N4769

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. No.346 OF 2009

BETWEEN:

THE STATE

AND:

PEMAN ETAMI
Prisoner

Mt. Hagen & Minj: David, J
2012: 10 & 26 July & 7 August

CRIMINAL LAW - sentence – misappropriation - monies belonging to employer – amount taken substantial - degree of trust reposed in prisoner by employer high - offence committed over a period of about three months – sophistication of fraudulent scheme - prisoner used monies - victim company deprived of use of monies misappropriated and balance held by bank to support its operations - prisoner a sophisticated well educated professional accountant – prevalence of offence – plea of guilty - first offender - genuine remorse and contrition expressed or demonstrated – prior good character – welfare of family treated with caution - Criminal Code, Sections 19 & 383A (1)(a)(2)(b)(d). 

Cases cited:

The Public Prosecutor v Vangu'u Ame [1983] PNGLR 424
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91 
Wellington Belawa v The State (1988-89) PNGLR 496
Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997
Doreen Liprin v The State (2001) SC673
The State v Dobi Ao No.2 (2002) N2247 
The State v Lukeson Olewale (2004) N2758
The State v Imoi Maino (2004) N2773
The State v Daniel Mapiria, CR 1118 of 2000, Unreported & Unnumbered Judgment of Mogish, J delivered at Waigani on 7 September 2004
The State v Ruth Mamando (2008) N3709

Counsel:

Joe Kesan, for the State
Felix Kua & Charles Kos, for the Prisoner 

SENTENCE

7 August, 2012

1.	DAVID, J: I convicted the prisoner, Peman Etami on Tuesday, 10 July 2012, on a plea of guilty to an indictment that between 1 June 2008 and 31 August 2008 at Mt. Hagen in Papua New Guinea, he dishonestly applied to his own use and to the use of others, the sum of K42,000.00, the property of Oilmin Field Services Limited (the victim company) contrary to Section 383A (1)(a) of the Criminal Code. The prisoner appears before me for sentence from bail.

2.	After administering the allocutus, Mr. Kua for the prisoner requested for a pre-sentence report and means assessment report from the Probation Service, Mt. Hagen before submissions on sentence were made. I granted the request and directed the Probation Service to compile and file the reports by 09:30 am on Tuesday, 24 July 2012 and also have copies of the reports served on all parties within that time. Ms. Lilly Songoa, Probation Officer of the Probation Service compiled the reports and had them filed in Court within the time I had given for which I am grateful.

3.	I did not hear submissions on sentence as scheduled for one reason or another, but eventually did on Thursday, 26 July 2012 and reserved to deliver sentence here. This is the sentence of the Court.

4.	The short facts put to the Court for purposes of arraigning the prisoner were these. In 2008, the prisoner was employed by the victim company as Taxation Officer and Accounts Payable Assistant. Whilst in its employ, he was responsible for raising requisitions for cheques to be raised to pay creditors.

5.	The company had three main creditors namely, BOC Limited, ESCO Limited and ISAS Limited at the time. The prisoner formed an intention to misappropriate funds from his employer and therefore proceeded to incorporate three bogus companies using the pseudonym Ipkesh Yangipesh. These companies were ZIBOCK Limited, LESCOPS Limited and LISASI Limited. Ipkesh Yangipesh was the sole shareholder and director of all three companies.

6.	The prisoner opened three bank accounts with Westpac Bank -PNG- Limited at the Mt. Hagen Branch in the name of the three companies thereafter.

7.	The prisoner then proceeded to raise two requisitions to pay ESCO Limited, one for K35,317.63 and the other for K35,317.62. Two cheques in the amounts requested and totalling K70,635.25 were raised in favour of ESCO Limited. After the cheques were signed by the authorized signatories, the prisoner altered the name of the payee appearing on the cheque by adding the letter "L" in front of the name "ESCO" and the letters "PS" at the back of the name which then read as "LESCOPS". These cheques were then deposited into the account of LESCOPS Limited opened at Westpac Bank –PNG- Limited at its Mt. Hagen Branch. After the cheques were cleared, the prisoner withdrew monies from the account and applied them to his own use.

8.	He adopted the same scheme in respect of BOC Limited. The prisoner raised a requisition for K80,849.98 to pay BOC Limited and a cheque for that amount payable to BOC Limited was raised. After the cheque was signed by the authorized signatories, the prisoner altered the name of the payee appearing on the cheque by adding the letters "ZI" in front of the name "BOC" and the letter "K" at the back of the name which then read as "ZIBOCK". The cheque was then deposited into the account of ZIBOCK Limited opened at Westpac Bank –PNG- Limited at its Mt. Hagen Branch. After the cheque was cleared, the prisoner withdrew monies from the account and applied them to his own use.
 
9.	He also adopted the same scheme in respect of ISAS Limited. The prisoner raised a requisition for K13,600.95 to pay ISAS Limited and a cheque for that amount payable to ISAS Limited was raised. After the cheque was signed by the authorized signatories, the prisoner altered the name of the payee appearing on the cheque by adding the letter "L" in front of the name "ISAS" and the letter "I" at the back of the name which then read as "LISASI". The cheque was then deposited into the account of LISASI Limited opened at Westpac Bank –PNG- Limited at its Mt. Hagen Branch. After the cheque was cleared, the prisoner withdrew monies from the account and applied them to his own use.

10.	The prisoner ended up with monies totalling K165,086.18, the property of the victim company. From these monies, the prisoner used K42,000.00 for his own use. About K30,000.00 was given to his accomplice which is now the subject of another case before the National Court.

11.	As at 31 August 2008, after the fraudulent scheme was discovered, a total of K88,735.28 was held at Westpac Bank –PNG- Limited, Mt. Hagen Branch: see relevant statements at pages 37-39 (LESCOPS Limited), page 85 (LISASI Limited), and page 96 (ZIBOCK Limited) of the depositions. The brief details are as follows:

(a)	LESCOPS Limited Account No.6001431482 - K221.10
(b)	LISASI Limited Account No.6001447598 - K9,382.75
(c)	ZIBOCK Limited Account No.6001431482 - K79,131.43

The funds held by the bank might be less than K88,735.28 now allowing for bank fees charged over the years. No fresh bank statements were produced to ascertain the exact amount now held by the bank. 

12.	On his allocutus, the prisoner in a lengthy address told the Court about the circumstances leading up to the commission of the offence. He first got involved with the victim company in 2002 at its request in his capacity as a tax accountant to have the company's tax liability which was assessed at about K7.8 million at the time reviewed by the Internal Revenue Commission. This had come about after the then Papua New Guinea Banking Corporation had rejected the victim company's application for a loan of K5 million due mainly to the massive tax liability. His submission for review to the Internal Revenue Commission was successful when the tax liability was substantially reduced to K70,000.00. A further application for a loan was again lodged with Papua New Guinea Banking Corporation thereafter and was successful. He also conducted an investigation into the operations of the victim company's major competitor and that resulted in the discovery of serious irregularities in that company's operations which led to its demise and leaving the country subsequently.

13.	The victim company through its then General Manager, one Raymond Appa promised that the company would buy him a house in Port Moresby and reward him monetarily in return for his services towards the establishment and growth of the company, but these promises were not fulfilled despite many written reminders. After getting employed by the victim company in 2007, he continued to pursue the issue with the company's management, but got nowhere. At one stage in the brief history of his employment with the company, he was terminated for being absent from work during the ethnic clash in Mt. Hagen between Western Highlanders and Engans, but was invited back later. His frustrations and discontentment at work led to the commission of this offence and termination from employment. 	He has written to the victim company on two occasions after his termination, one in August 2008 and the other on 16 February 2009, apologizing for his conduct and requesting to be forgiven and for leniency and stating his reasons for committing the offence accompanied by proposals to repay the monies he had misappropriated. No response was received to these letters.

14.	He said sorry to the Court and the victim company for committing the offence which was the result of an overreaction on his part. He proposes to repay the money misappropriated with interest, bury the past and move on in life. In considering an appropriate punishment for him, he asked the Court to take into consideration in his favour that he was currently employed by Niugini Electrical Co. Limited and his incarceration would adversely affect the welfare of his immediate family which included five young children as he was the sole bread-winner. 

15.	The prisoner has no prior convictions.

16.	The prisoner is originally from Komaip village in the Laiagam District, Enga Province. He is the fifth born out of six siblings in his family. He is married to Rose and they have five children from the marriage all of whom are under the age of ten years. He is the sole bread-winner. He and his family currently reside in Warakum, Mt. Hagen. His mother is deceased. His aging father has survived his mother and resides with him. He was aged thirty six years when he committed the offence. He would therefore be about aged forty years now. He is a baptized member of the Lutheran Church. The prisoner holds a bachelor's degree in accounting from the Divine Word University in Madang. Since graduating, he has had a string of employment; first with the Ombudsman Commission of Papua New Guinea from 2003 to 2004; second with the Department of Finance and Treasury from 2005 to 2007; third with the Internal Revenue Commission for a short period in 2007; and fourth with the victim company from the latter part of 2007 up until his termination in 2008. He earned a salary of between K600.00 and K700.00 per fortnight whilst with the victim company. He is currently employed by Niugini Electrical Co. Limited in Mt. Hagen as a Recovery Officer and earns a salary of about K1,000.00 per fortnight. The prisoner was formally arrested and charged on 18 December 2008 at Mt. Hagen. He was admitted to cash bail of K5,000.00 by the Mt. Hagen District Court on 22 December 2008. He was therefore in custody for about 4 days. He was committed to stand trial in the National Court on 11 March 2009. 

17.	I have considered the matters contained in the means assessment report and pre-sentence report. The reports speak favourably of the prisoner and state, amongst other things, that he has the financial capacity to restitute within two years and is a suitable candidate for a non-custodial sentence. It is recommended that a non-custodial sentence be imposed accompanied by orders for restitution and community work to be supervised by the Probation Service from its Mt. Hagen Branch.

18.	According to these reports, apart from his salary, the prisoner also receives a housing allowance of K1,500.00 per month whilst residing at his three bedroom house in Mt. Hagen and he also receives income from the hire of his white Hyundai HD65 dump truck bearing registration number HAJ095 which he operates in Port Moresby. According to the Certificate of Registration and CTP Insurance, a copy of which is attached to the means assessment report, the dump truck is actually registered in the name of Paso Transport, a business name registered under the Business Names Act. A copy of the relevant Certificate of Registration of Business Name No.6-63657 is attached to the means assessment report. It is not certain from these documents as to who actually operates under the business name. The dump truck is hired out on an ad hoc basis as and when jobs are secured. Details of income received from the hire of the truck are not available. It would be safe to say with some certainty that the prisoner's monthly income would be K3,500.00 made up of his fortnightly salary and accommodation allowance. Any income received from the hire of the dump truck if it is truly the prisoner's would be a bonus. 

19.	In mitigation, it was submitted that; the prisoner pleaded guilty; the prisoner expressed remorse and contrition which was demonstrated by the plea of guilty; the prisoner was a first offender; the prisoner was willing to fully restitute and bail moneys of K5,000.00 should be converted and paid to the victim as part-restitution; and the prisoner was the sole bread-winner for his family. 

20.	Mr. Kos for the prisoner submitted that a three year non-custodial sentence with orders for restitution and community work was appropriate in the circumstances of the present case. 

21.	Counsel referred me to The State v Dobi Ao No.2 (2002) N2247 which he said has some similarities with this case. In that case, the prisoner, a 47 year old female employed by the State through the Department of Education was convicted after a trial for eight charges of misappropriation of funds totalling K37,526.58, the property of her employer and a further charge of attempted misappropriation of K5,980.70 from her employer. The prisoner was the second in charge of the Department's Overseas Staff Section. The offences were committed over a period of two months by raising a number of false schedules for a number of overseas contract and volunteer officers employed with the Department of Education against which cheques were raised. The prisoner then forged signatures of the named payees and had the cheques cashed. The prisoner applied the funds towards meeting family and community needs. The prisoner was sentenced to three years imprisonment which was fully suspended on terms including orders for full restitution and community work under the supervision of the Probation Service. 

22. In aggravation, it was submitted that; the degree of trust reposed in the prisoner by his employer which was breached was high; the offence was committed over a period of about three months; the modus operandi adopted by the prisoner for the fraudulent scheme was sophisticated; and the offence was prevalent. 

23.	Mr. Kesan for the State submitted that a three to four year sentence with an order for full restitution was appropriate. As to whether any part of the sentence should be suspended, counsel submitted that it was a matter for the Court to consider and determine in the exercise of its discretion. 

24.	Apart from Dobi Ao No.2, Mr. Kesan invited me to also consider Doreen Liprin v The State (2001) SC673, The State v Lukeson Olewale (2004) N2758 and The State v Daniel Mapiria, CR 1118 of 2000, Unreported & Unnumbered Judgment of Mogish, J delivered at Waigani on 7 September 2004.

25.	In Doreen Liprin, the prisoner was convicted after a trial on three counts of forging and uttering a bank withdrawal slip and misappropriation of a sum of K6,000.00. She misappropriated the money whilst an officer of the victim bank. She was sentenced to be imprisoned for one year each for forgery and uttering and three years for misappropriation all of which were to be served concurrently. The sentences were suspended on the condition that she repaid the stolen money within two months of sentence and in default she be taken into custody to serve the sentences. She defaulted and was taken into custody. Although the appeal filed by the prisoner herself was filed out of time, the Supreme Court granted leave to review the matter in the exercise of powers under Section 155 (2)(b) of the Constitution. The Supreme Court unanimously dismissed the appeal against conviction, but by a majority of 2-1 upheld the appeal against sentence which was reduced to 18 months. The court ordered, inter alia, that; the stolen money be settled over a period of two years from the date of discharge from custody; and that the prisoner perform community work at designated places under the supervision of the Probation Service. Amet, CJ observed that the amount misappropriated did not warrant a custodial sentence. His Honour said that in dealing with offences such as misappropriation, alternatives to imprisonment should be considered first that would achieve the purposes of retribution, restitution and rehabilitation rather than imposing a custodial sentence. 

26.	In Lukeson Olewale, the prisoner was convicted on pleas of guilty to two counts, one for uttering and the other for misappropriation. The prisoner uttered a cheque for K40,000.00 against the account of Fly River Provincial Government which was operated at Papua New Guinea Banking Corporation, Port Moresby Branch and the cheque was deposited into the prisoner's personal account which was also operated at that bank. An amount of K38,000.00 was withdrawn immediately after the cheque was cleared. From that amount, the prisoner used K12,000.00 whilst the balance was distributed to his accomplices and others. The prisoner was sentenced to three years imprisonment for uttering and four years for misappropriation all of which were to be served concurrently. The sentences were wholly suspended on terms.

27.	In Daniel Mapiria, the prisoner was convicted after a trial for misappropriating K3.188 million, the property of the State through the National Gaming Control Board. As Chairman of the Board, he was a co-signatory to the Board's operating account operated at the Bank of South Pacific. He countersigned 41 cheques drawn for various amounts totalling K3.188 million and made payable "cash". He was sentenced to nine years imprisonment in hard labour which was wholly suspended on terms including restitution of K1 million within 18 months after sentence and community work under the supervision of the Probation Service. The Court found that special circumstances relative to a medical condition that the prisoner was suffering at the time would have worsened and become life threatening if the prisoner were to be immediately incarcerated.

28.	The principal issue for me to determine is, what is the appropriate sentence for the prisoner? 

29.	Section 383A (1) of the Code creates the offence of misappropriation and sub-section (2) prescribes the penalty. The prescribed maximum penalty that can be imposed for the offence of misappropriation simpliciter is imprisonment for five years, but where the offence is committed in any of the circumstances of aggravation set out in sub-section (2), the maximum penalty for which an offender may be liable is ten years.

30.	 In the present case, the prisoner is liable to imprisonment for ten years because; the prisoner dishonestly applied K42,000.00, the property of his employer, to his own use and to the use of other persons pursuant to Section 383A (2)(b); and the property dishonestly applied is of a value that exceeds K2,000.00 pursuant to Section 383A (2)(d).

31.	Wellington Belawa is the leading authority in this jurisdiction for the offence of misappropriation and it sets out the sentencing guidelines for the offence. That case recommends the factors to be taken into account and these are;	the amount taken; the degree of trust reposed in the offender; the period over which the offence was perpetrated; the use to which the money was put; the effect upon the victim; the effect upon the offender himself; restitution; the offender's own history and matters of mitigation special to himself, such as ill health, young or old age, effect of excessive nervous strain and co-operation with the police. That case also recommended a scale of sentences to be adjusted upward or downward which was dependent on the presence of the various factors mentioned above and these are, where the amount misappropriated is between K1.00 and K1,000.00, a gaol term should rarely be imposed; between K1,000.00 and K10,000.00, a gaol term of up to two years; between K10,000.00 and K40,000, a gaol term of two to three years; and between K40,000.00 to K150,000.00 a gaol term of three to five years. 

32.	It is generally accepted now that while the factors set out in Wellington Belawa are still relevant, the tariff recommended is outdated and therefore there is a need to impose increased sentences due to the prevalence of the offence. However, the Court still has a considerable discretion under Section 19 of the Code to impose an appropriate sentence depending on the peculiar facts or circumstances of a particular case. 

33.	I apply the factors suggested in Wellington Belawa in the following manner.

34.	What was the amount taken? In this case the prisoner fraudulently obtained a total of K165,086.18 from his employer from four transactions. Four cheques were drawn from the victim company's Operating Account No.6001388998 which was operated at Westpac Bank –PNG- Limited, Mt. Hagen Branch against cheque requisitions to pay three creditors. Brief details are as follows:

1.	Cheque number 292270 dated 5 June 2008 for K35,317.63 payable to ESCO Limited for settlement of February 2008 account for the purchase of electrical items for Xstrata, Frieda River was deposited into LESCOPS Limited's account number 6001431482 operated at Westpac Bank –PNG- Limited, Mt. Hagen Branch on 23 June 2008 after the payee's name appearing on the cheque was altered to read as LESCOPS Limited;

2.	Cheque number 292321 dated 22 June 2008 for K35,317.62 payable to ESCO Limited for settlement of February 2008 account for the purchase of electrical items for Xstrata, Frieda River was deposited into LESCOPS Limited's account number 6001431482 operated at Westpac Bank –PNG- Limited, Mt. Hagen Branch on 7 July 2008 after the payee's name appearing on the cheque was altered to read as LESCOPS Limited;

3.	Cheque number 001008 dated 1 August 2008 for K80,849.98 payable to BOC Limited for settlement of an outstanding account for services rendered to the victim company was deposited into ZIBOCK Limited's account number 6001447629 operated at Westpac Bank –PNG- Limited, Mt. Hagen Branch on 6 August 2008 after the payee's name appearing on the cheque was altered to read as ZIBOCK Limited;

4.	Cheque number 292416 dated 2 July 2008 for K13,600.95 payable to ISAS Limited for settlement of an outstanding account for services rendered to the victim company was deposited into LISASI Limited's account number 6001447598 operated at Westpac Bank –PNG- Limited, Mt. Hagen Branch on 5 August 2008 after the payee's name appearing on the cheque was altered to read as LISASI Limited.

The prisoner then withdrew funds when cleared and applied to his own use the sum K42,000.00 and gave about K30,000.00 to his accomplice. The balance of these monies which I work out mathematically to be K93,086.18 was still held in accounts of the bogus companies in the bank when the fraudulent scheme was discovered. As I have mentioned already, as at 31 August 2008, the total amount actually held by the bank was K88,735.28.

35.	What was the degree of trust reposed in the offender? The prisoner was employed in the Accounts Payable Section of the victim company as a Taxation Officer and Assistant Accounts Payable Officer, both responsible positions. He was involved in raising cheque requisitions and cheques to pay clients for services rendered to the victim company and when cheques were drawn, they were brought to any two of four signatories to the victim company's Operating Account for signing. The relevant cheques were properly signed, but the payees' names were cleverly altered and they were never received by the respective payees. The prisoner abused his position of trust and betrayed the victim company. There was a serious breach of trust.

36.	What was the period over which the offence was committed? This was a planned scheme which was well executed by the prisoner for a period of about three months from June to August 2008. In order to make the fraudulent scheme work, the prisoner incorporated LESCOPS Limited, ZIBOCK Limited and LISASI Limited whose only shareholder and director was the prisoner using the pseudonym Ipkesh Yangipesh. In order to comply with bank requirements for opening of bank accounts, the prisoner also arranged for a PNG Driver's Licence bearing his photo, but issued in the name of Ipkesh Yangipesh. He then proceeded to open three cheque accounts in the names of these companies with him as Ipkesh Yangipesh being the sole signatory for each of the accounts and where the cheques in question were deposited into appropriate accounts. 

37.	How was the money used? The prisoner applied the stolen moneys to his own use and to the use of other persons.

38.	What was the effect of the offence on the victim? The victim company was effectively defrauded with a total sum of K165,086.18, indeed a substantial amount, which it could have used to support its operations. Fortunately for the victim, the fraudulent scheme was discovered before the funds were totally consumed and the relevant accounts frozen. By this time the prisoner had already applied to his own use K42,000.00 and his accomplice was given about K30,000.00. 

39.	What was the effect of the offence on the offender himself? He was terminated from his employment. His conviction may possibly affect his current employment and will no doubt impact upon employment opportunities in future when such fact is disclosed or made known to a potential employer.

40.	Has the prisoner made any restitution to the victim? No. There has been no restitution. The victim company has not responded to the prisoner's proposals to pay the amount misappropriated with interest. 

41.	Are there any other matters that should be considered in favour of the offender such as the offender's own history, matters of mitigation special to himself, such as ill health, young or old age, effect of excessive nervous strain and co-operation with the police? The prisoner is a matured and well educated person, an accountant by profession having graduated from the Divine Word University in Madang with a bachelor's degree in accounting. He has had an unblemished record with no prior convictions and has been of good character until the offence. There are no matters of mitigation special to himself. 	The prisoner did not co-operate with police investigations given he did not admit the offence in the Record of Interview.

42.	The factors which mitigate the offence in the present case are therefore; that the prisoner pleaded guilty; that the prisoner is a first offender; that the prisoner expressed or demonstrated genuine remorse and contrition; and that the prisoner has been of good character until the offence.

43.	I have considered the issue of the welfare of the prisoner's family raised by him on his allocutus with caution in the light of the warning by the Supreme Court on the subject in Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997. In that case, the Supreme Court said:

"Welfare of loved ones such as wives and children and parents have been raised by accused persons on numerous occasions both in the National Court and this Court as mitigating factors on sentence. Those are important factors which a person should bear in mind before he sets out to commit serious crimes such as murder or wilful murder using dangerous weapons against the victim as death of such person may lead to a long period of imprisonment if convicted. Welfare of wives, children and parents are becoming lame excuses and should be treated with caution."

44.	In any event, an offender should not use his or her children to escape punishment: The Public Prosecutor v Vangu'u Ame [1983] PNGLR 424.

45.	The factors which aggravate the offence are; that the amount taken was substantial; that the degree of trust reposed in the prisoner by his employer was high; that the offence was committed over a period of about three months; that the modus operandi adopted by the prisoner for the fraudulent scheme was sophisticated; that the prisoner used the money himself and with others; that the victim company was deprived of the use of the money misappropriated including funds still held in the accounts of the three bogus companies at Westpac Bank –PNG- Limited, Mt. Hagen to support its operations; that the prisoner is a sophisticated well educated professional being an accountant; and that the offence was prevalent. 

46.	There has been no restitution so the prisoner is willing to fully restitute with interest. I accept that the prisoner is the sole bread-winner for his family and was terminated from his employment with the victim company as a direct consequence of committing the offence. I will treat these as neutral factors. 

47.	The aggravating factors significantly outweigh those in mitigation. However this is not a case of the worst category for this particular offence when contrasting it with Daniel Mapiria. 

48.	Apart from the cases that I have been referred to by counsel by way of comparable sentences, I will refer to two cases that I have decided in relation to the offence under consideration where guilty pleas were entered to assist me in determining the appropriate sentence for the prisoner.

49.	In The State v Imoi Maino (2004) N2773, the prisoner was a payroll clerk with the Department of Education. He misappropriated K106,355.02 by drawing 16 cheques, 15 in favour of various teachers and one for himself. He benefitted by K23,773.76. I sentenced him to four years imprisonment, two years of which was suspended on terms. Aggravating features there were; that a substantial amount was misappropriated; that there was a serious breach of trust; and that the offence was committed over a period of fourteen months.

50.	 In The State v Ruth Mamando (2008) N3709, the prisoner was employed as a cashier with Coca Cola Amatil, Mt. Hagen depot when she misappropriated K34,326.75. Her duties included banking of daily takings. She did not bank the daily takings for two consecutive days. I sentenced her to four years imprisonment, three years of which was suspended on terms. Aggravating features there were; that a substantial amount was misappropriated; that there was a serious breach of trust; and that the offence was committed over two consecutive days.
 
51.	 This case falls under category four of the tariff recommended in Wellington Belawa which as I have mentioned earlier recommends a term of imprisonment between three to five years. 

52.	I think I should consider a sentence closer to or similar to the ones imposed in Dobi Ao No.2, Imoi Maino and Ruth Mamando.

53.	Taking into account all the circumstances of this case, I will sentence the prisoner to four years imprisonment in hard labour. I will deduct four days for time spent on remand before being admitted to bail. That will leave him with three years, eleven months and twenty four days to serve (the remaining term). Incarceration will be at the Baisu Correctional Institution. 

54.	Should I suspend any part of the remaining term? 	 I have considered the principles enunciated in Public Prosecutor v William Bruce Tardrew (1986) PNGLR 91 relating to suspension of sentences. These principles state that suspension should be considered; where it will promote personal deterrence, reformation or rehabilitation of an offender; where it will promote the repayment or restitution of stolen money or goods; and where imprisonment would create excessive degree of suffering to the particular offender, for example, because of bad physical or mental health. In the present case, I think the prisoner is not a threat to the community and he is most unlikely to re-offend having already had the experience of being remanded in custody for a number of days and other difficulties, inconveniences and anxiety he has experienced whilst awaiting his trial and sentence. I am satisfied therefore that if the Court were to impose a suspended sentence, it will promote personal deterrence, reformation or rehabilitation of the prisoner and it will also promote the repayment or restitution of the misappropriated money.

55.	In the exercise of my sentencing discretion under Section 19 of the Code, I will suspend the remaining term in its entirety on the following conditions: 

1.	that the prisoner enter into a recognizance without surety to keep the peace and be of good behaviour during the suspended period of three years, eleven months and twenty four days commencing today.

2.	that the prisoner fully make restitution to the victim company in the sum of K42,000.00 and the funds currently held by Westpac Bank –PNG- Limited in the accounts of LESCOPS Limited, ZIBOCK Limited and LISASI Limited.

3.	Restitution shall be effected in the following manner:

(a)	All funds held by Westpac Bank –PNG- Limited in the accounts of LESCOPS Limited, ZIBOCK Limited and LISASI Limited being not more than K93,086.18 shall be paid by the bank to the victim company within five working days of sentence. The payment shall be done in Mt. Hagen at the Registry of the National Court witnessed by a probation officer from the Probation Service, Mt. Hagen Branch, the prisoner and the Acting Assistant Registrar. 

(b)	Bail moneys of K5,000.00 shall be converted and applied as part payment of restitution. 

(c)	The remaining K37,000.00 shall be paid to the National Court Trust Account for disbursement to the victim company by 23 monthly instalments of K1,550.00 starting on 7 September 2012 and the last instalment shall be K1,350.00. 

4.	The prisoner shall report to the Mt. Hagen Provincial Probation Officer within seventy two hours from today and thereafter as and when required by the Provincial Probation Officer to do so.

5.	The prisoner shall not change his residential address at Warakum, Mt. Hagen unless he has given the Mt. Hagen Provincial Probation Officer reasonable notice of his intention to relocate and the reason for the proposed relocation.

6.	The prisoner shall give to the Mt. Hagen Provincial Probation Officer reasonable notice of his intention to change his employment and advise him or her of the nature and place of his proposed employment.

7.	During the period of suspension, the prisoner shall provide free community service of three hours per day every government fortnight Friday at a public institution in Mt. Hagen to be determined and supervised by the Mt. Hagen Provincial Probation Officer.

8.	The prisoner shall, for the purposes of the Probation Act, allow a probation officer to enter his home during reasonable hours to monitor his compliance of these terms and to make such recommendations as the probation officer considers appropriate either for a variation or an implementation of these terms. The Mt. Hagen Provincial Probation Officer shall produce and furnish to the Court a report every three months until completion of the suspended sentence.

9.	The prisoner will be at liberty to apply for a review of any of these terms including the lifting of any of them provided that there has been substantial compliance. 

56.	In the event that the prisoner fails to comply with any one of these terms, he will be arrested and sent to gaol at Baisu Correctional Institution to serve the remaining term which I have suspended.

57.	A warrant to give effect to this sentence shall issue forthwith.

Sentenced accordingly.
______________________________________________________
Public Prosecutor: Lawyer for the State 
Paul Paraka Lawyer: Lawyers for the Prisoner