State v Leva [2021] PGNC 34; N8801 (19 April 2021)

N8801

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 606 OF 2019

THE STATE

V

BOBBY LEVA

Waigani: Berrigan J
2021: 8^th March and 19^th April

CRIMINAL LAW–SENTENCE –S 383A(1)(a)(2)(d) of the Criminal Code – Conviction following trial - Misappropriation of K290,199 – Sentence of 6 years of imprisonment imposed.

Cases Cited:

Wellington Belawa v The State [1988-1989] PNGLR 496
The State v Niso (No 2) (2005) N2930
The State v Tiensten (2014) N5563
The State v Ludwina Tokiapron (2005)
The State v Niso (No 2) (2005) N2930
The State v Pohien (2016) N6564
The State v Hevelawa &Ors (No.2) (2017) N6875
The State v Ruth Tomande (2019) N8153
The State v Nancy Uviri (2008) N5468
The State v Sarry Moere, CR (FC) 153 of 2017, 6 November 2017, unreported
The State v Moses Karnhick (2020) N8341
The State v Paul Guli & Ors(2017) N6866
The State v Tracy Tiran (2018) N7375
State v Etami (2012) N4769
The State v Iori Veraga (2005) N2849
The State v Emba (2011) N5012
The State v Mathew Kana, CR No 843 of 2012, 11 June 2014, unreported
The State v Isaiah Guda (2015) N5955
The State v Guda (2015) N5955
The State v David Poholi (2016) N6214
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91

Legislation and other materials cited:

Sections 19, 383A(1)(a)(2)(d) of the Criminal Code.

Counsel

Ms T. Kametan, for the State
Mr E. Sasingian, for the Accused

DECISION ON SENTENCE

19 April, 2021

1. BERRIGAN J: The offender, Bobby Leva, was convicted of one count of misappropriating K290,199 belonging to Buk Bilong Pikinini Incorporated (Buk Bilong Pikinini), a charity, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code, following trial.
   
2. The offender was employed by Bank of South Pacific Limited (BSP) as a Portfolio Analyst attached to the Credit Business Unit at its Harbour City Branch. The offender and his mother, Loa Leva, were the owners of a registered business name “BAM Agencies” and holders of a Smart Business Account Number 7001101703 at BSP in the name of BAM Agencies.
   
3. Over a period of 15 months, between 1 January 2017 and 30 March 2018 the accused misappropriated K290,199 deposited to the BAM Agencies account via cheques drawn on the account of Buk Bilong Pikinini in respect of which neither he nor his business provided any service, nor had any entitlement or claim.
   
4. The offending involved 31 transactions. On most occasions the cheques were deposited to the account by Bradley Tuvi, an employee of Buk Bilong Pikinini. On several occasions the offender deposited the cheques himself. It was the accused who withdrew the monies from the bank account, always within just a few days, always in cash. On several occasions he asked bank officers to leave the cash in envelopes for him at the building’s separate reception, or to deliver it to him outside the bank. On several occasions he gave bank officers monies in appreciation of the cash withdrawals. On every occasion he kept some of the monies for himself and gave the rest to Bradley Tuvi.
   

Sentencing Principles and Comparative Cases

5. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence of misappropriation, including:
   
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
       
6. In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount misappropriated is between:
   
   1. K1 and K1000, a gaol term should rarely be imposed;
   2. K1000 and K10,000 a gaol term of up to two years is appropriate;
   100. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
   4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
      
7. It is generally accepted that whilst the principles to be applied when determining sentence remain relevant and applicable, the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; and The State v Tiensten (2014) N5563.
   
8. Defence counsel submitted that a sentence in the range of three to five years of imprisonment would be appropriate.
   
9. The State submitted that a sentence in the range of four to six years would be appropriate. It referred to the following cases in support of its submissions:
   
   1. The State v Ludwina Tokiapron (2005), Salika DCJ (as he then was), unreported, in which the prisoner was sentenced to 6 years’ imprisonment after pleading guilty to misappropriating K200,000.00. The monies were obtained from the victims on the pretext that they would be invested in a pyramid scheme in Singapore but were used by the prisoner instead. He was sentenced to 6 years’ imprisonment;
      
   2. The State v Niso (No 2) (2005) N2930, Gavara-Nanu J, in which the prisoner was found guilty following trial of conspiracy, fraudulently uttering a false document, and the misappropriation of K500,000.00 belonging to his employer, the Bank of Papua New Guinea. The offences took place over a period of about 3 weeks. At the time he was the Senior Clerk and Supervisor in the General Ledgers Section. The prisoner was sentenced to an effective term of 7 years, 6 months of imprisonment (from which 8 months spent in custody was deducted);
      
   100. The State v Pohien (2016) N6564, Liosi AJ (as he then was). The accused was convicted of one count of misappropriation of hardware materials valued at K462,864.00 the property of his employer, Sika Limited. The prisoner whilst employed in the company’s hardware section as the supervisor, misappropriated hardware materials worth K462, 864.00, over a period of 6 months. He was sentenced to 5 years’ imprisonment;
        
   4. The State v Hevelawa &Ors (No.2) (2017) N6875, Salika DCJ (as he then was). The offenders Jacob Hevelawa and Timothy Numara were found guilty of two counts of abuse of office, one count of conspiracy to defraud and three counts of misappropriation. Mirriam Hevelawa was found guilty of one count of conspiracy to defraud and three counts of misappropriation. Jacob Hevelawa was the Director General of the Office of the Library and Archives from March 2011 to March 2014 and Timothy Numara was the Manager, Corporate Services of the Office for the Library and Archives. Mirriam Hewelava was the wife of Jacob Hevelawa and Sole Director of PAJA Sisters Trading. She was awarded a contract for grass cutting, landscaping and removal of rubbish. The costs were inflated and they misappropriated a total of K118,846.30. All three offenders were sentenced to five years’ imprisonment for the charge of misappropriation. Jacob Hevelawa and Timothy Numara were sentenced to two years’ imprisonment for the charge of abuse of office. The sentences were to be served concurrently. Three years of the sentences were suspended on the condition on restitution.
      
   5. The State v Ruth Tomande (2019) N8153, Berrigan J. The offender pleaded guilty during trial to misappropriating K300,933.71 from her employer, BSP, of which K40,000 was recovered by the bank. At the relevant time the accused was employed as a Home Loan Officer with BSP. Between 30 April 2017 and 1 January 2018 the accused falsified 14 loan applications which had previously been declined by the bank and altered them to manipulate the system into approving the loans. The monies were then transferred by the offender to accounts belonging to her relatives and other bank customers. The monies were also credited back to the loan accounts to fund repayments and avoid detection. She was sentenced to 5 ½ years of imprisonment;
      
10. I have also had regard to the following cases:
    
    1. The State v Nancy Uviri (2008) N5468, Cannings J. The offender was sentenced to 7 years of imprisonment for misappropriating K300,000 from her employer over an 18-month period through a scheme of bogus invoices;
       
    2. The State v Sarry Moere, CR (FC) 153 of 2017, 6 November 2017, unreported, Salika DCJ (as he then was). The offender pleaded guilty to one count of misappropriating K295,099.35 whilst employed by the Ombudsman Commission as its payroll officer by manipulating the payroll system and transferring the money to his own account. The offender was sentenced to 6 years’ imprisonment;
       
    100. The State v Moses Karnhick (2020) N8341, Berrigan J: the offender was employed as a Mortgage Specialist Officer with Australia and New Zealand Bank Limited (ANZ). He pleaded guilty to one count of misappropriating K300,000 belonging to his clients, the Kuabini Land Owners Association Incorporated. He cooperated from a very early stage with authorities and pleaded guilty. He was sentenced to 5 years of imprisonment.
         
    4. The State v Paul Guli & Ors (2017) N6866, Salika DCJ (as he then was), in which three prisoners were each found guilty of one count of misappropriating K473,575.00, the property of the State following a trial. Two prisoners, the District Accountant and District Administrator of what was then Western Highlands Province (now Jiwaka), made fraudulent payments into the account of the third prisoner, a local businessman. They were sentenced to 5 years, 5 years and 2 years of imprisonment, respectively;
       
    5. The State v Tracy Tiran (2018) N7375, Miviri AJ, in which the prisoner was convicted and sentenced to 6 years’ IHL following trial on one count of misappropriating K500,000.00, the property of the State. The prisoner dishonestly obtained monies for the purpose of establishing a coconut project through the office of the Minister for National Planning and Monitoring, which project was never established;
       
    6. State v Etami (2012) N4769, David J in which the prisoner pleaded guilty to one count of misappropriation of K165,086.18, the property of his employer, Oilmin Field Services. Whilst employed as a Taxation Officer and Accounts Payable Assistant he incorporated three bogus companies with similar names to those of his employer’s three main creditors, drew up false requisitions, altered the payee and deposited the cheques to the accounts of those companies. He was sentenced to four years, wholly suspended on conditions, including restitution;
       
    7. The State v Iori Veraga (2005) N2849, Sakora J, in which the prisoner was found guilty following trial of conspiracy to defraud and misappropriation of K144,955 from the National Provident Fund as a result of inflated land valuations. He was sentenced to 7 years’ on the (4) conspiracy charges and 2 years’ on the corresponding misappropriation charges, to be served cumulatively, with an effective sentence of 6 years’ imprisonment;
       
    8. The State v Emba (2011) N5012, Kawi J, in which the prisoner pleaded guilty mid-trial to one count of misappropriating K286,491.71. She was employed as a cashier with Air Niugini, based in Kimbe, and was responsible for collecting cash monies from the sale of airline tickets. The monies were received from ticket sales. To avoid detection the prisoner got the ticket coupons and destroyed them, and then applied the monies to her own use. She was sentenced to 6 years to be spent in light labour at the Lakiemata Prison. The sentence was wholly suspended on conditions including restitution;
    9. The State v Mathew Kana, CR No 843 of 2012, 11 June 2014, unreported, Sakora J, in which the prisoner pleaded to one count of misappropriation and one count of conspiracy to defraud Twivey Lawyers of K164,570.30.He was sentenced to 5 years of imprisonment;
       
    1. The State v Isaiah Guda (2015) N5955, Salika DCJ, in which the prisoner pleaded guilty to misappropriating K436,000 the property of the Moga Incorporated Land Group over a period of about two months. The prisoner was assisted by his lawyers and produced false certificates authorising his access to the monies, which he presented to the bank. He was sentenced to 6 years’ imprisonment with hard labour;
       
    2. The State v Guda (2015) N5955, Salika DCJ (as he then was). The prisoner pleaded guilty to one count of dishonestly applying to his own use and the use of others K436,000, the property of Moga Incorporated Land Group on the basis that he was an authorised landowner when he was not. The prisoner and another person withdrew monies totalling K436, 000 from Moga ILG account held at BSP. The offender was assisted by one of the bank’s in-house lawyers. He was sentenced to 6 years’ imprisonment;
       
    100. The State v David Poholi (2016) N6214, Salika DCJ (as he then was), in which the prisoner pleaded guilty to one count of conspiracy to defraud and one count of misappropriation of K688,000.00 from BSP, his employer, whilst a Human Resource Benefits and Remuneration Officer, over a period of 18 months and involving 134 transactions. He was sentenced to 3 and 5 years’ respectively on each count, to be served concurrently.
         
11. The sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    

Considerations on Sentence

12. Having regard to the principles outlined in Wellington Belawa, the following matters have been taken into account.
    
13. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. The offence in this case involves a substantial amount of almost K300,000.
    
14. The State submits that the offence involved a significant breach of trust between the offender and his employer, the bank. The offence was not against the bank. It did not involve an abuse of his position as an analyst. I accept that he used his position with the bank through the relationships he had with bank tellers on eight occasions to have them process the withdrawals and deliver the money to him, or leave it at reception for his collection, and that the monies were misappropriated through the bank account over which he had control. Those matters facilitated the offence. Certainly, the fact that the offence was committed by a well-educated, professional, holding a position in a bank is a relevant consideration. In my view, however, the seriousness of the offence lies in the fact that the offender deliberately worked with an employee of Buk Bilong Pikinini to dishonestly apply a very large amount of monies belonging to a charity. That is what is so serious about this offence.
    
15. Furthermore, the offence was conducted over a period of almost 15 months, and comprised 31 transactions, demonstrating planning and ongoing dishonesty during the relevant period.
    
16. It is not in dispute that the offender kept some of the monies for himself and gave the rest to Bradley Tuvi. On verdict, I found it is implausible that despite cashing out the monies paid into the account on 31 occasions during a 15-month period, the offender was unable to recall how much he kept of the monies for himself, even in broad terms. On two occasions the proportion of monies kept by the offender was very high. Of the second cheque ever cashed, on 30 January 2017, K2770 of the K3800 withdrawn was immediately deposited to the accused’s personal bank account. Similarly, Tuvi instructed the accused to keep K5474 of the K13,474 deposited on 26 July 2017. Otherwise the offender did not deposit the monies to his bank account .
    
17. There is no doubt that all of the monies were dishonestly applied by the offender for his own use. As the withdrawals were made in cash, and for the most part there are no records of what happened to the monies after they were withdrawn, it is not possible to say what proportion of the monies were ultimately applied for the offender’s personal benefit. To date there has been no restitution.
    
18. The impact on the victim in this case has been enormous. It is a charity that is dedicated to providing library services to hundreds of children who might otherwise not know the joy of reading or have the opportunity to improve their education. It appears that many staff at the charity lost their jobs as a result of the fraud and that it only survived as a result of generous donors.
    
19. The offender by comparison has enjoyed the benefit of a good education and professional employment. He holds a Bachelor of Arts from the University of Papua New Guinea, majoring in Economics and Political Science, which he obtained in 2009. At the material time the offender had been employed with BSP, one of the country’s largest financial institutions, as a Portfolio Analyst attached to the Credit Business Unit, for more than six years, and was responsible for data analysis and report writing for the bank.
    
20. The offender is a relatively young man of 34 years of age. He is from Lalaura/Tubuserea in Central Province and currently resides with his parents at Gerehu in Port Moresby, and a total of 12 family members, including his wife and 11month old child.
    
21. In mitigation this is the offender’s first offence. He is previously of good character, as demonstrated by the position he held with the bank. His auntie, Joyce Tefatu, gave a reference in support of the offender as a quiet and considerate person who has never caused any trouble for his family or the community. She offered to assist him repay the money. Ms Mary Boni, his neighbour and family friend also said that he was a loyal and good person who has worked hard to be where he is at the bank.
    
22. The offender expressed limited remorse on allocutus. He apologised to the Court, his lawyers, and BSP. He apologised to his family, in particular his aging parents, wife and son. He spoke of the stress that he had put his family through, and that he had suffered as a result of the proceedings. Despite this the offender refuses to take any real responsibility for the offending itself. His letter of apology to Buk Bilong Pikinini continued to assert that he was blinded by his trust in his old friend Bradley Tuvi. He said that he received only K18,000 from the offending and asked for his sentence to be suspended so that he could make restitution.
    
23. The impact of the offence on the offender has been and will continue to be grave. The offender has lost a secure and responsible position in the financial industry. His offending will bring shame and a loss of standing to himself and his family. Despite his past education and employment, it will be very difficult for the offender to find formal employment in the future, particularly in the financial industry, in which he holds qualifications and experience.
    
24. There can be no doubt that any time spent in custody will have a very significant impact upon his parents, his wife and, in particular, his very young son.
    
25. There are no matters of mitigation special to the offender.
    

Sentence

26. The offender has been convicted of one count of misappropriating K290,199 contrary to s. 383A(1)(a)(2)(d) of the Criminal Code for which the maximum penalty is ten years of imprisonment.
    
27. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Although this case does not fall within that category, the offence remains a serious one.
    
28. I have taken into account the offender’s personal circumstances. I have also taken into account in mitigation his lack of previous conviction and prior good character. These are factors in his favour but they are far outweighed by the aggravating factors in this case, namely the nature and quantum of the offence, the period over which it was conducted, the planning involved and the serious impact on the victim. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.
    
29. Having considered all of the above matters, including comparative cases, I sentence the offender to 6 years of imprisonment.
    
30. I understand that to date the offender has not spent any time in custody.
    
31. Contrary to defence submissions, this was not a case of the offender simply turning a blind eye. He might have been prosecuted for money laundering in that instance. In this case, however, I found that the evidence established that the accused and Bradley Tuvi were working together to dishonestly apply the monies belonging to Buk Bilong Pikinini.
    
32. I do accept that the offender is less culpable than Bradley Tuvi. I also accept that the monies were shared with Bradley Tuvi. As above, it is not possible to ascertain the extent to which the offender personally benefitted. I will accept for the purposes of sentencing that Tuvi may have received a greater proportion of the monies but I do not accept the offender’s statement on allocutus that he received only K18,000.
    
33. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
    
34. The offender outlined ways in which he might repay a total of K53,104 over two years. It involves the sale of vehicles and the surrender of his father’s superannuation savings and his brother’s Defence Force retirement benefit, together with pledges totalling K325 from eight of his relatives and fortnightly sales of fish at K800. He would prefer to repay only K18,000, which he says he received.
    
35. It is clear to me that the offender has no means to make restitution. I have no intention of ordering his father and brother to volunteer the monies they need for themselves and their families in their retirement. Nor do I intend to order his family members to effectively make restitution on his behalf with some small contribution from him.
    
36. Suspension in the interests of restitution is neither possible nor appropriate. This case involves a substantial amount of money. The offender refuses to take responsibility for his actions and he is not suitable for probation. There is nothing to suggest that the offender would suffer excessively in prison.
    
37. In the circumstances I make the following orders.
    

Orders

(1) The offender is sentenced to six years of imprisonment in hard labour to be served at Bomana Correctional Institution.

(2) Any bail monies are to be immediately refunded.

(3) As a precautionary measure during the Coronavirus State of Emergency, the offender is to be held in an appropriate isolation facility at the Bomana Correctional Institution for two weeks before transfer to the general population, subject to medical assessment.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender