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State v Morea [2022] PGNC 154; N9605 (6 May 2022)

N9605

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 10 OF 2022

THE STATE

V

EMILY MOREA

Waigani: Berrigan J
2022: 11^th April, 5^th and 6^th May

CRIMINAL LAW– SENTENCE – GUILTY PLEA - S 383A(1)(a)(2)(d) of the Criminal Code – Guilty plea - Misappropriation of K46,800 from RPNGC trust fund by employee intending to repay it before detection – Sentence of 3 years of imprisonment, suspended on conditions.

Cases Cited:

David Kaya and Philip Kaman v The State (2020) SC2026
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
State v Etami (2012) N4769
State v Feria (2014) N5600
State v Kom (2018) N7362
State v Likius (2004) N2518
State v Mamando (2008) N3709
State v Vurmete (2000) N2008
The State v Frank Kagai [1987] PNGLR 320
The State v Tardrew [1986] PNGLR 91
Wellington Belawa v The State [1988-1989] PNGLR 496

Legislation and other materials cited:

Sections 19, 383A(1)(a)(2)(d) of the Criminal Code.

Counsel

Ms L. Ilave, for the State
Mr N. Kolowe, for the Accused

DECISION ON SENTENCE

6^th May, 2022

1. BERRIGAN J: The offender, Emily Morea, pleaded guilty to one count of misappropriating K46,800, belonging to the State, contrary to s.383A(1)(a)(2)(d) of the Criminal Code, on the basis of the following agreed facts, which were confirmed by the depositions. The maximum penalty for the offence is 10 years of imprisonment.
   
2. The offender 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 to the Department of Finance Bail Money Trust Account. Between 13 and 24 December 2019, the offender collected monies totalling 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.
   
3. An accountant at the Department of Finance detected that the monies were missing during a routine check. Upon being confronted the offender immediately cooperated with officers from the Department of Finance. She admitted that she had given the money to the group who had promised her that they would refund the monies plus interest before the end of December 2019. Of course, it was a ruse and she never saw nor heard from the group again.
   

Allocutus

4. On allocutus the offender apologised to the Court, her employer, and her family and friends for misappropriating public funds. She is willing to repay the monies still outstanding and asked for an opportunity to do so outside of prison.

Sentencing Principles and Comparative Cases

5. In 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 misappropriation, including:
   
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
       
6. Having regard to the scale outlined in that case, and following amendments to s.383A, the Supreme Court (Batari and Berrigan JJ) in David Kaya and Philip Kaman v The State (2020) SC2026 suggested that 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, such that where the amount misappropriated is between:
   
   1. K1 and K1000 a gaol term should rarely be imposed;
   2. K1,000 and K10,000, a gaol term of up to two years is appropriate;
   100. K10,000 and K40,000, two to three years’ imprisonment is appropriate;
   4. K40,000 and K100,000, three to five years of imprisonment is appropriate;
   5. K100,000 and K500,000, five to seven years’ imprisonment is appropriate; and
   6. 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.
      
7. Defence counsel acknowledged in aggravation that the offence involved a breach of trust, for the offender’s own benefit, and that the offence was prevalent. In mitigation this is the offender’s first offence, she cooperated from a very early stage with police, and has expressed remorse. She has already paid back half of the monies. She is a long-term public servant and has lost her employment as a result of the offending. She is 62 years of age. In the circumstances a sentence of three to four years was appropriate, wholly suspended.
   
8. The State also submitted that there was a breach of trust, the amount involved was significant and such offences are prevalent. Counsel acknowledged the matters in mitigation highlighted by defence counsel and submitted that a sentence at the lower end of the range of three to five years was appropriate. Counsel helpfully referred to the following cases:
   
   • (a) State v Mamando (2008) N3709, David, J: the prisoner was employed as a cashier at a depot and one of her duties was banking the daily takings. Over a period of 2 days she took a sum of K34, 326.75 belonging to her former employer. She was sentenced to 4 years imprisonment less the time spent in pre-trial custody, of which 3 years were suspended on conditions;
     
   • (b) State v Feria (2014) N5600, Cannings, J: the prisoner was employed as an administrative supervisor for Ela Motors and misappropriated K10, 716.00 in cash takings. She was sentenced to 2 years, of which 21 months were suspended;
     
   • (c) State v Kom (2018) N7362, Miviri, AJ: the prisoner pleaded guilty to one count of misappropriating K41, 859.00 that came into his possession in the course of his duties as a Medium Relation Officer with the Australia New Zealand Banking Group (PNG) Limited. He was sentenced to 4 years in hard labour, less the time spent in custody;
     
   • (d) State v Vurmete (2000) N2008, Gavara-Nanu, J: the prisoner pleaded guilty to misappropriating K41, 233.24 belonging to his former employer, the Water Board over a period of time. He was sentenced to 3 years and 6 months in hard labour, less the time spent in custody;
     
   • (e) State v Likius (2004) N2518, Lenalia, J: the prisoner pleaded guilty to one count of misappropriating the sum of K68, 679.06 the property of his employer, the Lihir Management Company. The prisoner was the payroll officer for the company – he would reactivate the name of former company employee into the payroll system, the monies would then be paid into his bank account, then he would delete the fraudulent name after each pay period. He was sentenced to 5 years imprisonment in hard labour, 3 years of which were suspended on condition of restitution;
     
   • (f) State v Etami (2012) N4769, David, J: the prisoner pleaded guilty to misappropriating K42, 000.00 belonging to Oilmin Field Services Limited. This company had three main creditors – BOC Limited, ESCO Limited and ISAS Limited. The prisoner incorporated three companies with similar names, he then raised cheques under the legitimate companies, BOC, ESCO and ISAS. After the necessary authorities signed, the prisoner proceeded to alter the name of the payee on each cheque. He then dishonestly applied K42, 000.00 of the total amounts payable under the cheques to his own use. He was sentenced to 4 years imprisonment less the time spent in custody, with the remaining balance of the term suspended upon conditions which included restitution.
     

Consideration

9. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are very relevant considerations, every sentence should be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. This is not such a case.
   
10. Having regard to the principles outlined in Wellington Belawa, the following matters have been taken into account.
    
11. The offender is an older woman of 62 years of age. She is from Mukawa Village, Alotau, Milne Bay Province but has lived in Port Moresby for most of her life. The offender is a widow and has four children and several grandchildren. She now lives with her daughter.
    
12. The offender is well educated. She graduated with a diploma in teaching from Balob Teachers College many years ago. Since then she has worked as a teacher, and then for several large organisations including Bank of South Pacific, Air Niugini, and Gordon’s International School. She joined the RPNGC in an administrative capacity in 1987.
    
13. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. The offence in this case involves a substantial amount of K48,600, which places it in the fourth category of David Kaya & Anor v The State, attracting a starting range of three to five years of imprisonment.
    
14. The offending also involved a very serious breach of trust and the dishonest use of public monies for the offender’s own benefit.
    
15. On the basis of the agreed facts and the matters contained in the depositions, I accept that the offender did not intend to keep the funds indefinitely but hoped to return them to the trust account before their absence could be detected.
    
16. Whilst she might have been naïve, the offence involved a serious breach of trust, by a long-serving officer, who had experience working with both police and the Finance Department. There can be no doubt that she fully understood that what she did was wrong. The offence involved some planning and premeditation, and the offender used her position of trust to abuse scarce public resources for her own benefit, ultimately resulting in their loss. I also cannot ignore the fact that the offender interfered with bail monies the subject of police direction and court orders. It was very serious.
    
17. Probation Services failed to seek the views of the Finance Department. Nevertheless, I am satisfied that the offence had some impact both on the public and on public confidence.
    
18. On the first point, the monies, whilst not huge, belonged to the State, and thus its people. The State cannot afford to lose any of its scare public funds.
    
19. Furthermore, the offender was in a position of trust and whilst not a very senior officer, I am satisfied that the offence, like others involving the abuse of public monies by public servants, contributed to the diminution of public confidence in the administration of government services as a whole.
    
20. In mitigation this is the offender’s first offence. I accept that she is of prior good character. She served the police and the Department of Finance for many years and held an important if not senior position of trust for twenty years collecting public monies.
    
21. She has very strong support from her family, including her two daughters, and her son-in-law. Her family and her Pastor Dickson Daingo confirm that the offender is a committed Christian and an active member of her congregation.
    
22. It is very significant that the offender cooperated from a very early stage. She admitted what she had done immediately upon discovery and pleaded guilty at the first opportunity before this Court. Her guilty plea has saved the Court, and the State and its witnesses, the time, cost and inconvenience of a trial.
    
23. Her guilty plea also demonstrated true remorse, as did her statement on allocutus, and the fact that she repaid almost half of the monies before the matter was referred to police.
    
24. The impact of the offence on the offender has been significant. She was terminated as a result of the offence after more than fifty years in the public service. It will be very difficult for her to find further employment given her age, experience and the nature of the offence. The offence has also brought shame and embarrassment.
    
25. There are no extenuating circumstances. Her age is a factor of some special mitigation.
    
26. I have had regard to the offender’s personal circumstances, and the matters in mitigation, namely her lack of previous conviction, prior good character, her very early and full cooperation, early guilty plea, sincere remorse and restitution of almost half the funds, together with the fact that she did not intend to permanently deprive the State of the monies at the time.
    
27. These are strong factors in her favour but they are outweighed by the aggravating factors in this case, namely the quantum of the offence, the breach of trust, level of planning involved, and the impact on the public and the public confidence. It was a foolish offence driven by greed. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.
    
28. Having considered all of the above matters, including comparative cases, and in particular her very early and full cooperation, I sentence the offender to 3 years of imprisonment. I understand that to date the offender has not spent any time in custody.
    
29. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
    
30. I intend to wholly suspend the sentence. The offender has demonstrated very strong prospects for rehabilitation. Suspension will also promote restitution of the public monies. Probation Services confirms that the offender has sufficient means to do so, both from her superannuation savings and the support of her family if necessary. This is not a case of the offender “buying” her way out of prison. The offender is not a wealthy woman and she will surely miss the monies that were meant for her retirement. It is also relevant that given the offender’s age she is likely to suffer in prison to an extent not warranted by the offending.
    
31. Accordingly, I suspend the sentence upon condition of restitution.
    
32. This is not an exercise in leniency but an order made in the community interest: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.
    
33. I make the following orders.
    

Orders

(1) The offender is sentenced to three years of imprisonment in light labour to be served at Bomana Correctional Institution.

(2) The sentence is suspended upon condition that:

1. Restitution in the sum of K20,200 is paid into the National Court Trust Account within twelve months from today;
2. The offender enter into her own recognisance to keep the peace and be of good behaviour for the period of the suspension.
   

(3) The offender’s bail monies and any sureties lodged by her guarantors are to be immediately refunded.

____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender