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State v Nigi (No. 2) [2024] PGNC 431; N11103 (4 April 2024)

N11103

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 153 OF 2022

THE STATE

v

DESLYN NIGI
(No 2)

Waigani: Salika CJ
2024: 4^th April

PRACTICE AND PROCEDURE – Criminal Law – Charge of Misappropriation of K99,973.00 – What is the appropriate sentence?

Cased Cited:
Goli Golu v The State [1979] PNGLR 653
Belawa v The State [1988-89] PNGLR 196
The State v Niso (No. 2) (2005) N2930;
The State v Paul Tiensten (2014) N5568.
Lawrence Simbe v The State [1994] PNGLR 38.

Counsel:
A Kaipu, for the State
J Kolowe, for the Accused

4^th April 2024

1. SALIKA CJ: INTRODUCTION: The prisoner was convicted on one count of misappropriation of K99,973.00 money belonging to Nigel Nigi, after a trial.
   
2. I deliberately adjourned this matter hoping that the sister and the brother involved in this case might find some common ground to make peace and resolve the matter as members of one family. This has not happened and I have now decided on the matter of sentence.
   

FACTS

3. An amount of K286,000.50 was deposited into Nigel Nigi’s account. The money was Nigel’s share of the estate of their late father, Simon Nigi from his Superannuation funds kept by Nambawan Super Limited. Deslyn Nigi later transferred those funds to another account a BSP Plus Saver account number 1012798052 she opened on behalf of Nigel. She transferred K283,000 to that BSP Plus Saver account number 1012798052. While the account was opened in the name of Nigel Nigi, Deslyn Nigi was the only signatory to that BSP Plus Saver account. Nigel accessed his money through ATMs in New Zealand where he was studying to become a pilot. The money ran out and Nigel was forced to return home without completing his pilot training.
   
4. Before the K286,000 from Nambawan Super Ltd was deposited into Nigel’s account, an amount of K124,000 had been deposited earlier into Nigel’s BSP Bank account number 1001702616. That amount was the bank loan obtained by Deslyn and her husband to purchase the house from Nigel Nigi Nigel was not aware of the existence of that account. That account dried up before the K286,000 was deposited into Nigel’s account. The account Nigel was drawing money from in New Zealand dried up and Nigel was forced out of pilot training and deposited as he had no means to support and sustain himself in New Zealand.
   
5. In the meantime Deslyn Nigi was in the same period drawing money from Nigel’s BSP Plus Saver and took out K99,973.00 without the consent and authority of Nigel. Deslyn denied the allegations but after a trial she was found guilty.
   

ISSUE

6. What is before me is the issue of sentence. What sentence should this Court impose on the prisoner?
   

THE LAW

7. The maximum penalty the Court may impose is 10 years imprisonment but the Court may impose a lesser penalty pursuant to s. 19 of the Criminal Code. See Goli Golu v The State (1979) PNGLR 653.
   
8. Section 383A (2) says:

S. 383A. MISAPPROPRIATION OF PROPERTY.

(1) A person who dishonestly applies to his own use or to the use of another person–

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:–

(a) where the offender is a director of a company and the property dishonestly applied is company property;

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

(c) where the property dishonestly applied was subject to a trust, direction or condition;

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

In this case, (d) above is relevant and comes into play.

SENTENCING CONSIDERATIONS

9. The Supreme Court in Belawa v The State (1988-89) PNGLR 196 identified the following factors when considering an appropriate sentence:
   
   1. Amount taken;
   2. Quality and degree of trust reposed in an officer;
   100. Period over which the offence was perpetrated;
   4. Impact of crime on public and public confidence.
   5. The use to which the money as put to;
   6. Offence of crime on the victim;
   7. Whether restitution has been made;
   8. Remorse;
   9. Nature of plea;
   10. Prior record, if any.
   11. Effect on offender;
   50. Mitigating factors, extenuating factors, ill health, age, long delay in bringing matter to Court.
       

With respect those considerations are still relevant today as they were then.

10. The Supreme Court in the same case suggested the following scale of sentences to be adjusted upwards or downwards according to the factors identified above. It said where the amount misused is between:
    
    1. K1.00 and K1,000, a jail term is not to be imposed.
    2. K1000 to K10,000, a jail term of up to 2 years is appropriate.
    100. K10,000 to K40,000, a jail term of two to three years was appropriate.
    4. K40,000 to K150,000, three to five years imprisonment was appropriate.
       
11. The Belawa formula or scale of sentence referred to above is now considered outdated. See The State v Niso (No. 2) (2005) N2930 and The State v Paul Tiensten (2014) N5568. The sentencing principles and considerations are still relevant and applicable.
    
12. It is an accepted principle in sentencing in dishonesty offences that, the greater the amount stolen or misused, the more serious the offence, and therefore attracting a higher penalty. On hindsight, with respect, I believe the Criminal Code (Amendment) Act of 2013 was enacted to take into account huge amounts of monies being misappropriated. The maximum sentence before the 2013 Amendment was considered to be inadequate and Parliament accordingly passed the amendment. The case of Paul Tiensten (supra) was decided in 2014 after the 2013 Amendment, but the offence itself was committed in 2010, thus the 2013 Amendment did not apply. The Paul Tiensten case involved K10 million kina. The prisoner himself did not benefit from the K10 million.
    
13. This case involved misuse of K99,973.00 thus s. 383 (2) comes into play and the maximum sentence goes up to 10 years imprisonment.
    

MITIGATING FACTORS

14. The following mitigating factors are taken into account:
    
    1. No prior conviction; she is a first-time offender.
       

AGGRAVATING FACTORS

15. The following aggravating factors are taken into account against her.
    
    1. She was in a position of great trust. Her 19 year old brother depended on her to take good care of his monies and more importantly his welfare.
       
       2. She stole from the BSP Plus Saver Account she created for Nigel;
          
       3. She used the money for her own benefit.
          
       4. She is still living in the house with her husband and family although she has built another house for herself at Taurama.
          

SENTENCE

16. The sentence to be imposed is dependent on the particular and peculiar facts and circumstances as a sentencing guide expounded by the Supreme Court on Lawrence Simbe v The State (1994) PNGLR 38.
    
17. In that regard I take into account the factual circumstances of this case. The victim and the prisoner are brother and sister. It is not an ideal situation to find oneself in, as it tends to break down and tear families apart forever or for a long time. That is one reason I allowed the matter to go on for a while in the hope that the family would reconcile and find a way forward to resolve the matter. Quite a significant amount of time has lapsed and I cannot wait forever. The parties have not advanced any discussions to mediate and resolve the matter. The Court is left to impose a sentence on the prisoner now.
    
18. I take into account the fact that in the first place Nigel Nigi and his father agreed to sell their jointly owned property to Deslyn Nigi and her husband. Nigel was then 19 years old when he agreed to sell the property. Still a minor. This agreement caused Deslyn Nigi and her husband to apply for a BSP loan to purchase the property. They got the loan and Nigel changed his mind to sell. This caused Deslyn and her husband great hardship because by then they had obtained the loan and created a mortgagor/mortgagee relationship with the bank. The Bank effectively became the owner of the property on the assumption that the Contract of Sale was valid. But as it turned out, I found the Contract of Sale invalid for reasons set out in my decision on verdict which was that Nigel did not have a lawyer to help him explain the terms of the Contract while Deslyn and her husband had a lawyer. Having the Contract declared invalid and of no effect and the consequence is that the prisoner and her husband are left on their own with the bank. They took the risk. Nigel was entitled to have another lawyer act for him in this transaction. He did not. Deslyn’s lawyer also was the lawyer for Nigel which was untenable. For that reason, the contract of sale was declared invalid.
    
19. What the prisoner did was not right in that she never told her brother of her drawing out of his bank account K99,973.00 for her own benefit, that to me was clearly wrong. That fact alone put her into this trouble which she must now face. She has very limited means to make restitution. She and her husband lost their respective employments as a result of this deal and now have a huge loan to repay. I consider that to be punishment in themselves but they each brought it upon themselves. The maximum penalty the Court may impose is 10 years imprisonment but subject to s. 19 of the Criminal Code, a lesser term may be imposed.
    
20. Considering the entire circumstances of the matter, this case under the Belawa considerations would attract between three (3) to five (5) years imprisonment. Belawa was decided thirty 30 years ago and the National Court Judges have increased sentences.
    
21. Considering the facts and circumstances of the matter, I impose a sentence of five (5) years imprisonment in hard labour, to be served at the Bomana jail in Port Moresby. I will however exercise the Court’s discretion under s. 19 of the Criminal Code and suspend 3 years of the sentence, and order the prisoner to serve the remaining two (2) years in custody.
    
22. In the meantime, I order that Deslyn Nigi and her family vacate the Bomana property and deliver vacant possession of the subject property to Nigel Nigi.

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