N7849
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 1102 OF 2018

THE STATE
V
LEAMEGA NOKA

Alotau: Toliken, J.
2019: 	18th February, 07th, 10th May

CRIMINAL LAW – Sentence – Misappropriation – Plea of guilty – First time offender – Breach of trust – Prevalent offence – 3 years imprisonment –  Suspension – Probation – Full restitution – Criminal Code Ch. 262, s 383A (1).
Cases Cited

Avia Aihi v The State (No. 3) [1982] PNGLR 92
Belawa v The State [1988 – 89] PNGLR 496
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v  Don  Hale  (1998) SC 564)
Public Prosecutor v Tardrew [1988 -89] PNGLR 91
The State v John Watangia (2018) N7175 
The State v Kautete (2008) N7544 
Thress Kumbamong v The State (2008) SC 1017
The State v Marita Rama Miria; CR 1275 of 2010 (Unnumbered and unreported judgment dated 25 July 2014)
The State v Mercy Lohia (2018) N7614 
The State v Niso (No 2) (2005) N2930
The State v Tiensten (2014) N5563 
The State v Warai Kisua (2018) N7513 
Counsel

L Rangan and A Kupmain, for the State
N Wallis, for the Prisoner
JUDGMENT ON SENTENCE

23rd April, 2019
1.	TOLIKEN, J:	On 18th February 2019, the prisoner Leamega Noka pleaded guilty to an indictment charging that between 28th of October 2016 and 22nd November 2016, at Alotau Town, Milne Bay Province, she dishonestly applied to her own use the sum of K9555.50 in cash, belonging to the Parents & Citizens (P&C) of Koyabule Primary School thereby contravening Section 383A (1) of the Criminal Code Ch. 262. (the Code)

2.	I entered a provisional guilty plea which I confirmed after perusing the committal court depositions. The defence requested for a Pre-Sentence Report (PSR) which has now been duly filed. I administered the allocutus and heard submissions on 07th May 2019. This is my judgment on sentence. 

FACTS
  
3.	The brief supporting facts are that between 28th October 2016 and 22nd November 2016, parents and citizens of Koyabule Primary School resolved to raise funds to buy school uniforms from Alotau Enterprises. They also resolved that all funds raised will be given to the School Bursar to deposit into the School’s account with BSP Alotau.

4.	The prisoner was appointed to co-ordinate the fund-raising activies. A total of K9555.50 was subsequently raised. The prisoner received the funds which were supposed to be handed over to the bursar and dishonestly applied the monies to her own use.  

	THE OFFENCE
5.	The offence of misappropriation carries a maximum penalty of 5 years imprisonment unless the offender is a director of a company and misapplied company property, the property dishonestly applied belongs to the offenders employer, the property is subject to a trust, direction or condition or the value of the property is K2000 or upwards, in which case, the offender is liable to be imprisoned for a period not exceeding 10 years. Section 383A of the Code relevantly provides:
383A.  MISAPPROPRIATION OF PROPERTY.
(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 a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 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 K2,000.00 or upwards.
(3)  …
6.	The amount misapplied by the prisoner here exceeds K2000 and she is therefore liable to be imprisoned for a term not exceeding 10 years. This is one of the statutory circumstances of aggravation under subsection (2) of s 383A which call for the higher sentence of 10 years. Circumstances of aggravation are defined by Section of the Code to include “…any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance.”

7.	Where a circumstance of aggravation is intended to be relied on Section 528 (2) of the Code provides in very clear terms that such circumstance of aggravation must be charged in the indictment subject only to subsections (3) and (4) which deal with prior convictions. The purpose of pleading a circumstance of aggravation as evident from the definition of the term in Section 1 of the Code is to subject the offender to a higher punishment than that which he might get if the offence was committed without the existence of that circumstance. (See Palma v The State (2008) SC 1214; State v Thomas Binga (2005) N2828, The State v James Yali (2005) N2989, and The State v Lucas Benjamin Urareo (No. 1) (2005) N3086)

8.	In this case the circumstance of aggravation under Subsection (2)(d) of the Code was not pleaded in the indictment hence the prisoner is liable only to term of imprisonment not exceeding 5 years.

ISSUE
9.	The issue for me then is; what should be an appropriate sentence for the prisoner?

	SENTENCING PRINCIPLES

10.	While the maximum penalty is 5 years imprisonment this does not necessarily mean that the accused will receive the maximum penalty. This is because the maximum, as is trite, is usually reserved for the 	worst instances of offending. Furthermore each case must be treated according to its own circumstances so that punishment fits the crimes. (Goli Goli v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92).

11.	The sentencing principles this offence  are well settled since the seminal case of Belawa v The State [1988 – 89] PNGLR 496.  The Supreme Court in Belawa held there that the following factors ought to be taken into account when sentencing offenders:
•	the amount taken 
•	the quality and degree of trust reposed in the offender 
•	the period over which the theft or fraud was perpetrated 
•	the use to which the money or property dishonestly taken was put
•	the effect upon the victim
•	the effect of the offence upon the public and public confidence
•	the effect on fellow employees or partners
•	the effect on the offender himself
•	the offender's own history
•	whether restitution has been made
•	the matters of mitigation special to the offender such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; any help given by him to the police by him to the police.
12.	The court also suggested the following sentencing scale as shown below:

Amount obtained or misappropriated	Appropriate term of imprisonment	
K1.00 - K1000.00	Imprisonment should rarely be imposed	
K1000 - K10,000	Up to 2 years	
K10000 – K40000	2 – 3 years	
K40000 – K150000	3 – 5 years	

13.	It has been suggested quite consistently now by judges of the Court that these tariffs are now out-dated and I do agree that they are. (The State v Niso (No 2) (2005) N2930; The State v Tiensten (2014) N5563).
SENTENCING TREND
14.	The offence of misappropriation is very prevalent. Defence counsel Mr. Wallis cited several recent cases to me, not only to assist me in fixing an appropriate sentence for the prisoner, but also to show what the sentencing trend for this offence has been.

15.	In The State v Warai Kisua (2018) N7513 per Koeget, J.: The offender there was the Branch Manager of PNG Microfinance Ltd in Daru. Over a period of time he directed two tellers to advance him varying amounts of monies totalling K30,000. An audit by the company showed that he only reimbursed K25,000 while the balance remained unpaid. He pleaded guilty to one count of misappropriation and was sentenced to 18 months which was wholly suspended with condition that he makes full restitution with 18 months.

16.	In The State v Mercy Lohia (2018) N7614 per Berrigan, J.: The prisoner was an accounts officer with the Papua New Guinea Red Cross Society. On various occasions between 1 December 2017 and 31 March 2018 the prisoner forged the signature of the Society’s authorised signatories on 25 Bank of South Pacific (BSP) cheques belonging to the Red Cross Society and uttered those cheques at BSP to obtain K19,151.75 from its account which she dishonestly applied to her own use and the use of others. She pleaded guilty to one count of forgery, one count of uttering and one count of misappropriation. He was sentenced to 3 years for each count which were run concurrently. The sentence was then wholly suspended with conditions.

17.	In The State v Kautete (2018) N7544 per Berrigan, J.: The offender there pleaded guilty to one count of dishonestly applying to his and the use of others the sum of K24,000 belonging to one Maria Laka. He had met the victim and her husband, at the offices of the National Capital District Commission (NCDC), following advice by a relative that NCDC was selling vehicles on tender. He showed the victim a vehicle and advised her that it was internally tendered and all that she needed to do was make a cash payment to him and he would sort out all the paper work, including transfer of ownership, registration and other matters with the Motor Vehicle Insurance Limited (MVIL). On that basis the complainant agreed to make payment the following day.

18.	The next day the victim gave him K24,000 in cash for the purchase of the vehicle. He advised her and those that came with her to wait at the ground floor of the building whilst he went to sort out the paperwork. At around 4.10 pm he returned and advised the complainant that cash payments were not accepted for registration and so he was going to arrange for a cheque to be raised by NCDC for MVIL for that purpose. He said it should all be sorted out the following day. The prisoner never returned and instead applied the money for his own use.

19.	The offender there was sentenced to 3 years which was wholly suspended on condition that he repays K15,000 within 6 months. 

20.	The State v John Watangia (2018) N7175 per Susame, AJ.:  There the offender pleaded guilty to misappropriating K9,000 belonging to his employee Oceanic Communication Ltd. He was employed as Operation Logistics Officer and Stock Controller and while the Manager went on leave the offender essentially took charge of the company’s operations, including stock control, dispatch and sale of Digicel Products which the company distributed under a contract with Digicel. An internal audit by the Port Moresby–based Operations Manager and a subsequent audit by the Ground Manager when he resumed duties, revealed that a total of K10,000 cash and K6,814.50 worth of prepaid SIM Cards were unaccounted for during the time offender had oversight of the office. He was sentenced to 3 years imprisonment which was wholly suspended with condition for full restitution.

21.	The State v Marita Rama Miria; CR 1275 of 2010 (Unnumbered and unreported judgment dated 25 July 2014 per Toliken, AJ.): There the offender was employed with Bank of South Pacific as a Customer Service Officer here in Alotau. Between the 01st of May 2009 and the 31st of December 2009, she made both paper and paperless withdrawals on the account of a Hilo Land Group. She withdrew a total of K14,500.00. The fraud went undetected until the customer made a complaint on or about the 22nd of March 2010.

22.	Emboldened by the first fraud, on the 18th of January 2010 the offender applied for a BSP Kundu Card for a customer, Willie Wedega, without his knowledge. After she obtained the card she commenced ATM and EFTPOS withdrawals between the period of 01st February 2010 and 30th April, 2010. She withdrew a total of K61, 070.40 from Willie Wedega’s account before the fraud was detected when Willie Wedega noticed the withdrawals and complained to the bank. 

23.	The bank carried out investigations, terminated the offender and reported the matter to the police. The offender was indicted with one count of misappropriating monies totalling K75, 570.40. She pleaded guilty to the charge. There was a serious breach of trust both between the offender and her employer, and between her and banks customers, which resulted in loss of confidence in the bank by its customers as well.  Even though the offender was a first time offender and I sentenced her to 5 years imprisonment of which none was suspended as the offender by then had no means of making restitution.

24.	The State v Boni Sari (2012) N5167 per Toliken, AJ.: The offender there was employed as a cashier at a supermarket in Popondetta. A customer bought an electric jug using her Save Card. After processing the payment the offender swiped the card a second time, without the customer noticing it, for a cash withdrawal of K650 and handed the card back to the customer. The offender kept the money and applied to her own use. The offender was a first time offender. I imposed a wholly suspended sentence of 12 months.

25.	Let me now turn to the instant case.  
	ANTECEDANTS
26.	The offender is from Hula, Rigo District, Central Province, but is now domiciled here in Alotau. She is 35 years old and is a single mother of three the youngest of which is only 5 months old. She has a Grade 10 education and is a member of the United Church. She is the third born in a family of four. Her mother is deceased but her father is still alive. 

27.	She is currently employed by the Napatana Lodge, but had been consistently employed previously by various companies in the retail and hospitality industries here in the Milne Bay Province. Immediately after leaving school she got employed by Bos Mei Bakery (2001 – 2003). From 2005 to 2006 she was employed by Papindo Supermarket as a shop Assistant. From 2010 – 2013 she was employed by the Alotau International Hotel as a chef. In November 2013 she joined Coral Islands Limited and worked as head chef for their Resort in the Conflict Islands on seasonal basis until February 2018 when she left and worked for the Waterfront Lodge until her arrest for this offence.
 
28.	She is a first time offender. She was briefly remanded in custody for 10 days before she was granted K1000 cash bail by the District Court during her committal proceedings.
	ALLOCUTUS
29.	The prisoner apologised to the Board of Management, the P & C and students of Koyabule Primary School. She pleaded for mercy and asked for a non-custodial sentence so that she can make restitution. 
	
	SUBMISSIONS
30.	Mr. Wallis submitted in behalf of the prisoner that she is has a good stable personal background and a good family woman, and that her offending was really out of character. 
 
31.	Counsel submitted that while there was an element of trust was involved here, as the prisoner was the fund raising co-ordinator and was supposed to only count the monies collected from a walk-a-thon and then hand the funds over to the bursar, the case itself cannot be regarded as a worst case deserving of the maximum penalty of 5 years. Mr. Wallis cites several mitigating factors that should work in the prisoner’s favour as well as a very favourable Pre-sentence Report.

32.	Mr. Wallis submitted that an appropriate sentence therefore ought to be 3 years which should then be suspended on condition that she makes restitution and be of good behaviour. 
PRE-SENTENCE REPORT
33.	The prisoner has a very favourable Pre-sentence Report which is a balanced one as well. It appears from the report that in her quest to gain formal qualification to be a qualified chef, the prisoner had got herself entangled with an online scheme by a Facebook friend named Joyce Meyer who promised her an online course and qualifications to be chef. The prisoner then applied for the Online Chef Course and paid K9600 from the money raised by the parents and citizens of Koyabule Primary School in instalments to certain individuals who obviously were accomplices of the said Joyce Meyer. The first payment of K5000 was deposited into the bank account (BSP No. 70074500551) of one Joshua Raulip Rim on 03/11/2016. The second payment of K4000 was deposited into the bank account of one Essie Penias (BSP account No. 70019 06515) on 08/11/2016, and the last payment of K600 was again paid into Essie Penias’ account on 11/11/2016. Deposit slips for these payments are annexed to the PSR and appear to be authentic.

34.	The prisoner offered to make full restitution and 10% interest from her current wages and proceeds from her informal market. Her relatives and particularly her sister, are very supportive of her and have undertaken to assist her. The prisoner undertook to make fortnightly payments directly into the school’s bank account in the sum of K500.55 for a total of 21 fortnights. 

35.	Mr. Kupmain , for the State agreed with Mr. Wallis that this is not a worst case and further agreed that an appropriate sentence should be a fully suspended sentence of 3 years with probation and an order for full restitution. Counsel said that this is the best sentence which should be mutually beneficial to all parties. Counsel finally asked that the prisoner’s bail be converted as part of the restitution. 

	WHETHER WORST CASE

36.	I agree that this is not a worst case and it should therefore not attract the maximum penalty.
	
	MITIGATING FACTORS
37.	I find the following mitigating factors in the prisoner’s favour:
•	She pleaded guilty very early to the charge.
•	She is a first time offender.
•	She was of prior good character
•	She co-operated with the police during her Record of Interview by making partial admissions.
•	She has shown genuine remorse by pleading guilty and offering to make full restitution plus 10% interest. 
AGGRAVATING FACTORS
38.	There are, however, aggravating factors against the prisoner. These are: 
•	There was obviously some pre-planning involved despite the fact that dishonest application of funds was done over a period of 9 days, the period in which she made the bank deposits to Joshua Raulip Rim and Essie Penias. 
•	The prisoner was entrusted by the parent and citizens and of course the BOM of Koyabule Primary School to co-ordinate their fund raising activities. She collected the money but failed to comply with directions to hand over the monies to the bursar and thus breach the trust reposed in her, notwithstanding that it was not an enduring one.  
•	She lied about the matter when questioned by the executives of the school. She then repeated her lies to the police where she shifted the blame to two other ladies. 
•	The offence is very prevalent.
	
	DELIBERATIONS/CONCLUSIONS

39.	Let me now transpose the circumstances of this case against the 	considerations in Belawa.

Factors taken into account	Personal Circumstances	
Amount taken	K9555.50	
Quality and degree of trust	The trust reposed in her was not an enduring one but she was entrusted with co-ordinating the school’s fund raising activities. Parents and friends of the school obviously trusted her enough to entrust her with this responsibility.	
Period fraud was perpetrated	The actual misapplication of the monies was done over a period of 9 days, but it is obvious that pre-planning would have been done for some period before that. 	
How was the money used?	The funds were used for an Online Chef Course with shady Facebook characters. 	
Effect on the victim	The victims lost all the money collected from its fund raising activities.	
Effect on public & public confidence	Neutral – The offender is not reposed with any public trust going beyond that which was temporarily entrusted her. 	
Effect on offender	Obviously he has lost face within the family and community, peers and the business community. 	
Offenders history	She has held down several jobs with various organizations as we have seen in her antecedents. That she has secured a job with Napatana Lodge is a credit to her. Having worked in the hospitality industry for most of her working life she appears to have made a reputation for herself otherwise she would not have landed herself this job at a time when she was going through this criminal prosecution.  	
Restitution	The prisoner has offered to make full restitution plus 10% interest.	
Matters of mitigation	See above for the prisoner’s mitigating factors. 	

40.	This is a case in which the prisoner abused the trust reposed in her by fellow parents and friends of Koyabule Primary School. She obviously accepted the responsibility of co-ordinating the school’s funding raising activities, largely through a walk-a-thon which involved students and parents and friends. She accepted the responsibility knowing full well that she would be handing a lot of cash. She would have school in good standing among fellow-parents to be nominated the task.

41.	She has not given us the details of how she got involved with this “Joyce Meyer” Online Chef Course, but it is obvious that she got drawn into it and made contact with the proponents of the scheme such as Joshua Raulip Rim and Essie Penias, and ended up misappropriating the funds which were in her possession, which she had no authority to keep after she had collected and counted the money. Her gullibility in believing in this online scheme is not something unique to her. It is a common occurrence nowadays, but people who succumb to these schemes/scams have no one else to blame but themselves. No issue should be taken if a gullible person loses his own money to scammers. However, it becomes a concern when someone in a position of trust uses money or other valuable property in ones possession or control to pursue personal gain, be it financial or otherwise, and abuse the trust reposed in him or her. 
 
42.	The students of Koyabule, for whom the fund-raiser was organized for purchase of school uniforms, have not received what was intended for them because of the prisoner’s unlawful and criminal act and because she saw fit to misapply the funds to advance herself professionally at their expense.
 
43.	The prisoner must be given a deterrent sentence, one that should also have a deterrent effect on those who may be similarly inclined because of the prevalence of this offence. Too many innocent victims have been left with deep financial burdens because of this type of behaviour. Whilst some such as the State and bid companies are able to cushion their losses, most ordinary victims are not so fortunate.

44.	Even though the offence was committed over a short period of time, it is imperative that the prisoner be sternly punished. She should be served a sentence similar to those imposed in The State v John Watangia (supra), The State v Kautete (supra) and The State v Mercy Lohia (supra). The offenders there received 3 years.
 
45.	I therefore sentence the prisoner to 3 years imprisonment. Pursuant to my powers under the Criminal Justice (Sentences) Act 1986, s 3(2) none of the period spent in pre-sentence detention shall be deducted.
	
SUSPENSION

46.	And finally, should the sentence or any part of it be suspended? Suspension is discretionary, but must be exercised according to proper principles. These being that a suspension may be considered if it will, among other things, promote restitution or rehabilitation, providing that it is supported by a favourable pre-sentence report.  It must be noted, however, that suspension is not an act in leniency. Rather it is a form of punishment which the offender serves outside of prison in his community to promote restitution or rehabilitation or reconciliation and restoration of damaged relationships: The State v Tardrew [1986] PNGLR 91; (Public Prosecutor v  Don  Hale  (1998) SC 564); The State v Frank Kagai [1987] PNGLR 320; The State v Auduwa (2012) N5169.

47.	Notwithstanding that, unless the discretion is removed by Parliament through legislation, a sentencing court is not entirely divested of its discretion to suspend a sentence, if the justice of the case warrants it in appropriate cases. (Thress Kumbamong v The State (2008) SC1017).

48.	I agree with both counsel that this is an appropriate case for a full suspension so that the prisoner makes full restitution. She has expressed her intention of paying 10% over and above the amount she misapplied, which is, I guess, her way of expressing her deep regret for her action. I will take her up on that as well. 
	
SENTENCE/ ORDERS
49.	My orders are therefore as follows:

1.	The prisoner Leamega Noka is sentenced to 3 years imprisonment with light labour. 
2.	The sentence is, however, wholly suspended upon her entering into probation for a period of 3 years with the following additional conditions:

i)	She shall repay the sum of K9555.50 to Koyabule Primary School and further pay 10% interest (K955.55) for a total sum of K10,511.05.
ii)	The said sum of K10511.05 shall be paid by instalments of K500.55 over 19 fortnights commencing on 31st May 2019.
iii)	Payments shall be made into the following account the details of which are:
Account Name: 	Koeabure Primary School
Account Number:	1995338
Account Type:	Cheque Account
Bank:			Westpac Bank (Alotau Branch)  

3.	The prisoner’s bail of K1000 shall be converted as part-payment of the sum of K10511.05.
4.	Any cash sureties paid by the prisoner’s guarantors shall be refunded to them. 
Ordered accordingly.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner