N10965

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 146 OF 2024

BETWEEN:
THE STATE

AND:
DANIEL MATHEW

Waigani: Wawun-Kuvi, J
2024: 14th June, 11th July, 12th August
CRIMINAL LAW-SENTENCE-Misappropriation-Guilty Plea- Offender employed as Assistant General Secretary to PNG Maritime and Transport Union- misappropriated K78, 960 of union funds- first time offender- no means to restitute and no community views- sentenced to 4 years.
Cases Cited
Mikoro v State [2015] PGSC 12; SC1424
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Public Prosecutor v Hale [1998] PGSC 26; SC564
Wellington Belawa v The State [1988-1989] PNGLR 496
The State v Tardrew [1986] PNGLR 91
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
Goli Golu v The State [1970] PNGLR 653
State v Togumagoma [2023] PGNC 29; N10129
State v Pole [2023] PGNC 16; N10109
State v Lamo [2022] PGNC 64; N9500
State v Emil [2021] PGNC 88; N8789
State v Dumo [2018] PGNC 484; N7574
State v Bruno [2017] PGNC 34; N6652
State v Vagi [2014] PGNC 254; N5697
State v Likius [2004] PGNC 245; N2518
Legislation
Criminal Code Ch 262
Counsel
L Illave, for the State
D Kayok, for the Offender

DECISION ON SENTENCE
12th August 2024
1.	WAWUN-KUVI, J: The offender worked as the Assistant General Secretary for the PNG Maritime and Transport Union from 1 March 2017 to 31 March 2020. During this period, he transferred and facilitated the payment of K78,960 to his account. He employed the following techniques to enable this fraudulent activity:
1.	He would fill out cheques made payable into his account or in cash. To avoid detection, he would fill out a smaller amount on the cheque butt, and on the leaf, he would fill out a larger amount. He would deposit the leaf and keep the remainder; and
2.	He emailed union members and directed them to pay monies into an account provided by him. The account was an old union account, which had since been converted into a private account. He deceived the account holder, a former union member, by claiming that he had money from his family in Australia. With the permission of the account holder, he withdrew the money.
2.	These are the facts to which the offender pleaded guilty; I must now decide the appropriate penalty.
The Charge

3.	The offender was convicted following his guilty plea to the charge of misappropriation under section 383A(1)(a) (2)(d) of the Criminal Code.
Penalty

4.	The maximum penalty is 10 years imprisonment. The maximum is reserved for the worst case: see Goli Golu v The State [1970] PNGLR 653.
Allocutus
5.	He apologised for his actions and pleaded for leniency.
Personal Antecedent

6.	The offender is a 47-year-old male from Vakuta Village, Kiriwina Goodenough, Milne Bay Province.

7.	He is married with four children. Three are in primary school, and one attends Port Moresby Technical College.

8.	He lives in a three-bedroom house in Gerehu Stage One with his wife, their children, and her relatives. The house is owned by his wife's relatives.

9.	He finished high school at Cameron Secondary in Milne Bay Province. He has no other qualifications.

10.	He is the first in a family of two sisters and three brothers. His mother is alive and lives in the village, whereas his father is deceased.

11.	He worked as a handyman for ELCO, then as a logistics officer for a shipping company. He is currently unemployed and works in the informal sector. He helps people with visa applications and sells used or second-hand clothing.

12.	He appears to be in good health, with no health complaints.

Guidelines

13.	Sentencing guidelines do not curtail discretion but assist the court in determining an appropriate sentence. Guidelines also provide parity. The fundamental principle is that each case is decided based on its unique circumstances.

14.	In directing their minds to the guidelines in Belawa v The State [1988] PGSC 6; [1988-89] PNGLR 496, the prosecution and the defence conceded that the case falls within the fourth category. The range is a sentence between three- and five years’ imprisonment. Mr Kayok for the offender submits for a sentence of 4 years imprisonment.
Comparable cases

15.	Counsel have submitted the following comparable cases.
16.	State v Pole [2023] PGNC 16; N10109, Berrigan J: The offender pleaded guilty to misappropriating K182, 081. She also pleaded guilty to forgery. The offender worked as a cash officer. She made cheques payable to herself, which she obtained as cash or were paid into her account. The court sentenced her to 5 years imprisonment, which was wholly suspended.

17.	State v Lamo [2022] PGNC 64; N9500, Wawun-Kuvi AJ (as she then was): The offender pleaded guilty. She worked as a certifying and countersigning officer at the Department of Provincial and Local Level Government. She submitted false claims, approved them, and applied them to her personal expenses and rentals. Over the course of six months, she misappropriated K64,754.99. The court sentenced her to 4 years imprisonment. A favourable pre-sentence report led to a partial suspension of the sentence.

18.	State v Emil [2021] PGNC 88; N8789, Berrigan J: The offender pleaded guilty to misappropriating K117,788.87 while working as an accounts clerk. She was seconded to work as a sub-consultant. Under the guise of paying service providers, she processed 21 transactions. She entered the details of legitimate service providers into the banking system but diverted the funds to her bank account. The fraudulent activity went undetected for several months. The court sentenced the offender to 4 years imprisonment. The sentence was partially suspended with conditions.

19.	State v Dumo [2018] PGNC 484; N7574, Berrigan J: The offender was the Department of Education's Operations E-Learning Manager. He pleaded guilty to misappropriating K87,371.00. He had funds intended for a refund to the Department of Education deposited into his account. The court sentenced him to four years imprisonment and suspended part of the sentence on conditions, including restitution.

20.	State v Bruno [2017] PGNC 34; N6652, Cannings J: Following a trial the offender was convicted of two counts of misappropriation. He approved a K55,000 payment to a law firm that represented him personally against the Department he was employed by. Additionally, he authorised the payment of a cheque for K36,000 to himself. The court sentenced him to five years imprisonment for count 1 and three years for count 2 which were made cumulative. In applying the totality principle, the court reduced the sentence to three years imprisonment.

21.	State v Vagi [2014] PGNC 254; N5697, Salika DCJ (as he then was): The offender worked at a flower shop. She received payments in cash and cheque. She deposited the cheque payments and kept the cash, totaling K65,824.90. The court sentenced her to 3 years in prison.

22.	State v Likius [2004] PGNC 245; N2518, Lenalia J: The offender pleaded guilty to misappropriating K68, 679.06. Lihir Management Company employed him as a payroll clerk. The offender reactivated an ex-employee's file and proceeded to transfer payments into his personal account. The court sentenced him to 5 years in prison. The court suspended the sentence for 3 years and imposed conditions for restitution.

23.	I also consider applicable some recent cases:

24.	State v Togumagoma [2023] PGNC 29; N10129, Berrigan J: The offender pleaded guilty to misappropriating K68,400. He convinced a mutual friend to lend him money for a gold-buying business. The victim deposited money into his account on several occasions. The money went to his expenses, including child medical bills. The court sentenced the offender to 3 years imprisonment. The sentence was wholly suspended on conditions.

25.	State v Simon [2020] PGNC 120; N8321, Berrigan J: The offender pleaded guilty to misappropriating K60 550. The offender was a caretaker for several rental properties. He deposited rental payments into an account he created. The court sentenced him to 4 years imprisonment. The court deducted his time in custody and suspended the remaining balance. The offender had previously had good character and had made early restitution.

26.	The cases submitted by counsel and the recent comparable cases demonstrate that amounts closer to the offender’s case attract a penalty between 3- and 5-years imprisonment. The court only considered suspension where the offenders had prior good conduct, pleaded guilty early, cooperated with police, had made some restitution, or had the means to make restitution.
Culpability

27.	The offender's actions demonstrate a high degree of dishonesty. The fraud was sophisticated and involved in one aspect the funnelling of funds into one account and then moving it to another account. Over three years, the offender used the money for personal purposes. There was a significant breach of trust as the offender was the assistant general secretary for the union, and the monies were member fees that went to the union for members. The offender had ample opportunity to reconsider his actions, but he chose not to do so. 
Victims Views

28.	 There are no views from the victim. The State did not provide a victim impact statement, and the probation officer's attempts to contact the victim were unsuccessful.
Mitigating and Aggravating Factors

29.	 The offender's guilty plea, his cooperation with the police by making admissions, his remorse, and the fact that he is a first-time offender are all mitigation. The aggravating factors include the large amount of money taken, the lack of restitution, the period during which the fraud was perpetrated, his position of trust, the sophistication, and the prevalence of the offence.

Other factors
30.	Applying other factors discussed in Wellington Belawa, I conclude that the fraud has resulted in the offender's unemployment, making it challenging for him to find employment again, particularly in a senior position like his previous position. This is of his own doing. 

Consideration

31.	 Comparable cases demonstrate the increasing prevalence of fraud by individuals in trusted positions in Papua New Guinea. People who are entrusted with large sums of money are tempted to take money and use it on themselves for lives they cannot sustain. After considering all of the relevant factors discussed in this decision, I have determined that a four-year prison sentence is appropriate.

32.	The next issue for determination is whether the sentence should be suspended.

33.	I have considered the principles in State v Tardrew [1986] PNGLR 91.

34.	I find that suspension to promote restitution is not possible for the following reasons:

1.	The offence was committed almost 3 years ago.  He has not taken any steps towards making restitution. His offer to make restitution is belated and not genuine.  
3.	The offender is unemployed and has sporadic income from the informal sector. His offer is unrealistic.
4.	There are no views from the victim.
5.	While his siblings have offered to assist in restitution, the amounts they propose and the method of making the repayments demonstrate that restitution will not be possible, and the offender will eventually default. In any event, it would be unfair to impose such conditions on family members who more than likely have their own financial constraints and commitments.
35.	To support suspension based on rehabilitation the court must have materials showing the offender’s prior good character and views of the offender’s community: see Public Prosecutor v Hale [1998] PGSC 26; SC564. There must be views from the community in which the offender resides, his church and his employer and all persons that can support or promote the offender’s rehabilitation. Here there are none.  

36.	He is young and there is nothing in the material before the Court that shows that imprisonment will cause him excessive hardship.

37.	 While he has concerns for his family, family suffering is a consequence of the offender’s conduct and is rarely a consideration in sentencing: see Mikoro v State [2015] PGSC 12; SC1424, Allan Peter Utieng v The State (2000) SCR No 15 of 2000 and The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424. 

38.	Kapi DCJin Prosecutor v Vangu’u Ame [1983] said:

“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).

39.	The offender shall serve the full term of imprisonment.

Orders
40.	 The Orders of the Court are:
1.	The offender is sentenced to 4 years imprisonment in light labour.
2.	Bail and paid sureties are refunded.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender