The State v Jacob Kom

• Jurisdiction: Papua New Guinea
• Judge: Miviri AJ
• Judgment Date: 13 July 2018
• Citation: (2018) N7362
• Court: National Court
• Year: 2018
• Judgement Number: N7362

Full : CR (FC) 205 of 2017; The State v Jacob Kom (2018) N7362

National Court: Miviri AJ

Judgment Delivered: 13 July 2018

N7362

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 205 of 2017

THE STATE

V

JACOB KOM

Waigani: Miviri AJ

2018: 27 June, 13 July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation s.383A – Plea – electronic transfer – bank officer – victim deceased customer of bank – serious breach of trust – phone banking – PSR MAR not favourable to prisoner – no means to repay – custodial term appropriate – strong punitive sentence.

Facts

Prisoner was a bank officer who put a stop to the account of a deceased customer but then removed the stop and put in two phone numbers to which money was taken out and deposited into running into K 41, 859.00 which he used personally.

Held:

Serious breach of trust

Bank officer

Dishonestly applied to his own use

Deceased Customer’s money

Punitive and deterrent sentence

Cases:

Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC 564

The State v Allan Peter Utieng (Unreported Judgement delivered in Wewak on 23rd November 2000) SCR 15 of 2000

The State v Avia Aihi (No3) [1982] PNGLR 92

The State v Belawa [1988-89] PNGLR 496

The State v Doreen Lipirin [2001] PGSC 11; SC673

The State v Duk [2009] PGNC 247; N3924

The State v Eric Emmanuel Vele [2002] PGNC 93; N2252

The State v Kaia [1995] PGNC 166; N1401

The State v Zuvani [2004] PGNC 127; N2641

Counsel:

T Aihi, for the State

E Sasingan, for the Defendant

SENTENCE

13th July, 2018

1. MIVIRI AJ: This is the sentence of a bank employee who misappropriated moneys that came into his possession in the course of his duties.

Short Facts

2. Jacob Kom was employed by the Australia New Zealand Banking Group (PNG) Limited as a small Medium Relation Officer at the water front harbour city branch. James Naveung a customer of the bank died on the 26th January 2012. He had a personal account number 12829401 segmented under the SME category managed by the accused there. Between 31st December 2012 and the 31st October 2013 the accused placed stops on the account then lifted it linking it to Digicel mobile numbers 72771285 and 70855533. He instructed his colleagues to do this. And within this period accused dishonestly applied to his own use and to that of others through mobile phone banking system a sum of Forty One Thousand Eight Hundred And Fifty Nine Kina (K41, 859.00) the property of James Naveung.

Charge

3. Prisoner is charged pursuant to Section 383A of the Criminal Code with misappropriation. He was dishonest and applied the proceeds to his own use or to that of others. It is clear that the money was in the account of the deceased at the bank and therefore not his money. It was in his control as an officer of the bank by virtue of that employment but did not belong to him. Section 383A covers in all material aspects what is the subject of the facts here against the prisoner.

4. Section 383A reads:

“(1) A person who dishonestly applies to his own use or to the use of another person –

(a) Property belonging to another; or

(b) Property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for five years except in any of the following cases when he is liable to imprisonment for ten years-

(a) where the offender is a director of a company and the property dishonestly applied is company property;

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

(c) where the property dishonestly applied was subject to a trust, Direction or condition;

(d) where the property dishonestly applied is of a value of K2000 or upwards.

(3) For the purposes of this section-

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property;

(b) a persons application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps;

(d) persons to whom property belongs to include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who. Immediately before the offender’s application of the property, had control of it. “

5. Here also it should be clear that the money was above K2000 and therefore drew sentence up to maximum of 10 years imprisonment.

Issue

6. What then is the appropriate sentence for the prisoner?

Mitigation

7. The Prisoner pleaded guilty to committing the offence over almost a year starting from the 31st day of December 2012 to the 31st day of October 2013 involving K 41, 859.00 which he dishonestly applied to his own use or to the use of others. Whilst he was a bank officer dealing with large sums of cash by virtue of that fact. He was persistent in the way that he carried out the offence. And was not deterred that it was computer based and generated therefore evidence would have mounted as did here against him. Nor was he deterred that the bank was trusted by the Public and this was seriously breached in the way that he acted. Even the sophisticated nature of banking involving the use of electronic and electronic system including the internet did not deter that he would be caught with the evidence. It is necessary by the sentences imposed to protect that system of banking and the banks including customers from employees as scrupulous as the prisoner here. The level of trust is very high and it must be properly protected by stringent punitive and deterrent sentence. Banks drive business and the economy and the livelihood of public who put their faith in must be protected. It is also a very prevalent offence and must be deterred.

Amount taken

8. His persistence and perseverance in the offence saw the total sum of money accumulate to K 41, 859.00, indeed a large sum of money from a deceased person who had an account with the bank. By that fact it dictated that the larger the amount the greater the punishment or sentence should be. It was also important to decide whether or not the prisoner had means to settle or payback the money stolen: Doreen Lipirin v The State [2001] PGSC 11 ; SC673 (9 November 2001). The presentence and means assessment reports before the court after application by defence counsel were both not in favour of the prisoner. There was no means upon which the moneys misappropriated would be recouped and paid back to the bank and the deceased customers account. Both reports recommended against probation as he had no means to make good what he stole. And alternatives to imprisonment would not be considered given.

9. Imprisonment started at 10 years but the range and tariff set out in Belawa v The State [1988-89] PNGLR 496 was appropriate in the determination. Relevant to the facts here was that where the amount was K10, 000 to K40, 000 suggested term was 3 years imprisonment as appropriate. K40, 000 to K150, 000 as 3 to 5 years imprisonment. The amount here was K 41, 859.00 hence the term in view was 3 to 5 years imprisonment. A further consideration by section 383A (2) (d) was the fact that this was an amount of over K2000 which draw 10 years as maximum sentence to be imposed. It could be 5 years if it was amount below K2000 which wasn’t the case here. So effectively the prisoner was looking at a possibility of being sentenced to 10 years for the offence. That in itself was the maximum under that section for the crime. In accordance with Avia Aihi v The State (No3) [1982] PNGLR 92 (5 March 1982) the maximum was always reserved for the worst offence of misappropriation. Which weren’t the case here and therefore a determinate term was in view against the prisoner. And in so determining it was relevant to set out the facts for and against in determining.

Use of money

10. Firstly the Prisoner transferred the money out of the account of the deceased into the two phone numbers where he accessed and applied to his own use and to that of others. The evidence did not disclose the specifics as to what he applied the proceeds to. But he did use phone banking to deposit these moneys into different accounts of persons he knew. He did not have any authority in the way that he executed this either from the bank or from a representative of the deceased.

Effect upon Victim

11. And in this...