N9518

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NOS 153, 154, 155, 156, 157, 158, 1086, 1087,
1088, 1089, 1090, 1091, 1092, 1093, 1094 & 1095 OF 2018

THE STATE

V

REINERT WAIRA, PATRICIA MASO,
MICHAEL YAKIP & WILLIAM SHAL

Waigani: Berrigan J
2020: 21 February and 20 August

CRIMINAL LAW – SENTENCE – Ss. 383A(1)(a)(2)(d) and 407(1)(b) of the Criminal Code – Misappropriation - Conspiracy - Trial – Offences by bank officers. 

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91 
Wellington Belawa v The State [1988-1989] PNGLR 496 
Lawrence Simbe v The State [1994] PNGLR 38.
The State v Paroa Kaia (1995) N1401
The State v Tova (1997) N1522
The State v Imoi Maino (2004) N2773
The State v Zuvani [2004] PNGLR 10
The State v Iori Veraga (2005) N2849
The State v Ludwina Tokiapron (2005)
The State v Alice Wilmot (2005) N2857
The State v Niso (No 2) (2005) N2930
The State v Nancy Uviri (2008) N5468
The State v Duk (2009) N3924
Sanawi v The State (2010) SC1076
The State v Emba (2011) N5012
The State v Etami (2012) N4769
The State v Mathew Kana, CR No 843 of 2012, 11 June 2014
The State v Tanner & Anor (2014) N5808
The State v Isaiah Guda (2015) N5955
The State v David Poholi (2016) N6214
The State v Pohien (2016) N6564
The State v Paul Guli & Ors (2017) N6866
The State v Hevelawa & Ors (No.2) (2017) N6875
The State v Sarry Moere, CR (FC) 153 of 2017, 6 November 2017
The State v Warai Kisua (2018) N7513 
The State v  Tony  (2018) N7268
The State v Kom (2018) N7362
The State v Dumo (2018) N7574
The State v Tracy Tiran (2018) N7375
The State v Solomon Junt Warur (2018) N7545
The State v Mercy Lohia (2018) N7614
The State v Ruth Tomande (2019) N8153
The State v Moses Karnhick (2020) N8341

Legislation and other materials cited:

Sections 19, 383A(1)(a)(2)(d) and 407(1)(b) of the Criminal Code.  

Counsel

Ms H. Roalakona, for the State
Mr J. Morog, for the Accused

DECISION ON SENTENCE

20th August, 2020

1.	BERRIGAN J: The offenders were each indicted on one joint count of conspiring to defraud the Bank of South Pacific (BSP) by deceitfully and fraudulently processing unauthorised bank withdrawals and unauthorised deposits from customer accounts, and one joint count of misappropriating K1.82m from BSP, contrary to ss 407(1)(b) and 383A(1)(a)(2)(b)(d), respectively.

2.	The offenders were convicted following trial as follows:

a)	Reinert Waira, Michael Yakip and William Shal were each found guilty of conspiracy to defraud BSP, contrary to s. 407(1)(b) of the Criminal Code;
b)	Reinert Waira was found guilty of misappropriating K102,000 belonging to BSP, contrary to s. 383A(1)(a)(2)(b)(d) of the Criminal Code;
c)	Patricia Maso was found guilty of misappropriating K50,000 belonging to BSP, contrary to s. 383A(1)(a)(2)(b)(d) of the Criminal Code;
d)	Michael Yakip was found guilty of misappropriating K524,380.47 belonging to BSP, contrary to s. 383A(1)(a)(2)(b)(d) of the Criminal Code; and
e)	William Shal was found guilty of misappropriating K524,380.47 belonging to BSP, contrary to s. 383A(1)(a)(2)(b)(d) of the Criminal Code.

3.	At the time the four accused were employed at the BSP Gusap Sub-branch located at Ramu Sugar in Madang Province.  Michael Yakip was the Officer in Charge (OIC), William Shal held the position of Teller and Chief Cashier, and Patricia Maso and Reinert Waira were employed as Tellers.  They were the only staff permanently based at the Sub-branch.

4.	The evidence established at trial that Michael Yakip and William Shal conspired with one another to defraud the bank of cash monies.  Furthermore, the two offenders acted together to misappropriate a total of K524,380.47 pursuant to the conspiracy.  

5.	William Shal and Michael Yakip misappropriated K372,380.47 in cash monies from the till of William Shal.  On eight occasions between 16 January and 20 April 2017 William Shal operated a prohibited “second session” on his till to reduce the amount of cash recorded as being on hand at the end of the day on the bank’s computer system.  The sessions were approved by his OIC, Michael Yakip.  On the same occasions William Shal underreported the amount of cash on hand at the end of the day in a handwritten report to match that reflected in the “second session”.  The report was approved and submitted to the bank’s head office in Lae by Michael Yakip.  

6.	Reinert Waira joined the conspiracy with William Shal and Michael Yakip and with them misappropriated a total of K102,000 by conducting unauthorised withdrawals on three customer accounts between 29 March and 8 June 2017. 

7.	In furtherance of the conspiracy between William Shal and Michael Yakip, William Shal counselled or procured Patricia Maso to misappropriate K50,000 cash monies belonging to the bank.  The cash was deposited to the account of one of the bank’s customers, Papindo, on the morning of 19 June 2017 but later the same day the offender voided the deposit on the bank’s computer system and dishonestly gave the cash to William Shal.  The evidence failed to establish, however, that she was aware of the broader conspiracy that went beyond the dishonest application of those particular monies. 

8.	It now remains to sentence them.

9.	William Shal appears from remand.  Reinert Waira and Patricia Maso both appear from bail.  Michael Yakip fails to appear.  According to the affidavit of the Commander at the Beon Correctional Service attests that Michael Yakip was receiving treatment at the Modilon General Hospital but absconded on 14 May 2020 and travelled to Lae to seek further medical assistance.  Since then Correctional Services have been unable to locate him.  Defence counsel confirms that they have been unable to obtain instructions from Michael Yakip since he absconded.

10.	Both State and defence counsel ask me to proceed with determining sentence against Michael Yakip, despite his absence, and rely on s. 593 and 596 together with the authority of The State v Imbuni [1997] PNGLR 400.  In that case one of four prisoners failed to appear for sentence after escaping from custody.  In proceeding to sentence Akurum J held that by virtue of ss. 593 and 596, the absence of a prisoner after conviction but before being administered allocutus and sentenced, does not invalidate sentence or judgment.   

11.	I intend to sentence all four offenders.  I am satisfied on the evidence that Mr Yakip deliberately escaped from the custody of Correctional Services and it is clear from his absence more than 3 months later that his absence today is voluntary.  He has forfeited his right to allocutus and his deliberate conduct must not be allowed to frustrate the judicial process.    
Sentencing Principles and Comparative Cases
12.	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.

13.	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.

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

15.	Given the amounts involved the offending by Michael Yakip and William Shal fall outside the categories contained in Wellington Belawa.  Reinert Waira and Patricia Maso’s offending falls within the fourth and third categories respectively. 

16.	On the charge of misappropriation, I have had regard to the following cases:

a.	The State v Paroa Kaia (1995) N1401, Sawong J, in which the prisoner pleaded guilty to one count of misappropriating K94,478.31 belonging to ANZ Bank over a 2 month period. At the time he was an accounts supervisor with the bank. He was sentenced to 4 years’ imprisonment;
b.	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;
c.	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 himself, whilst a payroll clerk with the Department of Education.  He was sentenced to 4 years’ imprisonment, of which 2 years was suspended on conditions;
d.	The State v Iori Veraga (2005) N2849, Sakora J, in which the prisoner was found guilty following trial of conspiracy to defraud and misappropriation of K144,955 from the National Provident Fund as a result of inflated land valuations.  He was sentenced to 7 years’ on the (4) conspiracy charges and 2 years’ on the corresponding misappropriation charges, to be served cumulatively, with an effective sentence of 6 years’ imprisonment; 
e.	The State v Ludwina Tokiapron (2005), Salika DCJ (as he then was), unreported, in which the prisoner was sentenced to 6 years’ imprisonment after pleading guilty to misappropriation of K200,000.00.  The monies were obtained from the victims on the pretext that they would be invested in a pyramid scheme in Singapore but were used by the prisoner instead.  He was sentenced to 6 years’ imprisonment;
f.	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.
g.	The State v Niso (No 2) (2005) N2930, Gavara-Nanu J, in which the prisoner was found guilty following trial of four counts relating to conspiracy, fraudulently uttering a false document and the misappropriation of K500,000.00 belonging to his employer, the Bank of Papua New Guinea.  The offences took place over a period of about 3 weeks.  At the time he was the Senior Clerk and Supervisor in the General Ledgers Section.  The following sentences of imprisonment were imposed:  3 years, 6 months for conspiracy; 1 year, 3 months for forgery; 1 year, 3 months for uttering; 7 years, 6 months for misappropriation.  Sentences for the first, second and third counts were to be served concurrently with the sentence for the fourth.  The effective term of imprisonment was 7 years, 6 months, minus 8 months spent in custody.  The balance of 6 years, 10 months of imprisonment was to be served;
h.	The State v Nancy Uviri (2008) N5468, Cannings J.  The offender was sentenced to 7 years of imprisonment for misappropriating K300,000 from her employer over an 18 month period through a scheme of bogus invoices;
i.	The State v Emba (2011) N5012, Kawi J, in which the prisoner pleaded guilty mid-trial to one count of misappropriating K286,491.71. She was employed as a cashier with Air Niugini, based in Kimbe, and was responsible for collecting cash monies from the sale of airline tickets. The monies were received from ticket sales.  To avoid detection the prisoner got the ticket coupons and destroyed them, and then applied the monies to her own use.  She was sentenced to 6 years to be spent in light labour at the Lakiemata Prison. The sentence was wholly suspended on conditions including restitution;
j.	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;
k.	The State v Mathew Kana, CR No 843 of 2012, 11 June 2014, unreported, Sakora J, in which the prisoner pleaded to one count of misappropriation and one count of conspiracy to defraud Twivey Lawyers of K164,570.30. He was sentenced to 5 years of imprisonment;
l.	The State v Tanner & Anor (2014) N5808, Salika DCJ (as he then was). The prisoners were convicted following trial of one count of misappropriation of K292, 663.50, the property of Post PNG Limited.  Between, the 1st of January 2012 and the 31st August 2012, the prisoners conspired with each other and fraudulently obtained from Post PNG an amount of K292, 663.50. This they obtained using the mobile SMK (Salim Moni Kwik) system. Clayton Tanner manipulated the system by entering false cash entries on Telepin (the mobile money system) purporting to be monies sent from another province, which were then cashed out in Port Moresby by Alex Solon. Tanner was sentenced to 4 years’ imprisonment, 2 years of which was suspended upon payment of his share of restitution.  Solon was sentenced to 3 years’ imprisonment. 2 years of the sentence suspended upon payment of his share of restitution of K146, 331.75; 
m.	The State v Isaiah Guda (2015) N5955, Salika DCJ, in which the prisoner pleaded guilty to misappropriating K436,000 the property of the Moga Incorporated Land Group over a period of about two months.  The prisoner was assisted by his lawyers and produced false certificates authorising his access to the monies which he presented to the bank.  He was sentenced to 6 years’ imprisonment with hard labour;
n.	The State v David Poholi (2016) N6214, Salika DCJ (as he then was), in which the prisoner pleaded guilty to one count of conspiracy to defraud and one count of misappropriation of K688,000.00 from BSP, his employer, whilst a Human Resource Benefits and Remuneration Officer, over a period of 18 months and involving 134 transactions.  He was sentenced to 3 and 5 years’ respectively on each count, to be served concurrently;
o.	The State v Pohien (2016) N6564, Liosi AJ (as he then was). The accused was convicted of one count of misappropriation of hardware materials valued at K462,864.00 the property of his employer, Sika Limited. The prisoner whilst employed in the company’s hardware section as the supervisor, misappropriated hardware materials worth K462, 864.00, over a period of 6 months. 5 years’ imprisonment;
p.	The State v Paul Guli & Ors (2017) N6866, Salika DCJ (as he then was), in which three prisoners were each found guilty of one count of misappropriating K473,575.00 the property of the State following a trial.  Two prisoners, the District Accountant and District Administrator of what was then Western Highlands Province (now Jiwaka), made fraudulent payments into the account of the third prisoner, a local businessman.  They were sentenced to 5 years’, 5 years’ and 2 years’ respectively;
q.	The State v Hevelawa & Ors (No.2) (2017) N6875, Salika DCJ (as he then was).  The offenders Jacob Hevelawa and Timothy Numara were found guilty of two counts of abuse of office, one count of conspiracy to defraud and three counts of misappropriation.  Mirriam Hevelawa was found  guilty of one count of conspiracy to defraud and three counts of misappropriation.  Jacob Hevelawa was the Director General of the Office of the Library and Archives from March 2011 to March 2014 and Timothy Numara was the Manager, Corporate Services of the Office for the Library and Archives. Mirriam Hewelava was the wife of Jacob Hevelawa and Sole Director of PAJA Sisters Trading. She was awarded a contract for grass cutting, landscaping and removal of rubbish. The costs were inflated and they misappropriated K63,120.50; K20,000 and K35,725.80. All three offenders were sentenced to five years’ imprisonment for the charge of misappropriation.  Jacob Hevelawa and Timothy Numara were sentenced to two years’ imprisonment for the charge of abuse of office. The sentences were to be served concurrently, ie an effective sentence of five years’ imprisonment.  Three years of the sentence was suspended on the condition on restitution.
r.	The State v Sarry Moere, CR (FC) 153 of 2017, 6 November 2017, unreported, Salika DCJ (as he then was). The offender pleaded guilty to one count of misappropriating K295,099.35 whilst employed by the Ombudsman Commission as its payroll officer by manipulating the payroll system and transferring the money to his own account. The offender was sentenced to 6 years’ imprisonment; 
s.	The State v Warai Kisua (2018) N7513 Koeget, J, in which the offender pleaded guilty to one count of misappropriating K30,000. The offender was the branch manager of PNG Microfinance Limited in Daru. Over a period of time he directed two tellers to advance him varying amounts totalling K30,000. He was sentenced to 18 months’ imprisonment, wholly suspended on conditions, including restitution;
t.	The 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.  She was sentenced to 4 years’ imprisonment;
u.	The State v Kom (2018) N7362, Miviri AJ (as he then was), in which the prisoner pleaded 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 phone and then applied the monies through the mobile banking system to his own use.  He was sentenced to 4 years’ imprisonment;
v.	The State v Dumo (2018) N7574, Berrigan J, the Manager of Operations at the Education Department pleaded guilty to one count of misappropriating K87,731.00, the property of the State.  The offender received the funds as a refund but failed to pass them on to the Department.  He was sentenced to 4 years of imprisonment, 2 years of which was suspended on conditions, including restitution;   
w.	The State v Tracy Tiran (2018) N7375, Miviri AJ, in which the prisoner was convicted and sentenced to 6 years’ IHL following trial on one count of misappropriating K500,000.00, the property of the State.  The prisoner dishonestly obtained monies for the purpose of establishing a coconut project through the office of the Minister for National Planning and Monitoring, which project was never established;
x.	The State v Solomon Junt Warur (2018) N7545, Berrigan J, in which the prisoner pleaded guilty to one count of misappropriating K811,969.53 belonging to the State.  Over a period of more than 3 ½ years the prisoner, a Communications Officer in the Information and Communication Technology (ICT) Section of Correctional Services (CS), issued 66 false orders and invoices on behalf of CS, payable to his own company, Merc-Tech, for which no goods or services were ever supplied.  He was sentenced to 7 years’ imprisonment; 
y.	The State v Mercy Lohia (2018) N7614, Berrigan J, in which the offender pleaded guilty to one count of forgery, one count of uttering, and one count of misappropriation in the sum of K19, 151.75.  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 she forged 25 Bank of South Pacific (BSP) cheques belonging to the Red Cross Society and uttered those cheques to obtain K19,151.75 from its account which she dishonestly applied to her own use and the use of others.  She was sentenced to 3 years’ imprisonment, wholly suspended on conditions including community service and restitution;
z.	The State v Ruth Tomande (2019) N8153, Berrigan J. The offender pleaded guilty during trial to misappropriating K300,933.71 from her employer, BSP, of which K40,000 was recovered by the bank.  At the relevant time the accused was employed as a Home Loan Officer with BSP.  Between 30 April 2017 and 1 January 2018 the accused falsified 14 loan applications which had previously been declined by the bank and altered them to manipulate the system into approving the loans.  The monies were then transferred by the offender to other accounts belonging to her relatives and other bank customers. The monies were also credited back to the loan accounts to fund repayments and avoid detection.  She was sentenced to 5 ½ years of imprisonment; and 
aa.	The State v Moses Karnhick (2020) N8341, Berrigan J.  The offender, was a Mortgage Specialist Offender, employed by ANZ Bank at its Harbourside Branch in Port Moresby.  He assisted the executive officers of the Kuabini Land Owners Association Incorporated to open an account with the bank for the Association in 2015 and was trusted to manage the Association’s banking.  On 26 January 2018 the offender deposited K800,000 belonging to the Kuabini Landowners Association into the bank account of his company, Jehay Limited, for safe keeping for and on behalf of the Association.  Between 6 February and 9 February 2018 the complainants followed up with the offender to get their money.  On 9 February the offender withdrew K500,000 cash from the Jehay Limited account and gave it to the complainants.  On the same day the offender gave the complainants an undated cheque for K300,000. The cheque was dishonoured upon presentation by the complainants towards the end of that month.  The bank statement for the Jehay Limited account showed that the offender had withdrawn the K300,000 on a continuous basis until there were no monies left in the account. He was sentenced to 5 years of imprisonment. 

17.	The State have also referred me to the following cases:

a)	The State v Zuvani [2004] PNGLR 10, Cannings J, in which the offender was sentenced to four years of imprisonment, wholly suspended, for misappropriating K22,685.43 from the Ponam Local Church and Ecom High School. Whilst employed as a bank officer she transferred monies from the accounts of the victims to her sister-in-law’s account and withdrew the funds using the latter’s bank card without her knowledge. The offender pleaded guilty immediately upon detection and repaid all but K2000 of the monies prior to sentencing; and
b)	The State v Duk (2009) N3924, Cannings J, in which the offender pleaded guilty to misappropriating K32,800 to his own use from customer accounts whilst employed as an accountant with Wau Micro Bank. He was sentenced to four years of imprisonment.

18.	On the charge of conspiracy, I note the sentences imposed in Poholi, Veraga, Kana, Hevelawa (supra).  

19.	The defence have submitted that 18 months of imprisonment is an appropriate sentence for each of Michael Yakip, William Shal and Reinert Waira on the count of conspiracy.  On the count of misappropriation, it submits that the appropriate sentence is:  4 years of imprisonment in the case of both Michael Yakip and William Shal; 3 years’ in the case of Reinert Waira; and 2 years’ in the case of Patricia Maso.          

20.	The State submits that the sentencings in the following ranges should be imposed on the charge of misappropriation:  five to eight years in the case of both Michael Yakip and William Shal; and three to five years in respect of both Reinert Waira and Patricia Maso.  On the charge of conspiracy, it submits that a range of 2 to 4 years is appropriate.

21.	The sentences 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

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

23.	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.   The amounts misappropriated in this case are significant.  Patricia Maso misappropriated K50,000, Reinert Waira K102,000 and William Shal and Michael Yakip the very large amount of K524,380.47.

24.	The offending also involved a serious breach of trust by the offenders, a significantly aggravating factor in each case. The breach of trust by Michael Yakip was particularly serious.  He was the officer in charge of the sub-branch and responsible for its operations, cash holdings and staff.  William Shal’s breach of trust was also very serious.  As Chief Cashier, he was responsible for the bulk of the sub-branch cash.  Reinert Waira and Patricia Maso both breached the trust of the bank in carrying out their duties as tellers.  

25.	The offences were conducted between 16 January and 19 June 2017 in the case of William Shal and Michael Yakip; between 29 March and 8 June 2017 in the case of Reinert Waira; and on 19 June 2017 in the case of Patricia Maso.   

26.	The offending by Michael Yakip and William Shal involved significant planning and calculated efforts to disguise the taking of the cash.  They manipulated the bank’s online system, created false written reports, conducted unauthorised transactions on customer accounts, and procured the involvement of Reinert Waira and Patricia Maso.  They took advantage of a longstanding error in the bank’s computer system in the hope of avoiding detection.  

27.	Reinert Waira joined the conspiracy and then dishonestly applied monies through numerous unauthorised withdrawals on three customer accounts. The offending involved multiple transactions to avoid detection, and in some cases falsified transaction vouchers.  In others, transaction records were not produced. Once again, the offending demonstrated significant planning and ongoing dishonesty.

28.	Patricia Maso’s offending was limited to one incident.  Nevertheless, the evidence established efforts on her part to disguise the offending by the voiding of the deposit on the system that had been made earlier in the day. 

29.	The impact on the victim, BSP, in this case has obviously been significant. The amount of monies taken is significant.  In addition to the financial loss, I am sure that the bank has suffered a loss of standing and confidence in the local community in Ramu. A number of individual customers have also been distressed and inconvenienced by the offences, albeit that the monies have since been refunded by the bank.  

30.	Whilst there is no evidence as to the ultimate use of the monies taken, I am satisfied that they were used for the benefit of the offenders. 

31.	I have also had regard to the personal circumstances of the offenders and other matters of mitigation.

32.	Michael Yakip is 32 years old.  He originally comes from Andoekeu Village in Kandep District of Enga Province but has lived for many years at Ramu Sugar in Madang Province.  He is married with four children.  The offender is well educated.  He completed Grade 12 at Kopen Secondary School.  He commenced tertiary studies at the University of Papua New Guinea in 2010 but was unable to complete his second year due to financial constraints.  He had been employed with BSP as the sub-branch manager until his suspension and prior to being taken into custody following conviction supported himself through informal activities.   

33.	In mitigation this is the offender’s first offence.  I am satisfied that he is previously of good character.   Whilst Probation Services was unable to speak to members of the offender’s community at the village or in Ramu Sugar in view of current constraints due to the pandemic, there is no doubt that he held a senior position of trust with the bank in his local community for several years.  I also accept that his family and the community in both his home province and in Madang have expressed surprise at the offending. 

34.	As above, the offender did not appear and was therefore not heard on allocutus.  

35.	The impact of the offence on the offender has been and will continue to be very significant.  The offender has lost a secure, senior position in one of the country’s largest banks.  I am sure that his offending will bring shame and a loss of standing to both himself, and his family.  It will be very difficult as a result of this conviction for him to find employment in the future, particularly in the financial industry.  The loss of income and any time spent in custody will also have a significant effect upon his family.  

36.	There are no matters of mitigation special to Michael Yakip relating to the offending itself but there are some medical issues which I will return to below on the issue of suspension.  

37.	William Shal is 33 years old and from Magarima in Hela Province.  He has lived in Ramu Agri Industries in Madang since he was born.  He is married with four children who are dependent on him, aged 7, 6 and 3 years of age (twins). The offender completed Grade 12 at Tari Secondary School in 2013 and undertook training as a banking officer from 2014 to 2016 before he was employed by BSP at the Ramu Sub-branch where he was working at the time of the offences.   

38.	In mitigation this is the offender’s first offence.  Once again Probation Services was unable to obtain the views of community members but I am satisfied that the offender is previously of good character. He has been a longstanding member of the Ramu community in which he was employed and maintained for several years the position of Chief Cashier at the local sub-branch of a major financial institution.  I accept his statement on allocutus that he has never been before any court before.

39.	The offender expressed remorse on allocutus which I accept as genuine.  He apologised to the Court and sought its leniency to impose probation or a fine.  

40.	The impact of the offence on the offender has been and will continue to be very significant.  The offender has lost a secure position in one of the country’s largest banks.  I am sure that his offending will bring shame and a loss of standing to both himself, and his very young family.  It will be very difficult as a result of this conviction for him to find employment in the future, particularly in the financial industry.  The loss of income and any time spent in custody will also have a significant effect upon his family. 

41.	There are no matters of mitigation special to the offender. 

42.	Reinert Waira is 30 years old.  She is from Rempi Village in Madang Province but was living at Ramu Sugar in Madang at the time of the offending. She lives with her mother and five siblings, together with her husband and three children, aged 7, 3 and 1 ½ years of age.  The offender completed Grade 12 before taking up her position as a teller at the Ramu Sub-branch where she worked until the time of her suspension.  Since then she has been working as a shop-keeper and uses the income to support her family financially.  

43.	In mitigation this is the offender’s first offence.  Whilst Probation Services was unable to obtain the views of family and community members, I am satisfied that she is previously of good character. 

44.	The offender expressed some limited remorse on allocutus.  She asked the court to take into account that she is a first offender, and has a family who is dependent upon her.        

45.	The impact of the offence on the offender has been and will continue to be very significant.  She too has lost standing in the community and a secure position with the bank as a result.  Whilst the offender has secured employment as a shopkeeper in a canteen, it will be difficult for her to obtain employment similar to that held at the time of the offending.  Moreover, any time spent in custody will also have a significant effect upon her family, in particular her three young children.   

46.	There are no matters of mitigation special to the offender.

47.	Patricia Maso is 27 years old.  She is originally from Chambri in the Ambunti District in East Sepik Province but was living at Ramu Sugar in Madang at the time of the offending. She now lives with her parents and relatives.  She is mother to a three year old child.  Her father told Probation Services that the family was shocked at the offending and expressed concern for BSP at the loss of the monies.  On behalf of the family he said that it will accept the sentence imposed by the Court but pleaded for leniency and time for the offender to repay the money with the support of her family.  Other members of the community could not be contacted at this time. 

48.	The offender completed Grade 12 at Madang Technical College before taking up her position as a teller at the Ramu Sub-branch where she worked until the time of her suspension.  She currently earns a living from her family’s informal businesses including PMV truck operations, poultry products and store goods.  

49.	In mitigation this is the offender’s first offence.  Whilst Probation Services was unable to obtain the views of the broader community, I am satisfied that she is previously of good character. 

50.	On allocutus the offender expressed little remorse.  Whilst she said that she respected the Court’s decision, she maintained that she was being held responsible for a systems error in the bank.  There was no question of a systems error.  The evidence showed that Patricia Maso withdrew cash from her till and deliberately altered the bank’s system without authorisation, matters which she did not dispute, although she denied acting dishonestly.   Nevertheless, I accept her statements on allocutus that this is her first time before a Court and take into account her plea for a suspended sentence to allow her to care for her elderly parents and young child, and make restitution.

51.	The impact of the offence on the offender has been and will continue to be very significant.  Like the others she has lost a secure position of employment and inevitably suffered a loss of standing in the community as a result.   It will be difficult for her to obtain formal employment again in the future. Any time spent in custody will also have a significant effect upon her family and in particular her young child at time when they most need their mother. 

52.	There are no matters of mitigation special to the offender.

Sentence

53.	The offenders have each been convicted of one count of misappropriation contrary to s. 383A(1)(a)(2)(b)(d) of the Criminal Code.  Michael Yakip, William Shal and Reinert Waira have also been convicted of conspiracy to defraud BSP contrary to s. 407(1)(b) of the Criminal Code.   The maximum penalties for these offences are 10 and 7 years of imprisonment, respectively.  

54.	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 an offence: Goli Golu v The State [1979] PNGLR 653.  Although the offences in this case do not fall within that category, they remain serious. 

55.	I have taken into account each of the offenders’ personal circumstances.  I have also taken into account their lack of previous conviction and prior good character, together with their respective expressions of remorse. These are factors in their favour but they are outweighed by the aggravating factors in each case.  

56.	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..."

57.	The conspiracy by Michael Yakip and William Shal was very serious given their respective positions, the period over which it was conducted and the breach of trust involved.  These factors together with the planning involved and the very large amount of monies misappropriated also make that offence by them particularly serious. 

58.	Michael Yakip was the senior officer and responsible for the sub-branch’s operations.  As Chief Cashier, William Shal was responsible for holding the bulk of the Sub-branch’s cash holdings.  It was he who altered the figures on the bank’s computer system and prepared the false report.  It is clear that the offences could not have been committed without their joint efforts.  The personal circumstances of the offenders are also closely shared.  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.  

59.	 Reinert Waira joined the conspiracy for a shorter time and in a more limited role.  Similarly, the misappropriation by Reinert Waira involved a considerably lesser amount, and whilst the offence clearly involved planning, it was conducted over a more confined period of time.  Nevertheless, having regard to her position of trust, the amount involved, and the effect on the bank, the offence was clearly a serious one.   

60.	The evidence failed to establish the participation of Patricia Maso in a broader conspiracy but the amount misappropriated by her was still substantial, and involved a serious breach of trust against her employer, and deliberate efforts to conceal her offending.  

61.	Dishonesty offences are prevalent and this case calls for both general and specific deterrence.

62.	Having considered all of the above matters, including comparative cases, I impose the following sentences on Count 1, conspiracy:

a)	4 years of imprisonment in the case of Michael Yakip;
b)	4 years of imprisonment in the case of William Shal; and
c)	3 years of imprisonment in the case of Reinert Waira.

63.	I further impose the following sentences on Count 1, misappropriation:

a)	6 years of imprisonment in the case of Michael Yakip;
b)	6 years of imprisonment in the case of William Shal; 
c)	4 years of imprisonment in the case of Reinert Waira; and
d)	3 years of imprisonment in the case of Patricia Maso.

64.	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. 

65.	Whilst there is limited information in the material from Probation Services I accept that their families support their pleas for suspension.    

66.	Probation Services have confirmed that the offenders are suitable for probation.  The financial details provided in the means assessments reports for Michael Yakip, William Shal and Patricia Waira are limited and it must be said  contradictory in places.  It is clear, however, that neither Michael Yakip nor William Shal have the capacity to repay the significant monies misappropriated by them.  Neither are in formal employment nor have sufficient, if any savings.  Reinert Waira is in a similar position and concedes that she is unable to make restitution.  

67.	Patricia Maso submits that she has the capacity to repay the monies and seeks suspension so that she may support her family whom are financially dependent on her.  The means assessment report and the pre-sentence report make clear that she has no savings.  It is proposed that the sentence be suspended to allow her to repay K1500 per month.  From the information provided, however, that is the entire profit per month from the PMV business, leaving only K520 every 6 weeks from the poultry business to sustain the family.  I am not satisfied that the offender has the means to make repayment.  Nor would it be appropriate for her family to bear the financial burden of restitution.  Nor do I accept that the family members are dependent on her to run the business.  The PMV business was established by her father and was operating whilst she was fully employed with the bank.   Her lack of remorse has also failed to persuade me that suspension would support her rehabilitation at this time.  

68.	In the circumstances it is my view that suspension is not appropriate in the case of William Shal, Reinert Waira or Patricia Maso.

69.	The question remains whether Michael Yakip’s sentence should be suspended due to his medical condition.  A medical report from Dr Kassi Ken, Consultant Physician at the Simbu Provincial Health Authority dated 13 January 2020 states that he was assessed as having abdominal tuberculosis, ascites, splenomegaly and umbilical hernia.  A more recent medical report dated 12 March 2020 is provided by from Dr Marten Daimen, Consultant Physician at the Madang Provincial Hospital.  He reports that Michael Yakip was treated for tuberculosis but that his condition failed to improve.  He was subsequently admitted to hospital in Chimbu where he was diagnosed with liver cirrhosis due to Hepatitis B, together with an enlarged spleen due to liver cirrhosis.   He was re-assessed by Dr Daimen upon referral by the Beon CS Medical Personnel due to his poor health whilst on remand pending sentence.  He demonstrated generalised body wasting and abdominal swelling.  Dr Daimen assessed Michael Yakip as suffering from liver cirrhosis with portal hypertension.  He further states that treatment is not available in this country, and that the illness is terminal with a life expectancy of months, or perhaps a few years. He recommends his release.  At the time he was being cared for in Madang Hospital.  Accompanying photographs confirm Mr Yakip’s poor physical condition.

70.	It is clear that Michael Yakip’s medical condition is very serious.  Whilst he has clearly forfeited his right to allocutus, a serious question remains as to whether his sentence, or part thereof, should be suspended on the basis that he would suffer exceptionally in prison.  Correctional Services did, however, provide him with access to hospital treatment.  Furthermore, the offender is not here to receive the sentence of the Court, or enter into any conditions the Court might impose that would enable suspension.  In the circumstances I do not intend to suspend his sentence.   Nor will I preclude him, however, from seeking suspension in the event that he is apprehended or surrenders himself to authorities. Whether or not that application would ultimately be successful is a separate matter.

71.	Accordingly, I make the following orders:

ORDERS 

Michael Yakip
(1)	On Count 1, conspiracy to defraud, the offender, Michael Yakip is sentenced to 4 years of imprisonment in hard labour to be served at Beon Correctional Institution.

(2)	On Count 2, misappropriation, Michael Yakip is sentenced to 6 years of imprisonment in hard labour to be served at Beon Correctional Institution.

(3)	The sentences are to be served concurrently.

(4)	Time spent in custody, 4 months is taken into account, with the balance of 5 years, 8 months to be served.

(5)	The prisoner is at liberty to apply for his sentence to be suspended in the event of his apprehension or surrender to police. 

(6)	Any bail monies are to be immediately refunded.

William Shal

(7)	On Count 1, conspiracy to defraud, the offender, William Shal, is sentenced to 4 years of imprisonment in hard labour to be served at Beon Correctional Institution.

(8)	On Count 2, William Shal is sentenced to 6 years of imprisonment in hard labour to be served at Beon Correctional Institution, on Count 2.

(9)	The sentences are to be served concurrently.

(10)	Time spent in custody, 7 months, 2 weeks, is taken into account, with the balance of 5 years, 4 months, 2 weeks to be served.

(11)	Any bail monies are to be immediately refunded.

Reinert Waira

(12)	On Count 1, conspiracy to defraud, the offender, Reinert Waira is sentenced to 2 years of imprisonment in hard labour to be served at Beon Correctional Institution.

(13)	On Count 2, misappropriation, Reinert Waira is sentenced to 4 years of imprisonment in hard labour to be served at Beon Correctional Institution.

(14)	The sentences are to be served concurrently.

(15)	Time spent in custody, 1 month is taken into account, with the balance of 3 years, 11 months to be served.

(16)	Any bail monies are to be immediately refunded.

(17)	As a precautionary measure having regard to the current State of Emergency, Reinert Waira is to be held in isolation at the Beon Correctional Institution for at least 14 days before transfer to the main female compound, subject to medical assessment.  

Patricia Maso

(18)	On Count 2, misappropriation, the offender, Patricia Maso is sentenced to 3 years of imprisonment in hard labour to be served at the Beon Correctional Institution.

(19)	Time spent in custody, 2 weeks is taken into account, with the balance of 2 years, 11 months, 2 weeks to be served.

(20)	Any bail monies are to be immediately refunded.

(21)	As a precautionary measure having regard to the current State of Emergency, Patricia Maso is to be held in isolation at the Beon Correctional Institution for at least 14 days before transfer to the main female compound, subject to medical assessment.  
________________________________________________________________   
Public Prosecutor:   	Lawyer for the State		
Public Solicitor:	Lawyer for the Offender