State v Tuvi [2024] PGNC 99; N10756 (24 April 2024)

N10756

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 452 OF 2022

THE STATE

V

BRADLEY TUVI

Waigani: Miviri J
2024: 08^th , 19^th & 24^th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation – Plea – K 133, 189.79.00 – First Offender – No Means to Repay PSR MAR – Prison Appropriate – Offence perpetrated Over 15 Months – Moneys Buk Bilong Pikinini – Non-Governmental Organization – Donation to Organization –custodial term appropriate – no basis for suspension – punitive & deterrent sentence.

Fact
Accused was employed by Buk Bilong Pikinini as Finance and payroll officer. He
dishonestly applied to his own use over 15 months K133, 189.79.

Held
A very well executed crime.
Little to nil recovery of money.
Very serious offence
Prevalent offence
Punitive and deterrent sentence

Cases Cited:
Public Prosecutor v Bruce Tardrew [1986] PNGLR 91
Belawa v The State [1988-89] PNGLR 496
State v Tiensten [2014] PGNC 224
Lawrence Simbe v The State [1994] PNGLR 38
Kumbamong v The State [2008] PGSC 51; SC1017
Goli Golu v The State [1979] PNGLR 653
Yaip Avini v The State [1997] PNGLR 212
State v Kaia [1995] PGNC 166 N1401
State v Nae [1996] PGNC 34; N1474
State v Sylvanus Siembo & 2 others Unreported 30 May 2002 Cr 1220 of 2000.
State v Eric Emmanuel Vele [2002] PGNC 93; N2252
Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC564
State v Zuvani [2004] PGNC 127; N2641
State v Duk [2009] PGNC 247; N3924
State v Daniel Mapiria [2004] Cr 1118 of 2000
State v Lawrence Pukali [2014] PGNC 16; N5560

Counsel:
S. Suwae, for the State
T. Yapao, for the Defendant

SENTENCE

24^th April 2024

1. MIVIRI J: This is the sentence of Bradley Tuvi of Ramale village, Kokopo, East New Britain Province who pleaded guilty to dishonestly applying to his own use K133, 189.79 the property of Buk Bilong Pikinini Incorporated.
   
2. Between the 1^st January 2017 and the 30^th April 2018, the Prisoner was employed as the Finance and payroll officer for the Book Bilong Pikinini (BBP) Incorporated. He had access to the cheque Book for the Organization. Between 1^st January 2017 and the 06^th April 2018 he arranged for 71 unauthorised cheques for BBP to be deposited into various accounts which summed up to K618, 398.09.
   
3. There were 31 cheques in the amount of K299, 769.57 which were deposited into account number 7001101703 of Bam Agencies. And 14 were deposited into account number 7000850227 in the sum of K154, 683 into Samson Stationary. Four (4) were deposited into Account number 7008207990 in the name AJ Tech Solutions in the sum of K 22, 770.20. One in the sum of K 13, 785.00 was deposited into the account number 7004725698 of Kinex Consultations. And K127, 389.79 was deposited into account number 7005252064 in the name of the Prisoner Bradley Tuvi. There were 21 cheques that were deposited into the account of the Prisoner. With the other deposits giving the sum of 71 cheques altogether giving K618, 398.09 moneys in total.
   
4. And these unauthorized cheques were cleared by the various account holders and the accused received from these payments the sum of K133, 189. 79 which consisted of two transfers from AJ Tech Solutions in the sum of K5, 800 and 21 unauthorized cheques from BBP in the sum of K127, 389. 79. These payments were done without the approval of the authorized signatories of the BBP and the various accounts that received these payments were never entitled to them at all. Upon the receipt of the moneys into his account the accused dishonestly applied the monies to his own use and to the use of others breaching section 383A (1) (a) (2) (b) (d) of the Criminal Code Act.
   
5. Which section 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 persons 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. "

6. He pleaded guilty acknowledging that the subject monies did not belong to him. And that they came into his possession on account of his employer BBP. On allocutus he accepted that he had committed the offence. And was deeply remorseful for what he had done pleading for the mercy of the Court in the sentence to be passed upon him. He said it was very shameful and a very serious offence. It was his first time in Court and that he had pleaded guilty to the charge. He was unemployed and a subsistence farmer together with his wife and resided in his village Ramale Kokopo, where he was arrested for the offence and brought here to stand trial. He had four children. And that he would repay the money by paying K50, 000.00 upon the sale of his Balsa cash crop in May 2025. He asked for forgiveness and leniency of the Court. Because he was a first offender and he had cooperated with police. He had spent five (5) months on remand awaiting the trial of the matter.
   
7. Prisoner has taken of his own volition accepting the gravity of the offence. But he does not demonstrate the means to be able to pay that money back. Since being charged with the matter he has not lifted a finger to make payment to the victim. This fact is confirmed by the Presentence report that has been filed before me dated 18^th April 2024, “He is financially handicapped and will default restitution if ordered.” Because "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,” Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91 (2 April 1986).
   
8. There is no evidence here that repayment will be secured if the sentence is suspended. Suspension of sentence is not an exercise of mercy but serving justice. What is in his favour is that he is a first offender who has pleaded guilty saving a trial from being run in the matter. That will be accorded in the determination of an appropriate sentence proportionate given. He does not demonstrate that there will be excessive degree of suffering upon him because of a medical condition set out by proper evidence. But it is a serious aggravation in the way the offence is organized and systematic in the misappropriation of the funds that were intended for the Book Bilong Pikinini which is a non-governmental entity depended on donations. It was clearly well thought out scheme and in the way the offence was committed, it was no spur of the moment offence, nor an opportunity offence, but a well-orchestrated offence where each part of the crime created fell mechanically into playing its full part to giving maximum benefit to the offence.
   
9. He is 36 years old originally from Ramale village, Kokopo East New Britain Province. His wife is of mixed parentage, Kavieng and Gulf Province. Both have four children from that union. The eldest daughter is 14 years old in grade 7. Two boys are in primary and elementary School. The last is only a child. His wife has pleaded for leniency in the sentence due him. There is nothing out of the ordinary in the statement she has made to court on his behalf. He is educated to a diploma in accounting attained from International Training Institute in 2009. He attained grade 11 and 12 from the Port Moresby International School in 2004 to 2005. He has been employed with various companies first with 3A composite as their Quality Control officer in Kokopo where he was first arrested in 2017. He worked as a data entry officer in 2010 to 2012. In 2014 and 2015 he assisted his cousin brother in his consultancy business. Then at Swift Agencies as Accounts Officer there. He resigned and joined the Book Bilong Pikinini where he committed the offence.
   
10. Leanne Resson Executive Officer of Buk Bilong Pikinini Organization has placed into court a victim impact statement dated the 19^th April 2024. She states that BBP is a non-governmental Organization relying on donor funding by various sponsors to carry out its projects especially early learning centres for young children and libraries in various suburbs across Port Moresby. BBP has suffered in the donations that were made being effected because some of the donors have redrawn funding. And this has affected the level of service provided being cut down. And children who benefitted have now suffered because of the crime committed by the prisoner. And the prisoner has personally on the 16^th April 2024 aggressively confronted her at the BBP headquarters at Konedobu. And the prisoner has also asked for the victim. It may mean bad for the prisoner. The victim seeks a custodial term be imposed upon the prisoner.
    
11. The State has submitted that a custodial term be imposed. The defence has submitted that part of the term imposed be suspended. This will not happen as there are no other facts placed before the court to sway that in the case of the prisoner. What is clear is that a custodial term will be imposed as it is a prevalent offence. It is a very large sum stolen in K133,189.79 and he was accorded very high level of trust. Which he abused in the way that he committed the offence. The maximum sentence due him for the offence is 10 years imprisonment because the amount is K133,189.79 and by section 383A (2) of the Code. Further the amount is above K2000. So that in the range and tariff set out in Belawa v The State [1988-89] PNGLR 496 of K40, 000 to K150, 000 is 3 to 5 years imprisonment. Here the amount is K133,189.79, so 5 years is anticipated. It would not exceed State v Tiensten [2014] PGNC 224 because the amount of money is not the same as there. That would be a very serious case of misappropriation compared.
    
12. Given the facts and circumstances here this is not the worst case of misappropriation. It would not draw the maximum that is due under that provision upon the prisoner. It remains that each case will draw appropriate penalty from its facts and circumstances. Which view holds in Lawrence Simbe v The State [1994] PNGLR 38 and in Kumbamong v The State [2008] PGSC 51; SC1017 (29 September 2008), where it was stated that the trial Judge has very wide discretion to impose appropriate sentence. Because setting guidelines may amount to legislating and restricting a trial Judge's discretion. And in sentencing the basic principle is that the punishment must be proportionate to the gravity of the crime, Goli Golu v The State [1979] PNGLR 653.
    
13. It is relevant in this regard to consider that the offence was perpetrated from 1^st January 2017 to the 06^th April 2018, almost a year and four months against funds of a non-governmental organisation which was driven to benefit children in early childhood learning. Basically, to boost the literacy of children. Which is affected by the offence that was committed by the prisoner. In that money that was supposed to benefit children could not be, because the prisoner stole that money. K 133,189.79 is indeed a very large amount of money. It will not be recouped as there is no evidence of the capabilities of the prisoner to restitution. And the intent to pledge a future cash crop, balsa to be sold May 2025, and K 50, 000.00 anticipated is a dream rather than reality. Because there is no evidence to independently verify these assertions that the prisoners make in his allocutus. He has lost his job and is in no position to pay back.
    
14. But it is certain as in Yaip Avini v The State [1997] PNGLR 212 where K100,000.00 misappropriated drew 8 years imprisonment. He was a member of parliament for Finchafen, and money was for the road in Hapohandong – Makini Road but the road was never built because the defendant used the money personally. It was reasoned by the court in passing sentence that a breach of trust by a parliamentarian was higher than that of a departmental head:......unless drastic steps such as imposition of stiff penalties are taken against such persons, the ordinary people of this country will continue to be manipulated and will continue to suffer at the hand of the very people they have appointed or elected to assist them.” This is K 133, 189.79 committed by a clerk in a non-governmental organisation. The level of trust may not necessarily be the same but the amount here is more than that amount.
    
15. It is not the same situation that is seen in State v Paul Tiensten (supra) where 9 years IHL was imposed. Out of which 4 years of that sentence will be suspended if payment of K 10, 000,000.00 was made within 4 years of date of sentence. The balance of 5 years will be served at the Bomana Jail. It is not appropriate to follow similar as there is no evidence that the prisoner has the means to pay up. No evidence has come to light of this fact. So, suspension is not on par with the facts here. But it may draw similar as in State v Kaia [1995] PGNC 166 N1401 (6 September 1995) he misappropriated K94, 478. 31 whilst employed as an account’s supervisor by the Australia New Zealand Bank. None of that money was ever paid back. The court imposed 4 years imprisonment. In State v Nae [1996] PGNC 34; N1474 (18 September 1996) there were 19 counts of misappropriation totalling K 103, 587.71 by the prisoner for which the court imposed 4 years imprisonment. That was a scheme where money was collected supposedly for a housing project that the prisoner applied to his own use.
    
16. In the State v Sylvanus Siembo & 2 others Unreported 30 May 2002 Cr 1220 of 2000 the court per Justice Sevua imposed 6 years IHL of which 3 years was to be suspended on condition that the prisoner enters a recognizance in the sum of K5000 surety (not cash) to keep the peace and be of good behaviour for 2 years following discharge from prison. The relevant and material facts where not guilty pleas were entered by the three Accused who were alleged to have misappropriated K100, 000.00 from the State, which was intended for the construction of a road by the Momboro Business Group (MBG) and was instead directed to the account of a private company where it was intended the money would earn interest. Accused were first time offenders had large families did not benefit personally from the use of the money and that the money with interest was repaid to MBG. However, the offence involved misappropriation of public funds. Partial suspension as money was not used personally. Here prisoner used the money including applying it to the use of others.
    
17. The gravity of the offence outweighs his personal background. Comparatively the State v Eric Emmanuel Vele [2002] PGNC 93; N2252 is the converse of the present. Prisoner there took the initiative to make repayment of K11,091.23 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. There has been no repayment since the inception of this matter up to today. He has taken no initiative to repay and has not shown any factors as with Vele’s case (supra).
    
18. 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. 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.
    
19. In State v Daniel Mapiria [2004] Cr 1118 of 2000 9 years IHL imposed was wholly suspended for the misappropriation of K3.188 million from the State when prisoner counter signed 41 cheques payable in cash over 10 months applied to the benefit of Registrar of the Board Mr. Aisa. Prisoner was 54 years old in poor medical condition with three diseases likely to rise if not properly managed in prison so court imposed the term above with conditions including restitution to the state of K1 million within 18 months 5 years community service and good behaviour and 6 monthly probation report. Prisoner here is 36 years old, younger and does not have any condition in health similar. He benefitted directly from the offence.
    
20. In the State v Lawrence Pukali [2014] PGNC 16; N5560 (28 March 2014) K405, 600.00 was undertaken to be paid by the prisoner in exchange for 2,535 grams of Gold at K160.00 per gram. Prisoner promised to pay K200, 000.00 first payment and assured the victim Chris Wang Bubsep that he would deposit that money into his account but did not. Victim confronted him and prisoner wrote a Bank South Pacific cheque for the sum of K170, 000.00 drawn from his business account with that bank. It was dishonoured and not paid. Victim demanded the return of the Gold but was never done. He was charged with three counts wilful false promise section 404 (1) (a), forgery section 462 (3) (b) and misappropriation section 383A to which the court returned guilty verdicts on the first and third charges. A not guilty verdict was held in respect of the third. The court imposed 2 years ILL for false pretence and 5 years imprisonment for the second both to be served concurrently, effective head sentence of 5 years IIL because he was suffering from diabetics. He never paid back the gold or made any restitution.
    
21. I ask myself what is the appropriate sentence for the prisoner?
    
22. In my considered view after consideration of all above, I determine that the sentence appropriate is 6 years IHL, which I so impose upon the prisoner for the crime of Misappropriation committed in that he dishonestly applied to his own use K 133, 189. 79 property of Buk Bilong Pikinini contrary to section 383A (1) (a) (2) (b) (d) of the Criminal Code.
    
23. I order that the time he has spent in custody will be deducted forthwith. He will spend the remainder in jail forthwith.
    

Ordered Accordingly

__________________________________________________________________
Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Defendant