State v Mose [2018] PGNC 317; N7388 (24 July 2018)

N7388

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 32 of 2018

THE STATE

V

GIRIGI GOASA MOSE

Waigani: Miviri AJ
2018 : 10, 19 & 24 July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation – trial – K120,000.00 paid – land purchase – no title exchanged – calculated & well planned offence– prevalent – no basis for alternatives to imprisonment – deterrent and punitive sentence.

Fact

Accused received K120, 000.00 from the complainants for the sale of her land. Complainants did not receive title to the land or the land. It was sold to three other persons. Complainants were never refunded K120, 000.00.

Held

Well planned offence.
Serious breach of trust
K120, 000.00 lost by victims.
Prevalent offence.
Deterrent and punitive sentence.

Cases Cited:

Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC 564
Lawi v The State [1987] PNGLR 183
Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91
The State v Allan Peter Utieng (Unreported Judgement delivered in Wewak on 23^rd November 2000) SCR 15 of 2000
The State v Avia Aihi (No.3) [1982] PNGLR 92
The State v Belawa [1988-89] PNGLR 496
The State v Duk [2009] PGNC 247; N3924
The State v Duk [2009] PGNC 247; N3924
The State v Daniel Mapiria [2004] Cr 1118 of 2000
The State v Eric Emmanuel Vele [2002] PGNC 93; N2252
The State v Francis Natuwohala Laumadava [1994] PNGLR 291
The State v Goli Golu [1979] PNGLR 653
The State v Haru [2014] PGNC 314; N5660
The State v Jimmy Kendi (No2) [2007] PGNC 32; N3131
The State v Kavo [2015] PGSC 48; SC1450
The State v Kumbamong [2008] PGSC 51; SC1017
The State v Kom [2009] PGNC 311; N6199
The State v Lawrence Simbe [1994] PNGLR 38
The State v Lawrence Pukali [2014] PGNC 16; N5560
The State v Liriope [1990] PGNC 58; N916
The State v Niso [2005] PGNC 26; N2930
The State v Nae [1996] PGNC 34; N1474
The State v Rokpa [1994] PNGLR 535 ;
The State v Sylvanus Siembo & 2 others Unreported 30 May 2002 Cr 1220 of 2000
The State v Tiensten [2014] PGNC 224
The State Yaip v Avini [1997] PNGLR 212
The State v Zuvani [2004] PGNC 127; N2641
21 ILGS Gobe Project Area Incorporated Land Groups v Imawe Bogasi ILG [2006] PGNC 83; N3096

Counsel:

L, Jack, for the State
M. Baida, for the Defendant

SENTENCE
24^th July, 2018

1. MIVIRI AJ: This is the sentence of a woman convicted of dishonestly applying to her own use K 120, 000.00 the property of another JDM Limited.
   

Facts on arraignment

2. Accused represented to Mr and Mrs Dutallas who ran their business called JDM Limited that she was selling customary land at Taurama known as Odahara Portions 2763c-2765c and that she was doing so with her family and was looking for a buyer. They met in November 2009 at the Aviat Club Port Moresby. The Complainants agreed to purchase it for K150, 000.00 after seeing all the land documents provided by the accused. On 13^th November 2009 the complainants paid part payment of K20, 000.00 in two cheques with subsequent other part payments in between in various amounts to the accused leading eventually to seven part payment with the final of K5000 made on the 11^th February 2011 culminating to the total sum of K 120, 000.00 which was the last payment. The complainants stopped when they discovered accused was selling that same piece of land to other purchasers as well. It is occupied by another person so they asked the accused to repay their money which has not been given since 2011 up to today.
   

Charge

3. The charge is pursuant to section 383A misappropriation of the Criminal Code which reads; “(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 five years except in any of the following cases when he is liable to imprisonment for ten 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 K2000 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;
(b) a person’s application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;
(c) a person’s application of property shall be taken not to be dishonest, except where the property came into possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps;
(d) persons to whom property belongs to include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who. Immediately before the offender’s application of the property, had control of it. “

Issue

4. What is an appropriate sentence in her case?
   

Allocutus

5. When given an opportunity to speak this is what the prisoner stated in allocutus;
   

"Thank your honour for giving this opportunity to address this honourable court. I humbly accept the decision of the honourable court. I would like to make a statement of mitigating circumstances before your honour pass sentence. I am a citizen of good reputation in my community amongst my extended family and my friends. This is my first time in my 47 years of my life that I have been accused of dishonesty of any other criminal offence, I tried to be a good person and live a Christian life. I believe your honour that I am guilty of trying to look after my family who are very poor any money that I have received in this case was shared amongst my poor family. From the beginning it has been my intention to pay back the money or supply the complainants with another block of land. Due to things out of my control my brother Moses Goasa sold the complainants land while I was away in Tasmania Australia attending a wedding. Your Honour I honestly believe that the decision of this honourable court was influenced by my lawyer’s actions. I believe that my lawyer failed me by not submitting any of affidavits and statements that I have provided to him. This was also the case of committal court where no evidence or statements were submitted by my lawyer. I have already spent three days waigani cells and other night at Boroko cells and 8 days at Bomana on these matters. I humbly ask that the honourable court does not send me to Bomana for the above reasons as it would make it very hard for me to arrange to pay the moneys back to the complainants. Thank you your Honour"

6. Effectively what the prisoner sought here was time to be served outside on condition that she finds means to pay back the complainants their money. She did not state why she was not able to do that whilst she was initially taken in for the matter on the 20^th October 2016 two years ago from today 24^th July 2018, when a formal record of interview was conducted with Police. Except for the 12 days in custody, she has been along out on bail and at liberty to find ways means to settle this money. She knew very well she had received without handing either title documents to the land or the subject land. She received and distributed the money to her poor relatives but did not do the same for the Dutallas who were both after the land and were faithfully paying for it seven different times with various amounts to round off the K150, 000. 00 initially agreed to. This is a very serious matter apparent before her and no doubt it crossed her mind leading to today. There was no attempt to pay off that money or to begin to pay to the Complainants which would have been a very genuine effort on her part. No reason has been demonstrated to extend further other than a general theme to pay the moneys back. Including where substantially this will be sourced to materialize the ask here. What is fundamentally asked for is to avoid jail at all costs.
   
7. Today is the eve of sentence there is no evidence placed before me since to alternate that indeed she has addressed her mind to bring a solution to the Dutallas to recoup their K120, 000. 00 lost to the prisoner since without any resolution either by repayment of or substitution of another block of land. She had the backing of the family in the sale that she executed it is not in her favour that one of her siblings has sold that land to another person denying the Dutallas of that land. She wants time to pay the money but she was flying to Australia to attend a wedding there. Obviously money was spent to get to the southernmost tip of the continent of populated Australia. But the same cannot be said of the Dutallas who awaiting refund of that K120, 000 paid to her or an alternative piece of land given. It is now 2 years since should they be denied justice.
   
8. What is before me today is a criminal conviction of misappropriation for sentence appropriate not complaint against counsel who has failed to honour the prisoner in representation before me. That is not the subject of these proceedings but can be taken by the prisoner to an appropriate authority designated. The decision that has been made by this court is based on the evidence led for and against and bears no resemblance to the conduct of the lawyer representing. Evidence in court or out of court is by law not without and that has been the case here not without. It is the strength of the evidence that has led to the decision in law here. And would be the same in the sentence that will be passed upon her again on the basis of law and evidence not otherwise.
   
9. What is restitution comes from the Holy Bible that one must settle ones due or wrong even before it is in the hands of the law, because when it is in the hands of the law there is no turning back in the decision of the law. That is the case here for the prisoner. She cannot now ask for the restitution upon complainants when she did not take the initiative to settle as a Christian. The means assessment report before court dated the 19^th July 2018 settles she does not have personal assets as she only uses what is provided by her expatriate husband including deposit of K1000 every fortnight evidenced by the bank statement attached to the means assessment report. But that is the source of her livelihood and would not cater for anything else, K400 for food K100 for electricity K300 on grand children's needs, K200 left as extra on her expenses. Restitution must be realistic not a fantasy.The entire Pre-sentence Report and the Means Assessment Report do not disclose any basis upon which an alternative to imprisonment can be imposed. Based upon which suspended sentence can be implemented giving effect.
   
10. There is no real value attached to the means assessment report in this regard. In Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91 (2 April 1986) the court had this to say in, "suspension of sentence pursuant to section 19 (6) of the criminal code is, or maybe appropriate in three broad categories. The categories are not exhaustive (1) where suspension will promote the personal deterrence, reformation, or rehabilitation of the offender; (2) Where suspension will promote the repayment or restitution of the Stolen money or goods; (3) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or health." Prisoner here has not demonstrated by evidence that repayment will be secured if the sentence is suspended. Suspension of sentence is not an exercise of mercy but serving justice. In this regard there is no evidence of excessive degree of suffering to the prisoner pursuant because of medical condition set out by proper evidence. A general assertion by counsel defending that she has a record of relapse requiring attention of a doctor on standby should she relapse into a fit due to heart failure, there is no medical evidence either from a practitioner or a specialist to that effect before the court. Or even better still from the Sir Buri Kidu heart foundation. There is in law no basis demonstrated that prisoner is a heart patient and suffers from that fact. The courts discretion will not be invoked as there is no proper basis demonstrated here. There is no problem with her health she will be sentenced for her crime according to the facts here.
    
11. Reformation or rehabilitation is without any basis here upon the prisoner material that has been furnished by the presentence and means assessment report do not evidence that there must as in the case of Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC 564 (27 August 1998). Justice is served not on emotions but on the basis of the facts led. The facts here do not sway that is appropriate given. Nor on the basis of restitution as that has not been demonstrated here. It would be an error of law to so act without.
    

Aggravation

12. This is a very aggravated offence well executed and planned case of fraud deceit and misappropriation by the prisoner. Her conduct is nothing less of the description well given in Lawi v The State [1987] PNGLR 183; Dishonesty is a question of fact and would depend on the status of mind of the accused. She produced Exhibit S1, S1A, S1B, S1C, S1D, S1E, to the complainants Duttalas to lure them to dig out of their pockets K120, 000.00 paid to her which moneys she received knowing very well up to now 24^th July 2018 that both have not received that land which they paid for. She is no doubt educated well with her fluent English in which she has opted to conduct her trial in and knew preciously what these exhibits were when she produced to the Duttalas. The subject land was not set out or demarcated in law by reference to grid on the map and specified out in law so that the Dutallas has title upon exchange of money. It was as it were by this evidence the subject of an application to register and not title to it in law. And therefore at the time she took the K120, 000.00 off the Dutallas she knew that she was not giving anything in return. This is evidence of a very well organized criminal mind or intent on nothing but dishonestly benefitting herself at the misery and loss of the hard and honest earned K120, 000.00 off the Dutallas. The court is entitled in law to so consider and these are set out succinctly by the Chief Justice Sir Salamo Injia in the following, “And when a Judge considers the facts on how the property was applied, he uses the ‘ordinary’ standards of reasonable and honest people’ test to determine whether or not the property so applied...Dishonest is defined in the Oxford Advanced Learners Dictionary of Current English as, “intended to cheat, deceive or mislead, The State v Francis Natuwohala Laumadava [1994] PNGLR 291 at 293.” And these I do so here in the consideration of an appropriate sentence against the prisoner. I find no reason apparent or identifiable to deviate from these principles in law and I apply them in the fullest extent to determine an appropriate sentence upon the prisoner given.
    
13. I find as a fact that the actions of the prisoner compounded a very elaborate and detailed mode to extort profit illegally off the Dutallas. This is evident in the way she had initially signed off for K150, 000.00 but insisted on putting up to K275, 000.00 upon the Dutallas. She had three other persons on the subject land. No doubt they too were corrupted by her deceit to end up as they did. I find as a fact that it was a scheme as in State v Nae [1996] PGNC 34; N1474 (18 September 1996) because the subject land was resold over and over to unsuspecting buyers.
    
14. The situation of the prisoner is likened to Yaip Avini v The State [1997] PNGLR 212 (15 July 1997) the appellant got K100,000.00 for road in Hapohandong – Makini Road which was never built and the appellant used the money personally and he was sentenced.
    

Effect on victim

15. At the outset the K 120, 000.00 has been lost out altogether by the Dutallas who have suffered ever since the 20^th October 2016 two years ago from today 24^th July 2018, and are still waiting upon the prisoner to repay their money. It will not be due to them as there are no substances to make orders in that regard.
    
16. I take due consideration that organization in this way to systematically dishonestly misappropriate large sums of money off unsuspecting honest hard working citizens as the Dutallas here, must not be left unchecked by its purpose and intent is a very serious matter that must be deterred and punished with stern and punitive sentences. Because they are not the only ones victimized as the evidence depicts. The prisoner as part of these scheme was very calculated and persistent in the commission of the offence. Creation of documents to pose purposely as a conduit and face to swindle off their money is no light matter. I find as fact that this was clearly and well thought out scheme and in the way the offence was committed, it was no spur of the moment offence, nor an opportunity offence, but a well-orchestrated offence where each part of the crime created fell mechanically into playing its full part to giving maximum benefit to the offence. It showed how elaborate the prisoner had gone into to extort maximum benefit out of it.
    

Maximum sentence

17. The maximum sentence due for the offence upon the prisoner is 10 years imprisonment because the amount is K 120, 000.00 by the call of section 383A (2) of the Code it is an amount above K2000. At the same time by the range and tariff set out in Belawa v The State [1988-89] PNGLR 496 where the amount is K10, 000 to K40, 000 suggested terms is 3 years imprisonment appropriate. K40, 000 to K150, 000 is 3 to 5 years imprisonment. The amount here is K 120, 000.00 therefore would be certainly not 5 years by this tariff and range. The observation of the Deputy Chief Justice Sir Gibbs Salika in State v Tiensten [2014] PGNC 224 is in order that adherence to tariff and range will defeat the intent of the legislature expressed and stuffs out the intent and the Spirit of the legislature expressed in the penalty prescribed. It ought to be the outcome of the aggravation mitigation and any extenuating circumstances to spell out sentence in a particular case and not necessarily dictated by tariff. This views holds firm in Lawrence Simbe v The State [1994] PNGLR 38 (2 March 1994) an appeal on conviction of murder drew that each case must be determined on each own facts and circumstances. Kumbamong v The State [2008] PGSC 51; SC1017 (29 September 2008) is another view on the same where it stated that the trial Judge has very wide discretion to impose appropriate sentence. The setting of minimum and maximum penalties amount to legislating and restricting a trial Judge's discretion.
    
18. In my view that is the correct position in law and no error will be committed in the subscription of the same here to determine an appropriate sentence for misappropriation. I start with 10 years as the maximum sentence here against the prisoner for the misappropriation of K120, 000.00 of Dutallas money. That is realistically the penalty she is looking at in view of the gravity of the offence. But adopting Avia Aihi v The State (No.3) [1982] PNGLR 92 (5 March 1982) the maximum is reserved for the worst offence of its kind, which isn’t the case here.
    
19. Avia Aihi (supra) considered the maximum penalty of life imprisonment because it was a worst case of wilful murder committed by the appellant who had laid in ambush upon the court party as a view was taking place of the scene where the deceased had run over the husband of the appellant. Together with others she chased and fatally stabbed the deceased then pleaded guilty to wilful murder and was sentenced to life imprisonment. She appealed against it but the Supreme Court viewed the offence as very serious and warranting the sentence imposed at first instance. For my purposes here a worst case of an offence will be a question of the facts and circumstances given because the basic principle in sentencing the basic is that the punishment must be proportionate to the gravity of the crime: Goli Golu v The State [1979] PNGLR 653 (14 December 1979).
    

Comparative Cases

20. In Yaip Avini v The State [1997] PNGLR 212 (15 July 1997) for K100,000.00 misappropriated the court imposed 8 years imprisonment. He was a member of parliament for Finchafen and money was for the road in Hapohandong – Makini Road which was never built but defendant used the money personally. It was reasoned by the court in passing sentence that a breach of trust by a parliamentarian was higher than that of a departmental head:......unless drastic steps such as imposition of stiff penalties are taken against such persons, the ordinary people of this country will continue to be manipulated and will continue to suffer at the hand of the very people they have appointed or elected to assist them.” In my view these views are equally applicable here against the prisoner given the facts set out above.
    
21. In State v Paul Tiensten [2014] PGNC 224 ; N5563 (28 March 2014) the court imposed 9 years IHL ordering that 4 years of that sentence will be suspended if payment of K10, 000,000.00 was made within 4 years of date of sentence. The balance of 5 years will be served at the Bomana jail. That would be the worst case of its kind and therefore warranting the near maximum. It is not the extreme here so that would not be warranted here.
    
22. In State v Kaia [1995] PGNC 166 N1401 (6 September 1995) he misappropriated K 94, 478. 31 whilst employed as an accounts supervisor by the Australia New Zealand Bank. None of that money was ever paid back. The court imposed 4 years imprisonment. In State v Nae [1996] PGNC 34; N1474 (18 September 1996) there were 19 counts of misappropriation totalling K 103, 587.71 by the prisoner for which the court imposed 4 years imprisonment. That was a scheme were money was collected supposedly for a housing project that the prisoner applied to his own use. These are relevant here because here was a scheme devised by the prisoner to lure the Dutallas to give that K120, 000.00 yet to be repaid as at the date of this sentence. The amounts are similar and the sentence drawn will be likened here like offenders must be treated alike.
    
23. In State v Kom [2009] PGNC 311; N6199 (2 December 2009) prisoner pleaded guilty to misappropriating a total sum of K 3,780,000.00 property of the State. He posed as one Simon Wapo made out claims that were processed by Department of Finance and Treasury which were paid into an account at a commercial bank cleared and he withdrew and used the money personally. He was sentenced to 8 years IHL as there was no presentence report before the court. This is yet again an extreme situation not identical to the facts of the present case and will in that respect be not applicable. But by this it is clear that the higher the amount the higher the sentence.
    

Use of money

24. In the State v Sylvanus Siembo & 2 others Unreported 30 May 2002 CR 1220 of 2000 the court per Justice Sevua imposed 6 years IHL of which 3 years was to be suspended on condition that the prisoner enters into a recognizance in the sum of K5000 surety (not cash) to keep the peace and be of good behaviour for 2 years following discharge from prison. The relevant and material facts were not guilty pleas were entered by the three Accused who were alleged to have misappropriated K100, 000.00 from the State, which was intended for the construction of a road by the Momboro Business Group (MBG) and was instead directed to the account of a private company where it was intended the money would earn interest. Accused were first time offenders had large families did not benefit personally from the use of the money and that the money with interest was repaid to MBG. However the offence involved misappropriation of public funds. Partial suspension as money was not used personally. Here prisoner used the money including applying it to the use of others. The evidence consistent with the law is that she gave various amounts to various people and also used that money personally. Partial suspension will not be falling in her case considering coupled with the fact that there is no real prospect of repayment of that money back to the Dutallas.
    

Effect on offender

25. Prisoner is now destined for her criminal conduct imminently in jail. And by that fact will be apart from her partner and will have a criminal record on her life.
    

Restitution

26. Prisoner had no means upon which the K120, 000. 00 of the Dutallas money will be repaid. The presentence and the means assessment do not disclose any means upon which the prisoner could draw to pay off that money. She has attached a bank statement of the account number 1002089892 Girigi Goasa dated the 17^th July 2018 setting out from 1^st January 2018 to 31^st March 2018. The money there of K1000 always catered for her livelihood is not sufficient basis upon which restitution will be founded and ordered. Restitution must be real with substance on the basis of there is guarantee. There is no substantive liquid cash and properties to be converted to cash confirmed either by valuation and registration brought before court. Restitution is not tangible nor is it viable considering by the evidence of the case. To so impose will be contrary to the weight of the evidence and disproportionate to the gravity of the offence. The sentence must fit the crime not the other way around.
    

Prisoners History

27. In this respect it is important to set out what the Supreme Court said in Allan Peter Utieng v The State (Unreported Judgement delivered in Wewak on 23^rd November 2000) SCR 15 of 2000, “ An offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offender’s personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.” Here the prisoner is 47 years old with a partner Steven Burke employed by Internal Revenue Commission who has a statement willingly to assist Ms. Girigi Goasa in making payments to restitution of the Dutallas. He does not provide any basis upon which to draw to make that payment on behalf of his partner the prisoner for 26 years. It is without any basis upon which and therefore will not weigh in favour of the prisoner. In mitigation counsel contends that she has four children with the husband a very busy person. That is not what is set out in the allocutus by the prisoner apart from the fact that she is a first time offender.
    
28. The gravity of the offence outweighs her personal background. Comparatively The State v Eric Emmanuel Vele [2002] PGNC 93; N2252 is converse of the present. Prisoner there took the initiative to make repayment of K11,091.23 even before the formal orders of court and had a balance remaining of K4, 008.77 to settle the money stolen from the Port Moresby Westpac Bank Limited where he was employed as Supervisor International Bank Centre. And the presentence report recommended probation with community supervision which the court acceded to in view of that being so in the light of Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC 564 (27 August 1998) that criminal sentencing is a community responsibility. The Sentence there was 2 and a half years suspended on very strict conditions of Probation. The circumstances of that case do not par out with the present. There has been no repayment since the inception of this matter up to today. She did not take the initiative to repay and has not shown any factors as with Vele’s case (supra). It would be an error of law to make orders for suspension
    
29. In State v Zuvani [2004] PGNC 127; N2641 (25 August 2004) prisoner pleaded guilty to transferring paperless K22, 685.43 over a period of time property of her employer Bank of South Pacific Limited into a relatives account where she used the save card withdraw and used the money. She had almost made complete and full restitution of that money back to the bank. The court considered and imposed 4 years wholly suspended on seven conditions on probation attaching.
    
30. In State v Duk [2009] PGNC 247; N3924 (15 July 2009) prisoner was an accountant of Wau Microbank. He dishonestly obtained and used K32, 800 in customer’s deposits that he applied to his own use contrary to section 383A of the Code. He never paid back any amount of that money. The court considered and imposed 4 years IHL none of which was suspended given that he had not repaid nor was there any facts to impose otherwise. He was a graduate from the Divine Word University with a bachelor of Business Studies. The amount there is lower than the present.
    
31. In State v Daniel Mapiria [2004] Cr 1118 of 2000 9 years IHL imposed was wholly suspended for the misappropriation of K3.188 million from the State when prisoner counter signed 41 cheques payable in cash over 10 months applied to the benefit of Registrar of the Board Mr. Aisa. Prisoner was 54 years old in poor medical condition with three diseases likely to rise if not properly managed in prison so court imposed the term above with conditions including restitution to the state of K1 million within 18 months 5 years community service and good behaviour and 6 monthly probation report. Prisoner here is 47 years old younger and does not have any condition in health similar. She also directly benefitted and also gave others benefit out of that crime.
    
32. In State v Jimmy Kendi (No2) [2007] PGNC 32; N3131 (17 April 2007) prisoner obtained K4, 298, 037.30 claiming that the State during the Bougainville crisis had unlawfully used his machines equipment of his company. He was helped by corrupt officers in the Department of Finance & Treasury and also Defence. He was found guilty of firstly of false pretence and secondly of misappropriation of the amount set out above. He was sentenced to 4 years IHL for the first and 9 years IHL cumulative for the second. An effective term of 9 years IHL. Comparably the amount here is less than Kendi’s case which also has the conviction of false pretence.
    
33. In the State v Niso [2005] PGNC 26; N2930 (15 November 2005) prisoner was found guilty of four charges of conspiracy, forgery, fraudulent uttering of a false document and misappropriation of K500, 000. 00 from the bank of Papua New Guinea. The court considered aggravated that substantial amount of money belong to his employer. He was a senior clerk in the central bank and his duties involved handling of large amounts of cash. It was a responsible position upon which he had a duty to the bank and its customers. And therefore a very serious breach of trust. But it was not likened to a director or a manager but was an opportunity crime. There were no plans and was successfully committed because of the role played by accomplices. But Prisoner played a very critical role. And it was called that the punishment fit the crime. The court imposed 3 years 6 months for the first count, 1 year 3 months for the second, 1 year 3 months for the third, and 7 years 6 months for the fourth. The first second and third were to be served concurrently with the fourth hence it was 7 years 6 months IHL imposed. Time in custody of 8 months was deducted to leave the balance of 6 years 10 months IHL. Here there was a very well set out sham planned very well executed to maximum benefit to the prisoner of Dutallas funds. In that regard this offence was more serious as compared.
    
34. In State v Haru [2014] PGNC 314; N5660 (20 February 2014) prisoner was found guilty of false pretence and misappropriation of land of a sports club sold to a third party. He offered restitution not done. He was sentenced to 8 years IHL for misappropriation of K2, 628, 825.18 of the Kone Tigers Rugby Football League Club. Four (4) years was to be suspended if he made full restitution. Certainly that is not the amount involved here but it shows that the larger the amount the higher the sentence and more so where there are no opportunities to restitution of that money. The prisoner here bears similar there are no real means to restitution. And therefore a custodial sentence is posed in view.
    
35. In the State v Lawrence Pukali [2014] PGNC 16; N5560 (28 March 2014) K405, 600.00 was undertaken to be paid by the prisoner in exchange for 2,535 grams of Gold at K160.00 per gram. Prisoner promised to pay K200, 000.00 first payment and assured the victim Chris Wang Bubsep that he would deposit that money into his account but did not. Victim confronted him and prisoner wrote a Bank South Pacific cheque for the sum of K170, 000.00 drawn from his business account with that bank. It was dishonoured and not paid. Victim demanded the return of the Gold but was never done. He was charged with three counts of wilful false promise under section 404 (1) (a), forgery under section 462 (3) (b) and misappropriation under section 383A to which the court returned guilty verdicts on the first and third charges. A not guilty verdict was held in respect of the third. The court imposed 2 years IHL for false pretence and 5 years imprisonment for the second both to be served concurrently, effective head sentence of 5 years IHL because he was suffering from diabetes. He never paid back the gold or made any restitution: State v Lawrence Pukali [2014] PGNC 252; N5695 (28 March 2014).
    

Issue

36. What is an appropriate sentence for the prisoner?
    

Findings of Fact

37. I find as a fact that the prisoner has no means to recompensate or repay the K120, 000.00 of the Dutallas.
    
38. I further find that the K120, 000.00 was for a specific purpose which was to purchase land but not registered in law and therefore could not be sold as property in law. It was not executed and therefore misappropriation: Rokpa v The State [1994] PNGLR 535; State v Liriope [1990] PGNC 58; N916 (1 October 1990). A deterrent and punitive sentence is called for in view of all set out above and the proportionate sentence given in all the circumstances is 4 years IHL and I so impose that upon the prisoner.
    
39. I further find as a fact that the Prisoner has given no explanation justifiable to exonerate her from criminal responsibility that she has and is in possession of K120, 000.00 not her money but of the Dutallas. Which money was given her in exchange and on understanding that she would give vacant possession of the subject land Odahara Portions 2763c-2765c which has not happened up to now. It is not the same situation as in Kavo v The State [2015] PGSC 48; SC1450 (21 August 2015).
    
40. And therefore in all the circumstances the appropriate sentence proportionate to the gravity of the offence is 4 years IHL. I order that her bail money is refunded forthwith. Any time in remand is deducted forthwith.
    

Sentenced accordingly
__________________________________________________________________Public Prosecutor: Lawyer for the State
Nelson Lawyers: Lawyer for the Defendant