N5600

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 611 OF 2012

THE STATE

V

CYNTHIA FERIA

Madang: Cannings J
2014: 22 April, 6, 20 May

CRIMINAL LAW – sentencing – Section 383A (misappropriation of property) – sentence on plea of guilty – K10,716.00 misappropriated – sentence of 2 years.

An employee of a large corporation pleaded guilty to misappropriation of K10,716.00 cash, the property of her employer. No other employee was involved. The offence was committed in a single transaction. She made early admissions to her employer once the matter became the subject of an internal investigation.

Held:

(1)	The maximum penalty for the amount misappropriated is ten years imprisonment; the starting point is four years imprisonment.

(2)	Mitigating factors are: the amount of money involved was relatively small given the size of the corporation; it was a single, spontaneous transaction; had an unblemished employment record over a period of ten years; made early admissions to her employer; no prior convictions; pleaded guilty. Aggravating factor: serious breach of trust.

(3)	A sentence of two years imprisonment was imposed, 21 months of which was suspended on condition that the offender repay the amount misappropriated within three months after the date of sentence.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Augustine Seckry CR 376/2005, 19.04.05
The State v Graham Duk (2009) N3924
The State v Joyce Gulum CR 1620/2005, 06.04.06
The State v Middleton Philip (2013) N5052
The State v Paul Taro CR 237/2006, 03.08.06
The State v Philip Wiamai CR (2007) N5492
The State v Scholar Zuvani (2004) N2641
The State v Steven Lasin (2007) N5052
Wellington Belawa v The State [1988-89] PNGLR 496

SENTENCE

This was a judgment on sentence for misappropriation.

Counsel

F Popeu, for the State
A Hombunaka, for the accused

20th May, 2014 

1.	CANNINGS J: Cynthia Feria pleaded guilty to misappropriation of the sum of K10,716.00, the property of her employer, Ela Motors. She was administration supervisor at the Madang branch. On 13 March 2012 it was part of her duties to make a bank deposit of K74,688.40 of her employer's money, comprising cheques to the value of K51,500.00 and K23,188.40 cash. She deposited all the cheques but only K12,472.40 cash, leaving a shortfall of K10,716.00. She dishonestly applied the shortfall to her own use.

2. She has been convicted of one count of misappropriation under Section 383A(1)(a) of the Criminal Code, in circumstances of aggravation under Section 383A(2)(b) and (d) of the Criminal Code (in that the money belonged to her employer and its value exceeded K2,000.00). This is the judgment on sentence.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court. She said:

I apologise for what I did and I am prepared to face the consequences.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty she will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). It is apparent from the depositions that the offender made early admissions once the matter became the subject of an internal company investigation.

PRE-SENTENCE REPORT

6. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service. Cynthia Feria comes from the Kubalia area of East Sepik Province but she has lived most of her life in Madang Province. She is aged 35 and is single. She has a grade 12 education and has obtained a certificate in stenography from Lae Technical College. Her parents are retired public servants. She was employed at Ela Motors, Madang for ten years before losing her job because of this offence. She is presently unemployed. In April 2014 she had a K24,000.00 credit in her Nasfund superannuation account. She has no bad community record. She is supported by her family, particularly her elder sister. The Ela Motors branch manager has indicated that she was a good and trusted employee and expressed bewilderment as to why she would have committed this offence. The report concludes that she is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Ms Hombunaka highlighted that the offender has no prior convictions and pleaded guilty. She cooperated fully with her employer in the internal investigation. It was a one-off, spontaneous transaction, not a calculated fraud committed over a long period. A sentence of no more than three years imprisonment, fully suspended, would be sufficient.

SUBMISSIONS BY THE STATE

8. Mr Popeu did not disagree with the proposed length of the head sentence but stressed that this was a prevalent offence and some element of deterrence should form part of the sentence and that this might best be achieved by a partial, not total, suspension of the sentence.

DECISION MAKING PROCESS

9. To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?
•	step 2: what is a proper starting point?
•	step 3: what sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. Each of the two aggravating circumstances has the effect of making the maximum penalty ten years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. The Supreme Court set out some starting point ranges in Wellington Belawa v The State [1988-89] PNGLR 496, depending on the amount of money misappropriated. I have stated in previous cases that these should be increased and regarded as follows:

•	up to K1,000.00 – suspended sentence usually appropriate;
•	K1,000.00 to K10,000.00 – four years imprisonment;
•	K10,000.00 to K40,000.00 – four to six years imprisonment;
•	K40,000.00 to K150,000.00 and beyond – six to ten years.

12. The present case falls into the second category, which means the starting point range is four to six years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

13. It is useful to consider sentences imposed in cases involving similar amounts of money.

SENTENCES FOR MISAPPROPRIATION: AMOUNTS K10,000.00 – K40,000.00

No	Case	Details	Sentence	
1	The State v Scholar Zuvani (2004) N2641, Wewak	Guilty plea – bank officer infiltrated two school bank accounts and transferred money to her sister's account, then withdrew money – applied monies to her own use – K22,000.00 misappropriated.	4 years
	
2	The State v Augustine Seckry CR 376/2005, 19.04.05, Kimbe	Guilty plea – offender employed as an accounts clerk – dishonestly cashed company cheques that were supposed to have been cancelled – K18,000.00 misappropriated.	4 years
	
3	The State v Joyce Gulum CR 1620/2005, 06.04.06, Bialla	Guilty plea – employed as accounts clerk by Hargy Oil Palms, deposited company cheques and cash into private bank account and applied to her own use – K14,000.00 misappropriated.	2 years
	
4	The State v Paul Taro CR 237/2006, 03.08.06, Kimbe	Guilty plea – over a period of three months monies paid in cash for hire vehicles were not receipted – offender was acting branch manager of Hertz Hire Car – K18,000.00 misappropriated.	4 years
	
5	The State v Steven Lasin (2007) N5052, 
Kimbe	Guilty plea – offender given custody of cheques worth K10,888.00 intended for 28 individual electoral officers as allowances – cashed the cheques, applied proceeds to own use.	4 years
	
6	The State v Philip Wiamai CR (2007) N5492, Madang	Guilty plea – offender helped a friend, a retired schoolteacher, get his finish pay of K16,848.79, then put all the money into his own bank account and applied it to his own use.	4 years
	
7 	The State v Graham Duk (2009) N3924, Madang	Guilty plea – offender was an accountant with a bank – dishonestly obtained K32,800.00 in customers' deposits and applied it to his own use – multiple transactions over four-month period.	4 years
	
8	The State v Middleton Philip (2013) N5052, Madang	Guilty plea – PNG Post employee collaborated with another employee to engage in four fraudulent transactions over a 15-day period –K15,900.00 misappropriated – full cooperation with Police.	2 years

STEP 4: WHAT IS THE HEAD SENTENCE?

14. The head sentence will reflect the following mitigating and aggravating factors.

15. Mitigating factors:

•	the amount of money involved was relatively small given the size of the corporation;
•	it was a single, spontaneous transaction;
•	the offender had an unblemished employment record for ten years;
•	she made early admissions to her employer once the matter became the subject of an internal investigation;
•	she has no prior convictions;
•	she pleaded guilty.

16. Aggravating factor:

•	serious breach of trust.

17. As there are more mitigating factors than aggravating factors, and comparing this case with other misappropriation sentences, the head sentence should be below the starting point range of four to six years. Because of the strong mitigating factors the sentence imposed is two years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. There is nothing to deduct as the Court has not been informed of any time the offender has been in custody in connection with this matter.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. There are two significant factors emerging from the favourable pre-sentence report: the offender has acted out of character and she has the capacity to repay the money to the victim, her former employer. These factors almost warrant a fully suspended sentence. However, I take into account two profound points made by Mr Popeu: misappropriation is a prevalent offence, therefore a deterrent sentence is required. The deterrent purpose of a sentence can be achieved by requiring the offender to spend a short time in custody subject to the condition that she repay the amount misappropriated within three months after the date of sentence. I will suspend 21 months of the sentence, on the following conditions:

(a)	must within three months after the date of sentence pay a total of K12,000.00 to the victim, Ela Motors, Madang;
(b)	must not be released from custody without an order from the National Court and for that purpose shall be brought by the Correctional Service to appear before the National Court at Madang on 15 July 2014 at 9.00 am;
(c)	must attend the first sitting of the National Court after 20 August 2014 to demonstrate compliance with condition (a);
(d)	must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(e)	must not leave Madang Province without the written approval of the National Court;
(f)	must perform at least three hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
(g)	must attend her local Church every weekend for service and worship and submit to counselling;
(h)	must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;
(i)	must not consume alcohol or drugs;
(j)	must keep the peace and be of good behaviour;
(k)	must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of sentence;
(l)	if the offender breaches any one or more of the above conditions, she shall be brought before the National Court to show cause why she should not be detained in custody to serve the rest of the sentence.

SENTENCE

20. Cynthia Feria, having been convicted of one count of misappropriation, contrary to Section 383A(1)(a) of the Criminal Code in circumstances of aggravation under Section 383A(2)(b) and (d) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	2 years	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served	2 years	
Amount of sentence suspended	21 months, subject to compliance with conditions of suspended sentence	
Time to be served in custody	3 months	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.
___________________________________________________

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