N10132

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 5 & 6 OF 2022

BETWEEN:
INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
GIPO DIGGAR alias DIGGAR EZEKIEL GIPO
& IAN PETERSON API

Waigani: Wawun-Kuvi, AJ
2022: 2nd   & 3rd August, 30th September
2023: 17th February

CRIMINAL LAW-SENTENCE-Guilty Plea-Misappropriation, 383A(1)(a) (2)(d) Criminal Code-Monies in the sum of K233, 245.21 -sentence of 4 years imprisonment

Cases Cited:
State v Jarick [2021] PGNC 329; N9000
State v Posakei [2019] PGNC 281; N8000 
State v Warur [2018] PGNC 438; N7545 
Liprin v The State [2001] PGSC 11; SC673 
Anis v The State [2000] PGSC 12; SC642 
Wellington Belawa v The State [1988-1989] PNGLR 496
The State v Tardrew [1986] PNGLR 91
Goli Golu v The State [1970] PNGLR 653

Legislation
Criminal Code Ch 262

Counsel:
Ms Comfort Langtry and Ms Theresa Aihi, for the State
Mr Jeffery Kolowe, for the Offender

DECISION ON SENTENCE

17th February, 2023
1.	WAWUN-KUVI, AJ: The offenders were young aspiring entrepreneurs who saw an opportunity and sought to capitalize on it.

2.	Gipo Diggar is 32 years old and hails from Sebe Village, Binaturi, Western Province. Ian Peterson Api is also 32 years of age and hails from Hula, Rigo, Central Province.

3.	Gipo Diggar was employed with Brian Bell and Company Limited. Ian Peterson Api owned a business named ZeroNet ICT Services. They conspired with each other for the purpose of defrauding Brian Bell and Company Limited.

4.	Brian Bell and Company Limited purchased several goods from ZeroNet. However, despite the payments it did not receive most of the products it purchased.
 
5.	Instead of using the monies to supply the goods to Brian Bell and Company Limited, the offenders transferred the monies into each of their personal accounts and applied it to their own use.

6.	In total the offenders misappropriated K233, 245.21.

7.	The issue for determination is, what is the appropriate sentence?

The Charge

8.	The offenders were jointly indicted on a charge of misappropriation under section 383A(1)(a) and 2 (d) of the Criminal Code.

Penalty

9.	The maximum penalty is 10 years imprisonment.

10.	The maximum is reserved for the worst case: see Goli Golu v The State [1970] PNGLR 653.
Guidelines
11.	I remind myself that whilst guidelines assist, it is the peculiar circumstances of each case that is the important consideration.
12.	The guidelines in Belawa v The State [1988], provide the following range:

“(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.”

13.	Recently, the majority in Kaya v State [2020] in considering the amendments to section 383A of the Code, the need for increased sentences and the sentencing trends, suggested an adjustment as follows:

(1)	“where the amount misappropriate is between K40,000 and K100,000, three to five years of imprisonment is appropriate;
(2)	where the amount misappropriate is between K100,000 and K500,000, five to seven years’ imprisonment is appropriate; and
(3)	where the amount misappropriate is between 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.”

14.	According to the suggested guidelines in Kaya v State [2020], the case would attract a term of imprisonment between five to seven years. 
Comparable cases
15.	Counsels have assisted the Court with the following comparable cases:

16.	State v Jarick [2021], Berrigan J: The offenders pleaded guilty to misappropriation and conspiracy to defraud. The offenders instead of depositing ticket sales would take the monies and disguise it with altering sales dockets. Between December 2016 and 16 April 2019, Dorothy Jarick misappropriated a total of K230,000. Between March 2017 and 16 April 2019 Wilma Dongo misappropriated a further K230,000. Terry Laka misappropriated K96,956.90 between September 2017 and 16 April 2019. The offenders were sentenced to 5 and 4 years imprisonment which was made concurrent to each of their sentences for conspiracy to defraud. 18 months of the sentence was suspended, and the balance was ordered to be served.

17.	State v Posakei [2019], Susame AJ: The offender was a Human Resource Advisor. She processed salaries for individuals who were either deceased or suspended and diverted them into her personal account. She benefited K143 812.46. She was sentenced to 6 years imprisonment which was wholly suspended with conditions including restitution.

18.	Additional I have found the facts in State v Warur [2018], Berrigan J similar. The amount involved was much higher. The offender pleaded guilty to misappropriating K811,969.53. The offender was a Sergeant in the Correctional Services. He was the Communications Officer. The offender incorporated a company and placed fictional orders on behalf of the Correctional Services. No goods were supplied to the Correctional Services and the offender used the money for his own personal benefit. The fraud was perpetrated over a period of almost 4 years.  The offender was sentenced to 7 years imprisonment.

Personal Antecedents- Ian Peterson Api

19.	 His father is deceased, and his mother is alive and resides in the village. He has two sisters and is the youngest in his family. He and his sisters reside in Port Moresby, and each live their own lives. 

20.	The offender is single and has one son from a de facto relationship. The child lives with his mother in Australia.

21.	He completed secondary school at Gordon’s Secondary and obtained a diploma from the International Training Institute. He has held various employment without any firm commitment to anyone of them. 

22.	He has no funds in his bank account and has K2, 882.50 in his superannuation.

23.	He has no health issues.

Personal Antecedents- Gipo Diggar

24.	The offender’s parents are alive. His father is a retired employee of the National Judicial Staff Services. His mother is a housewife. They now reside in their home province. He has a younger brother who is presently in university.

25.	The offender is married and has five children.  He is living at the outskirts of Malolo Estate at 8-mile, National Capital District.

26.	Two of his older children were attending private schools but may be forced to attend government run schools due to the offender’s unemployment.

27.	He supports his younger brother as well.

28.	He completed secondary school at Gordons Secondary School. He obtained a diploma in Information Technology from Don Bosco Technological Institute.

29.	He was employed with several organizations prior to his employment with Brian Bell and Company. Since his termination he has not found employment.

30.	He has no funds in his bank account. There is no money in ZeroNet’s account. The offender has about K48, 442.30 in his superannuation.

31.	The offender states that he suffers from fluid reflux brought on by alcohol consumption but did not provide a medical report on request by the Probation Officer.

Allocutus 

32.	Gippo Digar states:
‘Firstly, I’d like to thank you for the opportunity and thank the Court for the time taken for the case. I want to say sorry to Brian Bell in respect of the fact that I was their employee at the particular time. I want to apologize to my family for this matter. Thirdly I want to explain about the charges. The total we have pleaded guilty to, we have done some purchases of the orders and two of the orders were delivered to Brian Bell. We have also purchased two more orders yet to be delivered still in stock. And three particular orders yet to be purchased. K102, 587.87 was purchased. Not purchased K130, 657.54. The very first order 201 was purchased and delivered to Brian Bell. Also order 209 was also purchased and delivered. Yet to be delivered as advised by CTO if could purchased and complete the order, we brought the orders and he only accepted one order and the order he said it was before the Court and he would not accept it. Order yet to be delivered are 205 and 210. Orders not purchased are 207, 203 and 208. In explaining the orders, I am greatly sorry for what me and my colleague have done. Particularly me. I for one I had no intention of doing this, I at the period of time had  personal marital issues. I communicated to my immediate manager at the time this came about. With this opportunity it led me into misappropriating the monies at the time. I am sorry for what I have done and caused. Not only my life. My kids and my partner. It has affected their education and housing. I ask for time to repay money to Brian Bell. We are willing to pay back the money if they are willing. If it is outstanding from the totals. I ask for time be granted for us to deliver this.”

33.	Ian Peterson Api states:

“First of all, I want to apologize for what I’ve done and for this matter I am standing before the Court. For the Brian Bell Group it wasn’t my intention to be in this situation. There were decisions that were made that were not right. I truly want to say sorry. I think most of what I wanted to say is mentioned by my colleague. We did purchase some orders there are still in stock. James Gopave from the Probation Office I took him to where the devices are and he himself took pictures of them. I want to ask for leniency and if you could give us some time to make this right. I know we made a mistake, and we really want to make it right by completing the orders or repaying the balance of the monies.”  

34.	Considering the guilty plea, each of their statements to the Probation Officer and their respective statements in allocutus, I accept that they are each genuinely remorseful for their actions.
Aggravating factors 
35.	I have considered the submissions by counsel and find the following to be aggravating:
1.	A substantial amount of money was misappropriated, i.e., K K233, 245.21.
2.	There was a degree of trust placed in the offenders because of the business arrangement between the two companies and also when Gipo Diggar himself was employed by Brian Bell and Company.
3.	The fraud was perpetrated for several months before it was discovered.
4.	The offenders applied the monies to their own use, especially Gipo Diggar who took the monies and used the monies to alleviate his marital issues. 
Mitigating Factors
36.	In considering the submissions and the factual circumstance of this case, I find the following to be mitigating:
1.	They are first time offenders with no prior convictions.
2.	They have pleaded guilty.
3.	They have each expressed genuine remorse for their actions.
4.	Having realized the implications of their actions more so on the part of Gipo Digar, the offenders took steps to complete the order but were not able to do so.
5.	The State has not taken issue with the offenders’ statements that they had managed to source together funds to deliver some goods, reducing the amount to K209, 573.19.
Consideration:
37.	The offence of misappropriation is prevalent in Papua New Guinean society. Many people such as the offenders continue to dishonestly taken money that was given to their for a specific purpose and apply them to their own personal use without so much as a regard to the detrimental consequences its may have to the victims. We continue to see roads, schools and hospitals not being built and basic services not being delivered because of such actions.
 
38.	 I have considered the principles in Wellington Belawa and where I have not stated them elsewhere in this judgement, I accept that the victim suffered from the fraudulent conduct of the offenders and the effects of which will affect their staff.

39.	Both offenders are now unemployed with no source of income. It will no doubt be difficult for them to gain employment or operate a similar business once information gets out about their offence. 

40.	They have managed to supply some goods after they were arrested. They attempted to supply some more of the goods that were initially ordered however this was refused by Brian Bell and Company Limited as the matter had already progressed through the formal Court system.

41.	They have realized the seriousness of their offence and have each expressed genuine remorse and shame in finding themselves in the situation that they are in.

42.	 Considering all these matters and the foregoing,  Gipo Diggar alias Diggar Ezekiel Gipo is sentence to 4 years imprisonment. Ian Peterson Api is also sentenced to 4 years imprisonment.

43.	I have considered the principles in the cases of Liprin v The State [2001], Anis v The State [2000] and The State v Tardrew [1986] PNGLR 91 and find that this is an appropriate case for partial suspension. This promotes reintegration and rehabilitation whilst acting as a deterrent to other likeminded offenders.
 
44.	The offenders had prior good character and acted out of character when committing the offence.
 
45.	Whilst the victim seeks restitution it is of the view that if the offenders do not have means then it seeks imprisonment.
 
46.	The materials demonstrate that the offenders are not able to meet restitution. Significant time has lapsed between the period the monies were taken until the Court date and the offenders did not take any further steps to restitute Brian Bell & Co. They have attempted to supply some of the goods which Brian Bell & Co. no longer require. They have no funds in their accounts and their company has no funds. They are unemployed and have had difficulty securing employment since their case was published in the Newspaper. The amount is taken is significant.
 
47.	Gipo Digar has five children, a wife, and a brother in university to support. It is unlikely he will be able to meet restitution. Ian Peterson Api resides with family members in the city and has no financial capacity to restitute the monies.

48.	Whilst I accept that their families and children will suffer as a consequence of imprisonment, I am reminded that impacts on families as a result of imprisonment whilst grave is not a relevant consideration in sentencing except in the rarest occasion: Mikoro v State [2015] PGSC 12; SC1424 (1 May 2015), Allan Peter Utieng v The State (2000) SCR No 15 of 2000 and The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424. 

49.	Kapi DCJ held in Prosecutor v Vangu’u Ame [1983]:

“Indirect effects of a man going to gaol, although proper considerations, must not be over-emphasized nor allowed to cloud the fact a person has committed a most serious offence. Justice, it has been said, must of course be tempered by mercy, but in my view not to the extent of allowing a person who has committed a very serious offence to, in fact, go free.
…If a court is weakly merciful and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences.” (Citations removed).

50.	Sentencing is a community approach. There are no views of the community which goes towards supporting a fully suspended sentence. 
51.	The sentence of 2 years is suspended from each of the offender’s sentences and following their release the offenders will be on a good behaviour bond for 12 months without surety to keep the peace and be of good behaviour.

Orders

52.	The Orders of the Court are as follows:

1.The offender Gipo Diggar alias Diggar Ezekiel Gipo is sentenced to 4 years imprisonment.
2. Two (2) years is suspended and upon release, the offender is placed on a good behaviour bond for 12 months without surety to keep the peace and be of good behaviour.
3.	The offender shall serve the balance of 2 years in light labour at the Bomana Correctional Institution.
4.	Bail and any paid sureties are refunded.
5. The offender Ian Peterson Api is sentenced to 4 years imprisonment.
6. 2 years is suspended and upon release, the offender is placed on a good behaviour bond for 12 months without surety to keep the peace and be of good behaviour.
7.	The offender shall serve the balance of 2 years in light labour at the Bomana Correctional Institution.
8.	Bail and any paid sureties are refunded.

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoners