The State v Graham Duk

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 15 July 2009
• Citation: (2009) N3924
• Court: National Court
• Year: 2009
• Judgement Number: N3924

Full : CR No 150 0f 2009; The State v Graham Duk (2009) N3924

National Court: Cannings J

Judgment Delivered: 15 July 2009

N3924

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 150 0F 2009

THE STATE

V

GRAHAM DUK

Madang: Cannings J

2009: 9 April, 8, 13, 15 July

SENTENCE

CRIMINAL LAW – sentence – Criminal Code, Subdivision VI.1.C (offences analogous to stealing) – Section 383A (misappropriation of property) – sentence on plea of guilty – K32,600.00 misappropriated – sentence of 4 years.

A young man pleaded guilty to misappropriation. He was an accountant employed by a bank and dishonesty obtained K32,800.00 in customers’ deposits and applied it to his own use.

Held:

(1) The maximum penalty for the amount misappropriated is ten years imprisonment.

(2) The starting point is 4 to 6 years imprisonment.

(3) Mitigating factors are: co-operated with police; pleaded guilty; genuine remorse; first-time offender.

(4) Aggravating factors are: multiple transactions committed over a long period; serious breach of trust; large amount misappropriated; money not put to good use; did not give himself up; has not repaid any of the money.

(5) A sentence of 4 years imprisonment was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Wellington Belawa v The State [1988-89] PNGLR 496

The State v Danny Yannam CR 68/2008, 22.02.08

The State v Nancy Uviri CR 984/2007, 16.10.08

The State v Scholar Zuvani (2004) N2641

The State v Augustine Seckry CR 376/2005, 19.04.05

The State v Rictor Naiab CR 387/2005, 08.09.05

The State v Joyce Gulum CR 1620/2005, 06.04.06

Saperus Yalibakut v The State (2006) SC890

The State v Paul Taro CR 237/2006, 03.08.06

The State v Steven Lasin CR 1631/2006, 17.08.07

The State v Wilfred Aisa CR 363/2008, 27.10.08

SENTENCE

This was a judgment on sentence for misappropriation.

Counsel

M Ruarri, for the State

A Turi & N Los, for the offender

15 July, 2009

1. CANNINGS J: This is a decision on sentence for a young man, Graham Duk, who pleaded guilty to one count of misappropriation.

2. He was employed as an accountant at the Madang branch of the Wau Microbank. Over a four month period from March to July 2008 he dishonestly obtained K32,800.00 in customers’ deposits and applied it to his own use.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court. He said:

I thank the Judge and the Court staff, my arresting officer, my lawyers, the State Prosecutor and everyone who has worked on my case. This is my first time to appear before the National Court. I have never before convicted an offence of this nature. I apologise to God and to the Wau Microbank – now Nationwide Microbank – and all the bank staff and the customers for what I did. I say sorry for spoiling the good name of the Bank. I thank my parents for supporting me.

I committed this offence out of personal pressures and frustrations. I have experienced the toughness of life in prison and this has taught me a lot and I promise not to commit such a crime again.

I promise that I will serve my family and my country as a young educated person to the best of my ability in the future. I ask for mercy and for leniency from the court as this was a non-violent crime and I would like to be considered for probation.

As a young, educated person I assure the court that I trust the Constitution and I will with humility and respect accept and abide by whatever decision the Court makes.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890).

6. It is apparent that he co-operated fully with the police. He was arrested in July 2008 and made full admissions when formally interviewed two months later. He acknowledged his guilt, said he knew that what he was doing was wrong and apologised to the police. He said that he had made false entries and failed to record some cash transactions out of frustration at being under-paid by the Bank.

PRE-SENTENCE REPORT

7. Graham Duk is 25 years old. He is from Krevin village in the Simbai area of the Middle Ramu District of Madang Province. His parents are alive and living in Lae and still support their son despite the crime he has committed. He has three brothers and sisters. He was living at Matupge Plantation near Madang prior to being remanded in custody. He has a steady partner to whom he is engaged to be married. He plans to marry and settle down as soon as his case is resolved.

8. He graduated from Divine Word University in 2005 with a Bachelor of Business Studies. He was employed by the Internal Revenue Commission in Lae for two years, then gained employment in Madang at the Wau Microbank in late 2007. His health is sound.

9. The report concludes that Graham Duk is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

10. Mr Los highlighted that the offender has no prior convictions and he pleaded guilty plea. He is willing to attempt to repay the money to the Bank. He committed the offence out of frustration. He stole from the institution – the Bank – not its customers, so the case is not in the worst case category. A sentence of 30 months imprisonment, fully suspended and subject to repayment of the money over a reasonable period would be sufficient, Mr Los submitted.

SUBMISSIONS BY THE STATE

11. Mr Ruarri suggested that the sentence contended for by the defence counsel failed to reflect the seriousness of the offence: the amount of money involved and the serious breach of trust that occurred. A sentence of four or five years is warranted.

DECISION MAKING PROCESS

12. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the head sentence?

· step 5: should the pre-sentence period in custody be deducted?

· step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. As the amount of money misappropriated is more than K2,000.00 the maximum penalty under Section 383A(2)(d) is ten years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

14. The Supreme Court set out some starting point ranges in Wellington Belawa v The State [1988-89] PNGLR 496, depending on the amount of money misappropriated. Thus:

· K1.00 to K1,000.00 – a jail term should rarely be imposed;

· K1,000.00 to K10,000.00 – two years imprisonment;

· K10,000.00 to K40,000.00 – two to three years imprisonment;

· K40,000.00 to K150,000.00 – three to five years.

15. There is an enhanced level of community concern about corruption, dishonesty and misappropriation both in the public sector and in the private sector. In my view this should be reflected by doubling the tariffs suggested in Belawa. That is:

· K1.00 to K1,000.00 – suspended sentence usually appropriate;

· K1,000.00 to K10,000.00 – four years imprisonment;

· K10,000.00 to K40,000.00 – four to six years imprisonment;

· K40,000.00 to K150,000.00 and beyond – six to ten years.

The present case falls into the third category, which means the starting point range is four to six years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

16. Before I fix a sentence, I will consider other misappropriation sentences I have imposed.

TABLE 1: SENTENCES FOR MISAPPROPRIATION, CANNINGS J, 2004-2008,

No	Case	Details	Sentence
1	The State v Scholar Zuvani (2004) N2641, Wewak	Guilty plea – bank officer infiltrated two school bank accounts and transferred money to her sister’s account, then withdrew money - applied monies to her own use – K22,000.00 misappropriated.	4 years
2	The State v Augustine Seckry CR 376/2005, 19.04.05, Kimbe	Guilty plea – offender employed as an accounts clerk by NBPOL – dishonestly cashed company cheques that were supposed to have been cancelled – applied monies to his own use – K18,000.00 misappropriated.	4 years
3	The State v Rictor Naiab CR 387/2005, 08.09.05, Kimbe	Guilty plea – cashed cheques in his custody as an accounts clerk, employed by Hargy Oil Palms – used the money in hotels – K2,000.00 misappropriated.	18 months
4	The State v Joyce Gulum CR 1620/2005, 06.04.06, Kimbe	Guilty plea – employed as accounts clerk by Hargy Oil Palms, deposited company cheques and cash into private bank account and applied to her own use – K14,000.00 misappropriated.	2 years
5	The State v Paul Taro CR 237/2006, 03.08.06, Kimbe	Guilty plea – over a period of three months monies paid in cash for hire vehicles were not receipted – offender was acting branch manager of Hertz Hire Car, Kimbe – K18,000.00 misappropriated.	4 years
6	The State v Steven Lasin CR 1631/2006, 17.08.07, Kimbe	Guilty plea – offender given custody of two cheques worth K10,888.00...