N8555
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 02 OF 2020

THE STATE

V

MALISA KAISA

Waigani: Berrigan J
2020: 13th March and 18th September

CRIMINAL LAW–SENTENCE –383A(1)(a)(2)(d) of the Criminal Code– Misappropriation - Guilty plea – K59,629.60 – sentence of 3 years of imprisonment imposed – partial suspension. 

Cases Cited:
Goli Golu v The State [1979] PNGLR 653
State v Chillen (2008) N3549
State v Etami (2012) N4769
State v Vagi (2014) N5697
State v Kom (2018) N7362
Lawrence Simbe v The State [1994] PNGLR 38
The State v Tardrew [1986] PNGLR 91 
The State v Benson Likius (2004) N2518
The State v Lukeson Olewale (2004) N2758
The State v Christian Korei (2005) N2946 
The State v Niso (No 2) (2005) N2930
The State v Tiensten (2014) N5563
Wellington Belawa v The State [1988-1989] PNGLR 496 

Legislation and other materials cited:
Sections 19 and 383A(1)(a)(2)(d) of the Criminal Code  (Ch. 262) (the Criminal Code). 

Counsel
Ms L. Jack, for the State 
Mr E. Sasingian, for the Offender

DECISION ON SENTENCE

18th September, 2020

1.	BERRIGAN J: The offender pleaded guilty to misappropriating K59,629.60 belonging to Walo Karona, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (the Criminal Code). 

2.	On Saturday, 7 April 2018 the offender met up with the complainant and his girlfriend and they all went to Sky 9 Club.  They left the club at around midnight and went back to the Boroko Lodge.  The following morning whilst the complainant and his girlfriend were asleep the offender removed the complainant’s bank card from his wallet without his permission and used his PIN.  Between 8th April and 11th April the accused conducted a number of withdrawals from the complainant’s bank account totalling K59,629.60.

Sentencing Principles and Comparative Cases

3.	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.

4.	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 misappropriated 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.

5.	It is also 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; and The State v Tiensten (2014) N5563. Nevertheless, the principles to be applied when determining sentence remain relevant and applicable.

6.	Whilst acknowledging the seriousness of the offence and the recommended range of tariffs, defence counsel emphasised the offender’s youth, lack of prior conviction, guilty plea and early cooperation in mitigation.  The defence also asked the Court to take into account the offender’s chronic medical conditions. 

7.	The State acknowledged the factors in mitigation and submitted that a sentence in the range of three to five years would be appropriate. It referred to the following cases in support of its submission:

a)	The State v Benson Likius (2004) N2518, Lenalia J, in which the offender misappropriated K68,674.06, the property of his employer, Lihir Management Company using a scheme applied over a period of more than 20 months. He was sentenced to five years of imprisonment, three of which was suspended upon 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.

8.	I have also had regard to the following cases:

a)	The State v Christian Korei (2005) N2946 before Lay J in which the prisoner pleaded guilty to misappropriating a sum of K82,202.73 donated for the purpose of building a classroom for his community. On discovery the prisoner made restitution of K65,000. He was sentenced to 4 years’ imprisonment, wholly suspended on conditions including full restitution;
b)	State v Chillen (2008) N3549, Davani J, in which the prisoner pleaded guilty to the misappropriation of K65,000. He applied to the National Gaming and Control Board (NGCB) for funding on behalf of his church group to build a church.  The prisoner collected the cheque and opened a new bank account in his name with three others, deposited the cheque and made several withdrawals thereafter to his own use.  He was sentenced to 4 years’ imprisonment;
c)	State v Etami (2012) N4769, David J in which the prisoner pleaded guilty to one count of misappropriation of K165,086.18, the property of his employer, Oilmin Field Services.  Whilst employed as a Taxation Officer and Accounts Payable Assistant he incorporated three bogus companies with similar names to those of his employer’s three main creditors, drew up false requisitions, altered the payee and deposited the cheques to the accounts of those companies.  He was sentenced to four years, wholly suspended on conditions, including restitution;
d)	State v Vagi (2014) N5697, Salika DCJ (as he then was) in which the prisoner was sentenced to 3 years’ imprisonment after he pleaded guilty to one count of misappropriation of K65,924.90, the property of her employer, PNG Gardener. She was employed as an accounts clerk and banked monies received from flower sales to her own account;
e)	State v Kom (2018) N7362, Miviri AJ (as he then was).  The prisoner was sentenced to 4 years upon pleading guilty to misappropriating K41,859. He was employed by ANZ Bank as a Small Medium Relation Officer and put a stop on the account of a deceased person. He instructed his colleagues to lift the stop and linked the deceased’s account with his own phone before applying the monies through the mobile banking system to his own use.

9.	The sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Considerations on Sentence

10.	Having regard to the principles outlined in Wellington Belawa, the following matters have been taken into account.

11.	It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. This case concerns a substantial amount of money in the sum of K59,60,550, and falls within the fourth category of Wellington Belawa.

12.	Unlike the above matters, all of which involved offences by persons in significant positions of trust, and significant planning in each case, the offender and complainant in this case were not well known to one another and there was no breach of trust.  

13.	There was also limited planning in this case.  The State conceded that the offender took the card on the spur of the moment.  I note, however, that the offence did then continue for the following three days.

14.	It is not in dispute that the offender applied the monies to her own use.  The complainant refused to cooperate with Probation Services and his loss appears limited to the money itself, which is a substantial sum.  Other than the usual concerns about the prevalence of dishonesty offences, the offence had no particular impact on the public and public confidence.  

15.	The offender is a young woman of only 21 years of age.  She is originally from Taruba Village in Rigo District, Central Province.  Her mother died from cancer when she was very young.  Her father and step-mother are honest, hardworking subsistence farmers, and live with her brothers and sisters in the village.  

16.	She completed Grade 10 at Laloki High School in 2014.  At the time of the offence she was working as a waitress and trying to save enough money to continue her education.  

17.	In mitigation this is the offender’s first offence.  I am satisfied that she is of previously good character.  She cooperated fully with police and admitted the offence when she was interviewed on 29 October 2019.  She pleaded guilty at the earliest opportunity before this Court.

18.	The offender pleaded for a suspended sentence for the sake of her health, which she says has deteriorated since being taken into custody.  She expressed remorse in her presentence report.  She apologised to the complainant and his family and sought forgiveness.  I accept these expressions of remorse as genuine.

19.	The impact of the offence on the offender has been and will continue to be significant.  I have no doubt that the conviction has brought shame on the offender.  It will be difficult for her to find employment in the future.  

20.	Time spent in custody will be very difficult given her young age and medical condition.  

21.	Regrettably, no proper medical report has been obtained by Probation Services from the Port Moresby General Hospital where she is being sent for treatment by Bomana Correctional Services.  Whilst I am not a doctor, it is nevertheless clear that the offender suffers serious health issues.  She has both tuberculosis and HIV.  From the medical records provided by the hospital, as at 18 February 2020 she was found to have: enlarged lymph nodes in the neck, and multiple enlarged lymph nodes in her peripancreatic and coeliac regions; an enlarged spleen, together with likely splenic abscesses, large pelvic masses, a newly diagnosed respiratory viral infection and severe oedema.  

Sentence

22.	The offender has been convicted of one count of misappropriating K59,60,550, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code. Section 19 of the Criminal Code provides the Court with broad discretion on sentence.  It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Although this case does not fall within that category, the offence remains a serious one. 

23.	I have taken into account the offender’s personal circumstances, her lack of previous conviction, prior good character, very early cooperation, sincere expression of remorse.  These are significant factors in her but they have to be weighed against the aggravating factors in this case, namely the nature and quantum of the offence, and the prevalence of such offences which calls for both general and specific deterrence.

24.	Having considered all of the above matters, including comparative cases, I sentence the offender to 3 years of imprisonment in soft labour.

25.	The offender has pleaded for her sentence to be suspended in light of her medical condition.

26.	In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. 

27.	The offender suffers from two long term or chronic conditions.  It is unclear how long she has had them or when she was first diagnosed.  Unfortunately, many people in this country suffer from tuberculosis.  Whilst much work has been done to promote a better understanding of the disease, regrettably much stigma is still associated with HIV.  Both diseases are manageable in the long term where adequate medical supervision and medication is available but it does appear that there may already be serious complications associated with both conditions in the offender’s case.  The offender is not, as suggested, a threat to either the community or the prison because of her conditions and it is deeply concerning that no proper medical report has been obtained by Probation Services to assist the Court as to the offender’s prognosis, treatment requirements and life expectancy.     

28.	The offender is a young woman who has demonstrated strong prospects for rehabilitation given her full and frank admissions with authorities at the first opportunity and her very early plea in this Court.  It is also clear that despite her early cooperation, the matter was delayed on several occasions at the District Court, whilst the offender was in custody, and before the complainant could be reached to sign his statement.  Even now Probation Services have been unable to reach him. The offender has already served almost one year in custody.  

29.	In the circumstances, having regard to her youth, her prospects for rehabilitation and her serious health condition, I am of the view that partial suspension is warranted.

30.	I make the following orders.

(1)	The offender is sentenced to 3 years of imprisonment.
(2)	Time spent in custody since 29 October 2019, namely 10 months, 20 days, is deducted, leaving a balance of two years, one month, 10 days;
(3)	Two years of the balance is suspended on condition that the offender enter into her own recognisance to keep the peace and be of good behaviour for the period of her sentence; and
(4)	Any bail monies are to be immediately refunded.
________________________________________________________________
Public Prosecutor:  	Lawyers for the State		
Public Solicitor: 	Lawyers for the Offender