State v Ena [2024] PGNC 373; N11044 (18 October 2024)

N11044

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 145 OF 2018

THE STATE

V

PAUL ENA

Bomana: Berrigan, J
2024: 16^th &18^th October

CRIMINAL LAW – SENTENCE – MISAPPROPRIATION – K32,601.74 – 3 years of imprisonment without hard labour, partially suspended having regard to age, delay and prior service as police officer.

Cases Cited:
Wellington Belawa v The State [1988-1989] PNGLR 496
David Kaya and Philip Kaman v The State (2020) SC2026
The State v Nancy Leah Uviri (2009) N5468
The State v Tarsen (2011) N4312
The State v Bruno (2017) N6652
The State v Togumagoma (2023) N10129
The State v Paul Guli & Ors (2017) N6866
The State v Pohien (2016) N6564
The State v Karnhick (2020) N8341
The State v Tanner & Anor (2014) N5808
The State v Tony Haru (2014) N5660
The State v Emmanuel Donigi (2024) N10984
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
The State v Benedict Simanjon (2020) N8637
The State v Tardrew [1986] PNGLR 91

References Cited:
Sections 19, 383A, Criminal Code

Counsel
H Roalakona, for the State
F Timbi, for the Offender

DECISION ON SENTENCE

18^th October 2024

1. BERRIGAN J: The offender was convicted following trial of one count of misappropriating K32,601.74 belonging to his cousin, Peres Norea, contrary to s 383A(1)(a)(2)(d), Criminal Code for which the maximum penalty is 10 years of imprisonment.
   
2. On 11 January 2016 the complainant, a man of about 54 years of age, gave the offender, his cousin, a former police officer, K5, 000.00; in cash together with his BSP bankcard and PIN for the purpose of purchasing a coaster bus. Instead of doing that the offender dishonestly applied the monies to his own use. All but K28 had been expended from the account by 28 February 2016 and the balance effectively withdrawn within a short time thereafter.
   

Allocutus

3. On allocutus the offender apologised to the Court and to the complainant. He maintained that the matter should have settled in 2016 when he was first arrested but that it dragged on because of a statutory declaration he maintains he was forced to sign. He maintains also that he provided the complainant with K800 in cash and a pig worth K2000 in August this year and that they agreed to settle the matter in December which he still intends to honour. He will not say anything about the monies he used for the complainant’s benefit. He is a first -time offender and he and the complainant are both leaders in the village and are trying to serve the community. He is a representative of a construction company that is building a road from Western Highlands Province to Southern Highlands Province. He seeks a non-custodial sentence. He has extended family and members of the community who are willing to assist him with restitution and he does not want relationships within the community to be broken because of the dispute between him and the complainant.
   

Submissions and Comparative Cases

4. Sentencing in such cases is properly guided by the principles outlined in Wellington Belawa v The State [1988-1989] PNGLR 496 in which the Supreme Court identified the following factors which might be taken into account, 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.
       
5. The Supreme Court also 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 involved 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.
      
6. That guide is unchanged for our purposes: see David Kaya and Philip Kaman v The State (2020) SC2026.
   
7. The State seeks a sentence of three to six years and opposes suspension. It submits in aggravation that the offender dishonestly applied the life savings of the complainant, his cousin, over a 6 month period, continuously lied about repaying the money and failed to make restitution. The offence is prevalent. It refers to the following cases in support of its submissions:
   
   1. The State v Nancy Leah Uviri (2009) N5468, in which Cannings J suggested that the sentencing trend in Wellington Belawa should be revised such that a sentence of between 4 and 6 years’ imprisonment would be appropriate where a sum of between K10,000 and K40,000 is involved;
   2. The State v Tarsen (2011) N4312, Cannings J: the offender pleaded guilty to misappropriating K2475 of school funds whilst headmaster. He was sentenced to 4 years, wholly suspended on conditions including restitution;
   100. The State v Bruno (2017) N6652, Cannings J: the offender was convicted after trial of two counts of misappropriation committed in the last few days that he held office as the acting head of a governmental body, concerning K55,000.00 and K36,000.00, respectively. He was sentenced to an effective sentence of 5 years of imprisonment.
   4. The State v Togumagoma (2023) N10129, Berrigan J: the offender pleaded guilty to misappropriating K68,400 received from an old school friend for the purpose of buying gold. He fully cooperated with police and there was no dispute that the monies were largely applied towards his daughter’s urgent medical expenses. He was sentenced to 3 years of imprisonment, wholly suspended on conditions including restitution.
      
8. Defence counsel submits that a sentence of two years be imposed, wholly suspended on condition of restitution. He acknowledges in aggravation the monies and significant trust involved and the prevalence of the offence but submits that in addition to being a first-time offender, the offender has shown genuine remorse and made partial restitution. He refers to the following cases:
   
   1. The State v Paul Guli & Ors (2017) N6866, Salika DCJ, 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’ respectively;
   2. The State v Pohien (2016) N6564, Liosi AJ: 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. 5 years’ imprisonment;
   100. The State v Karnhick (2020) N8341, 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.
   4. The State v Tanner & Anor (2014) N5808, Salika DCJ: The prisoners were convicted following trial of one count of misappropriation of K292,663.50, the property of Post PNG Limited. Clayton Tanner manipulated the system by entering false cash entries on Telepin (the mobile money system) purporting to be monies sent from another province, which were then cashed out in Port Moresby by Alex Solon. Tanner was sentenced to 4 years’ imprisonment, 2 years of which was suspended upon payment of his share of restitution. Solon was sentenced to 3 years’ imprisonment, 2 years of which was suspended upon payment of his share of restitution;
   5. The State v Tony Haru (2014) N5660, Salika DCJ: the offender was convicted following trial for false pretence and misappropriation of K2,628,825.18. He was sentenced to 4 and 8 years of imprisonment, respectively, to be served concurrently;
   6. The State v Emmanuel Donigi (2024) N10984, Wawun-Kuvi J: the offender, a lawyer, was convicted following trial of misappropriating K40,000 from his trust fund. He was sentence to 4 years, wholly suspended on conditions, including restitution.
      

Consideration

9. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. Applying the principles outlined in Wellington Belawa, the following matters have been taken into account in determining an appropriate sentence.
   
10. The greater the amount involved the more serious the offence. The amount involved here places the offence in the third category of Wellington Belawa, attracting a range of between two and three years of imprisonment as a starting point. This is not a case warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653 applied.
    
11. In aggravation, this was an offence involving a serious breach of trust for personal gain. The accused, a mature man of about 52 years of age and a former police officer, took advantage of his 54 year old cousin, a subsistence farmer from the village.
    
12. The offence was clearly planned. The offender tricked the victim into handing over the monies and access to his bank account for the purpose of assisting him with the purchase of a bus and within a matter of weeks had exhausted the funds. Whilst the offence itself was completed within that time he maintained the ruse for several months until he was arrested in June or July 2016.
    
13. To date there has been no restitution. This was a matter of dispute at trial and I found that none had been made. I make it clear that whilst restitution may constitute a matter in mitigation, its absence is not a matter in aggravation.
    
14. The impact on the victim has been great. Whilst objectively not as large as many of the cases that come before this Court the monies represented the victim’s life savings, derived from years of hard work growing and selling potatoes and broccoli. To the offender the value of the monies was enormous, particularly given his age, and it can hardly be doubted that the loss of those monies and the potential earnings from their investment will only compound into the future, and what remains of his life.
    
15. The offender is himself now 60 years of age. He is from Opiapul Village, Tambul District, Western Highlands Province. He is married with two wives, one of whom died last year. He has five children including two of whom are very young at just 11 and 2 years of age. His two elder daughters are married but he supports his older son at university. His wife is employed at Port Moresby General Hospital.
    
16. The offender is relatively well educated. He obtained a Tropical Agriculture Certificate from Vudal University and a Diploma in Policing from Bomana Police College.
    
17. In mitigation this is the offender’s first offence. He is of prior good character. He was employed as a police officer for 16 years, 12 of which were attached with CID, until his resignation in the year 2000. Since then, he has been employed in various capacities in the private sector. According to the pre-sentence report he is currently unemployed.
    
18. The offender is the eldest in his family and its leader. He is the only educated person and his family depends on him. He contributes heavily towards family obligations like bride price, compensation and peace negotiations. None from the family has ever been before the law before. Two of his brothers are pastors. All of them support him. His brother, Tonny Lapa, said that the offender is the only educated person in the family and that the family will assist with K6, 000.00; towards restitution if the Court orders it.
    
19. Mr Molo Nui, Ward Counsellor for more than 21 years, and a member of the Peace & Good Order Committee of Tambul District has known the offender since childhood and is shocked by the crime, which is out of character. The offender is an educated person and a community leader who is well respected. He pledged to call the community together to assist the offender make restitution if the Court will allow a suspended sentence.
    
20. Whilst his prior good character is a matter in his favour, its weight is diminished somewhat by the fact that the offender is a former police officer, sworn for many years to serve and protect the law.
    
21. The offender expressed remorse on allocutus. I accept that he is remorseful to some extent but on its face it is qualified.
    
22. I have no doubt that the impact of the offence on the offender has been and will continue to be grave. The offender has thrown away his good reputation and standing in the community. This matter has been hanging over him now for the past eight years. He is not a man of means and given his age and the nature of the conviction he will struggle to find any form of formal employment in the future. Any time spent in custody will be difficult for him and his family.
    
23. There are no matters of special mitigation to the offender in terms of his health. There is some mitigation in his age. There has also been some delay in bringing the matter to justice since the offender was first charged in November 2017.
    
24. A review of the court file, and the submissions of defence counsel, establishes, however, that the offender has contributed to the delay by changing counsel a number of times shortly before the time allocated for trial. On my reading of the file, however, not all of the delay can be attributed to the offender. Whilst perhaps not of great weight, I do intend to consider the matter, but below rather than give it undue weight: see The State v Benedict Simanjon (2020) N8637 at [40]; and The State v Tardrew [1986] PNGLR 91.
    
25. I have had regard to the offender’s personal circumstances, and the matters in mitigation, his lack of previous conviction and prior good character. These factors must be considered against the quantum involved, the breach of trust, the level of planning and duration involved, and the impact on the victim. Dishonesty offences are prevalent, and this case calls for both general and specific deterrence.
    
26. Having considered all of the above matters, including comparative cases, I sentence the offender to three years of imprisonment without hard labour.
    
27. The offender pleads for the sentence to be suspended. The State opposes it. Probation Services contends that the offender is not suitable given the nature of the offence and his lack of means to restitute. I do not agree with the former assessment in general terms. I do agree that the offender lacks the means to make restitution. He has no means himself. His wife has offered to obtain a loan to pay K20,000 by the end of the year but I am not confident of her ability to do so particularly given that she intends to resign in December. It does not appear to me that the family or his community have the means and it is not appropriate for them to bear the cost of his offending in my view. As all of them say he is the only educated one amongst them. He should have known better. It is also my view that the offending in this case calls for the sentence to be served in custody.
    
28. I do, however, intend to suspend one year of the sentence. I do so in recognition of the offender’s age, the delay to date, and the impact the fact of his previous employment as a police officer is likely to make on his suffering in prison over time: Tardrew, supra applied.
    
29. Accordingly, I make the following orders.
    

Orders

(1) The offender is sentenced to three years of imprisonment without hard labour.
(2) Time spent in custody, namely 2 days, is deducted, leaving a balance of 2 years, 11 months, 3 weeks, 5 days to be served.
(3) Twelve months of the sentence is suspended upon the offender entering into his own recognisance to keep the peace and be of good behaviour.
(4) Any bail monies are to be immediately refunded.

Sentences accordingly.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused