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State v Kumbuli [2024] PGNC 345; N10945 (9 August 2024)

N10945

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) 329 OF 2023


BETWEEN:
THE STATE


AND:
TINA KUMBULI alias TINA WINTAKWA KUMBULI


Waigani: Wawun-Kuvi, J
2024: 18th June, 11th July & 9th August


CRIMINAL LAW- SENTENCE- Misappropriation-Guilty Plea- Bank employee- misappropriated K53, 049.00 from client’s account- first time offender- no means to restitute and no community views- sentenced to 4 years.


Cases Cited
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
State v Lamo [2022] PGNC 64; N9500 (25 February 2022)
State v Lavai [2020] PGNC 363; N8660 (22 October 2020)
Kaya v State [2020] PGSC 145; SC2026 (9 October 2020
State v Lohia [2019] PGNC 265; N8042 (8 October 2019)
State v Warur [2018] PGNC 438; N7545 (26 October 2018)
State v Tiran (No. 2) [2018] PGNC 301; N7375 (20 July 2018)
State v Poholi [2016] PGNC 41; N6214 (2 March 2016)
State v Tokunai [2015] PGNC 133; N6039 (18 June 2015)
State v Niso (No 2) [2005] PGNC 26; N2930 (15 November 2005)


Legislation
Criminal Code Ch 262


Counsel
G Goina, for the State
D Kayok, for the Offender


DECISION ON SENTENCE


9th August 2024


  1. WAWUN-KUVI, J: Martha Emilio (the victim) is a retired nursing officer. She worked with the Port Moresby General Hospital prior to her retirement. On 9 February 2021, her superannuation contributions were deposited into her Mi Bank account.
  2. The offender was a loan recovery officer with the bank. She changed the victim’s mobile number to her own and linked it to the victim’s bank account. Between October 2021 and 28 February 2022, the offender transferred various sums into her own account with Mi Bank and her other account with Kina Bank. In total she transferred K53, 049.00 into her personal accounts.
  3. These are the facts in which the offender was convicted. I must now decide the appropriate penalty.

The Charge

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

Penalty

  1. The maximum penalty is 10 years imprisonment.
  2. The maximum is reserved for the worst case: see Goli Golu v The State [1970] PNGLR 653.

Allocutus

  1. The offender apologised to the court for the delay in her case and to the victim for the inconvenience caused. She also apologised to her family for dishonouring them. She stated that she is a first-time offender and works with the PNG Boxing Union. Additionally, she mentioned that she has a 3-year-old son. Her spouse is unstable. She is responsible solely for the maintenance of her son. She requested the court's mercy and leniency to repay the money to the bank and asked for a non-custodial sentence. She also mentioned that the bank has requested repayment, and she is willing to comply. As a former bank officer, she understands it is now a loan.

Personal Antecedents

  1. The offender is a 27-year-old female from Wintakawa Village, Wosera Gawi, East Sepik Province. She grew up in Port Moresby and completed her secondary school at the Kilakila Secondary School in Port Moresby South. She went on to obtain a diploma in business management in 2017 at the Port Moresby Business College. At a young age, her aunt adopted her. She has four siblings, two of which are deceased. The remaining sibling lives an independent life. Her biological mother is alive while her father is deceased. After living with her grandfather, she moved out and now resides in Taurama. She is married with a 3-year-old son and does not wish to involve her partner.
  2. She previously worked for 3 months at Kendino Medical Centre as a research officer and then joined MiBank as receptionist, where she was promoted to sales representative and then loans recovery officer.
  3. Currently, she is employed with the Papua New Guinea Boxing Union and earns a net income of K1000.
  4. She appears to be in good health, with the only previous concern being issues with her spleen, although this is not supported by any medical reports.

Guidelines

  1. 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.
  2. In directing their minds to the guidelines in Belawa v The State [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.
  3. This range has not been affected by the recent authority in Kaya v State [2020] PGSC 145; SC2026.

Comparable cases

  1. Counsel have submitted the following comparable cases:
  2. State v Emil [2021] PGNC 88; N8789, Berrigan J: The offender pleaded guilty to misappropriating K117, 788.87 whilst employed as an accounts clerk. She was seconded to work as sub-consultant. She processed 21 transactions under the pretext of paying service providers. She inserted into the banking system the details of the legitimate service providers but directed the funds into her personal bank account. The fraudulent activity went without detection for several months. The offender was sentenced to 4 years imprisonment, 2 years of the sentence was suspended with conditions.
  3. State v Lamo [2022] PGNC 64; N9500, Wawun-Kuvi AJ (as she then was): The offender pleaded guilty. She was employed as a certifying and counter-signing officer with the Department of Provincial and Local Level Government. She raised false claims which she approved and applied towards her rentals and personal use. Between a period of six months, she misappropriated K64,754.99. The court sentenced her to 4 years imprisonment. Two years of the sentence was suspended based on a favorable pre-sentence report.
  4. The State v Moses Karnhick (2020) N8341, Berrigan J: the offender pleaded guilty. He was employed as a Mortgage Specialist Officer with Australia and New Zealand Bank Limited (ANZ). He assisted the Kuabini Landowners to deposit money into his company account. He applied K300, 000 for his own use without the authority of the association. He was sentenced to 5 years of imprisonment.
  5. State v Tomande [2019] PGNC 439; N8153, Berrigan J: The offender pleaded guilty during trial to misappropriating K300,933.71 from her employer, BSP. K40,000 was recovered by the bank. She was employed as a Home Loan Officer. Between 30 April 2017 and 1January 2018 she 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 and a half years of imprisonment.
  6. The State v Kom (2018) N7362, Miviri AJ (as he then was): the prisoner pleaded guilty to misappropriating K41,859. He was employed by ANZ Bank as a small-medium relations officer. He put a hold on an account belonging to a deceased person. He instructed his colleagues to lift the stop. He linked the account to his phone number and then dishonestly applied to his own use the money through the mobile banking system. He was sentenced to 4 years of imprisonment.
  7. State v Duk [2009] PGNC 247; N3924, Cannings J: The offender pleaded guilty. He was an accountant with the bank. He stole K32, 800 of customer deposits and applied it to his own use. He was sentenced to 4 years imprisonment.
  8. I also consider applicable some recent cases:
  9. State v Morea [2022] PGNC 154; N9605, Berrigan J: The offender pleaded guilty to misappropriating K46,800, belonging to the State. She was employed by the Department of Finance as a Public Money Collector, attached to the Boroko Police Station. Her role was to collect police and court bail monies and deposit them into the Department of Finance Bail Money Trust Account. Between 13 and 24 December 2019, the offender collected monies totaling K46,800 but instead of depositing the monies to the trust account she gave them to a group called the “Private Placement Programme” for investment. She was sentenced to three years imprisonment. The sentence was wholly suspended on conditions. The offender was 61 years old, had prior good conduct and had paid back half of the money taken.
  10. State v Waira [2020] PGNC 499; N9518, Berrigan J: The offenders were convicted following a trial. The offenders were employees of Bank of South Pacific who misappropriated funds from customer accounts. They all received varying sentences depending on their role and circumstance. The offender Patricia Maso benefited K50, 000.00. She was sentenced to 3 years imprisonment. She did not have the means to make restitution.
  11. State v Simon [2020] PGNC 120; N8321, Berrigan J: The offender pleaded guilty to misappropriating K60 550. The offender was the caretaker for several rental properties. He deposited rental payments into an account he created. He was sentenced to 4 years imprisonment. Time spent in custody was deducted and the balance was suspended. The offender had prior good character and had made early restitution.
  12. The foregoing cases demonstrate that amounts closer to the offender’s case attract a penalty between 3- and 4-years imprisonment. Suspension was only considered where the offenders had prior good conduct, pleaded guilty early, cooperated with police, had made some restitution or had means to make restitution.

Culpability

  1. The actions of the offender demonstrate that she had a high degree of dishonesty. The fraud was sophisticated and involve the offender replacing the victim’s phone number with her own. She then transferred monies into two of her personal accounts. She perpetrated it over a period. She stated in allocutus and in her letter attached to the Probation Report that the victim is her grandmother on her mother’s side. This indicates that there was a relationship of trust both on a personal level and a professional level. She had many opportunities to reconsider her actions. She only stopped when the fraud was detected.

Victims Views

  1. The bank has refunded the victim. The bank through Mr Joe Kapi states that the offender was an employee. She did not have the right to take client’s monies. Her actions tarnish the bank’s reputation. He says that the offender should be punished for her actions to serve as a lesion to other bank employees.

Mitigating and Aggravating Factors

  1. In mitigation is the offender’s guilty plea, her cooperation with the police, her remorse and that she is a first-time offender. In aggravation is the large amount of money taken, there has been no restitution, the period in which the fraud was perpetrated, she was in a position of trust, the fraud was sophisticated and the prevalence of the offence.

Consideration

  1. As can be seen from the comparable cases, fraud involving bank officers is becoming prevalent. Bank officers like the offender abuse their positions and take customers savings. I have considered all the relevant factors discussed in this decision and find that a sentence of 4 years imprisonment is appropriate.
  2. Should any part of the sentence be suspended.
  3. I have considered the principles in State v Tardrew [1986] PNGLR 91.
  4. I find that suspension to promote restitution is not possible for the following reasons:
    1. The offence was committed between late 2021 and early 2022. The offender was committed to stand trial on 23 August 2023. She has not taken any steps towards making restitution. Her offer to make restitution is belated and not genuine.
    2. She does not have the means to make restitution. She earns K1000 and much of it goes towards living expenses. The reason she committed the offence was because she was finding it difficult to support herself and her son. Considering the amount taken and her present circumstance, her offer is unrealistic.
    3. I must also consider the victim’s views. The bank had made full restitution to the victim and have no asked for restitution contrary to the offender’s statement in allocutus. It seeks a penalty that will serve as a deterrent to other bank officers.
  5. 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, her church and her employer and all persons that can support or promote the offender’s rehabilitation. Here there are none.
  6. The offender’s aunt Ms Davidson Kariko Buka was contacted. She cared for the offender since she was 6 years old. She says that the offender was raised in a discipline household and did not expect her to engage in such activities. While her family is willing to assist her, she is of the view that the offender must face the consequences for her decisions to teacher her to refrain from such conduct in the future.
  7. She is young and there is nothing in the material before the Court that shows that imprisonment will cause her excessive hardship.
  8. While she has concerns for her son, 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.
  9. 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).

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

Orders

  1. The Orders of the Court are:
    1. The offender is sentenced to 4 years imprisonment in light labour.
    2. Bail and any paid sureties are refunded.

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

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