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State v Likius [2004] PGNC 245; N2518 (8 March 2004)

N2518

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR: NO. 521 OF 2001

THE STATE

-V-

BENSON LIKIUS

KOKOPO: Lenalia, J.
2004: 23, 2, 8 Feb, Mar.

CRIMINAL LAW – Misappropriation – Plea – Matters for consideration – Sentence – Criminal Code s. 383 A (2)(b), Ch. No. 262.

CASES CITED:

The following cases are cited.
Wellington Belawa -v- The State [1988-89] PNGLR 496

COUNSEL:
L Rangan, for the State
M. Peter, for the Accused

08th March 2004

LENALIA, J. The prisoner pleaded guilty to one count of misappropriating a sum of K68,679.06 the property of the Lihir Management Company an offence against s. 383 A (2)(b) of the Criminal Code.

The prisoner, Benson Likius (Benson for convenience) was employed by the Lihir Management Company in the New Ireland Province as a Payroll personnel. His employment history dates back to 1990 with the company and it started in Rabaul before the twin volcanic eruptions in 1994. The State say that between 25th February 1998 and 15th November, 2000, Benson devised a scheme to commit the offence he is charged with. An ex-employee of that company Harry Toruore was terminated by the company administration on 2nd October 1997. Quite orderly, that ex-employee’s name was deleted from the company payroll.

However, Benson being a company payroll officer himself set his hands on the records and re-activated Harry’s name into the company payroll. After reactivation of Harry’s name into the system, the accused then used the monies to be paid into his Bank of South Pacific Account No. 10 000 547 21. The reactivated transactions commenced on 25th February 1998 and ended on the last pay period ending on 15th November 2000. The total amount misappropriated during that period amounted to some K68,679.06.

On perusal of all the evidence on the file, the scheme devised by the accused was that he would activate Harry Toruore’s names onto the payroll temporarily each time the payroll was run and deleted immediately after each pay period. The company payroll system accepted and allowed this practice to happen so much so that it was easy for anyone to have access then manipulate the system. When the investigating team consulted the BSP Administration in Lihir, all monies deposited into Benson’s account were generated from the Lihir Management Company salary payments. It in fact meant that the prisoner was receiving two sets of salary payments, which were paid into his two separate accounts at his banks. It is possible that such monies were paid into the same bank.

When the Court requested the accused to say something in allocutus, Benson said, he commenced working with the company in 1990 and over the years, he was frustrated by the fact that his salary was never raised. A private vehicle owned by the prisoner was confiscated by his former employer. They also froze his NPF entitlements of K20, or K21,000 contributions. His personal Saving Account containing K3,000.00 and an Interest Bearing Deposit of K5,000.00 were also frozen together with other company entitlements. Even his TV and a Radio sets were also taken away by the administration in the hope to re-coupe the amounts misappropriated.

Apart from the above the prisoner said, he is very sorry for what he did and said sorry to the State, the authority he offended against and the Court. The Court accepted these factors together with his guilty plea. Mr. Peter of counsel for the accused requested an adjournment to confirm the amounts and values of the properties confiscated so as to determine how much money should the prisoner repay to the company.

Messrs Peter and Rangan addressed the Court on sentence on 2nd of this month. For the accused Mr. Peter submits that the Court ought to take into account, the accused’s guilty plea and he is a first offender married with children. He further submits the prisoner has suffered much since his termination. Amongst other matters the defence want the Court to consider is, the prisoner’s vehicle worth K34,000.00 had been confiscated by the prisoner’s former employers. His personal TV and radio sets have also been taken away by the company. The Provincial Labour Officer in Kokopo compiled a final entitlement assessment on the accused’s final entitlements and it works out to be K29,172.34. This is apart from the accused personal accounts and Interest Bearing Deposit held in BSP have also been frozen. The savings account contains over K3,000.00 in fact it is K3,682.90 and his IBD contains K5,156.06. Mr. Peter urged for a non-custodial sentence.

For the State, Mr. Rangan submitted that the prisoner’s case involves the breach of trust and other factors like, the amount taken, the period over which the crime of misappropriation was executed, the use to which the money was put, the effect of the victim and the offender himself and whether restitution has been effected: Wellington Belawa -v- The State [1988-89] PNGLR 496. Recently due to the increase number of misappropriation cases appearing before the Courts with not only small accounts, but large sums of monies, it was suggested in The State –v- Paroa Kaia (1995) N. 1401 that circumstances in relation to misappropriation cases have changed and it would be appropriate to have that behaviour reflected by increasing sentences for misappropriation. Obviously, the accused’s case involves a breach of trust.

The offence of misappropriation under s. 383 A (1)(2)(b) carries the penalty of 10 years imprisonment. In my view the tariff set by the Supreme Court in Belawa’s case is out dated.

For instance in the case of the prisoner, he could be sentence to 5 years imprisonment because the sum he misappropriated falls within K40,000.00 and K150,000. The amount misappropriated by the accused was a substantial sum involving K68,679.06. I agree that the factors for consideration are still relevant as in the case of Belawa. What needs to be raised is the sentencing tariff. It is not only because, the amount of money misappropriated is large, but because, many public servants, company employees and public officers alike are committing this crime.

Mr. Rangan submitted rightly that, the Court must consider a number of factors as aggravations and with which the Court agrees. The first of those considerations is that, the accused invented a scheme whereby, an ex-employee had been terminated but cleverly, the accused somehow reactivated the ex-employee’s name into the payroll for those pay days on which the ex-employee was no longer with the company and the accused diverted those payments into his account or accounts affording him access. This scheme continued for over a long period of time. The State says that the accused devised this scheme commencing from 25th of February 1998 and continued until 15th of November 2000.

The longer it takes to commit misappropriation, the more confirmed is the state of mind on the evil intention to continue whatever scheme has been devised to execute the misappropriation. It also confirms the guilty state of mind of an offender. As was said in Brian Kundi Lawi -v- The State [1987] PNGLR 183 and The State -v- Napilye Kuri [1995] PNGLR 371 that an important element of the charge of misappropriation is that the charge relates to the mind of the person who does the act amounting to misappropriation. Such facts and evidence is gathered from all evidence presented to the Court for its consideration.

The prisoner was performing an important administrative role in the company in which he was employed. Being employed as a payroll officer with the company, he was able to manipulate the payroll system by reactivation of Harry Toruore’s name into the payroll and according to the accused answers to questions 23 and 32 in the record of interview he did what he did was because of frustrations. He had been employed by the company for many years and repeatedly asked for some pay rise to be given him but the company never responded. Of course it can be argued that, certainly the prisoner was entitled to a pay rise but it ought to have been sought by appropriate and legal means.

The problem faced by the accused is nothing new. All or if not all, most public servants receive yearly increments on their salaries and quite obviously the prisoner was entitled to one but as alluded to should have been acquired in appropriate manner. So with this, taking into account all mitigations mentioned by the accused and his lawyer and considering the seriousness and prevalence of this crime, the sentence of this Court is, the prisoner is convicted and sentence to a term of 5 years imprisonment in hard labour. The Court suspends three years from that sentence on the following conditions:

(1) That the prisoner shall restitute the amount he misappropriate within 2 years from the date of his release.

(2) That the prisoner after release shall keep the peace and be of good behaviour for 2 years.

The prisoner shall serve the balance of 2 years with the time spent in custody, to be deducted.
_______________________________________________________________

Lawyer for the State : The Public Prosecutor

Lawyer for the Accused : The Public Solicitor