be known as the North Solomons Province, but now called the Autonomous Region of Bougainville. Apart from the machinery the company had, it leased a number of other machinery and equipment from Credit Corporation (PNG) Limited for purposes of road construction and maintenance. In 1987, the prisoner's company ran into financial difficulties and was unable to meet its financial obligations under the lease arrangement with Credit Corporation (PNG) Limited. That resulted in Credit Corporation (PNG) Limited repossessing its machinery and left them on site. In order to complete the road project, the North Solomons Provincial Government as it was then known entered into an agreement with Credit Corporation (PNG) Limited to complete the uncompleted work left by the prisoner's company. After the work was completed, Credit Corporation appointed a Receiver Manager to manage the machinery there while awaiting the machinery to be shipped across to Port Moresby where they were refurbished and sold. About 12 years later, the prisoner wrote a letter to the then Acting Defence Force Secretary claiming that the maritime and infantry elements of the Defence Force which were present on Bougainville during the crisis had, from 1993 to 1997, unlawfully used his machinery and equipment at Loloho and Torauto Island and requested payment for that. The prisoner was paid K4,298,037.33.

14. The Court there sentenced the prisoner to be imprisoned for a term of 4 years for false pretence; and 9 years for misappropriation and the sentences were ordered to be served cumulatively.

15. Counsel submitted that the present case can be distinguished from Jimmy Kendi (No 2) in that in the present case, the prisoner was involved with others and was convicted on a guilty plea while the prisoner in Jimmy Kendi (No 2) acted alone and was convicted after a trial.

16. Counsel submitted that whilst the prisoner was liable to imprisonment for 10 years by operation of Section 383A (2) of the Code, comparing the present case with Jimmy Kendi (No 2), a sentence less than 9 years was warranted. He suggested that a term between 5 to 8 years less the time spent in pre-trial custody was appropriate.

SUBMISSIONS FOR THE STATE

17. Counsel concurred with the defence that the prisoner was liable to imprisonment for 10 years under Section 383A (2) of the Code.

18. He submitted however that the sentencing guidelines enunciated by the Supreme Court in Wellington Belawa v The State (1988-89) PNGLR 496 were relevant only in so far as the factors were concerned when considering an appropriate sentence for the prisoner. He said the tariff recommended in Wellington Belawa was outdated given the prevalence of the offence, the manner in which the offence was being committed now was becoming sophisticated, and substantial amounts were being misappropriated now.

19. The amount misappropriated in the present case was very substantial, second only to the amount misappropriated in Jimmy Kendi (No 2) and has been used up selfishly by the prisoner and his friends with no restitution resulting in a massive financial loss to the State and impacting negatively on service delivery to the people of Papua New Guinea therefore the prisoner should be given a heavy punishment counsel said. He also contended that Wellington Belawa made it abundantly clear that where the amount misappropriated is substantial, the greater the punishment should be.

20. Counsel further submitted that other aggravating factors that needed to be considered in the present case were; the prisoner's willingness to participate in the crime by operating under the pseudonym Simon Wapo; and the crime was pre-meditated and committed over a period of 2 years before it was detected.

21. Counsel has also referred the Court to a number of cases by way of comparison in addition to Jimmy Kendi (No 2) namely, The State v Yaip Joshua Avini & Plaridel Nony Acosta, Unreported & Unnumbered Judgment dated 14 November 1996, The State v Iori Veraga (2005) N2921, The State v Ludwina Tokiopron (2005), The State v Sylvanus Siembo & 2 Ors., CR 97/1999, CR 722/1999 & CR 1220/2000, Unreported & Unnumbered Judgment dated 30 May 2002, and The State v Daniel Mapiria (2004) CR 1118 of 2000, Unreported & Unnumbered Judgment of Mogish, J delivered on 1 October 2004.

22. In Yaip Joshua Avini & Plaridel Nony Acosta, the prisoners, a Parliamentarian and a company director misappropriated K100,000.00 which was intended for two road projects. Both prisoners were convicted after a trial and each of them was sentenced to 8 years imprisonment. The aggravating factors there were; breach of high degree of trust; a large amount of money was misappropriated; and the impact of the offence was that the people from the Parliamentarian's electorate did not receive their roads. There the Court said the breach of trust by a parliamentarian to benefit himself and his co-offender at public expense warranted the imposition of severe punishment because unless drastic steps were taken, the ordinary people will continue to be manipulated and suffer at the hands of the very people they elected to assist them. The Supreme Court in Yaip Joshua Avini & Plaridel Nony Acosta v The State (1997) PNGLR 212 affirmed the convictions and sentences.

23. In Iori Veraga, the prisoner who was a registered practising valuer was convicted after a trial on 2 counts of conspiracy to defraud and 4 counts of misappropriation. The prisoner conspired with others including senior executives of the National Provident Fund to defraud the National Provident Fund by charging excessive valuation fees for his services. The amount involved in the counts for conspiracy to defraud was K235,300.00. He was sentenced to four years imprisonment on each charge of conspiracy to defraud to be served concurrently. The amount misappropriated was K144,955.00. With respect to the counts for misappropriation, when the prisoner was paid the money, he shared it with his accomplice namely, Jimmy Maladina who was the Chairman of the National Provident Fund Board. The prisoner only benefitted from K27,455.00. The prisoner was sentenced to two years for each count of misappropriation which were to be served concurrently. The court ordered that the terms imposed for all the offences were to be served cumulatively meaning the prisoner was to serve an effective term of 6 years. Some of the aggravating factors there were; it was a well planned scheme; the crime was designed to defraud a public institution established to cater for, amongst other things, the future welfare of ordinary workers employed within the private sector through contributions to the institution; a substantial amount was misappropriated; public trust and confidence in public officials and professional people was diminished; no restitution; no cooperation with the police and prosecuting authorities; and prevalence of dishonesty offences. Some of the factors applied in mitigation were; there was no breach of trust; the prisoner had no prior convictions; and until committing the offences, the prisoner had a good character.

24. In Ludwina Tokiopron, the prisoner was convicted on a guilty plea to misappropriating K200,000.00. There, the prisoner obtained money from the victim on the pretext that the money would be invested in a Pyramid Scheme in Singapore, but the money was never invested because it was used by the prisoner. The prisoner was sentenced to 6 years.

25. In Sylvanus Siembo, one of the prisoners was a Member of Parliament and Governor of Oro. He was convicted with two others who were senior public officials over the misappropriation of K100,000.00 which was intended for the construction of a road, but deposited into an account of a private company to earn interest. They were sentenced to 6 years imprisonment with a partial suspension of 3 years. Aggravating factors there were; substantial amount taken; breach of high degree of trust by a Parliamentarian and senior public officals; the fraud was perpetrated over a period of one month; the money was not used for the purpose intended; and the negative impact on public confidence because of the mockery of the public finance system and tendering process.

26. In Daniel Mapiria, the prisoner was convicted after a trial for misappropriating K3,188,000.00 the property of the National Gaming Control Board. He was the Chairman of the National Gaming Control Board. As Chairman of the Board, he was a signatory to the Board's operating account. He would sign blank cheques and leave them with the then Registrar of the Board who was also one of the signatories. The prisoner countersigned 41 "pay cash" cheques in total. The prisoner was sentenced to 9 years imprisonment, but the sentence was fully suspended with strict conditions applying including repaying K1 million to the National Gaming Control Board within 18 months of sentence because the Court found that the prisoner was suffering from a medical condition of some sort. Aggravating factors there were; the substantial amount taken; the breach of trust reposed in the Chairman of a multi million kina statutory corporation; and public confidence in those appointed to high office was undermined. Some of the factors applied in mitigation were; the lack of sophistication in the commission of the crime; the prisoner's level of culpability; the prisoner's age; the prisoner's desire to make restitution; and poor medical condition.

27. Counsel therefore submitted that a sentence between 7 to 9 years was appropriate in the circumstances of this case.

THE LAW

28. Section 383A (1) of the Code creates the offence and sub-section (2) prescribes the penalty. Those provisions state:

(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...."

29. The prescribed maximum sentence that can be imposed in the present case is, as both counsel have correctly pointed out, imprisonment for 10 years by virtue of sub-section 2 (d). This is because the amount dishonestly taken exceeds K2,000.00. The Court however has a considerable discretion to impose a lesser sentence other than the maximum sentence by virtue of Section 19 of the Code.

30. The maximum sentence for a particular offence is usually reserved for the worst type of case and that each case must be decided on its own facts as highlighted in Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105; Lawrence Simbe v The State [1994] PNGLR 38. This case falls within the range of worst cases for this offence.

31. Wellington Belawa is the leading authority in this jurisdiction for the offence of misappropriation and it sets out the sentencing guidelines for the offence. That case recommends that the following factors should be taken into account when determining what penalty to impose on an offender; the amount taken; the quality and degree of trust reposed in the offender; the period over which the fraud or theft was perpetrated; the use to which the money dishonestly taken was put; the effect upon the victim; the impact of the offence on the public and public confidence; the effect on fellow-employees or partners; the effect on the offender himself; the offender's own history; restitution of the money dishonestly taken; and matters of mitigation special to himself, such as ill health, young or old age, effect of excessive nervous strain and co-operation with the police.

32. Wellington Belawa also recommended a scale of sentences to be adjusted upward or downward depending on the various factors mentioned there and these are, where the amount misappropriated is; between K1.00 and K1,000.00, a gaol term should rarely be imposed; between K1,000.00 and K10,000.00, a gaol term of up to 2 years; between K10,000.00 and K40,000, a gaol term of 2 to 3 years; and between K40,000.00 to K150,000.00 a gaol term of 3 to 5 years.

33. It is generally accepted now that while the factors set out in Wellington Belawa are still relevant and applicable, the tariff recommended there however is outdated because the range of sentences have increased dramatically over the years due to the prevalence of the offence calling for stiffer sentences to be imposed.

34. In deciding an appropriate sentence where the offender has pleaded guilty, the Court is required to give the benefit of the doubt on matters of mitigation raised in the depositions, the allocutus or during submissions on sentence by the defence counsel that are not contested by the prosecutor: Saperus Yalibakut v The State SCRA No 52 of 2005, Unreported Judgment of the Supreme Court (Jalina J, Mogish J, Cannings J) delivered on 27 April 2006.

APPLICATION OF WELLLINGTON BELAWA FACTORS

35. Turning now to the factors suggested in Wellington Belawa, I address each of them below.

36. The amount taken by the prisoner was K3,780,000.00. This is the second worst case so far in this case amongst misappropriation cases behind Jimmy Kendi (No.2) where as I have indicated already K4,298,037.33 was dishonestly taken. The amount taken was indeed a very substantial amount and therefore a strong aggravating factor.

37. As to whether there was any breach of trust, there was none. This is a neutral factor.

38. As to the period over which the offence was perpetrated, the prisoner executed his guilty intention over a period of 14 months. This was a pre-meditated and sophisticated scam. This is a strong aggravating factor.

39. As to the use to which the money was put, the prisoner and his accomplices applied the monies to their own use. This is an aggravating factor.

40. As to what effect this offence has had on the victim, the State had K3,780,000.00 less to spend on delivery of much needed services to the people of Papua New Guinea including moneys to pay wages for public servants who oversee the delivery of those services. This is a strong aggravating factor.

41. As to the effect on the public and public confidence, the depositions show that public officials and a banker were involved in the scam. The prisoner's conduct had some impact on the banking system with an accomplice being a banker. The systems and processes in that Department of Finance & Treasury had to be manipulated by public officials working there who were the prisoner's accomplices in order for cheques to be drawn and this impacted negatively on that Department's ability to manage, control and safeguard public funds from being embezzled by or with the assistance of public officials. These are strong aggravating factors.

42. As to the effect on the offender, the prisoner was arrested and isolated from the free society including his own family by being remanded whilst waiting to be brought to his trial and having finally been brought to his trial and pleading guilty now awaits sentence. He urged the Court on allocutus to consider the fact that he was married and had a family, but it is my view that he should have thought about that before participating in the crime. His incarceration is the natural consequence of his criminal conduct and the suffering brought upon his family is self-inflicted. It was held by the Supreme Court in Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997 that the question about the welfare of family members was becoming a lame excuse by offenders seeking to mitigate the wrongdoing and should be treated with caution. It was also held in The Public Prosecutor v Vangu'u Ame (1983) PNGLR 424 that an offender should not use welfare of his children to escape punishment. Whilst this is a mitigating factor, I place less weight on it.

43. As to the offender's own history, he has had an unblemished record with no prior convictions until now. This is a mitigating factor, however prior good character in the circumstances of this case will carry little weight.

44. As to whether any restitution has been made, there has been none. The Court does not have the benefit of a means assessment report to truly assess whether the Prisoner has the means to restitute the whole amount taken or even part of it, but before his arrest he was unemployed and had no formal educational qualifications to obtain a decent employment which would fetch him a reasonable income. I think it can be safely inferred that the prisoner certainly does not have the means to restitute. I would normally treat this as a neutral factor, but the substantial amount dishonestly taken and selfishly used up by the prisoner and his accomplices to the detriment of the State and the people of Papua New Guinea calls for me to treat this as an aggravating factor.

45. The prisoner pleaded guilty so deserving to be given a discount on sentence. This is a strong mitigating factor.

46. His expression of remorse appeared to me to be genuine. I say this in recognition of the legal proposition that a guilty plea may demonstrate and support remorse and contrition: Public Prosecutor v Tom Ake [1978] PNGLR 469; Kalabus v The State [1988] PNGLR 193. His guilty plea was consistent with the admissions made in the Record of Interview conducted on 10 August 2006 which was done at the earliest opportunity available and that demonstrated his acceptance of criminal responsibility for his criminal conduct since the commission of the offence. This is a good mitigating factor.

47. As to whether there are matters of mitigation special to prisoner, there are a couple and these are:

1. he has co-operated with the police investigations and made admissions in the Record of Interview that has led to the arrest of other accomplices;
2. there was a long delay in bringing the accused to his trial.
   

SUMMARY OF FACTORS OF MITIGATION AND AGGRAVATION PRESENT IN THE PRESENT CASE

48. The following are mitigating factors:

1. The offender pleaded guilty;

2. The offender is a first time offender;

3. The offender co-operated with the police investigations as is shown by the Record of Interview and has furnished information that has led to the arrest of the others involved in the crime;

4. There was a long delay in bringing the accused to his trial;

5. The offender has expressed or demonstrated genuine remorse and contrition;

6. Until the commission of the crime, the prisoner had a good character;

7. The welfare of the prisoner's wife and children (with caution).

49. The following are aggravating factors:

1. A substantial amount of money was misappropriated;
2. The money was used up by the prisoner and his accomplices;
3. No restitution;

4. It was a well planned pre-meditated and sophisticated scam;

5. The fraud was executed over a period of 14 months;

6. The prisoner played a significant role in the fraudulent scheme, he was a willing participant;

7. The prisoner acted in concert with others who were public officials and a banker;

8. The State has suffered greatly from such a substantial loss of money;

9. Delivery of goods and services to the people of Papua New Guinea by public servants was affected from such a substantial loss of money;

10. People of Papua New Guinea missed out on goods and services that could have been funded from the monies misappropriated;

11. The prisoner's conduct had some impact on the banking system with an accomplice being a banker;

12. The systems and processes in that Department of Finance & Treasury had to be manipulated by public officials working there who were the prisoner's accomplices in order for cheques to be drawn and this impacted negatively on the Department's ability to manage, control and safeguard public funds from being embezzled by or with the assistance of public officials;

13. The prisoner was an adult, he should have known better. Lack of education whilst residing in an urban area gives no assistance to him to claim lack of sophistication;

14. The offence was prevalent. Methods adopted to commit the crime were becoming sophisticated and the amounts being misappropriated were also getting bigger as in the present case.

50. The factors in aggravation far outweigh those in mitigation.

FURTHER COMPARABLE SENTENCE

51. I have also considered The State v Derrick Sakatea Niso (No 2) (2005) N2930. In that case, the prisoner conspired with his accomplices to defraud the Bank of Papua New Guinea of K500,000.00. The cheque came into his possession during the course of work between the Clearance Section and the General Ledgers Section. Of the K500,000.00, K193,911.71 was frozen in three bogus accounts operated at two commercial banks and could be recovered. The remaining amount of K276,088.29 could not be accounted for. He and his accomplices used these monies. At the time of committing the crimes, the prisoner had been in the employ of the bank for 20 years and was then the Senior Clerk and Supervisor in the General Ledgers Section. He was charged with one count of conspiracy to defraud, one count of forgery, one count of fraudulently uttering a false document and one count of misappropriation and was convicted of all charges after a trial.

52. Some of the aggravating factors there were; a substantial amount was taken; breach of high degree of trust reposed on him by the bank; the offender was a senior officer in the bank holding a responsible position with duties including the handling of investment cheques with large amounts; public confidence in the banking system here and abroad was undermined; the offences impacted upon the bank's ability to provide and promote good governance and sound and effective financial and economic management. For the misappropriation charge, the prisoner was sentenced to 7 years and 6 months imprisonment. Some of the factors taken into account in mitigation were: the prisoner had no prior convictions; he had 22 years of unblemished record with the bank; the nature of his job did not equate with those holding positions such as a director or manager of a company or someone entrusted with the control of funds allocated for specific projects; these crimes were not planned or premeditated, but were opportunistic in nature; a substantial amount was accounted for and would be recovered eventually by the bank; and his accomplices must also share the blame.

SENTENCE

53. This case does not fall under any of the categories of the tariff recommended in Wellington Belawa. The fourth category there relates to monies misappropriated between K40,000.00 to K150,000.00 where a gaol term of 3 to 5 years is recommended. No tariff is fixed for cases which would attract sentences exceeding 5 years up to the maximum penalty of 10 years. The Supreme Court basically left this to the Courts exercising their sentencing discretion in appropriate cases to be considered on their own merits.

54. I think I should consider a sentence closer to or similar to the ones imposed in Daniel Mapiria and Jimmy Kendi (No.2) where both prisoners were sentenced to 9 years after trial. Comparatively, this is a case where the prisoner has pleaded guilty and as I have mentioned already, he should have the benefit of a discount for saving the State and Court the time and resources to conduct a trial to determine his guilt or otherwise.

55. I have considered imposing the maximum sentence for this offence given the seriousness of the offence and its impact on the State and people of Papua New Guinea, but I have decided against that. Guided by the comparable sentences that I have mentioned already, more particularly Daniel Mapiria and Jimmy Kendi (No.2), I think a personal and general deterrent head sentence of 8 years imprisonment in hard labour is appropriate in the circumstances of the present case. I will deduct 3 years and 4 months from the head sentence for the time spent in custody leaving a balance of 4 years and 8 months (the remaining term) for the prisoner to serve.

56. I have not considered the suspension of any part of the remaining term because there was no pre sentence report to assist me to determine whether the prisoner was a suitable person for that purpose. This is because the Supreme Court has held that there can be no suspension of a sentence without the support of a pre-sentence report: Public Prosecutor v Don Hale (1998) SC564; Edmund Gima and Siune Arnold v The State (2003) SC730; Richard Liri v The State (2007) SC883.

57. Incarceration will be at the Bomana Correctional Institution.

58. A warrant to give effect to this sentence shall be issued forthwith.

Sentenced accordingly.
___________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner