The State v Clayton Tanner

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ
• Judgment Date: 31 October 2014
• Citation: (2014) N5808
• Court: National Court
• Year: 2014
• Judgement Number: N5808

Full : CR 592 OF 2013; The State v Clayton Tanner and Alex Solon (2014) N5808

National Court: Salika, DCJ

Judgment Delivered: 31 October 2014

N5808

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 592 OF 2013

BETWEEN:

THE STATE

AND:

CLAYTON TANNER AND ALEX SOLON

Waigani: Salika, DCJ

2013: 18 November, 03 December,

2014: 04, 11, 25 & 26 June; 17 July; 02 September; 31 October

PRACTICE AND PROCEDURE – Criminal Law – Conviction on a charge of misappropriation – what is the appropriate sentence.

Cases cited:

Belawa v The State (1988-89) PNGLR 596

The State v Alois Kintau and Isaac Tom (2014) N5761

The State v Lawrence Pukali (2014) N5695

Doreen Liprin v The State (2001) PNGLR 6

The State v Zachery Pasliu (2014) N5696

Counsel:

Mr N Appo, for the State

Miss M Ainui, for Clayton Tanner

Miss A Hombunaka, for Alex Solon

SENTENCE

31st October, 2014

1. SALIKA DCJ: After a full trial I convicted the prisoners Clayton and Alex Solon with one count of misappropriation of K292,663.50, the property of Post PNG Ltd.

2. The trial started on 10 June 2014 and ended on 26 June 2014. The State called 7 witnesses and the two prisoners to gave evidence on t heir own behalf.

Circumstances of the Offence

3. The following are the circumstances of the offence and are the facts upon which they were arraigned:

4. The prisoner Clayton Tanner was employed by Post PNG as a technical manager for financial services within the financial services division. The prisoner Alex Solon was unemployed at t hat time and is a friend of Clayton Tanner.

5. Post PNG introduced a new product, mobile Salim Moni Kwik (SMK) Service in the year 2011. Through this program Post PNG uses the mobile money system known as Telepin and the accounting system Pronto. Both were intergrated such that once a cash in is done on Pronto it automatically is recorded in Telepin. When the money is cashed out, the cash out is recorded on the Telepin and then recorded also on Pronto before the cash is handed to the customer. Clayton Tanner knew the working of the system very well because he was one of those who installed it.

7. Between, the 01st of January 2012 and the 31st August 2012, the prisoners conspired with each other and fraudulently obtained from Post PNG an amount of K292,663.50. This they obtained using the mobile SMK (Salim Moni Kwik) system. Clayton Tanner manipulated the system by entering false cash entries on Telepin which is the mobile money system purporting to be monies sent from another province and then it was cashed out in Port Moresby. To anyone it would seem as if someone was sending some money from another part of the country to someone in Port Moresby, when in fact no names were sent. But the money was cashed out to whoever Clayton Tanner used. In this case he used Alex Solon to cash out once he sent messages to Alex Solon.

8. Between the 01st day of January 2012 and 31st of August 2012 Clayton Tanner and Alex Solon fraudulently obtained from Post PNG an amount of K292,663.50

9. Alex Solon was caught attempting to cash out when he was caught by Police and Post PNG Officials at the Boroko Post Office.

10. Reconciliation of cash ins and cashouts using the system showed huge variances in that the telepin figures and the pronto figures did not balance off. The cash in of the money were purportedly done by Post PNG customer service officers in other named centres but there were no real cash ins. The respective branch officers were investigated but there was no evidence of cash ins from those service centres.

11. The investigations revealed that the system was manipulated from Post PNG Head Office by someone who knew the system well. The prisoner Clayton Tanner was identified as the one who was involved in this fraud. He was therefore arrested and charged after the arrest of Alex Solon and after their connections were established. The State charged the accused under section 404(1) and 408(1) of the Criminal Code Act (Code). The State also invoked s.7 of the Code. After the trial the court convicted the accused.

Personal Particulars

CLAYTON TANNER

12. Clayton is 32 years old and resides at the Hanuabada village with his wife’s relatives. He is from Ussil village in the New Ireland Province. He is married with 3 children and the wife is now expecting a 4th child. The children are 10, 9 and 4 years old and the first two are in Grades 4 and 3 respectively.

13. Clayton Tanner is a graduate from the University of Technology with a degree in Information Technology. He is now employed by PNG Forest Products and has been so far the last 7 months now. The prisoner has offered restitution.

ALEX SOLON

14. Alex Solon is 32 years old and comes from Sohu village in the Manus Province. He lives at Gerehu Stage 6 in a house owned by his parents. His parents are both alive. His father was Vice Chancellor of the University of Goroka and is now serving as a lecturer at the same University. His mother is employed by the Department of Education as a Schools Inspector.

15. Alex Solon is the only son in the family and has 3 sisters. His parents and sisters have all pledged to support him in whatever way they can to help him in his restitution efforts.

16. Alex Solon is in a de facto relationship with his partner and have 3 children. His partner is employed by Pro Support HIV/Aids, a non government organization.

17. Alex has a Diploma in Accounting from the Divine Word University and has been employed with a number of private organizations. He is currently employed by Cyber Space Accountants Ltd as Operations Manager for the firm.

18. Alex has made a restitution of K61,000 into the National Court Trust Account. This will be used to pay back Post PNG. His father has agreed to mortgage his house to secure a loan to repay the balance of K89,000.00. Alex has no prior convictions.

19. The prisoner denied their involvement in the commission of the crime. After the conviction Alex blames Clayton for using him and his business to steal the Post PNG money. To me that is an admission by Alex to the commission of the offence.

20. In any case I have found the two men guilty of the charges laid against them.

Issue

21. The only issue in this matter is the appropriate sentence to impose on the prisoners.

22. The maximum penalty under s.383A(2) for misappropriation is 5 years imprisonment. In cases where the offender is an employee and the property dishonestly applied is the property of his employer the imprisonment term is 10 years (s.383A(2)(b)). Section 383A(2)(d) of the Code says that where the property dishonestly applied is of a value of K2,000 or more the maximum imprisonment term is also 10 y ears. In this case Clayton Tanner is caught under both subsections (2) (b) and (d) while Alex Solon is caught under subsection (2)(d). Both are therefore liable to 10 years imprisonment.

WHAT IS THE APPROPRIATE SENTENCE IN THIS CASE.

23. There is no established formula in arriving at a sentence on any one case, and this for the reason that the judge has a discretion on the type of punishment to impose as he or she sees fit and appropriate. The Supreme Court has tried to provide some guide for the National Court to use as guide to sentence. One such case is the case of Belawa v The State (1988-89) PNGR 498.

THE BELAWA GUIDE

24. The Supreme Court in Belawa v The State (supra) formulated guide for sentencing in misappropriation cases. The Court there said that where:

(a) K1 – K1,000, is misappropriated a jail term should rarely be imposed.

(b) K1,000 and K10,000, was misappropriated a jail term of up to 2 years was appropriate.

(c) K10,000 and K40,000, was misappropriated a 2 to 3 years jail term was appropriate.

(d) K40,000 and K150,000, was misappropriated a jail term of 3 to 5 years imprisonment was appropriate.

25. In this case the prisoners misappropriated K292,663.50. Under the Belawa formula prisoners would be looking at jail terms of between 7 to 9 years. The Belawa formula is no longer appropriate. I do not think the Belawa formula is relevant now. Times have changed, more money is now being misappropriated.

26. However the following Belawa guide is still relevant when considering the imposition of sentences:

- amounts taken

- quality and degree of trust reposed on the prisoner

- period over which the fraud or misappropriation was committed.

- use for which the amount was put to.

- effect upon the victim

- restitution

27. The prisoners stole K292,663.50 the property of Post PNG Limited. The relevance of this factor is that the larger the amount the higher or greater the punishment. It is also relevant for purposes of restitution. Smaller amounts are easily capable of being repaid while larger amounts are harder to repay.

28. Alex Solon was not in any position of trust as he was not an employee of Post PNG. Clayton Tanner was however an employee of Post PNG. He was the Technical Services Manager of Post PNG. He was the only one who was fully conversant with the Mobile SMK system. He was one of those who set up the system and knew the workings of...