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State v Lamo [2022] PGNC 64; N9500 (25 February 2022)

N9500

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) 53 OF 2021


STATE


V


JUDY GUINA LAMO


Waigani: Wawun-Kuvi, AJ
2021: 20th & 23rd December
2022: 19th January, 25th February


CRIMINAL LAW–SENTENCE –S 383A(1)(a)(2)(d) of the Criminal Code – Guilty plea - Misappropriation of K64, 754.99 – Sentence of 4 years of imprisonment imposed.

Cases Cited

Belawa v The State [1988-89] PNGLR 496

State v Leva [2021] PGNC 34; N8801

State v Emil [2021] PGNC 88; N8789

State v Bungo (No. 2) [2020] PGNC 400; N8662

State v Kissip [2020] PGNC 151; N8340

State v Kisua (2018) N7513

State v Balim [2015] PGNC 223; N6028
State v Karnhick [2020] PGNC 142; N8341
State v Teka [2008] PGNC 154; N3509
State v Uviri [2008] PGNC 286; N5468
State v Maino [2004] PGNC 8; N2773
State v Likius [2004] PGNC 245; N2518
State v Kaia [1995] PGNC 166; N1401


Reference


Criminal Code

Counsel


Ms Lilly Jack, for the State
Mr Jeffery Kolowe, for the Defence


DECISION ON SENTENCE


25th February, 2022


  1. WAWUN-KUVI, AJ: Judy Guina Lamo (offender) is 43 years old female from Rigo in the Central Province.
  2. She was employed within the Department of Provincial and Local Level Government Affairs. She was the certifying officer and a counter signing officer within the Finance and Administration Branch.
  3. The PNG Fire Service and the National Disaster Centre are managed by the Department of Provincial and Local Level Government Affairs.
  4. Between 1 April 2013 and 31 October 2013, she processed cheques and made them payable as “PAY CASH” to an individual named as John Sule and a company named as Our Real Estate. There were no supporting documents justifying the payments.
  5. The money was taken out of the vote belonging to the PNG Fire Service.
  6. John Sule was not a service provider for the PNG Fire Service. The payment to Our Real Estate was for the offender’s rentals.
  7. The offender’s fraudulent activities were discovered during an Internal Audit.
  8. By the time the fraud had been discovered, she had misappropriated the sum of K64, 754.99.
  9. She has accepted responsibility by pleading guilty.
  10. I must now decide the appropriate penalty.

Purpose of Sentencing


  1. I am reminded that sentencing has many purposes. There are numerous and include, punishment of the offender, rehabilitation, specific and general deterrence, communicating clearly that the community and society does not condone the offender’s conduct and in cases of violent and serious offences for the protection of the community.

The Charge


  1. The offender was convicted on the charge of Misappropriation under section 383(1) (a) and (2) (d) of the Criminal Code.

Penalty

  1. The maximum penalty is 10 years imprisonment.
  2. I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653. This is not such a case.

Submissions


The Defence


  1. The Defence submit for a term of imprisonment between 3-5 years. That the Court should exercise its discretion and wholly suspend the sentence with conditions for restitution. It is submitted that her family will assist her to make restitution and her superannuation will also go towards restitution.
  2. In mitigation, defence submit that the offender has no prior convictions, she expressed genuine remorse, she pleaded guilty, cooperated with police and is presently unemployed. In aggravation, it was submitted that the offence is prevalent, is a serious offence, happened over a period, there was a breach of trust given to her by her employer and the amount misappropriated was significant.
  3. It is submitted that the Court has a discretion to impose a sentence other than the maximum in considering the mitigating factors, aggravating factors, and the peculiar circumstances of the case.
  4. Defence submit that the Court should be guided by the sentencing range in the case of Belawa v The State [1988][1], which provides:

“(1) where the amount misappropriated is between K1 and K1,000, a gaol term should rarely be imposed;

(2) where the amount misappropriated is between K1,000 and K10,000, a gaol term of up to two years is appropriate;

(3) where the amount misappropriated is between K10,000 and K40,000, two to three years imprisonment is appropriate;

(4) where the amount misappropriated is between K40,000 and K150,000, three to five years imprisonment is appropriate.”


  1. Defence submits the following comparable cases:
  2. State v Kissip [2020][2], Berrigan, J: The offender was convicted following a trial for four counts of stealing monies totaling K36, 140.00. The offender was responsible rectifying dispensing errors at ATM locations. On four separate occasions instead of placing the monies for collection she stole the monies. The offender was sentenced to 4 years imprisonment which was wholly suspended with conditions.
  3. State v Kisua (2018)[3], Koeget J: The offender pleaded guilty to misappropriating K30, 000.00. The accused was the Officer in Charge of the PG Microfinance Ltd at Daru. Over a period, he directed tellers to lend him monies. He did not reimburse the monies. The offender has restituted K25, 000.00 prior to sentence. He was sentenced to 18 months imprisonment, which was wholly suspended with conditions.
  4. State v Balim [2015][4], Cannings, J: The offender pleaded guilty to misappropriating K11, 680.00. The money belonged to the school in which the offender was a teacher. During a six-week period the offender forged the signature of the head teacher and cashed four cheques. He has restituted K3000.00 prior to sentence. He was sentenced to 3 years imprisonment, which was suspended with conditions.
  5. The State v Teka (2008)[5], Makail AJ (as he then was): The offender pleaded guilty to misappropriating K37, 000.00 belonging to her brother-in-law. He had given her the money to purchase a bus. She deposited the money into her account and proceed to withdraw the money over a period. She continued to do so until the account was depleted. The Court considered the financial ability of the offender to make restitution and the victim wished for restitution. She was sentenced to 5 years imprisonment which was wholly suspended on conditions, including restitution.
  6. The above cases involve amounts which are significantly less in value than that of the present case. Furthermore, the sentences were suspended on account that either the offenders had made some form of restitution prior to sentence or that they had the finically means to make restitution. In the present case, the offender has not made any form of restitution and does not have the means to make restitution.

The State


  1. The State submits for a term of imprisonment between 4-6 years. It was submitted that the sentence should not be suspended as the offender has no means to make restitution. However, where the Court does decide to do so, it was submitted that the repayment period should be within 4-12 months.
  2. The State concedes factors in mitigation but submits that the Court should consider that the offender committed the offence over a period of seven months, she abused a position of trust, and a significant amount of money was taken. That the money was applied to the offender’s personal use and the offence was prevalent.
  3. The State submits that the Court considers the factors in Belawa v The State [1988][6] when determining an appropriating sentence. The factors being:

“(1) the amount taken;

(2) the quality and degree of trust reposed in the offender including his rank;

(3) the period over which the fraud or the thefts have been perpetrated;

(4) the use to which the money or property dishonestly taken was put;

(5) the effect upon the victim;

(6) the impact of the offences on the public and public confidence;

(7) the effect on fellow-employees or partners;

(8) the effect on the offender himself;

(9) the offender’s own history;

(10) restitution; and

(11) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.


  1. The State submits the following comparable cases:
  2. State v Uviri [2008] PGNC 286; N5468, Cannings, J: The offender pleaded guilty to misappropriating K536, 134.00 belonging to her employer. She oversaw paying fishermen who supplied fish to her employer. She created false invoices and submitted to the accounts section. She received the cash and applied it to her own use. She was sentenced to 7 years imprisonment.
  3. State v Maino [2004] PGNC 8; N2773, David AJ (as he then was): The offender pleaded guilty to misappropriating K106, 355.02. She devised a scheme with others to process fraudulent cheques under each of her conspirators’ names. One of the cheques was made payable to herself. The offender was employed as a payroll clerk with the Department of Education. The scheme went undetected from almost 14 months. She was sentenced to 4 years imprisonment; 2 years was suspended on conditions.
  4. State v Likius [2004] PGNC 245; N2518, Lenalia J: The offender pleaded guilty to misappropriating K68, 679.06. He was employed as a Payroll Clerk with Lihir Management Company. The offender re-activated an ex-employee’s file and proceeded payments into his personal account. He was sentenced to 5 years imprisonment. 3 years was suspended with conditions for restitution.
  5. State v Kaia [1995] PGNC 166; N1401 (6 September 1995), Sawong J: The offender pleaded guilty to misappropriating K94, 478.31, the property of Australia and New Zealand Banking Corporation (PNG) Ltd. He was employed as an account’s supervisor. The accused conspired with others to have monies paid into their accounts. The co-conspirators would then withdraw the monies and share it. This happened within a period of two and half months. The offender was sentenced to 4 years imprisonment.
  6. The case submitted by the State show a similar modus operandi and the cases involve employees taking advantage of weak financial systems to misappropriate monies. The monies misappropriated are closer in value to the present case.

Comparable cases


  1. Additionally, these are some of the more recent sentences for the charge of misappropriation, which also involve positions of trust and guilty pleas.
  2. State v Leva [2021] PGNC 34; N8801, Berrigan J: The offender was convicted following a trial for misappropriating K290, 199.00 belonging to Buk Bilong Pikinini Incorporated. He was employed as a Portfolio Analyst with the Bank of South Pacific Limited. The offender and his mother had a business named BAM Agencies. Over the period of 15 months the offender deposited cheques belonging to Buk Bilong Pikinini into his account and the account of an employee of Buk Bilong Pikinini. He would then withdraw he funds. He was sentenced to 6 years imprisonment.
  3. State v Emil [2021] PGNC 88; N8789 (8 April 2021), Berrigan J: The offender pleaded guilty to misappropriating K117, 788.87 whilst employed by Kramer Ausenco (PNG) Ltd as an accounts clerk. She was seconded to work at Oriental Consultant Global Co Ltd (OCGC), a sub-consultant. The offender processed 21 transactions under the pretext of paying OCGC’s service providers. She inserted into the banking system the details of the legitimate service providers but directed the funds into her personal bank account. The fraudulent activity went with detention for several months. The offender was sentenced to 4 years imprisonment. 2 years of the sentence was suspended with conditions.
  4. State v Bungo (No. 2) [2020] PGNC 400; N8662, Batari J: The offender was convicted following a trial for misappropriating K15, 570.00. He was the Acting Town Mayor and obtained monies from the revenue collections. He was sentenced to 5 years imprisonment which was wholly suspended on conditions.
  5. State v Karnhick [2020] PGNC 142; N8341 (5 June 2020), Berrigan J: The offender pleaded guilty to misappropriating K300, 000.00. He was employed at the bank. He was given money by a land association. He withdrew money from the account until it was depleted. He was sentenced 5 years imprisonment.

Personal Particulars


  1. The offender is 43 years old and comes from Alepa Village, Rigo, Central Province.
  2. She is married and has five children. Two of her children have completed their education and two will be in Grade 4. One child is aged 3 and is yet to attend school. Her husband is unemployed.
  3. The offender attends the Seventh Day Adventist Church.
  4. She attended Koroboro International School from Prep to Grade 3. She then completed Grades 4 to 6 at the Philip Aravure Primary School in Gerehu. From 1993 to 1996 she attended Gerehu High School. She completed year 11 at the Kenbubu Adventist High School in East New Britain. She then completed Grade 12 at Kabiufa Adventist High School in Eastern Highlands Province.
  5. She went onto complete a certificate in business studies at the International Training Institute. Then went on to complete a Diploma in Business Studies in 2001. She attended the Divine Word University where she attained a Bachelor’s in Business Management in 2015.
  6. She started employment with Avis Rent A Car in March of 2000. She then left and commenced work with the Internal Revenue Commission in March of 2001. She worked for 4 years and joined the Department of Provincial and Local Government Affairs. She was suspended in November of 2019, and she later resigned in February of 2020. She is presently unemployed.

Allocutus


  1. The offender read her statement in allocutus. She apologized to her employer and her family for her actions. She explained that she was facing financial constraints following her husband’s termination. She asked for leniency and a period between 1-2 years for her to make restitution.
  2. I accept her statement as a genuine sign of remorse.

Pre-sentence Report


  1. The Probation Officer interviewed the offender, her husband, her father, elder sister, the Acting Deputy Secretary for the Department of Provincial and Local Government Affairs, Assistant Director Finance for Department of Provincial Government Affairs, Acting Director Corporate Services, the Former Chief Internal Auditor, Finance Manager PNG Fire Services, and a Church Elder for the Gerehu Seventh Day Adventist Church.
  2. All the persons interviewed except for the former Chief Auditor are of the view that the offender should be given a non-custodial sentence. They speak of the offender’s good character.
  3. The Probation Officer make no recommendations in the Pre-Sentence Report.

Means Assessment Report


  1. Both the offender and her husband are unemployed. She operates a small consultancy service where she processes passports, visas, and company registrations. She at times trades in gold.
  2. She has K19, 626.19 in her superannuation account.
  3. Her father and sister are willing to assist her to repay the money. They do not propose how they will do so.
  4. The Probation Officer assesses that she has no means to make restitution and is of the view that she is likely to default if restitution is ordered.

Mitigating Factors


  1. I accept in mitigation that the offender pleaded guilty, that she has no prior convictions and that she has shown genuine remorse for her actions.
  2. However, contrary to defence counsel’s submissions, the offender did not cooperate with police by making early admissions in 2019. Instead, I accept that she made admissions to the auditor in 2013.

Aggravating Factors


  1. In aggravation, I find that the amount taken was significant, she was given a high degree of trust which she breached, the offence was perpetrated over a long period, she applied the monies to her personal use being debts and rentals and she had made no form of restitution since 2013. Furthermore, the offence is very prevalent.

Consideration


  1. Whilst the offender’s family and the offender say that her actions were a mistake, they were not. It was systematically carried out within a period of almost seven months. It was a conscious decision by the offender to take money from her employer. The only reason she stopped was because she was caught.
  2. It is this type of indifference that allows corruption to flourish in our country. A refusal or an indifference by family members and friends to accept the dishonest intentions of the perpetrator.
  3. This was not a typing mistake or incorrectly paying the wrong service provider. This was a brazen, calculated, and deliberate act by the offender to abuse the trust placed on her by her employer. She took advantage of the weak financial systems within the Department of Provincial and Local Government Affairs to perpetrate the fraud.
  4. The victim was the PNG Fire Service. It is an emergency service. To take money from this service is to take money needed to purchase essential equipment such as, hoses, fire hydrants and many other items that are required to put out fires which save lives and properties.
  5. Her employer is not a private company that generates its own income. It is a State body. The Department of Provincial and Local Level Government is a public body. The offender was a public servant. Monies misappropriated were public funds. The inability of the government to curb corruption has come under much scrutiny and criticism. Public official such as the offender in their corrupt conduct do nothing more than contribute to ever growing frustration of our people who continue to be told that there is no money for basic services.
  6. Whilst the offender says that she did not benefit personally, the money was spent on her rental accommodation and paying off debts. It is evident from her statement in allocutus that she was used to a certain standard of living when her husband was employed. Instead of making the necessary changes and adjusting her lifestyle, the offender sought to maintain the same standard by dishonestly taking money from the public purse.
  7. This is the disease that continues to plague our society. As in the offender’s case, many people continue to take money that is not theirs to take, to live lifestyles that they cannot afford.
  8. The offender has no means to make restitution. Her husband and her are unemployed. They have children who rely on them for their basic needs.
  9. The offender has no assets, no source of income, no savings. She relies on the K19, 626.19 from her superannuation to make restitution. Considering, her present financial state and the reason that caused her to be in Court, it is unlikely that a significant portion or if any amount would be committed to restitution.
  10. The offence was committed and discovered in 2013. The offender took no steps in those eight years to make some form of restitution. She was only arrested in 2019. She was suspended in December of 2019, following her arrest in November of that same year. Just as she had informed the auditor in 2013 of her intentions to make restitutions, this was repeated in the District Court in her section 96 statement on 3 November 2020. On 17 January 2022, she again made the same promises to restitute. The Court cannot place must value of her continued promises to make restitution.
  11. Her father and sister have offered to assist the offender. They have not explained how they would be able to assist the offender to repay K64, 754.99. In any event, it would be unfair to impose such conditions on family members who more than likely have their own financial constraints and commitments.
  12. Considering the mitigating and aggravating factors, factors peculiar to the offender, the current sentencing trends, the prevalence of the offence and the foregoing matters, the offender is sentenced to 4 years imprisonment.
  13. The question now is whether the sentence should be suspended?
  14. This was not a violent offence, and the offender does not pose a risk to her community. Her former colleagues, church elders and family speak of her prior and present good character.
  15. I balance this aspect with the consideration that the offence is prevalent, and a clear message must be communicated to the community and to likeminded individuals who hold positions of trust and decide to abuse it, that this type of behavior cannot be condoned.
  16. I consider a partial suspension is appropriate.
  17. In the exercise of my discretion, I suspend 2 years of the sentence. The balance shall be served.

Orders


  1. The Orders are as follows:
    1. The Offender is sentenced to 4 years imprisonment.
    2. Two (2) years of the sentence is suspended, and the offender placed on a good behavior bond without surety for a period of 12 months.
    3. The Offender is placed on probation for the period of the suspension, and she shall comply with conditions stipulated in her Probation Order.
    4. The offender shall serve the balance of 2 years at the Bomana Correctional Institution.
    5. The Bail money is refunded.

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

[1] PGSC 6; [1988-89] PNGLR 496 (1 December 1989)
[2] PGNC 151; N8340 (5 June 2020)
[3] N7513
[4] PGNC 223; N6028 (22 July 2015)
[5] N3509
[6] supra

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