State v Waninara [2024] PGNC 428; N11101 (20 November 2024)

N11101

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 87 OF 2024

THE STATE

V

SIMON WANINARA

Bomana: Berrigan, J
2024: 24^th October; 12^th and 20^th November

CRIMINAL LAW – SENTENCE – MISAPPROPRIATION – K26,743 – 3 years of imprisonment without hard labour, partially suspended on conditions.

Cases Cited:
Wellington Belawa v The State [1988-1989] PNGLR 496
David Kaya and Philip Kaman v The State (2020) SC2026
The State v Wiamai (2007) N5492
The State v Kautete (2018) N7544
The State v Kandambao (2019) N8025
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
The State v Frank Kagai [1987] PNGLR 320
The State v Tardrew [1986] PNGLR 91

References Cited:
Section 383A(1)(a)(2)(d), Criminal Code

Counsel
B Kembu, for the State
J S Goava, for the Offender

DECISION ON SENTENCE

20^th November 2024

1. BERRIGAN J: The offender pleaded guilty to misappropriating K26,743, contrary to s 383A(1)(a)(2)(d), Criminal Code for which the maximum penalty is 10 years of imprisonment.
   
2. The offender was informally engaged to drive the complainant, Gunanina Bale, around whilst he was in Port Moresby making arrangements to repatriate his late wife’s body to Kokopo. The offender accompanied the complainant when he was making payment on various occasions and became aware of the complainant’s BSP PIN. At the airport on 25 July 2021 the offender took the complainant’s BSP card from his basket without his knowledge before travelling with him to Kokopo. Once there he made several withdrawals between 25 July and 3 August 2021 at various ATMs and Eftpos machines before returning to Port Moresby where he continued withdrawing monies without the complainant’s knowledge and approval. In total K26,743 was withdrawn from the complainant’s account and spent on alcohol, pokies, and shopping.
   

Allocutus

3. On allocutus the offender apologised to the Court and to the complainant. What he did was wrong and he takes full responsibility for his actions. He has had time to reflect whilst on remand and is committed to never offending again. What he did was shameful and wrong.
   

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 sought a sentence of two to three years. It submitted that the period of time over which the crime was conducted and the use to which the monies were used were aggravating. It referred to the following cases in support of its submissions:
   
   1. The State v Wiamai (2007) N5492, Cannings J: The offender pleaded guilty to misappropriating K16,848 from his cousin, who was a primary school teacher. He was sentenced to 4 years imprisonment, wholly suspended on conditions of restitution;
   2. The State v Kautete (2018) N7544, Berrigan J: The offender pleaded guilty to misappropriating K24,000 belonging to a woman wo provided the monies for the purchase of a vehicle. He repaid K9,000 prior to conviction. He was sentenced three years’ imprisonment wholly suspended on conditions including restitution;
   100. The State v Kandambao (2019) N8025, Berrigan J: The offender pleaded guilty to misappropriating K12,955 whilst operating a consultancy business which made arrangement for students from Papua New Guinea to study at Universities in China under scholarship. He obtained K12,955 from the complainant and then cut communication. The Court sentenced the offender to two years imprisonment wholly suspended on conditions, including restitution.
        
8. Defence counsel adopted the State’s submissions as to the aggravating circumstances and the range of head sentence.
   

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 amount in this case 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.
    
11. In aggravation, this was an offence involving a breach of trust for personal gain. The offender did not know the complainant personally but was engaged as his driver when the complainant came to Port Moresby to arrange the repatriation of his late wife’s body. The offender abused that position of trust to take the monies of a man grieving over the loss of his wife and dealing with the associated stress of making repatriation arrangements.
    
12. The offence was clearly planned. The offender surreptitiously obtained the complainant’s PIN, then took the complainant’s bankcard out of his basket at the airport before taking monies in both Kokopo and Port Moresby until his conduct was detected.
    
13. Whilst I accept that the offender has little money himself, the monies were not taken out of need, or for his family but instead for his own selfish gratification, on alcohol and pokies, at least in part. To date there has been no restitution.
    
14. Regrettably, Probation Services has been unable to speak to the complainant, who is an Asset Protection Officer with Porgera Joint Venture. I have no doubt, however, that the impact of the offence on him has been great. It appears that he is not a wealthy man. The monies represented a third of what he held in his bank account at the time and the offence can only have compounded the stress he was already suffering at the time his wife died.
    
15. The offender is 38 years of age. He is from Vunamami Village, Kokopo District, East New Britain Province. He is married and has three young children, aged twelve, eight and six for whom he is the sole breadwinner.
    
16. In mitigation this is the offender’s first offence. He is of prior good character. He is not particularly sophisticated. Since completing Grade 12 at Kokopo Secondary school it appears that his only employment has been with his father in law’s business doing office errands and driving. His father in law and wife were shocked by the offending which they say is out of character. Jethro Fimaimaba, a colleague, and friend said that the offender is a humble and quiet person. Both his father in law, through employment, and Jethro pleaded for the offender to be able to serve his sentence outside of custody and pledged to help him make restitution.
    
17. The offender immediately cooperated with police upon detection and made full admissions. He also pleaded guilty at the first opportunity before this Court. I take his guilty plea into account as indicative of his remorse, which he expressed on allocutus, and on the basis that it has saved this court and the state and its witnesses considerable cost and inconvenience.
    
18. The impact of the offence on the offender and his family has been significant. He has spent almost five months in custody. His prospects of employment beyond his father in law are even more limited as a result of the conviction.
    
19. I have had regard to the offender’s personal circumstances, and the matters in mitigation, his early cooperation and guilty plea, 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.
    
20. Having considered all of the above matters, including comparative cases, I sentence the offender to three years of imprisonment without hard labour. I exercise my discretion to deduct the time spent in custody to date.
    
21. The offender pleads for the sentence to be suspended. The State opposes it on the basis that he does not personally have the means to make restitution. Probation Services considers the offender to be suitable for supervision and says that he has the means if assisted by his father in law with employment.
    
22. I agree with the assessment by Probation Services and intend to suspend the balance of the sentence. In my view this is the best way of promoting the rehabilitation of the offender for which he has demonstrated strong prospects by his early cooperation and plea. It will allow him to contribute to the community by useful employment and the care of his young family. It will also promote restitution to the complainant. It is clear to me that restitution will not be an easy matter for the offender who will be dependent on his father for employment. He will not easily forget the seriousness of his offending. This is not an act in leniency but a form of punishment to be served outside the prison system in the community interest: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.
    
23. 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 4 months, three weeks is deducted.

(3) The sentence is wholly suspended on condition that:

1. Restitution in the sum of K20,000 is paid into the National Court Trust Account for payment to Gunanina Bale within three years of today’s date.
2. The offender enter into his own recognisance to keep the peace and be of good behaviour for the period of his sentence.
   

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

Sentences accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused