State v Emil [2021] PGNC 88; N8789 (8 April 2021)

N8789

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 348 OF 2020

THE STATE

V

VAVINE ELIZABETH EMIL

Waigani: Berrigan J
2020: 5^th October, 30^th November
2021: 8^th April

CRIMINAL LAW–SENTENCE –S 383A(1)(a)(2)(d) of the Criminal Code – Guilty plea - Misappropriation of K117,788.87 by accounts clerk – Sentence of 4 years of imprisonment, partially suspended.

Papua New Guinea 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 Ruth Tomande (2019) N8153
The State v Moses Karnhick (2020) N8341
The State v Paroa Kaia (1995) N1401
The State v Tova (1997) N1522
The State v Alice Wilmot (2005) N2857
The State v Gibing Yawing (2017) N6836
The State v Imoi Maino (2004) N2773
The State v Nancy Uviri (2008) N5468
The State v Joe Joseph, CR(FC) 1179 of 2013
The State v Sarry Moere, CR (FC) 153 of 2017
The State v Kom (2018) N7362
The State v Dumo (2018) N7574
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320

Legislation and other Materials Cited:

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

Counsel

Ms C. Langtry, for the State
Mr E. Sasingian, for the Accused

DECISION ON SENTENCE

8^th April, 2021

1. BERRIGAN J: The offender, Vavine Elizabeth Emil, pleaded guilty to one count of misappropriating K117,788.87, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code, on the basis of the following agreed facts, which were confirmed by the depositions.
   
2. The offender was employed as an accounts clerk with Kramer Ausenco (PNG) Ltd.
   
3. In or about May 2018 the offender was seconded as an employee to work with one of Kramer Ausenco’s sub-consultants, Oriental Consultant Global Co Ltd (OCGC) to assist the Project Manager in preparing budget reports, making payments and processing invoices and receipts.
   
4. To perform the role, the offender was given a username and password to access OCGC’s bank account with ANZ for the purpose of making payments to service providers through the ANZ electronic transaction system.
   
5. Between 1 May 2018 and 1 December 2018, the offender processed 21 transactions under the guise of paying OCGC’s intended service providers. She entered into the banking system the details of the legitimate service provider but directed the funds to her personal bank account with Bank South Pacific. In total the offender transferred K117, 788.87 to her personal account for her own use, over a period of several months without detection.
   
6. The offender made full admissions to her employer upon detection and to police and pleaded guilty at the earliest opportunity before the Court.
   

Sentencing Principles and Comparative Cases

7. 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.
       
8. 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.
      
9. 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.
   
10. Defence counsel submitted that a sentence in the range of three years of imprisonment would be appropriate. He referred to the following cases:
    
    1. 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 1January 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;
       
    2. The State v Moses Karnhick (2020) N8341, Berrigan J: the offender pleaded guilty to one count of misappropriating K300,000. The offender was employed as a Mortgage Specialist Officer with Australia and New Zealand Bank Limited (ANZ). He was also the owner and director of Jehay Limited, which operated an account at the same bank. As a bank officer the offender assisted the executive officers from the Kuabini Land Owners Association Incorporated to open a bank account for the Association, and became a trusted contact for the complainants when conducting the Association’s banking. On 26 January 2018 the complainants deposited K800,000 belonging to the Kuabini Landowners Association into the bank account of the offender’s company for safe keeping for and on behalf of the Association. Between 6 February and 9 February 2018, the complainants asked the complainant for the Association’s monies. On 9 February the offender withdrew K500,000 cash from the Jehay Limited account and gave it to the complainants. On the same day the offender gave the complainants an undated cheque for K300,000. The cheque was dishonoured upon presentation by the complainants to the bank towards the end of that same month. The bank statement for the Jehay Limited account showed that the offender had withdrawn the funds on a continuous basis from his company’s account following deposit until there were no monies left in the account. He cooperated from a very early stage with authorities and pleaded guilty. He was sentenced to 5 years of imprisonment.
       
11. The State submitted that a sentence in the range of three to five years would be appropriate. The State referred to the following cases:
    
    1. The State v Paroa Kaia (1995) N1401, Sawong J, in which the prisoner pleaded guilty to one count of misappropriating K94,478.31 belonging to ANZ Bank over a 2 month period. At the time he was an accounts supervisor with the bank. He was sentenced to 4 years’ imprisonment;
       
    2. The State v Tova (1997) N1522, Batari AJ (as he then was), in which the prisoner pleaded guilty to misappropriating K22,100, the property of Allens Arthur Robinson Lawyers, his employer. He was sentenced to 3 years’, wholly suspended on condition of restitution;
       
    100. The State v Alice Wilmot (2005) N2857, Sevua J, in which the prisoner pleaded guilty to one count of misappropriating K19,960 systematically over a period of 17 months whilst a bank teller from her employer, ANZ. The prisoner failed to express remorse and was sentenced to 3 years’ imprisonment, 18 months of which was suspended upon full restitution. A further 6 months was suspended upon entering into her own recognizance with the balance of 12 months’ to serve; and
         
    4. The State v Gibing Yawing (2017) N6836, Salika DCJ: the prisoner, an accountant pleaded guilty to one count of misappropriating K14,955 in the form of a cheque belonging to his employer, Simbu Farming and Marketing Ltd. K6900 worth of goods was recovered. He was sentenced to two years of imprisonment.
       
    5. The State v Imoi Maino (2004) N2773, David AJ (as he then was), in which the prisoner misappropriated K106,355.02 by drawing 16 cheques, 15 in favour of others, one in favour of himself, whilst a payroll clerk with the Department of Education. He was sentenced to 4 years’ imprisonment, of which 2 years was suspended on conditions;
       
    6. 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;
       
    7. The State v Joe Joseph, CR(FC) 1179 of 2013, unreported, Mogish J: the offender pleaded guilty to misappropriating K75,250 beloging to the complainant and his wife, whilst employed as a loans officer for Kina Finance. Without their approval the offender dishonestly applied monies to a company of which he was a director. He was sentenced to four years of imprisonment, which was wholly suspended on condition of restitution;
    8. 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;
       
    9. The State v Kom (2018) N7362, Miviri AJ (as he then was): the prisoner pleaded guilty to misappropriating K41,859. He was employed by ANZ Bank as a Small Medium Relation Officer and put a stop on the account of a deceased person. He instructed his colleagues to lift the stop and linked the deceased’s account with his phone and then applied the monies through the mobile banking system to his own use. He was sentenced to 4 years of imprisonment;
       
    10. The State v Dumo (2018) N7574, Berrigan J: the Manager of Operations at the Education Department pleaded guilty to one count of misappropriating K87,731.00, the property of the State. The offender received the funds as a refund but failed to pass them on to the Department. He was sentenced to 4 years of imprisonment, two years of which was suspended on conditions, including restitution.
        
12. 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

13. Having regard to the principles outlined in Wellington Belawa, the following matters have been taken into account.
    
14. 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 K117,788.87.
    
15. The offence involved a serious breach of trust for personal gain. At the time the offender was a trusted accounts officer, on secondment, to OCGC.
    
16. The offence was conducted over a period of seven months, and comprised 21 transactions, demonstrating planning and ongoing dishonesty during the relevant period. It involved the deliberate manipulation of the online banking system.
    
17. It is not in dispute that the monies were applied for the offender’s own use. The offender informed Probation Services that the monies were used to support her mother who was very ill at the time, and her younger brother, who was attending the University of Papua New Guinea.
    
18. There is no information as to the impact on the victim. Clearly, the company has lost a substantial amount of money. To date the offender has restituted K3500.
    
19. The offender is a young woman of 28 years of age. She is of Central and New Ireland Province heritage and currently resides at Gerehu in Port Moresby, with her husband and two children.
    
20. The offender is well educated. She attained a Diploma in Accounting in 2013 after completing secondary school to Grade 10. She was employed by DHL between 2009 and 2014, and then with Fedex for 5 months. In 2018 she joined Kramer Ausenco as an accounts clerk, and from whom she was seconded to work for OCGC at the time of the offence. She is no longer formally employed and relies on informal work, and on her partner for financial support.
    
21. In mitigation this is the offender’s first offence. The report from Probation Services contains no information from her immediate or extended family. The offender was unable to nominate a community leader in her area. Nevertheless, I am satisfied that she is previously of good character. She was employed for a number of years in a position which necessarily involved trust.
    
22. The offender expressed remorse on allocutus which I accept as genuine. In my assessment she sincerely apologised for the offence, making clear that it was the “biggest mistake” she has ever made. She pleaded for the Court to consider her two small children, and her family who depends on her. She is the only one in her family who is working.
    
23. Very significantly, the offender cooperated from a very early stage with authorities and pleaded guilty at the first opportunity before this Court. She has not at any time tried to hide her offending. I am satisfied of her genuine remorse. Her guilty plea has also saved this Court, the State, the time, cost and inconvenience of a trial.
    
24. It is very clear to me that the impact of the offence on the offender has been and will continue to be grave. The offender has lost what appears to be a secure and responsible position in a large corporate group. I am sure that her offending will bring shame and a loss of standing to both herself, and her family. She is still young but I estimate that it will be very difficult for the offender to find formal employment in the future, particularly in the area in which she holds qualifications.
    
25. There can be no doubt that any time spent in custody will have a significant impact upon her mother and her two younger brothers. Moreover, the impact on her husband and in particular, her two very young children, aged just nine and two years, will be very significant, at a time when they most need their mother.
    
26. There are no matters of mitigation special to the offender.
    

Sentence

27. The offender has been convicted of one count of misappropriating K117,788.87 contrary to s. 383A(1)(a)(2)(d) of the Criminal Code, for which the maximum penalty is 10 years of imprisonment.
    
28. 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.
    
29. I have taken into account the offender’s personal circumstances. I have also taken into account her lack of previous conviction, prior good character, very early cooperation and early guilty plea, her sincere remorse and efforts to make restitution. These are factors in her favour but they are outweighed by the aggravating factors in this case, namely the nature and quantum of the offence, the period over which it was conducted, the position of trust held by the offender, the use to which the monies were put, the planning involved and the impact on the victim. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.
    
30. Having considered all of the above matters, including comparative cases, I sentence the offender to 4 years of imprisonment. I understand that to date the offender has not spent any time in custody.
    
31. As mentioned, the offender has pleaded for her sentence to be suspended.
    
32. 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.
    
33. Probation Services report that offender’s husband has provided a letter in support of the offender and agreed to make fortnightly deductions of K500 to repay the money.
    
34. It is clear however, from the report provided by Probation Services that the offender has no assets and does not have the means to repay the monies. I agree with that view. At K500 per fortnight, it will take the offender about nine years to repay the monies. That is an unreasonable period of time over which to make restitution. It also imposes an unreasonable financial burden on her family. This case also involves a substantial amount of money. In the circumstances it is my view that suspension in the interests of restitution is not appropriate. It is also my view that a wholly suspended sentence is not appropriate in the circumstances of this case given the nature and quantum of the offence. There is nothing to suggest that the offender would suffer excessively in prison.
    
35. I am, however, satisfied that the offender has very good prospects of rehabilitation. This is demonstrated by her very early and full cooperation with authorities and her early plea before this Court, together with her attempts to make some restitution to date. The offender is still young, and I am satisfied that partial suspension of the sentence will promote her rehabilitation into the community. This is not an exercise in leniency, but an order made in the community interest: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320. The offender will need to perform community service during the period of suspension.
    
36. In the circumstances I make the following orders.
    

Orders

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

(2) Two years of the sentence is suspended upon completion of two years of imprisonment, upon the offender entering into her own recognisance to keep the peace and be of good behaviour for the period of her suspension.

(3) The offender shall perform appropriately designed community work under the supervision of the Probation Service during the period of her suspension.

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

(5) 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 female population, subject to medical assessment.

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