N11246

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) NO. 417 OF 2024

THE STATE

V

ALICE PANGAI

WAIGANI: BERRIGAN J
21 FEBRUARY, 7, 15 APRIL 2025

CRIMINAL LAW– SENTENCE – GUILTY PLEA - S 383A(1)(a)(2)(d) of the Criminal Code – Misappropriation of K255,241.12 – Ongoing, systematic offence by employee in position of trust over period of almost ten months involving multiple transactions - Sentence of 5 years of imprisonment, with one year of suspension.

Cases cited
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
David Kaya and Philip Kaman v The State (2020) SC2026 
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
State v Emba (2011) N5012
State v Emil (2021) N8789
State v Etami (2012) N4769
State v Guda (2015) N5955
State v Guli & Ors (2017) N6866
State v Jarick & 2 Others (2021) N9000
State v Kamb (2024) N11041 
State v Kana, CR No 843 of 2012
State v Karnhick (2020) N8341
State v Lamo (2022) N9500
State v Leva (2021) N8801
State v Maino (2004) N2773
State v Moere, CR (FC) 153 of 2017, unreported, 6 November 2017
State v Niso (No 2) (2005) N2930
State v Pohien (2016) N6564
State v Poholi (2016) N6214
State v Pole (2023) N10109
State v Pole (2023) N10109
State v Posakei (2019) N8000
State v Posakei (2019) N8000
State v Tanner & Anor (2014) N5808
State v Tokiapron (2005), unreported
State v Tomande (2019) N8153
State v Tuvi (2021) N10756 
State v Uviri (2008) N5468
State v Wai (2020) N8452
State v Waira (2020) N9518 
State v Yegiora (2012) N4641
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
The State v Frank Kagai [1987] PNGLR 320
The State v Tardrew [1986] PNGLR 91
Wellington Belawa v The State [1988-1989] PNGLR 496 

Counsel
C Lantry and B Kembu for the State
C Koeke for the Offender 

DECISION ON SENTENCE

1.	BERRIGAN J: 	The offender, Alice Pangai, pleaded guilty to one count of misappropriating K255,241.12 belonging to her employer, contrary to s. 383A(1)(a)(2)(b)(d) of the Criminal Code, the maximum penalty for which is 10 years of imprisonment.

2.	The offender was employed as a book keeper with Perpetual Niugini Group Limited, a logistics, trucking and storage business based in Port Moresby, in its company accounts and administration section. Her responsibilities included making tax payments online to the Internal Revenue Commission (IRC) on behalf of the company and its subsidiaries. On multiple occasions between 21 June 2021 and 21 April 2022 the offender paid the monies due to the IRC into her personal bank account with Bank South Pacific. In total she misappropriated K255,241.12.

Allocutus 

3.	On allocutus the offender apologised to God Almighty and to the Court for breaking the law. As a single mother and breadwinner to her six year old daughter she asked for mercy and a short time in custody. 
Sentencing Principles and Comparative Cases
4.	In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence of misappropriation, including:

a)	the amount taken;
b)	the quality and degree of trust reposed in the offender;
c)	the period over which the offence was perpetrated;
d)	the impact of the offence on the public and public confidence;
e)	the use to which the money was put;
f)	the effect upon the victim;
g)	whether any restitution has been made;
h)	remorse;
i)	the nature of the plea;
j)	any prior record;
k)	the effect on the offender; and
l)	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.	Having regard to the scale outlined in that case, and following amendments to s 383A, the Supreme Court (Batari and Berrigan JJ) in David Kaya and Philip Kaman v The State (2020) SC2026 suggested that the following scale of sentences may usefully be accepted as a base, to be adjusted upwards or downwards according to the factors outlined in Wellington Belawa, such that where the amount misappropriated is between (emphasis mine):

a)	K1 and K1000 a gaol term should rarely be imposed;
b)	K1,000 and K10,000, a gaol term of up to two years is appropriate;
c)	K10,000 and K40,000, two to three years’ imprisonment is appropriate;
d)	K40,000 and K100,000, three to five years of imprisonment is appropriate;
e)	K100,000 and K500,000, five to seven years’ imprisonment is appropriate; and
f)	K500,000 and K999,999.99, seven to 10 years of imprisonment is appropriate, bearing in mind that the maximum under s 383A(2) should be reserved for the worst types of offending involving amounts less than K1 million.

6.	The State sought a sentence of between 5 and 7 years having regard to the above tariffs and the cases of State v Kamb (2024) N11041 and State v Tuvi (2021) N10756 together with those summarised by me as follows in State v Waira (2020) N9518 and State v Pole (2023) N10109:

a)	State v Kamb (2024) N11041, Toliken J: the offender pleaded guilty to misappropriating K350,000 belonging to Hevi Lift Aviation Company whilst employed as its Accounts Payable and Supplier Reconciliation Officer as part of a scheme with others which operated over more than 15 months. He had previously made restitution of both K17,000 and a truck purchased with the proceeds. He was sentenced to 6 years, wholly suspended on condition of restitution of K157,813.69 within three years;
b)	State v Tuvi (2021) N10756, Miviri J: the offender pleaded guilty to misappropriating K133,189.79 belonging to Buk Bilong Pikinini whilst employed as the finance and payroll officer. He was sentenced to 6 years of imprisonment;
c)	State v Emba (2011) N5012, Kawi, J: the offender pleaded guilty mid-trial to one count of misappropriating K286,491.71. She was employed as a cashier with Air Niugini, based in Kimbe, and was responsible for collecting cash monies from the sale of airline tickets. She was sentenced to 6 years of imprisonment, wholly suspended on conditions including restitution;
d)	State v Posakei (2019) N8000, Susame, AJ: The prisoner pleaded guilty to misappropriation of K143, 812.46 belonging to the East New Britain Provincial Administration. Whilst employed as Human Resources Advisor he devised a scheme whereby the salaries of 7 suspended officers were paid into the prisoner’s personal accounts. The prisoner was sentenced to 6 years imprisonment, wholly suspended with conditions, including restitution within one year; 
e)	State v Maino (2004) N2773, David AJ: the offender pleaded guilty to misappropriating K106,355.02 belonging to the State by drawing 16 cheques, 15 in favour of others, one in favour of himself, whilst a payroll clerk with the Department of Education. He was sentenced to 4 years’ imprisonment, of which 2 years was suspended on conditions, including community service.

7.	Defence counsel submitted that a sentence of 4 years was appropriate. She relied on the following cases in support:

a)	State v Lamo (2022) N9500, Wawun-Kuvi AJ: the offender was the certifying officer and a counter signing officer within the Finance and Administration Branch of the Department of Provincial and Local Level Government Affairs. She pleaded guilty to misappropriating K64,754.99 which she directed to the account of another person. She was sentenced to four years of imprisonment, two of which was suspended on conditions including good behaviour;
b)	The State v Vavine Elizabeth Emil (2021) N8789, Berrigan, J:  the offender pleaded guilty to misappropriating K117,788.87 whilst employed as an accounts clerk over a period of 6 months the offender transferred monies on 21 transactions to her personal bank account under the guise of paying intended service providers. The offender made full admissions to her employer upon detection and to police and pleaded guilty at the earliest opportunity. She was sentenced to four years of imprisonment, two of which was suspended with conditions.

8.	I have also had regard to the following cases:   

a)	The State v Ludwina Tokiapron (2005), Salika DCJ, unreported, in which the prisoner was sentenced to 6 years’ imprisonment after pleading guilty to misappropriating K200,000.00. The monies were obtained from the victims on the pretext that they would be invested in a pyramid scheme in Singapore but were used by the prisoner instead;
b)	The State v Niso (No 2) (2005) N2930, Gavara-Nanu J: the offender was found guilty following trial of conspiracy, fraudulently uttering a false document, and the misappropriation of K500,000.00 belonging to his employer, the Bank of Papua New Guinea. The offences took place over a period of about 3 weeks. At the time he was the Senior Clerk and Supervisor in the General Ledgers Section. The prisoner was sentenced to an effective term of 7 years, 6 months of imprisonment;
c)	The State v Uviri (2008) N5468,Cannings J: the offender pleaded guilty to misappropriating K300,000 from her employer over 18 months through a scheme of bogus invoices. She was sentenced to 7 years of imprisonment; 
d)	The State v Mathew Kana; CR No 843 of 2012, unreported and unnumbered judgment of 11 June 2014, Sakora J: the offender pleaded guilty to one count of misappropriation and one count of conspiracy to defraud Twivey Lawyers of K164,570.30. Sentenced to 5 years’ imprisonment;
e)	The State v Etami (2012) N4769, David J: The offender pleaded guilty to one count of misappropriating K165,086.18, belonging to his employer, Oilmin Field Services. He was employed as a Taxation Officer and Accounts Payable Assistant when he incorporated three bogus companies with similar names to those of his employer’s three main creditors, drew up false requisitions, altered the payee, and deposited the cheques to the accounts of those companies, from which he withdrew the monies for his own use and the use of others. Sentence - 4 years’ imprisonment less time in custody. Balance wholly suspended with conditions, including restitution;
f)	State v Yegiora (2012) N4641, Kangwia AJ: the offender was convicted on two counts of conspiracy to defraud and one count of misappropriation of K300, 000.00 for which he was sentenced to an effective sentence of 2 years, wholly suspended on good behaviour;
g)	The State v Tanner & Anor (2014) N5808, Salika DCJ: the offenders were convicted following trial of one count of misappropriation of K292,663.50, the property of Post PNG Limited over a period of about eight months. Tanner manipulated the company’s Salim Moni Kwik system by entering false cash entries purporting to be monies sent from another province. He cashed the monies and shared them with his co-offender. Tanner was sentenced to 4 years imprisonment while his co-offender was sentenced to 3 years. Both sentences were partially suspended on condition of restitution;
h)	State v Isaiah Guda (2015) N5955: the prisoner pleaded guilty to misappropriating K436,000 the property of the Moga Incorporated Land Group over a period of about two months.  The prisoner was assisted by his lawyers and produced false certificates authorizing his access to the monies which he presented to the bank.  He was sentenced to 6 years’ imprisonment with hard labour;
i)	The State v David Poholi (2016) N6214, Salika DCJ: The offender pleaded guilty to one count of conspiracy to defraud and one count of misappropriation of K688, 000.00 from BSP, his employer. He was employed as a Human Resource Benefits and Remuneration Officer. He committed the offence over 18 months involving 134 transactions. Sentenced to 5 years’ imprisonment;
j)	The State v Pohien (2016) N6564, Liosi AJ. The offender was convicted of one count of misappropriation of hardware materials valued at K462,864.00 the property of his employer, Sika Limited whilst employed in the company’s hardware section as the supervisor, over a period of 6 months. He was sentenced to 5 years’ imprisonment;
k)	The State v Sarry Moere, CR (FC) 153 of 2017 (unreported and unnumbered judgment of 6 November 2017, Salika DCJ (as he then was): the offender pleaded guilty to one count of misappropriating K295, 099.35 whilst employed by the Ombudsman Commission as its payroll officer by fraudulently transferring the money to his own account. Sentence: 6 years’ imprisonment;
l)	State v Paul Guli & Ors (2017) N6866: 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 by Salika DCJ;
m)	The State v Posakei (2019) N8000, Susame AJ: The offender was employed by the East New Britain Provincial Administration as a Human Resource advisor. He devised an illegal scheme whereby the salaries of 7 suspended officers were paid into his accounts. He pleaded guilty to misappropriating K143, 812.46. Sentence - 6 years’ imprisonment, wholly suspended with conditions;
n)	The State v Ruth Tomande (2019) N8153, Berrigan J. The offender pleaded guilty during trial to misappropriating K300,933.71 from her employer, BSP, of which K40,000 was recovered by the bank. The accused was employed as a Home Loan Officer with BSP. Over a period of 14 months the offender falsified 14 loan applications which had previously been declined by the bank and used the automated system to approve the loans from which proceeds were transferred by the offender to accounts belonging to her relatives and other bank customers. Some monies were also credited back to the loan accounts to fund repayments and avoid detection. She was sentenced to 5 and a half years of imprisonment;
o)	State v Wai (2020) N8452, Berrigan J: The prisoner was convicted after trial of conspiring with others to defraud the complainant of gold valued at K105,340.50 and then misappropriating the gold to his own use. The matter was a re-trial. Having regard to the ceiling principle, the offender was sentenced to 2 years for conspiracy to defraud and 4 years for misappropriation as imposed at the first trial;
p)	The State v Moses Karnhick (2020) N8341, Berrigan J: the offender was a Mortgage Specialist Officer with Australia and New Zealand Bank Limited (ANZ) and became a trusted contact for the Kuabini Land Owners Association Incorporated when conducting its banking. K800,000 belonging to the Kuabini Landowners Association was deposited into the bank account of the offender’s company for safe keeping. K500,000 was returned to the Association but the balance of K300,000 was misappropriated by the offender on a continuous basis from the company’s account until there were no monies left in the account. He cooperated from a very early stage with authorities and pleaded guilty. He was sentenced to 5 years of imprisonment;
q)	State v Waira & 3 Ors (2020) N9518, Berrigan J: the offenders were employed by BSP at its Ramu Branch in Mandang. Reinert Waira, Michael Yakip and William Shal were each found guilty of conspiracy to defraud and of misappropriating K102,000, K524,380.47 and K524,380.47, respectively. Patricia Maso was convicted of misappropriating K50,000. Yakip, the OIC, and Shal, the Chief Cashier, operated a complex scheme over a period of about 6 months during which they took advantage of an error in the Bank’s computer system to take cash for themselves, falsifying entries and records on a systematic basis. Yakip and Shal were each sentenced to effective sentences of six years; Reinert to four and Waira to three years of imprisonment;  
r)	The State v Bobby Leva (2021) N8801, Berrigan J: The accused was convicted of one count of misappropriating K290,199.00 belonging to Buk Bilong Pikinini following trial. He was employed by BSP as a Portfolio Analyst attached to the Credit Business Unit. Over a period of 15 months in partnership with a co-accused who was employed by Buk Bilong Pikinini monies were deposited on 31 occasions to an account operated by the offender and from which he kept part of the monies before giving the bulk to his co-accused, Bradley Tuvi. He was sentenced to six years of imprisonment;
s)	State v Jarick & 2 Others (2021) N9000, Berrigan J: the offenders, Dorothy Jarick, Wilma Dongo and Terry Laka, each pleaded guilty to one count of misappropriating monies belonging to Air Niugini Limited and one count of conspiracy to defraud whilst employed by Air Niugini as cashiers with its Business Travel Centre. Under the scheme they took some of the cash received from ticket sales, manipulating the reconciliation sheet by using the previous day’s cash sales to balance the sales return, and delaying banking, to disguise the shortfalls. Between December 2016 and 16 April 2019 Dorothy Jarick misappropriated a total of K230,000. Between March 2017 and 16 April 2019 Wilma Dongo misappropriated a further K230,000. Terry Laka misappropriated K96,956.90 between September 2017 and 16 April 2019. The offenders made very early and ongoing admissions to authorities and pleaded guilty at the first opportunity before the National Court. They were sentenced to effective sentences of five, five and four years of imprisonment, respectively, 18 months of which was suspended upon conditions including the performance of community service;
t)	The State v Wilma Pole (2023) N10109 Berrigan J: The offender pleaded guilty to one count of misappropriating K182,081.00 belonging to her employer, the Western Highlands Provincial Administration. She was employed as a cashier at the Provincial Treasury and had authority to countersign cheques. In total the offender countersigned six cheques as part of a scheme with her superior. She was sentenced to five years of imprisonment years, wholly suspended on conditions including restitution and community service, the Court observing that there had been a delay of about eight years since the offender’s early admission of the offences during which time she had demonstrated significant progress towards rehabilitation. After a lengthy period of unemployment she had secured work and was actively contributing to society. Whilst awaiting her matter she had incurred significant cost travelling from another province to comply with bail conditions and mentions. The payment of restitution could not be regarded as buying freedom, requiring significant sacrifice on her part and that of her family. 

Consideration  

9.	Whilst serious, this is not a case warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653 applied.  It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence.  The offence in this case involves a substantial amount of K255,241.12 which places it in the fifth category of David Kaya & Anor v The State, attracting a starting range of five to seven years of imprisonment. It is clear from the above cases, especially those of a similar nature, involving ongoing schemes by employees that sentences in that range are consistently applied. I remind myself, however, that s 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 circumstances: Lawrence Simbe v The State [1994] PNGLR 38.  

10.	Applying the principles outlined in Wellington Belawa, the following matters have been taken into account in determining an appropriate sentence.

11.	In aggravation the offending in this case involved a serious breach of trust.  At the time of the offence the offender was employed as a book-keeper with the company, a position she had held for more than four years. Whilst not a particularly senior position it was nevertheless an important position of trust, which gave her the responsibility of making online payments to the IRC. 

12.	In addition, this was an offence that involved ongoing planning and deceit over an extended period of almost ten months. It involved multiple transactions on a systematic basis, totalling more than 140 payments over that period. At the time the company had in place a payment plan by which small amounts of up to K2000, where cash flow permitted, were to be paid to IRC on a weekly basis. The offender took advantage of this arrangement and avoided detection by making some payments to IRC as required. 

13.	There is no dispute that the monies were applied for the offender’s own use. Whilst I accept that the offender might have some financial difficulty as a single parent, it is no excuse, certainly not for the monies concerned here. Moreover, she held a secure position in a reputable company that many Papua New Guineans would envy. There is nothing before me to establish that the funds were used for any particular need on the part of the offender. 

14.	The impact on the victim has been significant. The monies were intended to meet the company’s tax obligations and I accept the victim impact statement of Thomas Constantinou, the owner and managing director of the group, that the loss of the monies caused severe financial and operational consequences. Inevitably the company also faced issues with the IRC which placed further stress on its cash flow and business operations. This in turn affected its credibility with those it did business. Its employees also suffered a significant loss of morale and there is now distrust amongst the ranks which, of course, furthers affects the operations of the business. These are the harsh realities of dishonesty offences by trusted employees, particularly in smaller companies. 

15.	The offender is 43 years old. She is from Poho Village, Popondetta District, Oro Province. She was raised in Mt Hagen, Western Highlands Province before moving to Port Moresby following her employment with Perpetual Niugini Group Limited. Her father was a police officer. She is a single mother with a young child, now aged six. 

16.	The offender is relatively well educated. Indeed, it was with the sponsorship and support of the company that she obtained a diploma in accounting in 2016. 

17.	In mitigation this is the offender’s first offence. She is of prior good character and held a position of trust for several years with the company. It was of course, however, this position of trust which she abused to her own benefit. 

18.	The offender initially tried to blame her supervisors but it is in her favour that she pleaded guilty at the first opportunity before the National Court.  I take this into account as indicative of her remorse, which she expressed on allocutus.  I also take it into account on the basis that it has saved Court time and the State and its witnesses the cost and inconvenience of a trial.  

19.	In this regard I note that it was she who inadvertently brought her offending to the attention of her employer when she volunteered that she had repaid K10,000 to the company’s account which had “accidentally” been paid to her bank account. It was this that prompted her supervisor to conduct a detailed review which led to the detection of the offence.  It is not clear what prompted the revelation. Perhaps it was fear of detection rather than any remorse but in fairness to the offender it is a matter I take into account although it was hardly a full and honest disclosure. 

20.	The impact on the offender has been great.  She has lost a secure position and there is no doubt that she will struggle to find formal employment in the future given the nature of the offence, particularly in the field in which she has training. I also appreciate that time spent in custody will have a significant impact on her daughter, who is very young at just six years of age but it is well established that except in very extreme circumstances, the impact on family is not ordinarily a relevant consideration on sentence:  Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.

21.	There are no matters of special mitigation to the offender in terms of health, age or delay.  

22.	Dishonesty offences are prevalent and this case calls for both general and specific deterrence.

23.	I have had regard to the offender’s personal circumstances, and the matters in mitigation, her lack of previous conviction, prior good character, early guilty plea and sincere remorse. These factors must be considered against the aggravating factors in this case, namely the quantum involved, the breach of trust, the level of planning and duration of the scheme, and the impact on the victim. 

24.	In all the circumstances I sentence the offender to five years of imprisonment.  

25.	There is nothing to suggest that the offender would suffer excessively in prison and nor does she have the means to make restitution. I do, however, intend to recognise the good prospects shown for rehabilitation by suspending one year of the custodial term imposed. 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. 

26.	I exercise my discretion to deduct time spent in custody to date.

27.	I make the following orders.

Orders

(1)	The offender is sentenced to five years of imprisonment to be served without hard labour.
(2)	Time spent in custody to date since 10 June 2024, namely 10 months, five days is deducted from time to be served. 
(3)	One year of the sentence is suspended upon the offender entering into her own recognisance to keep the peace and be of good behaviour.

Sentence accordingly.

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