State v Segi [2022] PGNC 366; N9792 (21 July 2022)

N9792

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 92 & 93 OF 2021

THE STATE

V

ANTON SEGI & ERNEST POMO

Madang: Miviri J
2022: 08^th & 21^st July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation Section 383A CCA – Money received From Sales of Stock – Trial – Digicel Salespersons – Company Accounts – Serious Breach of Trust – Prevalent – PSR MAR Favourable Material Relied Not Verified – Court of Law PSR MAR with Verified Evidence Proper in Law – Hearsay Material Inadmissible – No Basis for Immediate Suspension of Sentence – Whether Substantial Means to Repay – Whether Custodial Or Non-Custodial Sentence – Anton Segi 3 Years IHL – Ernest Pomo 2 years IHL.

Fact

Each Accused were salesman employed by Digicel to sell flex cards. They took possession of the Flex cards but brought back no returns from the sales.

Held

Salespersons.
Serious Breach of Trust.
Prevalent Offence.
PSR MAR favourable.
With unverified Material
Strong Deterrent Sentence.

Cases Cited:

Allan Peter Utieng v The State (Unreported Judgement delivered in Wewak on 23^rd November 2000) SCR 15 of 2000.
The State v Eric Emmanuel Vele [2002] PGNC 93; N2252.
Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC564
Belawa v The State [1988-89] PNGLR 496
State v Hibura [2017] PGNC 290; N6993
Public Prosecutor v Bruce Tardrew [1986] PNGLR 91
State v Moripi [2017] PGNC 202; N6867
State v Uviri [2008] PGNC 286; N5468
State v Duk [2009] PGNC 247; N3924
State v Zuvani [2004] PGNC 127; N2641

Counsel:

G. Koare, for the State
N. Katosingkalara, for the Defendants

SENTENCE

21^st July, 2022

1. MIVIRI J: This is the sentence of two salespersons, employees of Digicel who were found guilty after trial in that they were given Stocks, Flex cards to sell on behalf of the company and did not return the proceeds of the sales.
   
2. Anton Segi of Giri, Bogia, Madang Province was employed by Digicel (PNG) Limited in Madang as a Sales Executive Officer between the 19^th January 2020 and the 14^th day of February 2020 in Madang. He was given Flex cards in various amounts over that period that he was to sell and to give the proceeds back to Digicel. And on each of the occasions that the various amounts were given him, he never returned any moneys to the Company. His sales remained opened and all added up to the total sum of K 42, 693.00 the property of his employer Digicel which was never accounted back to Digicel. He was dishonest and applied the proceeds of that money to his own use and to the use of others.
   
3. In the case of Ernest Pomo of Kambuku, Angoram, East Sepik Province he was also employed by Digicel PNG Limited as a Salesperson between the 22^nd of January 2020 and the 27^th February 2020. He too was accorded stocks, Flex cards in various denominations that he was supposed to have sold, and the proceeds that he acquired were to be returned balancing out the books to Digicel. He generated K 9, 550.00 out of the sales of the stock that he was issued. He paid back K 2, 483.00 to Digicel. But did not give back to Digicel K 7, 067.00. He was dishonest and applied that money to his own use and to use of another.
   
4. Both Accused were charged with misappropriation pursuant to section 383A 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.”

5. It is clear that the maximum sentence due against each of the Prisoners Anthon Segi and Ernest Pomo is 10 years imprisonment in hard Labour. Because in their individual cases the subject moneys were of Digicel who employed them as its servants, Sales personal. And what money was generated remained the property of Digicel. And should have been returned in both cases back to Digicel as the owner. They were trusted highly in their duties which is evidenced by the amounts of moneys that were placed into their hands and discretion by the Company. It was incumbent upon them to return that trust of the Company by the return they made to balance out the books of the company against them. They did not honour with the return of the moneys in each case. And have not opted despite the reminders by the financial Executive of the Company, Jovita Matapere. In the light of that fact both denied the allegation and a trial was run sustaining in their convictions of the various amounts that she reminded them to return to close the sale and to balance the books. It was moneys that were subject to trust direction and conditional as they had to be returned. And on the books of the company, they remained opened and pending in the hands of the prisoners. In the light of these facts the Prisoners elected to put the State to task to prove its case.
   
6. And the amounts in each exceed K 2000.00 therefore their sentence would be in the vicinity of 10 years imprisonment. But their facts are not the worst case of misappropriation so that the maximum penalty prescribed is drawn settling the offence. Their case will draw out a determinate term of imprisonment against the both of them, Anthon Segi and Ernest Pomo.
   
7. Anthon Segi is originally from Giri, Bogia District, Madang Province. And is 44 years old resident at Tarangau Street, Madang. A first offender educated to grade 10 at the Holy Spirit High School in Bogia. Where he continued to Commercial training Centre attaining a certificate in Salesmanship. He was employed with Andersons as a Sales Representative from 2000 to 2002. Then with Colgate Palmolive also as a Sales representative from 2005 to 2015. And was with Digicel from 2015 to 2020 as Sales executive when charged and now convicted. His wife is unemployed. Both have five children the eldest is 19 years old at Tusbab Secondary school in grade 9, the second is 17-year-old at grade 8 in Holy Spirit Primary School together with the 03^rd born, who is 10 years doing grade 4 there, also the fourth born who is 5 years old and doing grade 1, also there at that Primary School. And the last child is 1 year 3 months old.
   
8. In his allocutus Anton Sengi said he was sorry to the Court for holding its time in his case. And also, to Digicel for what he did. And to the staff of the court , the Corrective Institution Service for bringing him back and forth from and to Court. It was his first time in Court. And he was married with five children and he recounted the details of all as set out in the presentence report. He asked for the mercy of the Court and to be placed on probation to pay back the money to the Company. He also asked to be with his child in grade 8 who was sitting for his grade 8 examinations. He had his Church Pastor from the Evangelical Lutheran Church New Town, Reverend Beuben Martin who stated that the prisoner was humble, simple, open, supportive, and responsible man in the family, community and in the congregation. And was an active participant in community well being welfare particularly with the fact that Newtown was lawlessness.
   
9. When the prisoners set out to commit this criminal offence it ought to have been in the minds 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 offenders 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.”
   
10. The application of the will of the legislature prescribed under section 383A is not affected by the personal consequences deriving and due the prisoners for the discretion they took to commit the offences. And it was within their prerogative whilst on bail to seal what was owing to the company. The Records of the Company will tell against them. And it would have been concrete had they done that by their volition there and then as demonstrated in The State v Eric Emmanuel Vele [2002] PGNC 93; N2252. There Prisoner took the initiative to make repayment of K 11,091.23 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.
    
11. In the case of Ernest Pomo, he had the following to say on his allocutus; he was sorry to God for what he had done. And also, to the court and staff of the Court, also the Corrective Institution personal for taking him back and forth between the court and the Prison. He said it was his first time, and he asked for the mercy of the Court to be placed on probation to pay the money back to the company. He was employed but his wife wasn’t. And his mother was with him with his two children, one was in grade 3 and the other was in grade 1.
    
12. He is originally from Kambuku, Angoram District, East Sepik Province. He is also a first offender aged 38 years old resident on Karanget Island. He is married and has two young children both of whom are in school particulars he has set out in his allocutus. He also cares for his sister and mother as the father is deceased. He is educated to grade 12 with a certificate in 2002. In 2003 to 2005 he was at the Institute of Professional Studies and obtained a diploma in Sales and Marketing Management. After which he was employed 2010 to 2014 with Courts PNG as Sales Representative (Madang). 2014 to 2015 he was employed with Hertz Rental Cars as Fleet Manager Kokopo. And in 2015 January he worked with Courts PNG as Assistant Manager Madang. And in 2015 February he was working with Digicel PNG as Senior Sales Executive. And 2022 currently in March he is working with Inter Linc (Voda Fone Distributor) as Area Sales Manager. Through this work he alone provides for his family. And being out of work means his family has suffered as a result. That is the result that has come with the commission of the offence.
    
13. Prisoner has good references from his sisters and brother-in-law in that he is supportive of their mother and the sisters. He is honest and cares well for the family. Yaling Baram village Court Magistrate from Bell/ Karanget has voiced support of the prisoner in that he has a good record within that community.
    
14. The views of Digicel as victim has been sought and has been obtained not from Management but from a security onsite. Its is not clear as to what position he is within the Company Management and what authority he holds to make the views of the victim. This case entangled the top Management of the Company leading eventually to the charging prosecuting of the prisoners. Rightly it must involve the position of the victim that company in the determination of penalty appropriate upon the Prisoners. Because the moneys belong to that company and it is they who must voice as to their attitude as to how they want to see out the matter now that it has landed in their favour. It is not satisfactory but the fact of the matter is these were stock that were of that company in the hands of the prisoner return in each case not made to the Company. It would not be wrong to order restitution back to the Company of the same. In this regard counsel defending has submitted that the victim company is a multinational company and has not been affected. That submission does not hold water because it is without evidence to sustain. If it has not been affected, why has it taken the pain to report to police culminating in the convictions at the evidence that its officers have provided, financial Executive of the Company, Jovita Matapere. It has been affected and is interested in the moneys that were in the hands of the prisoner still yet recouped despite reminders there. As sales man with those accounts open against them they did not take the pain to repay there and then. They have waited until convicted and now in the face of sentence are asking to be given time to pay. In my view this is a frail attempt to avoid Jail term that is due both.
    
15. Because common to both prisoners is that this is trust that was placed by the company on both prisoners which was abused seriously by both. Both were employed in very responsible positions in sales by the Company Digicel (PNG) Limited. Anthon Segi was Sales Executive officer and Ernest Pomo was Retail Executive, Digicel Madang. Both were handling large sums of cash for and on behalf of the company. It did not just come at the snap of a finger; time hours sacrifice was devoted meted to be elevated to the respective roles that they each held within the company. There was trust and confidence built over the time they were with the company to be given the responsibilities that each held in it. And it would have been no light matter to show the door out from that with the allegations now convictions against each of the prisoners. In one case, Anthon Segi the amount misappropriated by K 42, 693.00, and in the case of Ernest Pomo it was K 7, 067.00. To his credit was the fact that he had made good return of part of that sum, which was originally set out as K 9, 550.00.
    
16. Both Prisoners are first offenders and counsel has urged reliance on Belawa v The State [1988-89] PNGLR 496 that in the case of Anton Segi his case fell under category three in that case because his conviction was for the amount K 42, 693.00. The amount in this case was K 10, 000 to K 40, 000 where two to three years imprisonment was in order given. And in the case of Ernest Pomo, it was category two because the amount that he was convicted off was between K1000 to K 10, 000 drawing two years imprisonment. His amount being K 7, 067.00. State conceded in the application but went further and submitted that the presentence of Anton Segi showed that he was considered suitable for probation. The means assessment report detailed that he had no money except K 5000 in his MiBank Account, and grass cutting contract which was earning him K 2500 and in hand he had K 1500. That was a total sum of K 9000 that could be paid over to Digicel to start the process of repayment of the moneys owing to Digicel.
    
17. In the case of Ernest Pomo, he had got a job as Area Sales Manager with Interlinc and that the salary package was good K 1500. And he also had savings with Nasfund balance he checked in May 2022 was K 21, 300 and in his personal savings with BSP he had K 3000. He had the ability given to repay the K 7, 067.00 of Digicel. He has basis in this evidence for restitution to be made to Digicel. These are very serious facts without letter from the company that he is indeed employed there now. And his salary is K 1500. And there is no statement from the Nasfund balance of May 2022 that K 21, 300 is indeed in the account of the prisoner. Nor has there been a statement taken out of Bank of South Pacific giving his name and account number with the money in it. That is not the case here by the present report. It is not verified so that it is substantially settled for the court to exercise discretion based on it. The discretion will not be exercised without in favour of the prisoner.
    
18. The means to pay back the moneys of Digicel have come out after conviction on trial. The prisoners have rights to put the State to prove its case. But by the fact they must demonstrate credibility in the scheme and the means for the victim to recoup regain what it has lost out. In my view 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 prisoners. Their denials has been without any fruit. Now that they have been convicted both have resorted to pointing to areas where there is money to pay back the sums they have misappropriated. Yet these were available to them on bail yet they did not lift a finger to pay into Digicel what they owed. There is no real value in this way to hold their head above water that this money will indeed be paid back to Digicel. In this regard the means assessment reports are verified facts ascertained that indeed the prisoner has the means to settle what is due and owing to the complainant victim. The means assessment report is intended to be held in the determination of a serious matter as is the present. Particularly and relevantly whether the prisoners indeed have the means to settle what is owing. That there is indeed substance to the contention to repay.
    
19. Just as the Pastor Beuben Martin has come out by his letter head, it is not the same for the moneys that are presumably in the Mibank, in a statement of the Account in the name of the prisoner. And evidence of the subject contract for cutting grass. It is not clear as to who the other party to this contract is. And it is not verified so that reliance is placed that indeed there is money coming as contended to settle what has come out by a process of law. The conviction is a process of law that has come out with the evidence to establish beyond all reasonable doubt that K 42, 693.00 of Digicel is in the hands of the prisoner. What money is in his hands and from what employment is also not clear. The means assessment report is not a verified report on the amount of money that the prisoner has. What is intended is not an inquiry but the national Court of Papua New Guinea in its criminal proceedings in the determination of appropriate sentence befitting for the prisoner given. Therefore, evidence and material intended to sway the court must be by process of law. There must be independent verification of facts presented and relied on as it is not a mere report. The exercise of the powers of the court under section 19 to suspend sentence is not a light matter given out on hearsay evidence. That is what the means assessment report is without verification independently.
    
20. “The factors that the Probation Service identified as the basis to place the offender on probation are with respect flawed. Firstly the prisoner has no means to pay restitution. Secondly, he cannot pay Moni Plus because he has no regular fortnightly income. Thirdly he is not the only person the landowner company can rely on and finally he is no longer teaching. He voluntarily left the teaching profession. His integrity as a teacher is gone. He is a fraudster and no longer a fit and proper person to go back to the teaching profession. Not only that, but the likelihood of the prisoner going back to the teaching profession is probably zero.
    
21. In relation to the offender’s ability to repay the victims, the assessment is nil. He has no means to repay. He has K5, 000 with Nambawan Finance. He has not made any attempt to get the K5, 000.00 from Nambawan Finance. If he is serious about repaying, he must start first with the K5, 000.00 and then he can think about how he is to pay the remaining K6,100. He is not talking about getting the K5,000 out from where it is to repay. The probation Service officer says that the offender has the “potential to repay the money within 6 months, though he is not formally employed.....” I do not follow the logic of the Probation Officer. He says that, the offender committed the offences in 2013 and 2014 and since then he has not made any effort to repay the money. From 2014 to now 3 years have lapsed without any restitution. Now the Probation Service asks for one more year is beyond any logic. The Probation Service needs to analyse the facts properly and logically before making its recommendations.”State v Hibura [2017] PGNC 290; N6993 (18 August 2017).
    
22. Therefore the presentence report with the means assessment reports here has no real value attached in both instances in this regard. In Public Prosecutor v Bruce Tardrew [1986] PNGLR 91 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. And K42, 693.00 is culmination of three separate acts in the discretion of Anton Segi.
    
23. In similar way he must demonstrate substantial basis upon which suspension will be accorded. “If offenders desire the benefit of suspension of sentences, they must demonstrate restitution by actual upfront restitution in real terms. Making repayments on their own initiative and not to wait for the court to order restitution is a real bonus with respect. Real action to repay must be put in motion and not on mere plans and talk only. The offender in that way shows real remorse and regret in my respectful opinion. In this case with respect, that is lacking. There was talk and plan only but no real action. In the end result she is sentenced to 3 years imprisonment with hard labour for conspiracy to defraud and 4 years for obtaining goods by false pretence. The two sentences will be served concurrently. The total sentence for the 2 offences is 4 years imprisonment in hard labour. The total 4 years will be suspended if K207, 000.00 is repaid at any time,”State v Moripi [2017] PGNC 202; N6867 (31 July 2017).
    
24. This view has taken root and is not a new State v Uviri [2008] PGNC 286; N5468 (16 October 2008) offender was sentenced to 7 years imprisonment of the misappropriation of K536,134.00 of which the court held K 300, 000.00 was misappropriated by her. There was no evidence of repayment nor means to pay back she was sentenced accordingly.
    
25. 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.
    
26. 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.
    
27. There is no material upon which the discretion to suspend sentence can be exercised. The presentence report does not contain any verified material in the case of both prisoners to allow that discretion to be exercised. Suspension of sentence is not dictated by emotions. It is a process of law prompted by evidence. There is no verification of the contention that are made in the presentence and means assessment reports in each case of the prisoners, Ernest Pomo and Anthon Segi. Without that verification the discretion is denied the prisoners.
    
28. What is due given is that each of the Prisoners will be sentenced to time in jail. But that time will be suspended forthwith unconditionally and the prisoners released from jail upon payment of the moneys they each have misappropriated. This sentence is intended to weed out the genuine from the non-genuine in the attempt to the Restitution of the property misappropriated. This Court has followed similar paths earlier and I adopt this in view of State v Hibura (supra) and State v Moripi (supra). And further Tiensten v Independent State of Papua New Guinea [ 2014] PGSC 74; SC1468 (19 December 2014) K10 million was the amount stolen by Member of Parliament then for Pomio. He challenged the conviction which was confirmed which followed that 9 years IHL imposed was confirmed including that four years would be fully suspended if K10 million was repaid to the State. 5 years would be served in jail.
    
29. So, whether they serve out all of the term imposed or it is suspended forthwith depends on how soon they will pay that money back to Digicel. If they pay now, they will not serve any time in jail. The longer they take to pay the longer they will be in jail. Anthon Segi has three (3) years within which to pay up. Ernest Pomo has two years within which to pay up. They have opted to pay it back upon conviction. They did not take time to pay when they were out on bail awaiting this matter when they had these moneys in their discretion in their bank accounts. Or even when they were still employed by Digicel and were reminded to pay and settle. For these reasons, time outside will not be accorded, instead they will pay it from within jail. The option and opportunity is given to them whether they continue to serve out the jail terms in full or come out of jail with immediate effect and suspension of the sentences forthwith upon payment of the moneys misappropriated.
    
30. In the case of Anthon Segi, he is sentenced to 3 years IHL which will be suspended immediately unconditionally forthwith if he pays K 42, 693.00 in full to Digicel and receipt filed into Court and evidence produced of payment into Court.
    
31. In the case of Ernest Pomo, he is sentenced to 2 years imprisonment IHL which will be suspended immediately unconditionally forthwith if he pays K 7, 067.00 to Digicel in full settlement and receipt filed into court evidencing and evidence produced into Court.
    
32. Suspension will take place of the respective sentences forthwith unconditionally if evidence is produced before this court any time within the 3 years in the case of Anthon Segi, and in the case of Ernest Pomo any time within the 2 years imposed.
    

Ordered Accordingly
_________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitors: Lawyer for the Defendant