State v Amonea [2012] PGNC 74; N4688 (25 May 2012)

N4688

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 295 OF 2011

THE STATE

V

JACOB AMONEA

Waigani: Makail, J
2012: 16th, 22nd & 25th May

CRIMINAL LAW: Plea - Sentence - Misappropriation - Money - K25,000.00 - Mitigating and aggravating factors considered - Non-custodial sentence appropriate - Restitution appropriate - 3 years imprisonment imposed - Suspended with conditions including full restitution - Criminal Code, Ch 262 - Sections 19 & 383A1(a)&(2(d).

Cases cited:

Wellington Belawa -v- The State [1988-89] PNGLR 496
Doreen Liprin -v- The State (2001) SC673
The State -v- Elizabeth Teka (2008) N3509
The State -v- Gibson Haulai (2004) N2555
The State -v- Scholar Zuvani (2004) N2641
The State -v- Alice Wilmot (2005) N2857
The State -v- Morgan Bae (2010) N4076

Counsel:

Mrs L Kuvi, for the State
Mr R Simbil with Mr R Pachichi, for the Prisoner

SENTENCE

25th May, 2012

1. MAKAIL, J: Following a ruling dismissing the motion to quash the indictment charging the accused with one count of misappropriation of K25,000.00 under 383A1(a)&(2)(d) of the Criminal Code, Ch 262, the accused pleaded guilty to the charge and was accordingly convicted. As the amount of money misappropriated is K25,000.00, the penalty for this offence is 10 years imprisonment.

2. The facts of the case are as follows, on 05th June 2009, the accused went to the Bank of South Pacific Limited with a false Court order dated 05th June 2009 and a letter written by him dated 05th June 2009 in relation to a Court matter CPC No 101 between him and Wanpia Uralia & IPA. The Court order required the bank to change the signatory of the account no: 1001312617 belonging to Hides Development Services Limited from Wanpis Uralia to that of the prisoner.

3. The prisoner presented the documents to one Nancy Abraham and she accepted the documents after confirming with the Legal Division that they had received the documents. On 11th June 2009, he went to the bank at its Waigani branch and enquired whether the signatories had been changed. He was told the changes were being processed and he left. On 12th June 2009, he returned to the bank's same branch and withdrew K16,000.00 from the bank account: 1001312617 belonging to Hides Development Services Limited. On 15th June 2009, he returned again to the bank's Waigani branch and withdrew K9,000.00 from the account: 1001312617 belonging to Hides Development Services Limited. When the genuine director of Hides Development Services Limited attempted to make withdrawal discovered she could not do so because of the change in the signatories. The matter was reported to the police and he was arrested and charged with this offence.

4. On allocutus, first he said he thought that what he did was lawful. He explained that he had assisted Wanpis Uralia and submitted the project proposal to the Department of Petroleum and Energy for a rural water supply project in the Southern Highlands Province. The Department of Petroleum and Energy approved it and gave K100,000.00. Wanpis misappropriated the money. As a result, there was no money to pay him and other creditors. Despite reporting her to the police and the bank, no action was taken against her. When the Department of Petroleum and Energy gave another K80,000.00, he intervened and stopped payment from the account of Hides Development Services Limited. He then withdrew the total sum of K25,000.00 and paid himself and the creditors.

5. Secondly, he apologised to the Court, police, the bank, Wanpis and his three children for what he did. Thirdly, he said he is a first offender because this is his first time to commit an offence in his 42 years of living. Fourthly, he is a single parent with three children after his wife left him three years ago. His children are aged 7, 5 and 3. Fifthly, he has held middle to senior position and had not stolen one single toea. Finally, he said he does not have a full time job, thus earning a regular fortnightly income. However, he is prepared to repay the money if the Court gives him a non custodial sentence. He said at least 6 months will be enough time to do that.

6. His lawyer applied for a pre-sentence report and a means assessment report. These reports have been provided and I have considered them. They reaffirmed what the prisoner said on allocutus. He is well educated having obtained a Degree in Commerce Business Management at Griffiths University in Queensland, Australia in 1995. He has worked in the private and public sector including the National Judicial Staff Services prior to establishing a private consultancy business in 2006. The means assessment report further stated that the prisoner is prepared to make full restitution. Given the nature of his job as a private consultant, he does not have a regular source of income but is prepared to pay K400.00 to K500.00 a week and his relatives have pledged to help him to repay it. As evidence of their pledge, he has produced a list of names of persons with various amounts totaling K12,900.00.

7. The case of Wellington Belawa -v- The State [1988-89] PNGLR 496 sets out the sentencing guidelines in misappropriation cases. This case falls into the third category because the amount misappropriated is between K10,000.00 and K40,000.00. The starting point of the sentence is 2 to 3 years imprisonment and may vary depending on the facts of the case. There is also a shift by the Courts from imposing custodial sentence to non-custodial sentence with restitution. see Doreen Liprin -v- The State (2001) SC673 and The State -v- Elizabeth Teka (2008) N3509.

8. Applying the factors set out in Wellington Belawa's case, the prisoner's case is as follows:

(a) The amount taken.

K25,000.00. It is substantial.

(b) The quality and degree of trust held by the prisoner.

None.

(c) The period over which the offence was committed.

The offence was committed over a period of time. The money was withdrawn from the account on two separate occasions. The first was K16,000.00 and the second was K9,000.00.

(d) The use to which the money was put.

Paid K11,200.00 to credits of the company and K13,800.00 was for his own use. While there is no evidence of list of creditors of the company, benefit of doubt is given to him.

(e) The effect on the victim.

BSP Bank lost K25,000.00.

(f) The effect on himself.

He is embarrassed and ashamed by his actions. It has been a trying 3 years for him and his family since his arrest and charge. It will and has adversely affected his opportunity to secure clients through his consultancy work.

(g) Restitution.

None.

(h) The offender's own history.

No prior convictions.

(i) Impact on offence on the public and public confidence.

The effect is huge because despite the Court imposing sentences on similar offenders in the past, it continues to rise.

(j) Matters of mitigation special to prisoner.

Co-operated with the police, pleaded guilty and is a first offender.

9. In addition to these matters, I take into account matters in the pre-sentence report. The prisoner is a well educated and experienced man. These matters placed him in a position where he knew that what he was embarking on at that time was wrong. But he has an unblemished record. He is a single parent and sole bread winner for his family. He has three children who are in his custody and are dependent on him for financial support. Based on the means assessment report, he is prepared to make full restitution. He said 6 months would be sufficient time to make full restitution.

10. As I stated earlier, the Courts' approach in respect of misappropriation cases invariably is to suspend the sentence and order restitution and in most cases, the decision is based on the offender's ability to make restitution or if restitution is made prior to conviction and sentence: see The State -v- Gibson Haulai (2004) N2555; The State -v- Scholar Zuvani (2004) N2641; The State -v- Alice Wilmot (2005) N2857; Elizabeth Teka (supra) and The State -v- Morgan Bae (2010) N4076.

11. But what is of most concern to me and which needs emphasising is the impact of the offence on public and public confidence. The money that he had misappropriated was earmarked for a rural water supply project in Southern Highlands Province. It was released by the Department of Petroleum and Energy to carry to out a feasibility study. He has openly admitted that the money was misappropriated by Wanpis Uralia and after he had unsuccessfully attempted to subvert the criminal act, he decided to help himself to the money. As a result of his actions, people back in the village will suffer. There will be no water supply for them. I may not be wrong to say that this seems to be the trend today. People and in particular, landowners from resource project areas obtain funds from the National Government to establish community projects. Instead they end up misusing them.

12. If what he has said about Wanpis Uralia is true, it is interesting why she has not been charged with the same offence. People in the villages are crying out for basic services such as health, education, water supply, roads and electricity. If such criminal acts are allowed to continue without any sanctions, people will continue to suffer. In my view people like the prisoner should be punished in the strongest term as possible.

13. For all these reasons, I sentence the prisoner to a term of 3 years imprisonment. I suspend the whole of the sentence and order that he enter into his own recognizance and be of good behaviour for that period and give surety of K1,000.00. In addition, I order that he repays K25,000.00 within 6 months of the date of this order. If he fails, he shall serve the rest of the sentence from the date of breach.

Prisoner sentenced accordingly.

____________________________________
Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Prisoner