N9612

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 173 OF 2021

STATE

V

MASO UTO

Waigani: Wawun-Kuvi, AJ
2022: 10th March, 3rd, 4th & 11th M 
CRIMINAL LAW–SENTENCE –S 383A(1)(a)2(d) of the Criminal Code – Guilty plea - Misappropriation of K14, 509.56 from employer- Restitution to the satisfaction of the employer made prior to arrest– Sentence of 2 years, wholly suspended
Cases Cited
K a v State [2020] PGSC 145; SC2026 
State v Watangia [2018] PGNC 93; N7175 
State v Balim [2015] PGNC 223; N6028 
State v Iralu [2008] PGNC 241; N3710 
Belawa v The State [1988-89] PNGLR 496 
Goli Golu v The State [1979] PNGLR 653
Reference
Criminal Code, Ch 262
Counsel
Ms Noel Needham, for the State
Mr Jeffery Kolowe, for the Defence

DECISION ON SENTENCE

11th M , 2022

1.	WAWUN-KUVI, AJ:  Maso Uto (offender) is a 54-year-old male from Hagege Village, Henganofi, Eastern Highlands Province.  

2.	He was employed with Tango Limited as an Administration Driver.

3.	There was an existing fraudulent scheme involving fuel cards in which he became part of. He was not the person who started or initiated the scheme. He nonetheless joined and failed to report the fraudulent activity.

4.	The modus operandi was one where the offender would sign a logbook and obtain a fuel card. He would then drive to a fuel station and refill the vehicle. He would proceed to park the vehicle leaving the fuel card with the pump attendant. Other vehicles would then purchase fuel with cash. The pump attendant would collect the money but would use the fuel card to refill the unsuspecting vehicles. The pump attendant would then split the proceeds with the offender. 

5.	 The offender pleaded guilty to two counts of misappropriation involving the same modus operandi for two different offending periods. In total he misappropriated K14, 509.56.

6.	I must now decide the appropriate penalty.

Purpose of Sentencing

7.	Sentencing is not an exact science. It is a consideration of many factors that include but are not limited to balancing the offender’s peculiar circumstance, the seriousness of the offence and community considerations. Sentencing is also not only about punishment of the offender. It is about rehabilitation, deterrence and communicating to the community that the actions of the offender are not acceptable.

The Charge
8.	The offender was convicted for two counts of Misappropriation under section 383(1) (a) and (2) (d) of the Criminal Code.

Penalty
9.	The maximum penalty is 10 years imprisonment.
10.	I remind myself that the maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653. This is not such a case.

Sentencing factors in dishonesty cases

11.	 In sentencing the offender, I consider that sentencing considerations in Belawa v The State [1988] relevant and apply them in the present case. They are:

“(1)      the amount taken;
(2)    the quality and degree of trust reposed in the offender including his rank;
(3)      the period over which the fraud or the thefts have been perpetrated;
(4)      the use to which the money or property dishonestly taken was put;
(5)      the effect upon the victim;
(6)      the impact of the offences on the public and public confidence;
(7)      the effect on fellow-employees or partners;
(8)      the effect on the offender himself;
(9)      the offender’s own history;
(10)    restitution; and
(11)   those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long del , s  over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.”
Submissions
12.	The defence submit for a term of imprisonment within 1-2 years whilst the State submits for a range between 2-3 years. Counsels concede that the sentence be wholly suspended in light of the factors peculiar to the offender’s case.

13.	The State has accepted that the offender did not initiate the criminal activity, he was not aware of the extent of the fuel that was stolen, and he had paid restitution to the satisfaction of Tango Limited.

14.	It is conceded in mitigation that the offender pleaded guilty, expressed remorse in his allocutus, cooperated with police, cooperated with his former employer during internal investigations and has no prior convictions. 

15.	I accept that the above factors act favorable for the offender.

16.	Whilst defence have not addressed factors in aggravation, I accept State counsels’ submissions that the fraud was perpetrated over a period of 5 months and involved a brazen scheme involving multiple parties against the offender’s employer.

17.	I also find that the amount taken is significant as the employer is a private company.

Sentencing guidelines

18.	 I remind myself that guidelines assist the Court and provide parity in sentencing, but the important consideration is the peculiar circumstance of the offender’s case.

19.	Defence counsel submits that whilst outdated the guidelines in Belawa v The State [1988], are still relevant. The guidelines are as follows:

“(1) 	where the amount misappropriated is between K1 and K1,000, a gaol term should rarely be imposed;
(2)		where the amount misappropriated is between K1,000 and K10,000, a gaol term of up to two years is appropriate;
(3)      	where the amount misappropriated is between K10,000 and K40,000, two to three years imprisonment is appropriate;
(4)      where the amount misappropriated is between K40,000 and K150,000, three to five years imprisonment is appropriate.”

20.	 State counsel has referred the Court to K a v State [2020], where Batari J and Berrigan J, provided the following scale:

(a) K1 and K1000 a gaol term should rarely be imposed;
(b)	K1,000 and K10,000, a gaol term of up to two years is appropriate;
(c)K10,000 and K40,000, two to three years of imprisonment is appropriate;
(c)	K40,000 and K100,000, three to five years of imprisonment is appropriate;
(e)	K100,000 and K500,000, five to seven years’ imprisonment is appropriate; and
(f)	500,000 and K999,999.99, seven to 10 years of imprisonment is appropriate, bearing in mind that the maximum under s. 383A(2) should be reserved for the worst types of offending involving amounts less than K1 million.

21.	The guidelines indicate a range of 2- 3years for the present case.

Comparable cases

22.	 The State has submitted the following comparable cases:

23.	State v Watangia [2018], Susame AJ: The offender pleaded guilty to misappropriating K9000.00 of his employer’s money. During an audit, it was discovered that cash, prepaid sim cards and mobile phones were missing. Because the offender was in charge at the relevant time, he was directed to make restitution. He then took K9000.00 from money that another employee was banking to make restitution. He was sentenced to 3 years imprisonment which was wholly suspended on conditions including restitution.

24.	State v Iralu [2008], David, J: The offender pleaded guilty to misappropriating K9, 000.00 of her employer’s money. She altered cash sales figures on yellow copies of invoices to depositing the monies keeping the difference for herself. The fraud was perpetrated over a period of 5 months. The offender was sentenced to 3 years imprisonment. Pre-trial custody was deducted, and the balance was wholly suspended on conditions including restitution.

25.	In the above cases, the amounts misappropriated are similar in range and involve misappropriation by employees; however, in both cases there was no restitution made prior to sentencing. In the present case, the offender made restitution to the satisfaction of the employer prior to arrest.
26.	In State v Balim [2015], Cannings, J: The offender pleaded guilty to misappropriating K11, 680.00. The money belonged to the school in which the offender was a teacher. During a six-week period the offender forged the signature of the head teacher and cashed four cheques. He has restituted K3000.00 prior to sentence. He was sentenced to 3 years imprisonment, which was suspended with conditions.

Pre-sentence Report

27.	The Pre-Sentence Report speaks favorably of the offender. The victim had a meeting with the offender after the fraud was discovered and the offender used his superannuation to make restitution. The victim was satisfied and had not wished for the case to proceed further. The management have considered the offender’s age and ask the Court to impose a non-custodial sentence.

Allocutus

28.	 The offender apologized and stated that he had made full restitution. 

29.	Considering the offender’s early cooperation during internal investigations, his later cooperation with police and his early guilty plea, I accept his statement as a genuine sign of remorse.

Consideration 
30.	 Corruption at all levels is prevalent in our society and as it is often said, it is a cancer that is slowly eroding our society. People must learn to enjoy only the toils of their labour. A lot of people tod  are living beyond their means and have sacrificed their integrity to steal from their employer. Just because everyone else was misappropriating the money does not mean that it is alright. Corruption can only stop when each individual in this country makes a decision to report it and to take efforts not be engaged in it.

31.	In the present case, the offender has acknowledged that his actions were wrong and had made restitution well before he was charged by police.

32.	Considering the mitigating and aggravating factors, factors peculiar to the offender, the current sentencing trends, the prevalence of the offence and the foregoing matters, the offender is sentenced to 2 years imprisonment for each count. Each sentence is made concurrent because they involve the same fraudulent activity.

33.	The question now is whether the sentence should be suspended?

34.	This was not a violent offence, and I accept that the offender does not pose a risk to his community. He made restitution to the satisfaction of his employer before he was arrested. He is also 54 years old, and prison would cause undue hardship and the victim acknowledges this. 

35.	The sentence of 2 years is wholly suspended, and the offender is placed on a good behaviour bond for 2 years without sureties and to enter into his own recognizance to be of good behaviour for that period.

Orders
	
36.	The Orders are as follows:

1.	 The Offender is sentenced to imprisonment for two years for count 1 on the indictment on the conviction of Misappropriation.
2.	The Offender is sentenced to imprisonment for two years for count 2 on the indictment on the conviction of Misappropriation.
3.	Both sentences shall be served concurrently.
4.	The Offender shall serve 2 years imprisonment.
5.	Furthermore, execution of the sentence is pursuant to s 601(1)(b) of the Criminal Code suspended, on the offender entering into a recognizance in accordance with s 601(2) without sureties, subject to the conditions that the offender is of good behaviour for 2 years.
6.	Bail is refunded

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender