State v Emba [2011] PGNC 297; N5012 (14 August 2011)

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CRIMINAL LAW – sentence – change of plea – accused pleaded guilty to charges of misappropriation and conspiracy to defraud – appropriate sentence considered – restitution considered as appropriate penalty – prisoner to pay restitution with suspended sentence

Wellington Belawa –v- The State [1988-89] PNGLR 496
Brian Kindi Lawi –v- The State [1987] PNGLR 183
The State –v- Gabriel Ramoi.
Doreen Lipirin –v- The State
The State –v- Nancy Miviri (CR 984 of 2007, Unreported judgement)
The State –v- Harold Piniau (No. 2) CR 1338 of 2008,
The State –v- Tainoli, unreported National Court Judgement
The State –v- Christian Korei [2005] N2946
Public Prosecutor –v- Bruce Tardew [1986] PNGLR 91

1. KAWI J: The State presented an indictment charging Robyn Emba with two charges. The first count was a charge for conspiracy to defraud Air Niugini of its money.

The second charge was brought under Section 515 of the Criminal Code. The second charge was one of misappropriation brought under Section 383A of the Criminal Code. The accused pleaded not guilty to both counts.

2. The trial then commenced with the State calling one witness to testify. During luncheon break, both the defence counsel and State prosecutor entered into serious discussions.

3. When the court resumed after the luncheon break, the defence counsel, Mr Potoura advised the court that his client had changed her plea from one of not guilty to a plea of guilty. Mr Kupmain for the State on his part advised the court that following the change of plea the State had agreed to offer no evidence to the charge of conspiracy to defraud. The accused would therefore plead guilty to the charge of misappropriation only. I accepted this and had the accused re-arraigned. I accepted her plea of guilty and convicted her of the charge of misappropriation under Section 383A. This is now my judgement on her sentence.

4. During her allocutus statement the prisoner apologized to the court as well as her then employer, Air Niugini Limited. She begged the court for mercy and leniency when sentencing her.

5. She asked the court to consider the fate of her disabled child when considering her penalty.

6. The facts to which the accused pleaded guilty are that at all material times, she was employed as a cashier with Air Niugini Limited based here in Kimbe. She was employed between 6th September 2004 and 5th September 2006.

7. Being the cashier, Robyn was primarily responsible for collecting cash monies from the sale of airline tickets.

8. Having collected the cash monies, she would then be responsible for locking up these cash monies in the safe. She had the keys to the safe. Being the cashier, it was her primary responsibility, to take out the monies from the safe and have them deposited in the bank.

9. The State alleges that between the 4th September 2004 and 5 September 2006, Robyn obtained cash monies in the sum of K286,491.71 belonging to Air Niugini which were primarily monies from the ticket sales. To avoid detection by Air Niugini, the prisoner got the ticket coupons and destroyed them. She applied these stolen monies to her own use.

(b) Can the court suspend the sentence imposed upon the prisoner either fully or partially

11. The prisoner pleaded guilty to the charge of misappropriation contrary to Section 383A(1)(a)2(b)(d). Relevantly this provision is stated in these terms:

(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;

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for five (5) years except in any of the following cases when he is liable to imprisonment for ten (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 the 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.

Issue No: 1 what is an appropriate sentence can the court impose upon the prisoner?

12. In considering the appropriateness of the sentence that I intend to impose, I take as the start point the Supreme Court decision in Wellington Belawa –v- The State [1988-89] PNGLR 496. This case sets out the sentencing guidelines in misappropriation cases. In my view this decision may be outdated by some 20 years, and may not truly reflect the changing social circumstances and trend in Papua New Guinea. Therefore it would need another Supreme Court to review and set new guidelines. But until that is done, the guidelines set out in Wellington Belawa has been religiously and judiciously followed and applied by judges in this jurisdiction. In summary the Supreme court stated that the lesser the amount of money dishonestly applied, the lesser the sentence terms should be. The flipside of this is that, the higher, the amount of money, dishonestly applied, the higher will be the penalty imposed.

13. The Supreme Court in Wellington Belawa's case stated that the following factors should also be taken into account:

(2) The quality and degree of trust reposed upon the offender including his rank;

Being placed under great strain by excessive responsibilities or the like, where, as sometimes happens, there has been a long delay say over two years, between his being confronted with his dishonesty by his professional body or the police or the start of his trial; and finally any help given by him to police.

14. I will now address this factors first before I come to the sentence to be imposed:

The amount of money stolen is very substantial some K286,491.71 was stolen. No-one employee of Air Niugini occupying positions below the senior management level can afford to earn that kind of money in his/her entire working life with the National Airline.

The thefts here commenced around September 2004 and was not detected until September 2006. It was an ongoing theft over a two year period.

Air Niugini Ltd placed a lot of trust and confidence upon the prisoner by appointing her to a position where she was dealing with thousands of Kina on a daily basis. Positions were employees dealt with and were entrusted to collect thousands of Kina every day are positions of trust, responsibility and authority. She was initially employed by Air Niugini. Then she left that employment and was away for two years. Upon her re-engagement, she was appointed to the same position again. This demonstrates the degree and level of trust the National airline placed upon the prisoner.

15. Although it was not a managerial position, the position of cashier was more or less a very important position because it involved handling thousands of kina every day of the week.

16. Air Niugini placed a very high degree and quality of trust upon its cashiers since they are at the forefront of collecting and making money for the National flag carrier.

17. Persons who occupy position of trust, must be very honest and trust worthy in all their dealings. Their conduct must be above reproach.

18. Despite the high quality of trust bestowed upon you by the National Airline, you abused that trust and confidence by literally stealing from the very hand that was feeding you. To avoid detection, you engineered a scheme whereby you destroyed the ticket butts. You were very dishonest and you squandered your ill gotten gain with the knowledge of these who aided and abetted you in the commission of the crime.

The state did not produce any evidence to show how you spent your ill gotten gains. Neither did it make any allegations as to show how you the prisoner applied the monies you stole. You yourself did not even tell the court how you spent the monies you stole.

The amount you stole is quite a substantial amount of money. Although Air Niugini is a company it depends on members of the travelling public who pay to travel, and you were at the forefront collecting those monies from the travelling public.

It is these funds who will ensure that our National Airline will continue to fly. The amount of K286,491.71 is a substantial amount of money. It will have a big impact on the profit level of Air Niugini.

There is no doubt that members of the travelling public will continue to fly the National Airline, but someone like you will never be trusted again.

You are no longer employed by Air Niugini Limited. But make no mistake, your conduct has left many of your former colleagues, and friends, and the other employees of Air Niugini feel greatly deceived and let down by you. There is no specific evidence before me on this aspect, but it is not remotely impossible for the court to draw this conclusion of your deceitful conduct.

There is no doubt that when your stealing became public knowledge, it has a devastating effect, not only upon yourself, but upon your husband, your innocent children, who I imagine had to put on a very brave face to go to school. Even your extended family must have felt ashamed and embarrassed by your criminal actions. The reality of PNG today means that finding a meaningful employment is visually nil. But I also note that you are now living at Morokea Village an urban village community living on the outskirts of Kimbe town and the realities of close village communal life are such that the community is fairly forgiving.

You are not employed. In your allocutus statement, you told the court that you hope to find employment that will enable you to repay the monies you stole. Given the difficulties of finding meaningful employment, this court will not readily accept your undertaking that you will find a job and then make restitution. To show that you are serious about making restitution, you paid K5,000.00 towards the total amount you misappropriated.

19. This is a significant factor in mitigation of that K286,491.71 that you dishonestly applied.

20. It was further pointed out on your behalf that you would make restitution payments of K10,000.00 every three months or every quarter. This means that for the fourth and final quarter, you would have paid K40,000.00 every year. Going by this proposed schedule of repayments it would take more than 71/2 years for completion of the restitution.

21. Air Niugini Limited, your former employer has made it clear that it will accept restitution only if a full once and for all repayment is made. Falling short of that it made it clear that you be given a custodial sentence. Such custodial sentence should be deterrent in nature so that it can send a clear message to its other employees and other would be offenders that stealing will not be tolerated.

22. Your brother has rallied behind you and pledged to repay K2,000.00 to assist in the restitution process. To date he has not made that payment as yet. I would treat that pledge from your brother as a lip service pledge only.

23. You made a K5,000.00 payment to indicate your seriousness in making restitution. Since paying that K5,000.00, you have not made any more payments to demonstrate your seriousness and genuineness in making restitution. I purposely delayed giving this judgment early to see if you would make any more payments towards restituting the moneys you stole. But you simply did not thus clearly demonstrating that even if I order restitution, you would not be serious enough to make restitution in accordance with any schedule of payment orders I make.

24. It is clear that the K5,000.00 you paid was to make it look as if you were going to restitute stolen monies, but your conduct suggest otherwise.

25. In my view you were simply pretending and giving the court the impression that you will restitute the monies you stole, when the reality shows otherwise.

26. Your husband indicated in the Pre-Sentence Report that he is willing to pay K20,000.00 as initial restitution payment and thereafter make payment every two months. To date he has not lived up to his word to make the K20,000.00 repayment. I will therefore not pay much attention to this repayment assistance from your husband. Your husband is now waiting for the court to order him to start the repayment. But on his own initiative he cannot make that payment. These are factors against you.

27. A comprehensive Pre-Sentence Report and a Means Assessment Report was carried out on the prisoner. The report sough the view of all stakeholders. It sought the views of the prisoner's family, the victim, Air Niugini Management. The report also sough the views of other independent Stakeholders in the community.

28. In this regard it sought the views of the Morokea Ward Councillor, Mr John Reu who asked the court to consider giving a probation sentence considering that she has 5 children, some of whom are still going to Primary School, and one is a disabled child who needs the tendering loving care and extra attention of his mother. Mr Reu also said the prisoner is not a high risk person who poses a serious threat to the community. The Pre-Sentence Report finally recommended that the prisoner was assessed as a person who is a community minded and oriented person.

29. A Means Assessment Report was also carried out by the Community Based Correction Officer. The report was concerned about whether the prisoner had any assets of value from which restitution could be easily made. From the Report it appears that the only asset of any real value owned by the prisoner was a five bedroom house.

30. Other than the house, the prisoner has virtually no other assets of value to help her repay the amount stolen. She is unemployed and does not have a steady source of income from which she could make some restitution. She indicated making repayment on quarterly basis. The inevitable conclusion to draw here is that even if restitution is ordered, the prisoner will face difficulties in making repayments to restitute monies stolen.

31. The prisoner will not be in a better position to comply with any schedule of repayments. Her brother who had promised to assist her, made a pledge of only a minimal amount of K2,000.00 which is hardly significant. Her husband had made a pledge to assist her make a repayment of K20,000.00. On her part, the prisoner has agreed to forfeit her bail money of K500.00 and all her unpaid final entitlements, leave fare and other privileges towards repayment of the stolen monies.

32. I note that this is a very honorable intention, but when added together none of these monetary pledges will have any significant bearing on the amount of money stolen.

33. It was urged upon the court to consider that the prisoner and her husband have a one year old child who will need the constant love and care of a mother more than a father. Further the court was also told that the prisoner has another child who is disabled and who requires additional care. The responsibility of this will be shifted to the prisoner's husband if the wife is sent to jail.

34. In Wellington Belawa's case the Supreme Court set the following scale of sentences which has since been accepted by trial judges and used as providing a sentencing base to be adjusted either upwards or downwards according to the factors that I have already outlined earlier above. Where the amount misappropriated is between:

Amount Misappropriated	Sentencing Range
K100.00 to K1,000.00	Jail term to be rarely imposed
K1,000.00 and K10,000.00	2 years imprisonment
K10,000.00 and K40,000.00	2-3 years imprisonment
K40,000.00 to K150,000.00	3-5 years imprisonment

35. Going by these guidelines, I am of the view that the amount of money dishonestly applied by the prisoner would attract a jail sentence of 6-7 years in prison.

36. Counsel for the State outlined sentencing tariffs in this kind of cases and then submitted that the most appropriate sentence would be a custodial term of more than 5 years. Both counsels urged the court to take into account the following factors in favour of the prisoner when computing an appropriate sentence:

The plea of guilty saved the court a lot of time and expense which the court would have incurred in running a trial.

(b) It would have given a lot of weight to the plea of guilty if it was made earlier. Here the plea was only made after the State called its first witness and completed his evidence. Consequently, I will not give a lot of weight to a plea made in those circumstances.

(c) Your publicly expressed remorse and apologized to the National Airline, the court and your community as well as your innocent family. You were ashamed and embarrassed of your actions. You expressed a willingness to make restitution, but the court finds from evidence available that on your own you do not have the capacity and means available to make restitution.

(a) The prisoner was placed in or occupied a position of trust and responsibility.

(b) The amount of money she misappropriated is quite substantial. Defence Counsel submits that she did not become rich over night.

While that may be true, it is not a question of getting rich or poor. It is a question of breaching the trust vested upon the prisoner and dishonestly applying a very huge amount of money for her own use when that money was some-one else's property.

(c) The white collar crime of misappropriation is now prevalent in our communities. People are engineering all kinds of schemes to steal. The case before me involved one such scheme where the prisoner was the chief architect, and to avoid detection she made it her business to destroy all ticket coupons.

38. It is an important aspect of criminal law sentencing that sentencing tariffs must be considered to determine sentences in future cases if subsequent sentences are to have any relevance to the interests of society to appropriately deal with offenders.

39. Earlier cases of misappropriation have always been punished by imposition of custodial sentences. This trend is represented by cases such as Brian Kindi Lawi –v- The State [1987] PNGLR 183, and The State –v- Gabriel Ramoi.

40. The case of Doreen Liprin –v- The State [2001] SC 671 represented a new trend in sentencing in misappropriation cases. The then Chief Justice proposed that rather than impose custodial sentence, an alternative punishment should also be considered. His Honour then proposed that the courts should consider making orders for free community service to be supervised by the Probations Service. Many judges have follow up the challenge to impose alternatives to imposing strictly custodial sentencing.

41. The table below shows this kind of trend where judges have either suspended the head sentences either partly or fully with strict conditions.

Name of Case	Amount Stolen	Plea	Kind of sentence imposed
Wellington Belawa	K1979.00	Not Guilty	Two years imprisonment
Brian Kindi Lawi	K10,000.00	Not guilty	3 years imprisonment
Paroa Kaia	K94,478	Guilty	4 years imprisonment
Bygonnes Tusa Nae	K100,000.00	Guilty	4 years imprisonment
Doreen Liprin	K6,000.00	Guilty	18 months imprisonment
Dobi Ao	K37, 526.58	Not Guilty	3 years sentence wholly suspended. Prisoner ordered to do community work on strict terms.
Gibson Haulai	K27,320.00	Guilty	3 years wholly suspended. Prisoner ordered to do community work on strict terms.
Siba Kua	K9,829.60	Guilty	3 years imprisonment 1 year wholly suspended. Prisoner served two years in prison.
Sano Kuromu	K9720.00	Guilty	2 years imprisonment wholly suspended
Morgan Bae	K15,000.00	Guilty	2 years imprisonment wholly suspended with strict conditions.
Evans Pomat Kutan	K25, 320.00	Guilty	2 years fully suspended on strict conditions
Roby Emba	K286,491.71	Guilty	6 years Imposed with full suspension subject to strict restitution Orders. Restitution to be made within 7 months.

42. In the present case both counsels have referred to past sentencing tariffs to be used as a guide to compute an appropriate penalty. Defence Counsel referred to the case of The State –v- Nancy Miviri (CR 984 of 2007, unreported judgement of Cannings J dated 16th October 2008).

43. In that case, a young woman pleaded guilty to misappropriating a sum of K3 000, 000.00 from her employer. She did this by presenting bogus invoices and obtaining cash. She was given a jail term of seven (7) years.

44. In The State –v- Harold Piniau (No. 2) CR 1338 of 2008, Lenalia J found the accused guilty and convicted him of dishonestly applying to his own use the sum of K187,979.88. The prisoner was the ANZ Bank Branch Manager in Wewak. Using his position and privileges, he designed a scheme to steal monies. The stealing occurred over a period of two years. The court imposed a term of five (5) years of which three years were fully suspended and the prisoner served only two (2) years in jail.

45. In The State –v- Tainoli, unreported National Court Judgement dated 24th November 2004, Mogish J found that the prisoner had deposited a stolen cheque of K185,000.00 and deposited it into a bank account controlled by herself and her husband.

46. Additional facts considered by the trial judge was that, the prisoner had a nine (9) month old baby, the stolen amount was fully recovered, there was no breach of trust and that the prisoner did not benefit from her own fraudulent activities. She was then given a wholly suspended four (4) years sentence, with very strict conditions.

47. The sentence in this case must recognize all of the significant mitigating factors mentioned by counsel, but also the abuse and breach of trust, the prevalence of this type of offence in the country and the amount misappropriated.

48. This court also takes into account that the prisoner and her husband have an eighteen (18) months old child as well as a disabled child who requires additional care, the full burden of which would be shifted to the husband if she is given a custodial sentence.

49. Going by the sentencing tariffs from the cases quoted above, and the Wellington Belawa guidelines, I would fix as head sentence, a prison term of six (6) years to be spent in light labour at the Lakiemata Jail outside Kimbe.

DETERMINATION OF ISSUE 2 – CAN THE COURT SUSPEND EITHER FULLY OR PERTIALLY THE SENTENCE IMPOSED UPON THE PRISONER?

50. I consider that a wholly suspended sentence is rarely appropriate in cases involving large sums of money. It does not serve the people's perception of justice being done where there is a large disparity between sentences of say break, enter and stealing and the type of offence now before the court.

51. There are, as the legally trained mind knows, different consideration for each type of offence. But it does not serve the broad interests of justice if it appears that "white collar" crime is treated significantly different and less seriously then other types of crime.

52. In the eyes of the ordinary people, it would be a travesty of justice if a person guilty of stealing thousands and thousands of kina is given a considerable suspended sentence.

53. It would appear totally unjust if a prison sentence is imposed for any other offences but the misappropriation of a large amount of money is punished by a suspended sentence.

54. Lay J in the case of The State –v- Christian Korei [2005] N2946 commented that "The view of the wider community, which is some ways more objectives, is usually substantially less generous towards white collar offenders."

55. Those immediately around the offender would of course and naturally want a more generous penalty. Usually these are people who have benefited from the offence, one way or the other.

57. The Supreme Court has spoken on a number of occasions regarding appropriate sentences for the offence of misappropriation where a large sum of money is stolen. In Public Prosecutor –v- Bruce Tardew [1986] PNGLR 91, the Supreme Court made this pertinent comment:

"We consider that suspension under Section 19(6) of the Criminal Code is or may be, appropriate in three broad categories. There maybe other categories but these are the main ones;

(a) where suspension will promote the personal deterrence, reformation and/or rehabilitation of the offender. The suspension of part of the sentence on the condition that the offender keep the peace and be of good behavior for a specified period may deter him from committing further crimes in that period. If he has committed a number of offences before hand, the suspension may reform his lifestyle.

His early release from prison because of the suspension, may assist his rehabilitation back into the community. It would enable him, for example, to get a job and support himself and his family earlier then would otherwise be the case.

(b) where suspension will promote the repayment or restitution of stolen money or goods. Suspension is a useful device to secure this end.

(c) where imprisonment would cause an excessive degree of suffering to the particular offender, for example, because of his bad physical or mental health. Some general discussion of additional hardships which a particular offender may face in prison, as a mitigating factor – not particularly in relation to suspension of part of a sentence – is found in D A Thomas, Principles of Sentencing (2nd ed 1979) at 215 – 216"."

58. I do not consider that there is any prospect of the prisoner re-offending, and also very little if not no prospects at all for her obtaining further employment. Therefore category (a) above is not applicable here. The prisoner is a very healthy looking woman and I do not consider that imprisonment would cause an excessive degree of suffering to her so category (a) is inappropriate to her.

59. Defence Counsel submitted strongly that a suspended sentence should be given in view of the following:

(b) The prisoner and her husband have an 18 months old child who will be deprived of a mother's love and care.

(c) The prisoner and her husband also have a disable child who will need extra care from his mother. Such extra loving care will be severed and the two children will be deprived of their mother's care and warmth. Both children will then be placed under excessive suffering.

60. For these reasons, reluctantly as it may seem to be, I have to agree that category (c) in Tardew's case may be applicable here.

61. Of the six (6) years jail sentence, I will temporarily suspend the whole sentence subject to the following conditions:

(a) The Prisoner is to Enter into a Recognizance to maintain peace and be of good behavior for seven (7) years.

(b) The Recognizance will be entered into with payment of the following sureties:

(ii) Restitution payment of K50,000.00 to be paid on the 30th day of each month until the completion of the full amount of stolen monies.

(iii) The first restitution payment of K50,000.00 shall be paid by or before Friday 30th December 2011, and thereafter the K50,000.00 monthly repayments shall be made by or before the 30th day of each month until completion of the full amount stolen, which shall be deemed to have occur on the 30th April 2012.

(iv) In the event that the prisoner fails to pay any monthly installment payments of the K50,000.00. She shall be arrested and committed to the Lakiemata Prison, where she will serve her full six (6) years jail sentence to be served in light labour.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused

National Court of Papua New Guinea

State v Emba [2011] PGNC 297; N5012 (14 August 2011)