N7783
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 1070 and 1071 of 2018

THE STATE

V

CHRISTOPHER CHAPAU & RHODA KEREA

Waigani: Berrigan, J
2018: 20 November;
2019; 7, 22 March

CRIMINAL LAW –Sentence –Misappropriation –383A(1)(a)(2)(d) of the Criminal Code

Cases Cited:
Papua New Guinea Cases

Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Sanawi v The State (2010) SC1076
The State v Alice Wilmot (2005) N2857
The State v Benson Likius (2004) N2518
The State v Frank Kagai [1987] PNGLR 320  
The State v Gibing Yawing (2017) N6836
The State v Imoi Maino (2004) N2773
The State v Lukeson Olewale (2004) N2758
The State v Nancy Uviri (2008) N5468
The State v Niso (No 2) (2005) N2930
The State v Philip Wiamai (2007) N5492 
The State v Rachel Tony (2018) N7268 
The State v Simon Savoa Feaviri, CR(FC) 103 of 2017, 8 December 2017, unreported
The State v Sukope Tova (1997) N1522
The State v Tardrew [1986] PNGLR 91
The State v Tiensten (2014) N5563
Wellington Belawa v The State [1988-1989] PNGLR 496

Overseas Cases:

Mario Postiglione v The Queen (1997) 189 CLR 295

Counsel:

Ms L. Jack, for the State
Mr R. Habuka, for Christopher Chapau & Rhoda Kerea

DECISION ON SENTENCE

22nd March, 2019 

1.	BERRIGAN J: Both accused persons pleaded guilty to one count of misappropriation, that they between 1 December 2013 and 31 March 2014 dishonestly applied to their use and to the use of others the sum of K22,252.55 belonging to the Independent State of Papua New Guinea, contrary to section 383A(1)(a)(2)(d) of the Criminal Code (Ch.226) (the Criminal Code).

Facts

2.	At the relevant time, the offenders, who are husband and wife, were employed by the Royal Papua New Guinea Constabulary (RPNGC), based at its Konedobu Headquarters. Rhoda Kerea was Acting Team Leader “Edits” in the Human Resource Payroll Section while Christopher Chapau was attached as an IT Technician.  

3.	On four occasions between 1 December 2013 and 31 March 2014, a total of K22,252.55 was paid by Rhoda Kerea, in common purpose with Christopher Chapau, into his BSP bank account, number 1002046710, purportedly for overtime worked.  Payments comprised: K3,250.35 on 11 December 2013; K6,867.24 on 25 December 2013; K5,737.93 on 19 February 2014; and K6,397.03 on 19 February 2014. In fact, no such overtime was worked or authorised by Christopher Chapau’s superiors during the said period, of which both accused were well aware.  Upon receipt, the monies were dishonestly applied by the two offenders for their own use or the use of others.

Sentencing Considerations

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 involving dishonesty, 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.	In addition the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:

a.	K1 and K1000, a gaol term should rarely be imposed;
b.	K1000 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; and
d.	K40,000 and K150,000, three to five years’ imprisonment is appropriate.

6.	Contrary to defence counsel’s submission, the scale of sentences suggested above are not absolute and binding.  The Supreme Court made it clear they are guidelines to be adjusted up or down according to the other factors identified.  Moreover, whilst the principles identified remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; The State v Tiensten (2014) N5563.

7.	I am grateful, however, for the detailed written submissions of both counsel. I have had regard to the following cases referred to by the defence in support of his submissions generally: 

a.	The State v Tova (1997) N1522, Batari AJ (as he then was), in which the prisoner pleaded guilty to misappropriating K22,100, the property of Allens Arthur Robinson Lawyers, his employer.  He was sentenced to 3 years’, wholly suspended on condition of restitution; and

b.	The State v Imoi Maino (2004) N2773, David AJ (as he then was), in which the prisoner misappropriated K106,355.02 by drawing 16 cheques, 15 in favour of others, one in favour of herself, whilst a payroll clerk with the Department of Education.  She was sentenced to 4 years’ imprisonment, of which 2 years was suspended on conditions.

8.	The State also referred me to a number of decisions, including:

a.	The State v Alice Wilmot (2005) N2857, Sevua J, in which the prisoner pleaded guilty to one count of misappropriating K19,960 systematically over a period of 17 months whilst a bank teller from her employer, ANZ.  The prisoner failed to express remorse and was sentenced to 3 years’ imprisonment, 18 months of which was suspended upon full restitution.  A further 6 months’ was suspended upon entering into her own recognizance with the balance of 12 months’ to serve in prison; 

b.	State v Nancy Uviri (2008) N5468, Cannings J, in which it was suggested that a sentence of between 4 and 6 years’ imprisonment would be appropriate where a sum of between K10,000 and K40,000 is involved; and

c.	State v Tony (2018) N7268, Miviri AJ (as he then was), in which the prisoner was employed by the National Judicial Staff Services (NJSS) as Private Secretary to the office of the Chief Justice. Without approval, she used the Deputy Chief Justice’s name on two separate occasions to hire vehicles for a total of 30 days at a total combined cost of K 25, 844. 50. The prisoner was sentenced to 4 years IHL.

9.	I have also had regard to the following:

a.	The State v Benson Likius (2004) N2518 in which Lenalia J sentenced the prisoner to 5 years’ for misappropriating K68,674.06 the property of his employer, Lihir Management Company using a scheme applied over a period of more than 20 months.  Three years of the sentence was suspended on conditions, including restitution;

b.	The State v Lukeson Olewale (2004) N2758, David AJ (as he then was), in which the prisoner pleaded guilty to one count of uttering and one count of misappropriating a cheque for K40,000 against the account of the Fly River Provincial Government, his employer.  The prisoner conspired with others including a bank manager and was sentenced to 4 years’ imprisonment, wholly suspended on conditions including restitution with assistance from his family;

c.	The State v Philip Wiamai (2007) N5492, Cannings J, in which the prisoner pleaded guilty to one count of misappropriating K16, 848.70 from his cousin brother.The prisoner was sentenced to 4 years’ wholly suspended on conditions, including restitution;

d.	The State v Simon Savoa Feaviri, CR (FC) 103 of 2017, unreported 8 December 2017, in which the prisoner was found guilty by Kandakasi J (as he then was) following trial of one count of misappropriating K18,931.25 belonging to Bank South Pacific. He was sentenced to 3 years’ imprisonment wholly suspended on conditions including restitution; and

e.	The State v Gibing Yawing (2017) N6836, Salika DCJ, in which the prisoner, an accountant, was sentenced to 2 years’ imprisonment upon pleading guilty to one count of misappropriating K14,955 from his employer, Simbu Farming and Marketing Ltd.

10.	I have considered the defence submissions regarding what distinguishes this case from those relied upon by the State.  The sentence in this case will, of course, be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
Nature and Circumstances of the Offence, including Matters of Aggravation

11.	It is well established 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 money, K22, 252.55 and was committed over a four month period, involving 4 discrete transactions, indicating planning and ongoing dishonesty. 

12.	The offence involved a breach of trust by the offenders, both of whom were employed as administrative officers with the RPNGC.  The breach of trust by Rhoda Kerea was of a serious nature in my view.  She was an Acting Team Leader in the Payroll Section at the relevant time, a position which clearly had some management responsibility, without which the offence would not have been possible. 

13.	It is not in dispute that the monies were applied for the offenders’ own personal use and expenses. There has been no restitution to date, although both offenders have committed to doing so, discussed further below.

14.	The monies belonged to the State of Papua New Guinea.  Whilst neither of the offenders held senior management positions within RPNGC, they were nevertheless employees of a State institution.  I accept the comments of Chief Inspector Paul Unipite, Human Resources Manager, on behalf of the RPNGC, the immediate victim, that the RPNGC’s reputation has suffered over the years as a result of similar offences and that this offence has tarnished the pride and dignity of the Constabulary at a time when it is working hard to restore public confidence.   

15.	It goes without saying that the people of Papua New Guinea are entitled to expect that the State’s monies, generated by hard working taxpayers, are employed to support the delivery of essential public services and not line the pockets of dishonest and opportunistic individuals.  I have no doubt that the fact that the offences were committed by State employees must have an impact on the public and public confidence in the administration of government services as a whole.   That the offence was committed whilst the offenders were employed by the country’s principal law enforcement agency can only serve to compound this effect. To the RPNGC’s credit the matter was detected in a relatively short period of time.

Personal Circumstances and Matters in Mitigation

16.	Christopher Chapau is 37 years of age from Pondelis Village in the Manus Province.  Rhoda Kerea is 30 years of age from Loupon Island in the Abau District of Central Province.  They have lived in Gerehu Stage 2 for the past 11 years.  They have 2 children, aged 4 and 6 years of age.

17.	Christopher Chapau completed Grade 10 at Manus High School in 2006 before obtaining a Certificate in Information Technology from Badili Vocational College in 2010.  Rhoda Kerea completed Grade 12 at Kila Kila Secondary School in 2006.  She commenced at Port Moresby Business College but withdrew in her freshman year due to financial difficulties.  Both were employed by RPNGC from 2011 until the time of their arrest.

18.	In mitigation this is the offender’s first offence in each case.  Whilst RPNGC has called for stern punishment, the Acting Officer in Charge of Payroll Services at the relevant time, Claire Ivia, spoke highly of the offender Rhoda Kerea as hardworking and humble and was shocked to learn of the offence when it was discovered.  It appears that Probation Services was unable to speak to any of Christopher Chapau’s immediate supervisors.  Reverend Samuel Timothy describes them both as committed members of the Waigani Christian Centre.

19.	On allocutus both offenders expressed remorse, which I accept as genuine. They apologised to the Court and accepted responsibility for the offence and its impact on the RPNGC, their community and family. Rhoda Kerea cooperated with her supervisors at a very early stage and both offenders cooperated with police and pleaded guilty at an early opportunity.  As the State has submitted previously, this does not often happen in cases involving dishonesty.  This is significant in my view.  I take into account both as indicative of their remorse and also on the utilitarian ground that it has saved the State and this Court the time and cost associated with a trial.  

20.	I also accept that there has been some delay associated with the matter, particularly given their early cooperation.  The case was transferred from the District Court in Lorengau to Waigani in February 2016 but the offenders were not committed until 12 September 2018.

21.	There is no doubt that the impact of the crime on the offenders and their family has been grave.  I accept that they have suffered humiliation and a loss of standing both here in Port Moresby and in each of their communities.  Not surprisingly, both have lost long term and stable positions with the State as a result of the offence.  This has had a dire effect on their financial situation as both have been out of work for more than three and a half years and I anticipate that they will find it difficult in the future to secure work following this conviction.  Any term of imprisonment will of course further the impact of the offence on the offenders’ family, especially their young children.

Sentence 

22.	Both offenders have been convicted of one count of misappropriation, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code, the maximum penalty for which is 10 years’ imprisonment.  It is well established that the maximum penalty is normally reserved for the most serious instances of the offence:  Goli Golu v The State [1979] PNGLR 653. Whilst this case does not fall within that category, the offence nevertheless is serious and the aggravating factors involved clearly outweigh the mitigating factors.  Dishonesty offences are prevalent and this case calls for both general and specific deterrence.

23.	I have considered the issue of parity having regard to the principles set out in Sanawi v The State (2010) SC1076 applying Mario Postiglione v The Queen (1997) 189 CLR 295: 

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. ..
Discrepancy or disparity is not simply a question of imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their degrees of criminality..."

24.	It is the case that Rhoda Kerea’s criminality involved a greater breach of trust and that she was the one who facilitated or made the payments.  Nevertheless, having regard to the relationship of the offenders, the respective roles they played, and the fact that the monies were received into Christopher Chapau’s account over a period of four months, it is clear to me that this was very much a shared enterprise.  I also note that it was Rhoda Kerea who first cooperated with her supervisors in admitting the offence and that her former supervisor at the RPNGC still speaks highly of her.  For obvious reasons the circumstances of the offenders are closely shared. 

25.	In the circumstances I am of the view that according to the principles of parity there should not be a marked disparity between their sentences.  

26.	Taking into account all of the matters outlined above, each offender is sentenced to 3 years’ imprisonment in hard labour.

27.	Turning to the offender’s plea for suspension, both have indicated their willingness to make restitution.  According to the Means Assessment Reports, K6000 is to be paid with the support of Rhoda Kerea’s sister and the balance to be taken equally from each of the offenders’ superannuation funds.  I accept Probation Services recommendation that both are suitable for probation.

28.	The promotion of restitution is an important and valid reason for suspending a sentence in certain circumstances. Certainly, it should not be seen as allowing the rich to “buy” their way out of prison: see the comments of Sevua J in The State v Wilmot (supra).  I agree with defence counsel that the offenders in this case cannot in any way be characterised as wealthy. Nor will the payment be without sacrifice, particularly having regard to the fact that their savings are not large and, as I have said, I have no doubt that it will be very difficult for either of them to secure employment in the future. 

29.	In the circumstances I suspend each of the offender’s sentences on the following conditions, including restitution. This is not an act in leniency.  The Courts in this jurisdiction have made it clear that suspension is 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.  

a.	The sum of K22,252.55 is to be restituted to the victim, the RPNGC, within 12 months from today;

b.	On completion of restitution, each of the offenders shall immediately enter into their own recognisance to keep the peace and be of good behaviour for the period of their sentences;

c.	The offenders shall also perform appropriately designed community work under the supervision of the Probation Service;

d.	The work and supervision regime is to be undertaken for a period of one year on weekends; and

e.	The Probation Service is to supervise the payment of restitution and provide 3 monthly reports.

30.	Defence counsel has asked the court to make an order regarding the release of superannuation monies for this purpose. It appears to me from a preliminary review of the Superannuation (General Provision) Act 2000 that the offenders would be entitled to access the funds as they have been unemployed for more than 12 months.  My view is that the offenders should pursue this with their superannuation fund in the first instance. Any issue in this regard may be raised with the Probation Services as part of its regular reporting to the Court.

31.	The offenders’ bail monies are to be immediately refunded.

32.	The Court orders accordingly.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Pacific Horizons Legal Services : Lawyer for the Prisoners