N11176

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) NO. 304, 305, 306, 307, 308, 309,
310, 311, 312, 313, 314, 315, 316, 317, 318, 319,
320, 321, 322, 323, 324, 325, 326, 327, 328, 329,
330, 331, 332, 334, 335, 336, 337, 338, 339,
340, 341, 342, 343, 345, 346, 347, 348, 349,
350, 351, 352, 353, 354, 355, 356, 357, 358, 359,
360, 361, 362, 363, 364, 365, 366, 367, 368, 369,
370, 371, 372, 373, 374, 375, 376, 378, 379,
380, 381 OF 2022

THE STATE

V

FLORENCE ROBERTA AIREIGI SALE

MADANG: GEITA J
 12, 19 APRIL, 13 NOVEMBER 2021; 20-24 FEBRUARY 2025

CRIMINAL LAW–SENTENCE –S 383 (1) (a) (2) (b) (c) of the Criminal Code – Guilty plea – Dishonestly Applying to her own use property belonging to other persons – K423,587.00) – Sentence of 5 years of imprisonment, time spent in custody deducted, balance suspended with conditions for restitution.
 
Cases cited
 
Acting Public Prosecutor v Andrew Amona Yongga [1981] PNGLR 314  
David Kaya & Philip Kaman v The State [2020] SC2006
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Mase v The State [1991] PNGLR 88
State v Banabas [2021] N8002
State v Gotama [2006] PGNC 135
State v Jimmy Kendi No.2 [2007] N3131 
State v Kiptaun [2021] N9139
State v Warur [2018] N754
The State v Avia Aihi [1981] PNGLR 81
The State v Bobby Leva v The State [2021] N8801
The State v Daniel Mapiri (unreported 1 October 2004
The State v Frank Kagai [1987] PNGLR 320
The State v Iori Veraga [2015] N2921 
The State v Jimmy Kendi (No. 2), [2007] N3131
The State v Ludwina Tokiopron [2005]
The State v Nakikus Konga [2002] CR No, 32 of 2001, un-reported and un-numbered.
The State v Sylvanus Siembo & 2 Ors CR 97/1999, CR 722/1999 and CR 1220 Unreported Judgment 30 May 2002
The State v Tardrew [1986] PNGLR 91
Wellington Belawa v The State [1988-1989] PNGLR 496
Yaip Joshua Avini & Paridel Nong Acosta v The State [1997] SC523

Counsel
 
Jethro Kasse for the State
Benny Meten for the offender
 
DECISION ON SENTENCE

1.	GEITA J:	The offender pleaded guilty to 78 counts of dishonestly applying to her own use and to others monies the sum of Four Hundred and Twenty-Three Thousand, Five Hundred and Eighty-Seven Kina, (K423,587) property belonging to the Divine Word University contrary to Section 383 A (1) (a) (2) (b) (c) (d) of the Criminal Code for which the maximum penalty is ten years of imprisonment. She was initially charged with 39 counts of misappropriation under section 383A (1)(a) and a further 39 counts of false pretence under section 404 (1) (a) of the Criminal Code.
           
2.                 Being an employer as an Accounts Payable Officer with the Divine Word University in Madang, at the relevant time between 1st February 2018 to 31st December 2019, the offender obtained a total of K423,587. The proceeds were accumulated in excess payments of tuition fees from sponsors and from student withdrawals payable to the sponsors and or students, dishonestly applied by the offender.
 
3.                 By way of “sample charge” permissible under Section 603 of the Criminal Code, only one (1) Indictment was presented incorporating a total of 78 separate counts with separate CR file references, totalling 102 files. 

4.	 No prior convictions were recorded against the offender.  She is 35 years old from Tinganalom village Kokopo East New Britain Province.  She is married with five children, aged between 11 months and 13 years. The offender completed her Accounting Degree at the Divine Word University in 2011 and returned to take up a job as Accounts Payable Officer until the time this crime was committed since 2019.  She is currently unemployed and is largely dependent on her husband who is working in the mine fields.
 
5.             As to mitigation, the offender is a first-time offender. She has a very quiet and pleasant attitude and co-operated with the police and during investigations despite some misgivings on the honesty of her other colleagues, working in the same section, who were let off and not charged.  The views of her community and from the University were obtained. The latter’s preference of a restorative option of sentence as opposed to a custodial sentence is noted. The Probation Service provided a very extensive account of her family background/concerns, health, future plans and recorded her plea for her POSF savings to be released to her by the University in order for her to offset some of the money she applied to herself.    
 
6.             The offender apologised to the court, the University and her family.  She expressed remorse and said she does not have anything to hide. She said it’s been very exhausting, and she wants to repay the monies she took. She pleaded for leniency and for suspension of her sentence so that she might repay the monies taken from the University. She has not at any time tried to hide her involvement in the offending. Her suitability for probation was favourable according to the Probation Service. 

7.	As to aggravating factors, there was a breach of trust, and the accused used her expertise to manipulate the system to her advantage. A substantial amount of monies were misappropriated and the offence is prevalence.

Sentencing Principles

8.                 As to sentence the case of 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 dishonesty, including a scale of sentences to be considered as a useful guide based from K1 – K150.00 which may attract a high three to five years imprisonment with a low K1000 gaol term which may rarely be imposed. I take judicial notice of those factors and sentencing options. 
 
9.                 In the case of David Kaya & Philip Kaman v The State [2020] PGSC 145 PGSC 145; SC2006, the Supreme Court set out presumably new starting points:

The Court per Batari J & Berrigan J held that having regard to the  amendments to s.383A of the Criminal  Code, the recognition by  the Courts over time for the need for increased deterrence,  and the recent trend  of sentences, 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 v The State [1988-1989] PNGLR 496, 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 weeks is appropriate;
•	(c)	K10,000 and K40,000, two to three years of 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.

10.                 Counsel for the defence submitted that in line with the David Kaya & Onor case (supra) a sentence in this case should be between 6 to 7 years with a head sentence of 5 years to be considered for the accused. Mr Meten referred the Court to the following cases for purposes of comparison: Wellington Belawa v The State  [1988-89] PNGLR 496; State v Jimmy Kendi No.2 [2007] N3131; Yaip Joshua Avini & Paridel Nong Acosta v The State [1997] SC523; The State v Iori Veraga [2015] N2921; The State v Ludwina Tokiopron [2005]; The State v Sylvanus Siembo & 2 Ors CR 97/1999, CR 722/1999 and CR 1220 (Unreported Judgment 30 May 2002; The State v Nakikus Konga [2002] CR No, 32 of 2001, unreported and unnumbered.; 	The State v Daniel Mapiria (unreported 1 October 2004. Of the seven cases digested, two cases involving misappropriation of monies over K1.4M attracted a high 9 years sentence, The remaining five cases involving monies from a low K50,000.00 to a high K200,00.00 and over attracted sentences within a low 2 years to a high 8 years with part restitution and conditions attached to them.    

11.	The case before me is misappropriation of which the maximum is 10 years as more than K423,587 was misappropriated.
 
12.                 The State submitted that the accused serve a custodial sentence of between 6 to 10 years and also referred the Court to the following comparable cases: State v Banabas [2021] PNGC 32; N8002; State v Warur [2018] N754 and The State v Bobby Leva v The State [2021] N8801. Out of the 3 cases, the State likened the Bobby Leva case (supra) to the case before. The accused Bobby Leva misappropriated K290,199.00 over a period of 15 months involving 31 transactions. He kept most of the money and shared some with a friend. He was sentenced to 6 years imprisonment.

13.	Notwithstanding the custodial sentence range proposed by the State, Mr Kase invited the Court to also consider a restorative justice approach in sentencing as that was the complainant’s preference of sentence. He referred the Court to the two cases: State v Gotama [2006] PGNC 135 by Kirriwom J and State v Kiptaun [2021] PGNC 417; N9139 by Geita J. In the former case Kirriwom J said:

“There is a long line of cases which dealt with in recent times where the objective of sentencing was focused on restorative justice. The aim of restorative justice is to reconcile the parties so that previous good relations between them are restored... (Emphasis added). 

 14.	In the latter case Geita J also applied the “Restorative and Restitution approach” in the interest of restoring peace and goodwill amongst the affected parties.

15.	To his credit, Mr Kase reminded the Court of the all too familiar principles on sentencing, including the Court’s discretionary powers in sentence under s. 19 of the Criminal Code, of which I am grateful. Furthermore, the principles in Goli Golu v The State PNGLR 653 and The State v Avia Aihi [1981] PNGLR 81 was mentioned in submissions. I will also consider the principles in the case Lawrence Simbe v The State [1994] PNGLR 38 in this case, determined on its own facts and circumstances. 

16.	In line with the need for a restorative and restitution approach to be considered by this Court Mr Kase submitted that some form of restitution in cash must be ordered to be paid to Divine Word University.
 
Considerations on Sentence
 
17.             Going by the principles outlined in Wellington Belawa, and the Supreme Court case of David Kaya & Philip Kaman, having considered all matters contained therein, a head sentence of between 5 to 7 years is considered appropriate as the amount of money involved is more than K423,587. This amount although substantial at first glance, was the sum total of more than 78 counts ranging from a low K1950 to a high K43,450.00 siphoned over a short period of time.   The offender manipulated the accounting system and systematically paid herself and her accomplice’s monies which rightly belonged to students and their sponsors. Although the amounts obtained from individual students and their sponsors are not as large, the impact on the victims has been significant.  Families and sponsors of students have been affected greatly. Going by the records, the Divine Word University has borne the brunt of this misappropriation and refunded all those students and sponsors, hence this complaint for recovery of its losses. There is no evidence before the court of some of those monies being returned to the University.

18.             The offender is highly educated and sincerely regrets the shame and stigma now generated by this offence and is very remorseful.  Her family is also affected. During allocutus she asked the Court to direct the University to release her POSF retirement savings or monies to be put up as part of her attempts to make restitution. She is a first-time offender and has fully co-operated with Police during investigations and in attending court.   Her early guilty plea and sincere remorse remain significant factors in mitigation and will be reflected in the head sentence imposed.  Given that the State had proceeded with only one (1) count, by way of sampling, the time, cost and inconvenience saved to the Court, the State and witnesses is very significant.

19.	I have publicly stated in many of my criminal and civil judgments that accused persons who come to court and unequivocally enter guilty pleas ought to be rewarded with lighter sentences or orders. Bearing in mind, the time saved in running full blown trials and calling witnesses, opening court at odd hours, etc and most importantly to my mind is the act of the offender surrendering her constitutional rights by doing so. The State must meaningfully reciprocate this gesture in sentencing so as to build a culture of trust and respect within the offending elements of society and the Law and Justice Sector Agencies, including the Courts. 

Sentence
 
19.             The offender has been convicted of 78 counts of dishonestly applying to her own use and to the use of others, monies totalling K423.587, contrary to s. 383A (1) (a) (2) (b) (c) (d) of the Criminal Code for which the maximum penalty is ten years of imprisonment.  Section 19 of the Criminal Code provides the Court with broad discretion on sentence.  Goli Golu v The State [1979] PNGLR 653 principle on reserving the maximum penalty for the most serious instances of the offence is observed.       

20.	It is to be noted that notwithstanding the accused pleading guilty to only one count by State employing the “sample charge” technique as provided under Section 603 of the Criminal Code, a number of representative charges would have sufficed to provide an appropriate basis for sentence, with the other charges being taken into account.  The accused has admitted the truth of the other 77 charges and has expressly consented that they be taken into consideration in this sentence. (Acting Public Prosecutor v Andrew Amona Yongga [1981] PNGLR 314.)  
 
21.	As to whether to suspend any of the sentence, I am guided by the case of in The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad categories in which it may be appropriate to suspend a sentence, namely. They include (1) where it will promote the general deterrence or rehabilitation of the offender;  (2) where it will promote the repayment or restitution of stolen money or goods; or (3) where imprisonment would cause an excessive degree of suffering to the particular offender, for example, because of bad physical or mental health. 
 
22.             The offender has indicated her willingness to make restitution to the Divine Word University.  Probation Services supports the recommendation and confirms that she has the means to do so.  I am also satisfied that she has very good prospects of rehabilitation having regard to her conduct since the offence.  In the circumstances, I intend to suspend the balance of the sentence. This is not an exercise in leniency, but an order made in the community interest: The State v Frank Kagai [1987] PNGLR 320.

Orders

23.            In the exercise of my discretion under section 19 of the Criminal Code, I accordingly, make the following orders:
 
(1) The offender is sentenced to 5 years of imprisonment in hard labour to be served at Beon Correctional Institution, less any pre-trial custody available to her.

(2)  The balance to be served is wholly suspended upon restitution of the sum of K423,587, within two years of today’s date.   The monies are to be paid into the National Court Trust Account.

(3) This sentence is inclusive of all other 77 indictments which are similar in nature and are considered.

(4) The Probation Office is directed to assist the prisoner access her POSF Savings towards meeting her obligation to speed up restitution.
 
(5) The offender shall enter into her own recognisance to keep the peace and be of good behaviour during the balance of her sentence.
 
(6) The offender’s bail monies of K3000 is to be converted towards off-setting restitution.

(7) For avoidance of doubt, in the event of default, Orders 1 and 2 will self-execute.

Orders accordingly.
Lawyer for the State: Public Prosecutor
Lawyers for the offender: Meten Lawyers