N10109

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 10 OF 2022

THE STATE

V

WILMA POLE

Waigani: Berrigan J
2023 :2nd February

CRIMINAL LAW– SENTENCE – GUILTY PLEA - S 383A(1)(a)(2)(d) of the Criminal Code – Misappropriation of K182,081 by Provincial Treasury Cash Officer – Sentence of 5 years of imprisonment.

CRIMINAL LAW– SENTENCE – GUILTY PLEA - S 462(1) of the Criminal Code – Forgery of cheques in the sum of K30,000 and K18,000 - Sentence of two years on each count.  All sentences to be served concurrently, and suspended on conditions, including restitution. 

Cases Cited:
Papua New Guinean Cases

Wellington Belawa v The State [1988-1989] PNGLR 496 
David Kaya and Philip Kaman v The State (2020) SC2026 
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
The State v Benedict Simanjon (2020) N8637
State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252
The State v James Paru (No 3) (2021) N9248
The State v Tardrew [1986] PNGLR 91
Sanawi v The State (2010) SC1076 
The State v Merimba (2022) N9604 
The State v Raka Benson (2006) N4481
The State v Louise Paraka (2002) N2317
The State v Frank Kagai [1987] PNGLR 320
State v Tiensten (2014) N5563 
The State v Ludwina Tokiapron (2005)
State v Isaiah Guda (2015) N5955
The State v Pohien (2016) N6564
State v Paul Guli & Ors (2017) N6866
State v Warai Kisua (2018) N7513
State v Dumo (2018) N7574
State v Solomon Junt Warur (2018) N7545
State v Mercy Lohia (2018) N7614
State v Lousie Paraka (2002) N2317
Liprin v The State (2001) SC673
State v Tongayu (2021) N8975
The State v Emba (2011) N5012
The State v Tanner & Anor (2014) N5808
The State v Ruth Tomande (2019) N8153
State v Yegiora (2012) N4641
The State v Paroa Kaia (1995) N1401
The State v Karo (2008) N3521
The State v Niso (No 2) (2005) N2930
The State v Bobby Leva (2021) N8801
The State v Hevelawa (No 2) (2017) N6875
The State v Vavine Elizabeth Emil (2021) N8789
The State v Dumo (2018) N7574
The State v Posakei (2019) N8000 
The State v Niso (No 2) (2005) N2930

Overseas Cases

R v Law; Ex parte A-G [1996] 2 Qd R 63

Legislation and other materials cited:

Sections 19, 383A(1)(a)(2)(d), 462(1) of the Criminal Code

Counsel

Mr N. Needham, for the State
Mr F. Timbi, for the Offender 

DECISION ON SENTENCE

2nd February, 2023

1.	BERRIGAN J: 	The offender, Wilma Pole, pleaded guilty to one count of misappropriating K182,081 belonging to the State, contrary to s.383A(1)(a)(2)(b)(d) of the Criminal Code, together with two charges of forgery contrary to s 462(1) of the Criminal Code.  The maximum penalties for the offences are 10 years and 3 years of imprisonment, respectively.

2.	The offender was employed by the Western Highlands Provincial Treasury as its Cash Officer, a position she had held since 2009.  In this position she held the delegation to countersign cheques for three accounts, the Provincial Government Grant Account, Provincial Government Operating Account and the Provincial Treasury Operating Account.  She was also responsible for confirming by monthly report to the Provincial Accountant, Jonah Posa, that all expenses were accounted for.

3.	In 2014 it became apparent that a substantial amount of money had gone missing from the Province’s accounts. An independent investigation revealed that between 30 December 2013 and 1 August 2014 a large number of cheques had been paid out without payment vouchers, that is without the Finance Form 3 and 4 required under the Public Finances (Management) Act 1995, supporting documentation, or approval by the section 32 officer.  A number of the cheques were made payable to, and countersigned, by the offender.   The offender presented those cheques to the Mt Hagen Branch of Bank South Pacific.  All of the cheques were cashed out on their face but for one in the sum of K7775, which was paid directly into the offender’s account.  In total the offender countersigned six cheques made payable to herself and received K182,081.  

4.	The cheques were signed by the Accountant, Jonah Posa, with a letter purporting to authorise payment for cash and falsely justify the payment to the accused on the basis of expenses and tasks that did not form part of her duties.  At the time the offender dishonestly applied the monies to her own use she knew that the monies were not for the stated purpose but for her own benefit.  Mr Posa also benefitted from the transactions.  

5.	As part of the scheme with Mr Posa, the offender also forged two cheques, one made payable to Maria Agil on 24 February 2014 and another made payable to Joe Pawa on 10 April 2014 in the sums of K30,000 and K18,000, respectively. Both Ms Agil and Mr Pawa were employees of the Provincial Treasury.  The cheques were again accompanied by statements purporting to authorise cash payment. The authorisations were not given by either Ms Agil or Mr Pawa and neither received any monies. The offender admitted forging the signatures of Ms Agil and Mr Pawa. She did so on the instruction of Mr Posa, cashed the cheques, and gave the monies to him.   

Allocutus 

6.	On allocutus the offender apologised to the Government of Western Highlands and the Courts of Papua New Guinea.  She asked the Court to have mercy on her and impose a non-custodial sentence.  She is currently employed as a Provincial Support District Advisor, in the Finance Department in Jiwaka, which allows her to provide advice to officers to do the right thing and not to do what she had done.  The experience has given her a lot to teach them and her family. 
Sentencing Principles and Comparative Cases
7.	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 of misappropriation, 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.

8.	Having regard to the scale outlined in that case, and following amendments to s 383A, the Supreme Court (Batari and Berrigan JJ) in David Kaya and Philip Kaman v The State (2020) SC2026 suggested that the following scale of sentences may usefully be accepted as a base, to be adjusted upwards or downwards according to the factors outlined in Wellington Belawa, such that where the amount misappropriated is between:

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’ imprisonment is appropriate;
d)	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)	K500,000 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.

9.	Despite prior notice, the State failed to appear for submissions, and the Court heard from defence counsel, to whom I am grateful for his helpful written submissions.

10.	Defence counsel acknowledged in aggravation that the offence involved a high breach of trust, the loss of a substantial amount of State monies, and was conducted over a period of time. In mitigation this is the offender’s first offence, she cooperated from a very early stage with police, and has expressed remorse. At least some of the monies were given to her co-offender, Jonah Posa, from whom she took instructions. He submitted that a sentence of between 3 and 5 years was appropriate on Count 1 of the indictment for misappropriation, and a sentence of one to two years, on Counts 2 and 3, for forgery, all of which to be served concurrently as occurring as part of the one transaction. He asked the Court to suspend sentence on strict conditions including restitution having regard to the fact that it will promote restitution of the monies, as well as the personal reformation and rehabilitation of the offender.  He notes that the offender has five young children, the youngest of which is just one month, 4 days old.  

11.	Counsel referred to the following cases on misappropriation:

a)	State v Tiensten (2014) N5563 - the prisoner was found guilty of one count of dishonestly applying to the use of another namely Travel Air K10 million the property of the State.  He was sentenced to nine years IHL by Salika DCJ.  Four years was suspended on condition that the prisoner repay ten million Kina;
b)	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 misappropriating 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;
c)	State v Isaiah Guda (2015) N5955 – 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 authorizing his access to the monies which he presented to the bank.  He was sentenced to 6 years’ imprisonment with hard labour;
d)	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. He was sentenced to 5 years’ imprisonment;
e)	State v Paul Guli & ors (2017) N6866 – 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 by Salika DCJ;
f)	State v Warai Kisua (2018) N7513 – 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;
g)	State v Dumo (2018) N7574 – the offender 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;
h)	State v Solomon Junt Warur (2018) N7545 – 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;
i)	State v Mercy Lohia (2018) N7614 – the offender pleaded guilty to one 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.

12.	On the matter of forgery, he referred to the following cases:

a)	State v Lousie Paraka (2002) N2317 – the offender pleaded guilty to 2 counts of forgery and 2 counts of uttering.  She had altered the amounts written on the cheques making the value of the cheques from K1,700 and K1, 150 higher to K4, 700.00 and K4, 150.00.  A sentence of 3 years was imposed but suspended upon restitution;
b)	Liprin v The State (2001) SC673 - the offender was convicted on misappropriation, forgery, and uttering.  She was sentenced by the National Court to 1 year each for forgery and uttering and 3 years for misappropriation.  The sentence was made concurrent.  On appeal the sentence was reduced to time spent in custody and the balance was suspended with conditions of restitution;
c)	State v Tongayu (2021) N8975 – the offender was convicted of two counts of forgery following a trial.  The offender forged the signature of the Minister appointing him as the Chairman of the Securities Commission.  The court was of the view that the case was of the worst kind and sentenced the offender to 3 years imprisonment.  1 year was suspended and the balance was ordered to be served.  

13.	I have also had regard to the following cases on misappropriation, which are summarised in the schedule to the Supreme Court decision in Kaya, supra:

a.	The State v Emba (2011) N5012, Kawi J:  the prisoner pleaded guilty mid-trial to one count of misappropriating K286,491.71 in ticket sales. 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. 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;
b.	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 an amount of K292,663.50 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 which was suspended upon payment of his share of restitution of K146, 331.75;
c.	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 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.
d.	State v Yegiora (2012) N4641, Kangwia AJ (as he then was):  The prisoner was convicted on two counts of conspiracy to defraud and one count of misappropriation of K300, 000.00.  The prisoner was sentenced to 1 year for conspiracy to defraud and 2 years for misappropriation the sentences to be served concurrently but were wholly suspended on good behaviour.
e.	State v Wai (2020) N8452, Berrigan J:  The prisoner was convicted after trial of conspiring with others to defraud the complainant of gold valued at K105,340.50 and then misappropriating the gold to his own use.  The matter was a re-trial.  Having regard to the ceiling principle, the offender was sentenced to 2 years for conspiracy to defraud and 4 years for misappropriation as imposed at the first trial;
f.	The State v Paroa Kaia (1995) N1401, Sawong J:  The prisoner pleaded guilty of one count of misappropriating a sum of 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 sentence to 4 years’ imprisonment; 
g.	The State v Karo (2008) N3521, Paliau AJ: the prisoner, a cashier, pleaded guilty to misappropriating K99,600.53 belonging to her employer, Badili Hardware Limited.  She was sentenced to 6 years’ imprisonment, wholly suspended on conditions including restitution;
h.	The State v Niso (No 2) (2005) N2930, Gavara-Nanu J, in which the prisoner was found guilty following trial of 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 prisoner was sentenced to an effective term of 7 years, 6 months of imprisonment (from which 8 months spent in custody was deducted).
i.	The State v Bobby Leva (2021) N8801, Berrigan J: The accused was convicted of one count of misappropriating K290, 199.00 belonging to Buk Bilong Pikinini following trial.  He was sentenced to six (6) years’ imprisonment in hard labour;
j.	The State v Hevelawa (No 2) (2017) N6875, Salika DCJ: Jacob Hevelawa was the Director General of the Office of Library and Archives (OLA). Timothy Numara was the Manager, Corporate Services, OLA. Miriam Hevelawa was the wife of Jacob Hevelawa and the owner and sole Director of a company called Paja Sisters Trading.  It was alleged that the three conspired to defraud the State by submitting inflated invoices for grass cutting, landscaping and removal of rubbish services through Paja Sisters Trading.  Salika DCJ (as he then was) found all three guilty of misappropriation of State monies, and the two OLA officers guilty of abuse of office for approving the contract when there was a clear conflict of interest.  They were each sentenced to 2 years of imprisonment in hard labour for abuse of office, s 92(1), and 5 years for misappropriation of about K120,000.  Three years of the sentences were suspended upon restitution. 
k.	The State v Vavine Elizabeth Emil (2021) N8789, Berrigan, J:  the prisoner pleaded guilty to misappropriating K117, 788.87 over a period of seven months whilst employed to process payments and invoices.  Using the ANZ electronic transaction system she directed funds intended to legitimate service providers to her personal bank account.  She was sentenced to four years, two years of which was suspended;
l.	The State v Dumo (2018) N7574, Berrigan J:  The offender was 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 upon conditions, including restitution. The State v Posakei (2019) N8000, Susame, AJ: The prisoner pleaded guilty to misappropriation of K143, 812.46 belonging to the East New Britain Provincial Administration. Whilst employed as Human Resources Advisor he devised a scheme whereby the salaries of 7 suspended officers were paid into the prisoner’s personal accounts. The prisoner was sentenced to 6 years imprisonment, wholly suspended with conditions; 
m.	The State v Niso (No 2) (2005) N2930, Gavara-Nanu J, in which the prisoner was found guilty following trial of 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 prisoner was sentenced to an effective term of 7 years, 6 months of imprisonment (from which 8 months spent in custody was deducted).

Consideration  

14.	Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, every sentence must be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38.  

15.	Applying the principles outlined in Wellington Belawa, the following matters have been taken into account in determining an appropriate sentence for the misappropriation offence.

16.	This is not a case warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653.  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 offence in this case involves a very substantial amount of K182,081, which places it in the fifth category of David Kaya & Anor v The State, attracting a starting range of five to seven years of imprisonment.  

17.	In aggravation the offending in this case involved a serious breach of trust.  At the time of the offences, the offender was employed as the Cash Officer with the Provincial Treasury, a position she had held for five years.  Whilst not a particularly senior position it was nevertheless an important position of trust, which gave her the responsibility for counter-signing cheques and verifying expenditure every month.  Not only that but she had been employed in similar roles since 2005. 

18.	The offence was also committed over several months, involved multiple transactions, and considerable planning in concert with another person, the Provincial Accountant, Mr Posa.  

19.	Probation Services did not seek the views of the Provincial Government of Western Highlands but there is no doubt that the impact on the victim, namely the State, and therefore its people has been significant. The offender abused her position and the privilege of secure employment to misappropriate precious resources belonging to the State.  Those monies were intended for the benefit of the people of the Western Highlands for much needed services.    

20.	I am also satisfied that the offence, like the many others that regrettably involve the abuse of public monies by public servants, contributed to the diminution of public confidence in the administration of government services as a whole.  

21.	As for the personal circumstances of the offender, she is 40 years old. She is originally from Alepa Village, Rigo District, Central Province. The offender’s parents are now deceased.  She has a sister and two brothers, one of which lives with her in Jiwaka.  She is married with five children. Her youngest is just one month old.   

22.	The offender is well educated and completed a Bachelor of Arts in Music at the University of Papua New Guinea in 2005. She started work with the Department of Finance in Alotau in 2006 as paying and receiving officer.  She was transferred to the Mt Hagen Provincial Treasury and was unattached until 2012 when she was appointed Cash Officer. She lost her position in 2014 and was unemployed until she obtained her current position as Provincial and District Support Advisor in Jiwaka Province under the Financial Management Improvement Program in 2021.  

23.	In mitigation this is the offender’s first offence.  She is of prior good character and held a position of trust for several years with the State. It was of course this position of trust which she abused to her own benefit. 

24.	She is an active member of the United Church.  Her pastor Reverend Rake Gere confirms this and offered to assist her with counselling and rehabilitation in the event that the Court imposed a non-custodial sentence.

25.	It is also very much in the offender’s favour that she cooperated with police, admitted the offence and pleaded guilty at the first opportunity in the National Court.   I take this into account as indicative of her remorse.  I also take it into account on the basis that it has saved Court time and the State and its witnesses the cost and inconvenience of a trial.  

26.	The impact on the offender has been significant.  She lost a secure position in the Public Service and was without employment for a number of years.  

27.	There are no matters of special mitigation to the offender in terms of health or age.  There has been some delay in bringing this matter to finality.  Despite making admissions in her record of interview and being charged in February 2014 the taking of her guilty plea and the completion of the matter has been delayed for several years. 

28.	 A lapse of time between the commission of an offence and the imposition of sentence is not a mitigating factor of itself: In R v Law; Ex parte A-G [1996] 2 Qd R 63.   Delay may be a relevant consideration on sentence but it will depend on the circumstances.  Where there has been a failure on the part of authorities or the judicial process to bring an offender to justice within a reasonable time that may properly constitute a factor in mitigation. See s. 37(3) of the Constitution. That is particularly so where an offender has cooperated with authorities from an early stage.  Consideration should also be given to the conduct of the offender him or herself and their role in the delay. For obvious reasons a person who absconds should not benefit by the delay he himself has caused.  Delay may also be relevant where the offender has made demonstrable progress towards his or her rehabilitation during the period of delay.  As in any case delay must be balanced against all the other factors for consideration, including the nature and seriousness of the offence: The State v Benedict Simanjon (2020) N8637 at [40]; State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252 at [58]; The State v James Paru (No 3) (2021) N9248. To my mind some weight should be given to the delay in this case but to avoid giving it undue weight I intend to consider it on the matter of suspension below:  The State v Tardrew [1986] PNGLR 91 applied.

29.	It is also important to have regard to the sentence imposed on the offender’s co-accused, Jonah Posa, by Salika CJ.  He was sentenced to ten years of imprisonment for misappropriating K1,317,015.16.

30.	The principles governing parity discussed in Gimble were extensively considered and clarified in Sanawi v The State (2010) SC1076 applying Mario Postiglione v The Queen [1997] HCA 26;  (1997) 189 CLR 295; affirmed recently in David Kaya and Philip Kuman v The State (2020) SC2026: (emphasis mine):
"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..."
31.	There are no great differences between the offenders’ personal circumstances.  As for the circumstances of the offending, however, it is significant that Mr Posa held a much more senior position at the Treasury and a greater position of trust. He was also convicted following trial, and benefitted substantially more from the scheme.  Mr Posa also benefited from the monies misappropriated by the offender.  Whilst it does not excuse the offender’s conduct, Mr Posa was clearly the initiator, driving force and principal beneficiary of the broader scheme. 

32.	I have had regard to the offender’s personal circumstances, and the matters in mitigation, her lack of previous conviction, prior good character, her early cooperation and guilty plea and sincere remorse.   These factors must be considered against the aggravating factors in this case, namely the quantum of the offence, the breach of trust, the complexity of the scheme, the level of planning and duration involved, and the impact on the public and the public confidence. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.

33.	Having considered all of the above matters, including comparative cases, and the sentence of Mr Posa, I sentence the offender to five years of imprisonment.  

34.	On the charges of forgery I refer to my decision in The State v Merimba (2022) N9604 and in particular the comparative cases summarised in the schedule attached to that decision.  I make it clear that the case of Merimba itself bears no relation to this case and the sentence in that case is very particular to its own circumstances. 

35.	The factors outlined above are also relevant here.  Again, the offender abused her position of trust to forge the cheques which were deliberately made payable to fellow employees to avoid detection.  The fact that the forgeries were not isolated events and took place in the context of a larger scheme of dishonesty is further aggravating.  Having regard to the matters outlined above, the comparative cases, in particular those referred to above by counsel, I sentence the offender to 2 years on each of Count 2 and 3 in the indictment for forgery.  

36.	The sentences for forgery arise in the context of the same scheme for which she has been convicted of misappropriation and will be served concurrently for the sentence for that offence and with each other.  I understand that no time has been spent in custody to date.  I note that the offender has indicated a wish to serve her sentence at Bomana in Central Province where her family is located.  I will make orders accordingly, noting that it is ultimately a matter for the Commissioner for Correctional Services to determine.

37.	The offender pleads for the sentence to be suspended. In Tardew, supra 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.

38.	There is no evidence before me to suggest that the offender will suffer excessively in prison.  

39.	I have, however, decided to order restitution in this case. I agree with defence counsel that suspension will promote personal rehabilitation and restitution.  It has been about eight years since the offending and the admission of the offences. The offender has since demonstrated significant progress towards rehabilitation. After a lengthy period of unemployment she has secured a new position and is again actively contributing to society. During this period she has continued to comply with her bail conditions, as she must of course, but this has been at considerable cost, and seen her travel for a number of years apparently from Alotau to appear as required, and more recently from Jiwaka.  She has a very young family and whilst she receives a substantial wage she cannot be regarded as wealthy and the payment of monies will require sacrifice on her part and that of her family.  Probation Services recommend the offender for probation.  They report that the offender has the means to restitute at least K2000 a fortnight. On the figures provided she can clearly afford K2500.  Let me clear restitution is not a negotiation. These were serious offences and restitution will be difficult. It will remind the offender of the seriousness of her offending and ensure the recovery of the monies otherwise lost to the State.  I also intend that she undertake some community service.   

40.	Accordingly, I suspend the sentence upon condition of restitution. This is not an exercise in leniency but an order made in the community interest: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.  

41.	I make the following orders.

Orders

(1)	On the offence of misappropriation in Count 1 of the indictment the offender is sentenced to five years of imprisonment without hard labour. 
(2)	On the offence of forgery in Count 2 of the indictment the offender is sentenced to two years of imprisonment without hard labour.
(3)	On the offence of forgery in Count 3 of the indictment the offender is sentenced to two years of imprisonment without hard labour.
(4)	The sentences are to be served at Bomana Correctional Institution subject to the determination of the Commissioner for Correctional Services. 
(5)	The sentences are to be served concurrently.
(6)	The effective sentence of five years is wholly suspended upon condition that:

1.	Restitution in the sum of K182,081 is paid into the National Court Trust Account within three years in accordance with Order 2;
2.	Of the monies referred to in Order 1:
i.	K60,000 shall be paid on or before 2 February 2024; 
ii.	A further K60,000 shall be paid on or before 2 February 2025; and
iii.	The balance shall be paid on or before 2 February 2026.
3.	The offender undertake community service under the supervision of Probation Services to be conducted one day at the weekends at her local Church for a total period of 6 months within the first 12 months of her sentence.
4.	The offender enter into her own recognisance to keep the peace and be of good behaviour for the period of her sentence.

(7)	The offender’s bail monies of K5000 are immediately forfeited to the State in reduction of the amount to be restituted. 

(8)	Any sureties lodged by the offender’s guarantors are to be immediately refunded. 

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