[2000] PNGLR 231

PAPUA NEW GUINEA

[national court of justice]

THE STATE

V

SIMON PAUL VURMETE

lae: gavara-nanu j
10 November 2000

Criminal Law — Misappropriation — Series of acts — Sophistication of Modus Operandi — Mitigating Factors.

Facts

The prisoner whilst employed as a Debtors Clerk with the Water Board in Lae misappropriated K41,233.24 between 9 January 1998 to 5 June 1998. The prisoner wrote and forged signatures of two senior employees of the Water Board on letters written to the Bank of South Pacific using Water Board letterhead to open a bogus account under a bogus name. Using that bogus account, he paid cheques the Water Board clients made to the Water Board, by erasing the legal payee on the cheques and putting the name of the bogus account over them and paid them into the bogus account with the Bank of South Pacific. The fraud was eventually discovered following which he was arrested in Rabaul. None of the money has been recovered. The prisoner used them for himself.

Held

1.	The prisoner expressed remorse and co-operated with the police and pleaded guilty before this court, which must mitigate his sentence. The case of Wellington Belawa v The State [1988-89] PNGLR 496, a good starting point.

2.	For amounts of K40,000 — K150,000 a sentence of three to five years would be appropriate. Range of sentence would be for first offenders, with good record, who had pleaded guilty and had repaid the monies in full. Where money was not repaid, it should be increased by 1/3 to ½. The State v Tardew [1986] PNGLR 91, applied. 

Papua New Guinea cases cited

The State v Rapola (No.2) [1990] PNGLR 347.
The State v Tardew [1986] PNGLR 91.
Wellington Belawa v The State [1988-89] PNGLR 496.

Counsels

N Miviri, for the State.
J Kaumi, for the accused.

10 November 2000 

Gavara-nanu j. The prisoner pleaded guilty to misappropriating K41,233.24 which was money belonging to his former employer, namely The Water Board. He was the Debtors Clerk for Water Board in Lae when he committed the offence. The offence took place between 9/1/98 - 5/6/98 which was a period of 5 months. The misappropriation was not a simple one because, signatures of two senior employees of the Water Board were forged for the letters the prisoner wrote to the Bank of South Pacific under the Water Board letterhead to open a bogus account under a bogus name. Using that bogus account, he paid cheques the Water Board clients made to the Water Board, by erasing the legal payee on the cheques and putting the name of the bogus account over them and paid them into the bogus account with the Bank of South Pacific. The fraud was eventually discovered following which he was arrested in Rabaul. None of the money has been recovered. The prisoner used them for himself.

He has expressed remorse and co-operated with the police and pleaded guilty before this court, which must mitigate his sentence because by pleading guilty, it has saved money and resources for the State. I find the case of Wellington Belawa v The State [1988-89] PNGLR 496, a good starting point. In that case Bredmeyer J at p 500 said for amounts involving between K40,000 — K150,000 a sentence of three to five years would be appropriate. He went on to say that this range of sentence would be for first offenders, with good record, who had pleaded guilty and had repaid the monies in full. His Honour said where money was not repaid, it should be increased by 1/3 to ½. In the case of The State v Tardew [1986] PNGLR 91, the Supreme Court said, the appropriate sentence after repaying the whole amount appropriated of K82,202.73, was five years.

The prisoner has written to his former employer, the Water Board and apologised for his misdeeds, but said he cannot repay the money. The Court therefore accepts that restitution is not possible.

In the case of The State v Rapola (No2) [1990] PNGLR 347 the amount misappropriated was K17,023.95. The prisoner repaid K4,761.23, and for K7,262.72 unpaid and for breaching probation conditions, she was ordered to serve 1 year imprisonment. She had been originally sentenced to two and half years.

The prisoner is fairly well educated and had previous employment before joining the Water Board.

Because the money was not repaid, the Water Board suffered a loss of quite a substantial amount of money. There was a degree of trust placed on the prisoner by the Water Board which he betrayed, this was not a single act but it continued over a period of time and there was a fair degree of sophistication in the mode he used to get the money.

So weighing all these, I consider the appropriate punishment to be 3 years and 6 months. He has been in custody for 1 year 3 months. I deduct that period. He will serve 2 years 3 months IHL.

Lawyer for the State: Panuel Mogish.
Lawyer for the accused: Cronox Manek.