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State v Ila [2024] PGNC 318; N10983 (2 September 2024)

N10983

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO 200 OF 2023
CR(FC) NO 306 OF 2023
CR(FC) NO 437 OF 2023
CR(FC) NO 149 OF 2024
CR(FC)NO 199 OF 2024

BETWEEN:
THE STATE

AND:
AUMENAMA ILA, JOE LIPU, ALISON GAMINI, PHILIP INU & LEONARD SABAGAS

Waigani: Wawun-Kuvi, J
2024: 11^th & 13^th June, 26^th July & 2^nd September

CRIMINAL LAW-SENTENCE-Misappropriation, s 383A(1)(a)(2)(d)-Guilty Plea- Offenders colluded with each other to defraud their employer-scheme involved issuing demand notices containing their own account numbers-continued over several months before detection-no restitution- no means to restitute

The offenders worked in the victim company's debt recovery division. They devised and executed a fraudulent scheme in which they emailed clients demand notices with their account information instead of the company's. As a result of their actions, they received amounts totaling K7,852.94, K5,200.00, K30,000.00, K11,718.97, and K225,635.85.

Having regard to mitigation and aggravating factors, the victim company’s views, the culpability and involvement of each offender, the sophistication of the fraud, the period in which it was perpetrated, the amount taken and all other relevant considerations, the offenders are sentenced as follows:
1. Aumenama Ila is sentenced to 18 months imprisonment.
2. Joe Lipu is sentenced to 14 months imprisonment.
3. Alison Gamini is sentenced to 3 years imprisonment.
4. Philip Inu is sentenced to 2 years imprisonment.
5. Leonard Sabagas is sentenced to 6 years imprisonment.

No part of their sentences is suspended as there is little to no materials before the Court supporting suspension. The probation reports are not favourable.

Cases Cited
Kaya v State [2020] PGSC 145; SC2026
Mikoro v State [2015] PGSC 12; SC1424
Walus v State [2007] PGSC 4; SC882
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730
Liprin v The State [2001] PGSC 11; SC673
Public Prosecutor v Hale [1998] PGSC 26; SC564
Wellington Belawa v The State [1988-1989] PNGLR 496
State v Tardrew [1986] PNGLR 91
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
Goli Golu v The State [1970] PNGLR 653
State v Mathew [2024] PGNC 292; N10965
State v Tina Kumbuli [2024] N10945
State v Tuvi [2024] PGNC 99; N10756
State v Pole [2023] PGNC 16; N10109
State v Uto [2022] PGNC 187; N9612
State v Morea [2022] PGNC 154; N9605
State v Lamo [2022] PGNC 64; N9500
State v Leva [2021] PGNC 34; N8801
State v Emil [2021] PGNC 88; N8789
State v Waira [2020] PGNC 499; N9518
State v Karnhick [2020] N8341
State v Kandambao [2019] PGNC 317; N8025
State v Tomande [2019] PGNC 439; N8153
State v Noka [2019] PGNC 128; N7849
State v Lohia [2018] PGNC 505; N7614
State v Kisua [2018] N7513
State v Fang [2018] PGNC 326; N7387
State v Watangia [2018] PGNC 93; N7175
State v Hevelawa (No.2) [2017] PGNC 198; N6875
State v Balim [2015] PGNC 223; N6028
State v Feria [2014] PGNC 74; N5600
State v Philip [2013] PGNC 229; N5386
State v Sari [2012] PGNC 297; N5167
State v Emba [2011] PGNC 297; N5012
State v Kutan [2011] PGNC 330; N4526
State v Bae [2010] PGNC 152; N4076
State v Uviri [2008] PGNC 286; N5468
State v Mamando [2008] PGNC 242; N3709
State v Wiamai [2007] PGNC 252; N5492
State v Lasin [2007] PGNC 221; N5052
State v Kua [2007] PGNC 103; N3230
State v Wilmot [2005] PGNC 105; N2857
State v Likius [2004] PGNC 245; N2518
State v Winston [2003] PGNC 146; N2347
State v Tova [1997] PGNC 27; N1522

Legislation
Criminal Code Ch 262
Criminal Justice (Sentences) Act 1986

Counsel
S Mosoro & L Pitpit, for the State
D Kayok, for the Offenders

DECISION ON SENTENCE

2^nd September 2024

1. WAWUN-KUVI, J: Before the advent of the internet and social media, the humble yellow page served as an advertising platform for companies and provided a means for locating addresses and contact numbers. The publication is through Papua New Guinea Directories Limited (victim company), a subsidiary of Kumul Telikom Holding Limited.
   
2. Aumenama Ila, Joe Lipu, Allison Gamini, Philip Inu, and Leonard Sabagas were employees.
   
3. Leonard Sabagas served as the credit collection section's team leader. He with Aumenama Ila, Joe Lipu, Allison Gamini and Philip Inu devised and carried on a scheme that involved sending demand notices to clients, but instead of providing the victim company's bank details, they provided their account details. Each offender retained some money and delivered the rest to Leonard Sabagas. Before detection, the scheme operated for several months. Leonard Sabagas benefited K225, 635.85.
4. Aumenama Illa was the driver and assisted with debt collection. He provided his wife’s bank details. He benefited K7, 852.94.
   
5. Joe Lipu and Philip Inu were credit officers. They were responsible for collecting payments from clients. Joe Lipu gave his wife’s bank details. He withdrew the monies and gave them to Leonard Sabagas. From the monies withdrawn, he benefited K5, 200.00. Philip Inu provided his account details and from the monies withdrawn he personally benefited K11, 718.97.
   
6. Allison Gamini was the sales consultant. She provided her account details to Leonard Sabagas. She benefited K30,000.00.
   
7. In total, the offenders misappropriated K391,799.19.
   
8. Initially, only Leonard Sabagas and Philip Inu decided to plead guilty. Without considering the Hand Up Brief, I entered a provisional plea for each of them, adjourning the matter pending the trial of the remaining offenders. However, on the trial date, all remaining accused pleaded guilty. I now proceed to deal with them together in sentencing.

The Charge

9. The offenders were convicted following their guilty pleas to the charge of misappropriation and are being sentenced under section 383A(1)(a) (2)(d) of the Criminal Code. That is the amounts taken are above K2000.00.

Penalty

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

Personal Antecedents and Allocutus

Aumenama Ila

11. Aumenama Ila, 27, hails from Keapara village, Rigo, in Central Province. He lives in Ensisi Valley with his wife and infant daughter. During the commission of the offence, he was residing at a rented property at Morata.
    
12. His wife is unemployed and depends on him financially.
    
13. His parents and siblings live in Keapara Village. His family are subsistence farmers.
    
14. He completed Grade 10 and later earned a certificate in information technology from the Mapex Institute.
    
15. The victim company employed him as a driver before promoting him to revenue collection officer. He has been unemployed since his termination from the victim company, and he has not been able to secure employment. He has set up a market stall in front of his home and sells betel nut amongst other items to generate an income to support his family.
    
16. He has no significant health issues other than complaining about kidney stones, for which he has received treatment.
    
17. In Allocutus he stated:
    

“Firstly, I want to thank the Court for giving me this opportunity to say something. Secondly, I want to apologise to the complainant, the State for what I did. Also, I want to say sorry for my family for what I did, what happened. And, in the eyes of the court I am a first-time offender, and I admit earlier for what I did. I ask the court for leniency and for a suspended sentence so that I can come out and restitute the money I got.”

Joe Lipu

18. Joe Lipu, 27, is from Guhi village, Kandriana Glouster, in West New Britain Province. The offender resides at Ensisi Valley with his wife and two children with in-laws. His children are under the age of 7.
    
19. His wife is unemployed.
    
20. His parents reside in Kimbe with his siblings. They are subsistence farmers. He has one sibling who resides in Port Moresby.
    
21. He completed year 12 through FODE and attained a certificate in accounting with MAPEX Training Institute.
    
22. His only employment has been with the victim company. He is presently unemployed and sustains his and his family's livelihood by doing market sales in front of their home.
    
23. He has no significant health issues.
    
24. In Allocutus he stated:
    

“Firstly, I want to thank this court for giving me an opportunity to talk. I am sorry to the court, the State and the company PNGDL, the management and the staff and my colleagues for what I did and now I am in standing here. I want to say sorry to my own family. I am the sole breadwinner for my family. I have 2 children, one is only 3 years old and the other is 1. I as for leniency for suspended sentence so I can spend time with my family and still repay the money. My family are aware for what I did and are ready to assist me repay the money that I got.”

Alison Gamini

25. Alison Gamini, 48, hails from Aroma village, Abau, in Central Province. She lives in Ensisi Valley with her three children and her older siblings. The residence is her family home. Her mother is alive, while her father is deceased. She provides support and care for her mother.
    
26. Her children are aged 24, 17, and 6. Her 17-year-old is in 12th grade at Gordon Secondary School. Her husband has left the family.
    
27. In 1997, she completed year 12 at Gordon's Secondary School and did not further her education.
    
28. She commenced formal employment with the victim company after completing year 12 as a directory clerk. She received a promotion to data entry operator in 2008 and subsequently to sales consultant, a role she maintained until her termination in 2022.
    
29. She has no significant health issues.
    
30. In her statement on Allocutus she said:
    

“I want to thank the court for giving me the opportunity to say something. I do apologise, I sincerely apologise for the inconveniences cause. I apologise to the court and to my fellow colleagues, families and the lawyers for taking up time in court. I am asking the court to issue leniency so that I can repay the monies owing because I am a single parent, mother of three, and also, I fully support my widow mother. Once again, I am apologetic for what has happened.”

Philip Inu

31. Philip Inu, 41, is from Ramapua village, Namatanai, in New Ireland Province. Before his incarceration, the offender lived with his in-laws at Ensisi Valley.
    
32. He is married with two daughters, ages 9 and 5. His family currently resides in Alotau, Milne Bay Province. His wife does not work and relies on her parents for financial support.
    
33. His parents and four siblings reside at Ramapua village.
    
34. He completed year 12 through FODE and later obtained a diploma from a private institution.
    
35. He only obtained formal employment when the victim company hired him as an accounting clerk.
    
36. The offender has no physical health issues but has stated that he is emotionally and mentally troubled over his family's well-being and their struggles while he is in prison.
    
37. In Allocutus he stated:
    

“Firstly, I’d like to thank you, your honour, your time for giving me this opportunity to speak. Secondly, thankyou for your time, the defence and the State their time for hearing and listening to the case. Otherwise you all will not be hear for my wrongdoings and I sincerely apologise for my actions. I also apologise to the victim which is the entity PNG Directories Limited for my wrongdoing and also to my family as well for having caused stress over the past three years of this case. Before I conclude, I have a wife and two children. I ask for leniency. I have been in custody, and I have learnt in custody. I ask for leniency.

Leonard Sabagas

38. Leonard Sabagas, 38, hails from Messi village, Konos in New Ireland Province. He lives in his private home at Hohola, National Capital District. He is married and has three daughters, ages 13, 7, and 6 years. The oldest is in sixth grade.
39. His wife is a team leader for accounts receivable at the Bank of South Pacific. She has been with the bank for 24 years. She owns the house through the Bank of South Pacific ownership scheme.
    
40. His parents and siblings live in Messi Village. He is the second child in his family. He has three brothers and a sister. His family are subsistence farmers. They are aware of his situation and can only offer moral support.
    
41. He completed Grade 12 at the NCD Fode and later earned a diploma in accounting from the International Training Institute.
    
42. For seven years, he worked as an accounting clerk for the Post Courier. Through this role, he acquired a position as a senior finance officer at the victim company. He has been unemployed since his termination from the victim company. He sent out expressions of interest but received no response.
    
43. He has no health concerns and is in good health.
    
44. In Allocutus he stated:
    

“Thankyou your honour, I stand before God and man and take this opportunity to say something. I truly acknowledge before you, your honour, God and man, that I am guilty. With fear and trembling, as a first timer, standing in this house with due respect, before the law practitioners, the State, the law practitioners of men of this country, whole heartedly I apologise, to the State, to the Court, to the lawyers of State and the lawyers of the men of country, to the victim PNG Directories, whoever that is in this room, you are aware of my criminal act. It is not a good issue to deal with, I am being apologetic whole heartedly. Truly whole heartedly I am being apologetic. It is an unworthy case to hear. It has taken time and resources of State, before you I am apologetic. I apologetic to my colleagues, Alison Gamini, Joe Lipu, Amunenama Illa and Philip Inu. I am apologetic for the conspiracy and the misappropriation of PNG Directories. Please forgive me before this honourable house. My family, they are not here. I am truly apologetic. I have been unemployed for the last 5 years for this unworthy case that I have committed, it has left me in unemployment. I have a wife and three girls, 13, 6 and 5. All of them are in school. My wife is working. It has been a struggle to keep the family going in an environment such as this in Port Moresby. Based on this, I am truly asking the court of this land, your honour, to show me leniency and mercy, to me and my four accused, to suspend sentence and give us time and we will fully cooperate with the law enforcers and the law of this country to build us to become better citizens of this land of this country and not to commit any crime of this nature in the future. Thank you.”

Guidelines

45. As I have said in previous decisions, sentencing guidelines do not curtail discretion but rather assist the court in arriving at an appropriate sentence. By having guidelines, the courts can ensure parity and consistency in decisions. But what is crucial and must not be overshadowed by guidelines is that each is unique and should be decided based on individual and peculiar circumstances.
    
46. Counsel have applied their minds to the guideline in Wellington Belawa v The State [1988-1989] PNGLR 496 and Kaya v State [2020] PGSC 145; SC2026 and concede the following:
    1. In the case of Leonard Sabagas, the amount taken was K225, 635.85 which attracts a range between 5- and 7-years imprisonment.
    2. For Aumenama Ila, the amount taken was K7,852.94, which attracts a sentence of 2 years imprisonment.
    3. For Alison Gamini, the amount taken was K30, 000.00, which attracts a sentence between 2- and 3-years imprisonment.
    4. For Philip Inu, the amount taken was K11,718.97, which attracts a sentence between 2- and 3-years imprisonment.
    5. For Joe Lipu, the amount taken was K5, 200.00, which attracts 2 years imprisonment.

Comparable cases

47. Counsel have submitted the following comparable cases:

Aumenama Ila and Joe Lipu: Category 2

48. State v Noka [2019] PGNC 128; N7849, Toliken, J: The offender pleaded guilty to misappropriation. Parents and citizens raised funds to buy school uniforms. The offender, appointed to coordinate fundraising, received a total of K9555.50. The money was to be handed to the school bursar to deposit, but instead, the offender used the money. The offender was sentenced to 3 years imprisonment which was wholly suspended on conditions including restitution.
    
49. State v Fang [2018] PGNC 326; N7387, Miviri AJ (as he then was): The offender pleaded guilty. He obtained a machine which used an application that illegally generated electricity vouchers “easipay”. He made K5000 off the illegal sale of electricity. He was sentenced to 2 years imprisonment which was wholly suspended.
    
50. State v Watangia [2018] PGNC 93; N7175, Susame AJ: The offender admitted to misappropriating K9000.00 from his employer's funds. During an audit, it was discovered that cash, prepaid sim cards, and mobile phones were missing. The offender, who was in charge at the time, used K9000.00 from money that another employee was banking to make restitution. He was sentenced to 3 years imprisonment which was wholly suspended on conditions including restitution.
    
51. State v Sari [2012] PGNC 297; N5167, Toliken AJ (as he then was): The offender pleaded guilty to misappropriation. She was working as a cashier in a shop. A customer came in and bought an electric jug worth K37.90 using her BSP Save Card. She processed the purchase of the jug and gave a receipt to the customer but swiped the card for the second time for a cash amount of K650.00. The offender was sentenced to 12 months imprisonment. 5 months pre-trial custody was deducted, and the balance was suspended.
    
52. State v Kua [2007] PGNC 103; N3230, Davani J: The offender pleaded guilty. He was a travel consultant. He received monies totalling K9829.60 for ticket sales. He used the monies instead of depositing them. The court sentenced to offender to 3 years imprisonment. A year of the sentence was suspended.
    
53. Liprin v The State [2001] PGSC 11; SC673: The appellant was convicted by the National Court on one count each of forgery uttering and misappropriation of K6,000.00. She was a bank employee. She was sentenced to a year for forgery and three years for misappropriation. Her sentence was confirmed but the period of suspension was increased to allow her sufficient opportunity to meet restitution.
    
54. According to the guidelines, amounts ranging from K1000 to K10,000 may result in sentences of up to 2 years imprisonment. However, the comparable cases submitted suggest a recent trend of offenders receiving sentences within the 2–3-year range.

Alison Gamini and Philip Inu: Category 3

55. State v Uto [2022] PGNC 187; N9612, Wawun-Kuvi AJ (as she then was): The offender pleaded guilty to misappropriating K14, 509.56. He was employed as a driver. He participated in a fraudulent scheme involving fuel cards and failed to report the activity. He would obtain a fuel card, drive to a fuel station, refill the vehicle, and leave the card with the pump attendant. The pump attendant would then use the fuel card to refill other vehicles, splitting the proceeds with the driver. The offender had made part restitution which the company accepted and did not want the offender to be imprisoned. He was sentenced to 2 years imprisonment which was wholly suspended.
    
56. 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 3 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.
    
57. State v Lamo [2022] PGNC 64; N9500, Wawun-Kuvi AJ (as she then was): The offender pleaded guilty. She worked as a certifying and countersigning officer at the Department of Provincial and Local Level Government. She submitted false claims, approved them, and applied them to her personal expenses and rentals. Over the course of six months, she misappropriated K64,754.99. The court sentenced her to 4 years imprisonment. A favourable pre-sentence report led to a partial suspension of the sentence.
    
58. 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. The offender Reinert Waira benefitted K102, 000. She was sentenced to 4 years imprisonment.
    
59. State v Kandambao [2019] PGNC 317; N8025, Berrigan J: The offender is the owner of a business that facilitates students from Papua New Guinea to study at universities in China under scholarship. In early 2018, the offender assured a Grade 12 student and his parents about studying in China, gathered K12, 955 in fees, and necessary documentation. Despite this, the offender failed to fulfil the promised services and misused the money for personal gain. The offender was sentenced to 2 years which was wholly suspended on conditions.
    
60. State v Chapau [2019] PGNC 48; N7783, Berrigan J: The offenders pleaded guilty to misappropriation. They are husband and wife and were employed by the Royal Papua New Guinea Constabulary. Within four months on four separate occasions, a total of K22,252.55 was paid by the wife, in common purpose with her husband, into his bank account for overtime worked, which was not authorized. The money was dishonestly used by the two offenders. The offenders were sentence to three years imprisonment which was wholly suspended on conditions including restitution.
    
61. State v Lohia [2018] PGNC 505; N7614, Berrigan J: The offender pleaded guilty. She was an accounts officer with the Papua New Guinea Red Cross Society. For four months on various occasions, the offender forged the signature of the Society’s authorised signatories on 25 Bank of South Pacific (BSP) cheques belonging to the Red Cross Society and uttered those cheques at BSP to obtain K19,151.75 from its account which she dishonestly applied to her use and the use of others. The court sentenced the offender to 3 years imprisonment and wholly suspended it on conditions.
    
62. State v Kisua [2018] N7513, Koeget J: The offender pleaded guilty to misappropriating K30, 000.00. He was the Officer in Charge of the PNG Microfinance Ltd bank at Daru. He directed tellers to lend him monies. He did not reimburse the monies. The offender restituted K25, 000.00 prior to sentence. He was sentenced to 18 months imprisonment, which was wholly suspended with conditions.
    
63. State v Balim [2015] PGNC 223; N6028, Cannings J: The offender pleaded guilty to misappropriating K11, 680.00. The money belonged to the school in which the offender was a teacher. During a six-week period the offender forged the signature of the head teacher and cashed four cheques. He restituted K3000.00 prior to sentence. He was sentenced to 3 years imprisonment, which was suspended with conditions.
    
64. State v Feria [2014] PGNC 74; N5600, Cannings J: The offender pled guilty to misappropriating K10,716.00 from her employer. She was the administration supervisor. She was given the responsibility to make a bank deposit of K74,688.40, which included cheques totaling K51,500.00 and K23,188.40 in cash. She deposited all the cheques and K12,472.40 of the cash monies, leaving a shortfall of K10,716.00. She misappropriated the shortfall. She was sentenced to 2 years imprisonment which was partially suspended on conditions.
    
65. State v Philip [2013] PGNC 229; N5386, Cannings J: The offender pled guilty to misappropriating K15,900 from Post PNG Ltd. He worked at the Madang Post Office and, along with a colleague, conducted four unauthorized transactions using the Mobile SMK cash transfer system. He took amounts of K4,000, K4,000, K3,900, and K4,000 for his personal use. The court sentenced him to 2 years imprisonment.
    
66. State v Bae [2010] PGNC 152; N4076, Kawi J: The offender pleaded guilty to misappropriating K15, 625.14. He was employed as a Credit Administrator–Cash Sales for Inter Oil Limited. Within a period of 7 months the offender received payments from customers but did not give the monies to the cashier to deposit. The offender was sentenced to 2 years imprisonment which was wholly suspended with conditions.
    
67. State v Kutan [2011] PGNC 330; N4526. Kawi J: The offender pleaded guilty to misappropriating K25, 000. He was the Branch Manager for Courts (PNG) Limited. The money belonged to Courts (PNG). He was sentenced to 2 years imprisonment. The sentenced was wholly suspended.
    
68. State v Mamando [2008] PGNC 242; N3709, David J: The offender pleaded guilty. She worked as a cashier and did not bank K34, 326.75 paid to her employer. Instead, she used the money. The court sentenced her to 4 years imprisonment and suspended 3 years of the sentence with conditions.
    
69. State v Wiamai [2007] PGNC 252; N5492, Cannings J: The offender pleaded guilty to misappropriating K16,848.79. He assisted his cousin in obtaining his final entitlements. Instead of giving the money to his cousin, he used it. He was sentenced to 4 years imprisonment. Time spent in custody was deducted and the court suspended the balance on conditions.
    
70. State v Lasin [2007] PGNC 221; N5052, Cannings J: The offender admitted to misappropriating funds meant for 28 officers' allowances. As the manager of a local government electoral awareness program, he cashed two checks totaling K10,888.00 and used the money for his own purposes. He was sentenced to 4 years imprisonment. The sentence was partially suspended on conditions.
    
71. State v Wilmot [2005] PGNC 105; N2857, Sevua J: The offender was employed as a teller. Over several months, the offender took K19,960.00 from the bundles of cash she had prepared to send to the Bank of Papua New Guinea. She was sentenced to 3 years imprisonment. The court suspended 2 years of her sentence.
    
72. State v Likius [2004] PGNC 245; N2518, Lenalia J: The offender pleaded guilty to misappropriating K68, 679.06. Lihir Management Company employed him as a payroll clerk. The offender reactivated an ex-employee's file and proceeded to transfer payments into his personal account. The court sentenced him to 5 years in prison. The court suspended the sentence for 3 years and imposed conditions for restitution.
    
73. State v Tova [1997] PGNC 27; N1522, Batari AJ (as he then was): The offender pleaded guilty to misappropriating K22, 100. The offender was employed as a causal. He forged the signatures of the office manager and the principal of the firm and on eight different occasions cashed the proceeds. He was sentenced to 3 years imprisonment.
    
74. According to the comparable cases, for amounts between K10,000 and K30,000, the range is between 2 and 3 years.

Leonard Sabagas

75. State v Tuvi [2024] PGNC 99; N10756, Miviri, J: The offender pleaded guilty to the charge of misappropriation. The offender worked as the Finance and Payroll Officer for Book Bilong Pikinini (BBP) Incorporated. He had access to the BBP's chequebook. Over several months, he arranged for 71 cheques for BBP to be put into various accounts, totalling K618,398.09. The account holders had no business dealings with BPP. Additionally, BPP did not authorise the offender to make the payments. Upon clearance, two account holders transferred monies totalling K127,389.79 into the offender's account. He was sentenced to 6 years imprisonment.
    
76. State v Emil [2021] PGNC 88; N8789, Berrigan J: The offender pleaded guilty to misappropriating K117,788.87 while working as an accounts clerk. She was seconded to work as a sub-consultant. Under the guise of paying service providers, she processed 21 transactions. She entered the details of legitimate service providers into the banking system but diverted the funds to her bank account. The fraudulent activity went undetected for several months. The court sentenced the offender to 4 years imprisonment. The sentence was partially suspended with conditions.
77. State v Leva [2021] PGNC 34; N8801, Berrigan J: The offender is co-accused in the matter of State v Tuvi(supra). He was employed by the Bank of South Pacific and benefited K290, 199.00. He was convicted following a trial and was sentenced to 6 years imprisonment.
    
78. State v 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.
    
79. 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. Over several months 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.
    
80. State v Emba [2011] PGNC 297; N5012, Kawi J: The offender pleaded guilty in the middle of the trial to misappropriating K286,491.71. She was employed as a cashier with Air Niugini and was responsible for collecting cash monies from the sale of airline tickets. She received monies and destroyed the ticket coupons. She was sentenced to 6 years imprisonment. The sentence was wholly suspended on conditions including restitution.
    
81. State v Uviri [2008] PGNC 286; N5468, Cannings, J: The offender pleaded guilty to misappropriating K536, 134.00 belonging to her employer. She oversaw payments to fishermen who supplied fish to her employer. She created false invoices and submitted them to the accounts section. She received the cash and applied it to her own use. She was sentenced to 7 years imprisonment.
    
82. Other recent cases are:
    
83. State v Mathew [2024] PGNC 292; N10965, Wawun-Kuvi: The offender pleaded guilty to misappropriating K78, 960. The offender was the assistant general secretary for the PNG Maritime and Transport Union. Over three years, he emailed union members directing payment of fees. He provided accounts that were not union accounts. He withdrew monies from those other accounts and used them. He was sentenced to 4 years imprisonment.
84. State v Pole [2023] PGNC 16; N10109, Berrigan J: The offender pleaded guilty to misappropriating K182, 081. She also pleaded guilty to forgery. The offender worked as a cash officer. She made cheques payable to herself, which she obtained as cash or were paid into her account. The court sentenced her to 5 years imprisonment, which was wholly suspended.
    
85. State v Jarick [2021] PGNC 329; N9000, Berrigan J: Dorothy Jarick, Wilma Dongo, and Terry Laka pleaded guilty to misappropriating funds while working as cashiers at Air Nuigini. They implemented a scheme to divert cash from ticket sales for personal use, manipulated reconciliation sheets, and delayed banking to conceal shortfalls. Over the period of several months, Dorothy misappropriated a total of K230,000, Wilma misappropriated K230, 000, and Terry misappropriated K96,956.90. Dorothy and Wilma were sentenced to 5 years imprisonment while Terry was sentenced to 4 years imprisonment. 18 months from each of their sentences were suspended on conditions.
    
86. State v Hevelawa (No.2) [2017] PGNC 198; N6875, Salika DCJ (as he then was): A trial resulted in the conviction of the offenders. The offenders conspired to create a fictitious company under the pretext that it would provide gardening and landscaping services. The conspiracy resulted in the payment of K63,120.50, K20,000, and K35,725.80. The offenders used the money for both their own and others' purposes. The court sentenced them to 5 years in prison. The court suspended three years of the sentence under conditions of restitution and ordered them to serve the remaining balance.
    
87. The sentencing trends based on the comparable cases demonstrate a range between 5 and 6 years for amounts around the K200, 000 mark.

Culpability

88. Each of the offenders possessed a high degree of dishonesty. There was planning and sophistication in the fraud. Each offender was acutely aware of the fraud and participated in it willingly. They used their positions and took money rightfully owed to the victim company. They knew that the monies did not belong to them but continued with their actions for months until the fraud was discovered. As stated, it was not one off. They were employees responsible for debt recovery and they each abused the trust given to them by the victim company.
    
89. Leonard Sabagas was their supervisor and team leader. Each of them paid him a significant portion of what was withdrawn from their accounts. His culpability is higher because as the team leader he had the ability to put a stop to the fraud but instead he continued and benefited significantly from it.

Victims Views

90. The victim has given a victim impact statement through its Chief Executive Officer Jessy Pendene. In summary, he states that the impact of the fraud will continue to affect the company for years. The monies taken was significant and not easily recoverable. It deprived PNGDL of receiving revenue rightful owed to it and has resulted in the company declaring loss over the years since the fraud.
    
91. Media publications of the fraud and resulted loss of clients which also affects revenue.
    
92. The victim company asks for maximum penalties for a strong deterrent message to other likeminded individuals in business houses and for the general population.

Mitigating and Aggravating Factors

93. In mitigation for all offenders are each of their guilty pleas, that they are first time offenders with no prior records and their expression of remorse.
    
94. Additionally, Philip Inu, Leonard Sabagas and Aumenama Illa cooperated with police and made admissions during each of their record of interviews.
    
95. The aggravating factors include the large amount of money taken, the lack of restitution, the period during which the fraud was perpetrated, the offender’s positions of trust, the sophistication, and the prevalence of the offence.

Other factors

96. Applying other factors discussed in Wellington Belawa, I conclude that the fraud has resulted in each offender's unemployment, making it challenging for each of them to find employment again. That is a consequence of each of their own decisions.
    
97. As mentioned in the victim impact statement, the offence has a significant impact on public confidence in state-owned entities and their ability to manage and generate revenue. The comparable cases reveal that other state-owned entities like Air Nuigini have suffered similarly. Fraud undermines investor trust and can lead to businesses losing customers, as was the case with the victim.

Consideration

98. As I had said recently when sentencing a bank employee in State v Tina Kumbuli [2024] N10945, comparable cases across the country demonstrate the increasing prevalence of fraud by employees in trusted positions. It is this type of conduct that erodes public confidence in state institutions or state-owned enterprises to manage general revenue for the country.
    
99. This type of systematic fraud has often been described like cancer or a parasite. It spreads until eventually it consumes all that is good, killing its host.
    
100. The offenders did not stop on their own volition. It was the actions of another employee who must be commended for identifying and reporting the fraud. There are many people who consciously or unconsciously encourage fraud by omission, that is, they are aware of the fraudulent activity by fellow employees and either remain silent out of fear, ignorance, friendship with the perpetrators or wilful disregard because they perceive the conduct as a matter that does not involve or affect them.
     
101. It is the combination of commission of fraud and omission to report fraud that is destroying our societies and the country.
     
102. In saying this, I have applied my mind to all the relevant factors discussed in this decision and the peculiar circumstances of each offender. This was a serious case of misappropriation involving multiple offenders who committed the fraud over several months. The victim company suffered significant losses and continues to feel the impact of the fraud.
     
103. Consequently, the offenders are sentenced as follows:
     1. Aumenama Ila is sentenced to 18 months imprisonment.
     2. Philip Inu is sentenced to 2 years imprisonment.
     3. Alison Gamini is sentenced to 3 years imprisonment.
     4. Joe Lipu is sentenced to 14 months imprisonment.
     5. Leonard Sabagas is sentenced to 6 years imprisonment.
104. Apart from Joe Lipu and Leonard Sabagas, the other offenders have spent some time in custody. In the exercise of my discretion under s 3(2) of the Criminal Justice (Sentences) Act 1986, I deduct time spent in custody as follows:
     1. Aunenama Ila was arrested and detained on 18 June 2022. He was granted police bail on 21 June 2022. The period of 3 days is deducted from his sentence. He shall serve 17 months, 3 weeks and 4 days.
     2. Alison Gamini was arrested and detained on 24 May 2022. She was released on police bail on 26 May 2022. The period of 2 days is deducted from her sentence. She shall serve 2 years, 11 months, 3 weeks and 5 days.
     3. Philip Inu was arrested and detained on 5 May 2022. According to the certificate of discharge he was released on District Court bail on 9 August 2022. He was in custody was 3 months and 4 days. He then failed to appear at the District Court and a warrant of arrest was issued. The warrant of arrest was executed on 27 February 2024. He has since been in custody for 6 months, 3 weeks and 3 days. In total he has been in custody for 10 months. The period of 10 months is deducted from custody, and he shall serve 1 year and 2 months.
105. The next issue for determination is whether the sentence should be suspended.
     
106. I have considered the principles in State v Tardrew [1986] PNGLR 91.
     
107. I find that suspension to promote restitution is not possible because it is belated and unrealistic. Specifically:

Aunenama Ila

108. The offender is unemployed and was terminated by the victim company. He is married and has a child. His wife is unemployed. They sell items in front of their home to earn enough to support themselves in Port Moresby. At the time of presentation of the Means Assessment Report in August, he had only K291.23 in his account. He has written a letter stating that his family will assist but has not provided any material to substantiate this offer. In any event, it would be unfair to impose financial burdens on his family. His offer to repay the victim company is both unrealistic and belated.

Joe Lipu

109. He has been unemployed since his termination. He has two children. His wife is unemployed. He lives with his in-laws. His family have given a letter stating that they will fundraise and contribute through their income. It would not be fair to impose this financial burden on his family. The offender himself has no means to meet restitution. His offer is belated and unrealistic.

Alison Gamini

110. The offender is unemployed and has been unemployed since here termination. She is living with her siblings and three children. She has indicated that she also supports her mother. Her husband has left her. She states that while she has her superannuation, she has not been able to have access to it. The offence was committed 2 years ago, based on the foregoing I find her offer to be unrealistic and belated.

Philip Inu

111. He is in custody and was unemployed prior to his incarceration. His wife and children are being supported by his in laws. He has no means to meet restitution.

Leonard Sabagas

112. He has been unemployed since his termination by the victim company. He has three children. His wife is the sole breadwinner. The vehicle and the house are under his wife’s name and are subject of loans. The property is subject to a mortgage with Bank of South Pacific. His wife earns a net income of K1, 809.01.
     
113. These factors demonstrate that it is unlikely the offender will repay the victim company. It would be unfair to impose the burden of restitution on his wife who must support their children and the offender in Port Moresby.
     
114. The offender was arrested and made admissions in 2022. If he was genuine in making restitution, he would have taken some steps 2 years ago. As said the offer is belated.

Rehabilitation and reintegration

115. Suspension is an exercise of discretion. Discretion is exercised on proper basis: Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730.
     
116. If it is intended that the offender shall be placed back into the community, then the views of the community must be obtained: Gima v Independent State of Papua New Guinea [2003] PGSC 3; SC730, Public Prosecutor v Hale [1998] PGSC 26; SC564 and State v Winston [2003] PGNC 146; N2347.
     
117. There must be materials that will support rehabilitation and reintegration. There are no views from the offender’s communities and any other material which go towards supporting rehabilitation and reintegration.
     
118. Aunmenama Ila provided a letter to the Probation Officer from a Pastor Michael Ila. I place very little weight on the letter because the letter is not written to the court for the purpose of assisting in the sentencing of the offender. The subject line and the first paragraph refer to identification of Aumenama Ila. There are no other community sources.

Excessive hardship

119. All the offenders are young and have no serious medical conditions. There is nothing in the materials before me that demonstrate that imprisonment will cause any of them excessive hardship.

Family concerns

120. While each of them has concerns for their families, 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.
     
121. Kapi DCJ in Prosecutor v Vangu’u Ame [1983] said:
     

“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 fee.

...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).

Pre-Sentence Reports

122. The Pre- Sentence Reports of each of the offenders do not support suspension. The Supreme Court in Walus v State [2007] PGSC 4; SC882 held:
     

“.....it is established law now that, a decision to suspend part of the sentence must be supported by a pre-sentencing report from the probation services. If such a report is not before the court or, the report does not support the suspension of a part of the sentence, the court is not at liberty to suspend either the whole or part of a sentence”

[Emphasis in bold mine]

123. Considering all the foregoing matters discussed, none of the sentences shall be suspended.

Orders

124. The Orders of the Court are:

Leonard Sabagas

1. The offender is sentenced to 6 years imprisonment at the Bomana Correctional Institution in light labour.
2. Bail and any paid sureties are refunded.

Aumenama Ila

1. The offender is sentenced to 18 months imprisonment in light labour.
2. Pursuant to section 3(2) of the Criminal Justice (Sentences) Act 1986, the pre-sentence custody period of 3 days is deducted.
3. The offender shall serve the balance of 17 months, 3 weeks and 4 days at the Bomana Correctional Institution in light labour.
4. Bail and any paid sureties are refunded.

Alison Gamini

1. The offender is sentenced to 3 years imprisonment in light labour.
2. Pursuant to section 3(2) of the Criminal Justice (Sentences) Act 1986, the pre-sentence custody period of 2 days is deducted.
3. The offender shall serve the balance of 2 years, 11 months, 3 weeks and 5 days at the Bomana Correctional Institution in light labour.
4. Bail and any paid sureties are refunded.

Philip Inu

1. The offender is sentenced to 2 years imprisonment in light labour.
2. Pursuant to section 3(2) of the Criminal Justice (Sentences) Act 1986, the pre-sentence custody period of 10 months is deducted.
3. The offender shall serve 14 months imprisonment at the Bomana Correctional Institution in light labour.

Joe Lipu

1. The offender is sentenced to 14 months imprisonment at the Bomana Correctional Institution in light labour.
2. Bail and any paid sureties are refunded.

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