The State v Janet Molong Posakei (2019) N8000

• Jurisdiction: Papua New Guinea
• Judge: Susame, AJ
• Judgment Date: 12 August 2019
• Citation: (2019) N8000
• Docket Number: CR. (FC) N0. 132, 133, 134 of 2016
• Court: National Court
• Year: 2019
• Judgement Number: N8000

Full Title: CR. (FC) N0. 132, 133, 134 of 2016; The State v Janet Molong Posakei (2019) N8000

National Court: Susame, AJ

Judgment Delivered: 12 August 2019

N8000

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. (FC) N0. 132, 133, 134 of 2016

THE STATE

V

JANET MOLONG POSAKEI

Kokopo: Susame, AJ

2019: 14, 22, 24 May, 12 August

CRIMINAL LAW – Sentence On Plea – Offence Of Misappropriation –S383a Criminal Code – K143 812.46 Misappropriate – Employer & Employee Relationship – Acting Human Resource Manager - Serious Breach Of Trust - Amount Not Restituted - Prisoner An Asthmatic – Special Feature – 6 Years Sentence Imposed Wholly Suspended With Conditions.

Cases Cited:

Doreen Liprin v The State (2001) SC675

Meaoa v The State (1996) SC 504

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

State v Tiensten [2014] PGNC 224; N5563 (28 March 2014)

State v Yaip Joshua Avini & Parido Nonoi Acosta Unreported and un-numbered National Court Judgment 1996)

The State v Robyn Emba [2011] PGNC 297; N5012 (14 August 2011)

The State v Neville Miria (2013) N5102

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

Counsel:

Mr. C. Sambua, for the State

Mr. R. Asa, for the Prisoner

DECISION ON SENTENCE

12th August, 2019

1. SUSAME AJ: You pleaded guilty to a charge of misappropriation on 14 May 2019. You are now in court to receive your sentence.

Facts

2. The facts of you were on which you were convicted. You were employed with the East New Britain Provincial Administration (ENBPA) as the Human Resource Advisor. Names of 07 officers were used in the illegal scheme you devised. Five of them were under suspension without pay. The other two were deceased persons. Between 1 May 2014 and 31 March 2015 you manipulated the Alesco Human Resource Payroll System had their names back on the payroll system. Salaries paid under the 07 names were diverted into your two personal accounts, one with BSP account no. 1003669395 and the other with Westpac Bank account no. 6002749414. You then accessed the funds totaling K143 812.46 for your personal benefit.

3. Your fraudulent scheme was detected when the name of one of the suspended officers was found back on the payroll system while he was still under suspension without pay. You were subsequently arrested and charged.

Allocutus

4. In your address on sentence this is what you stated. Firstly you expressed your apology to the court, the State, East New Britain Provincial Administration and the immediate families of the people you had manipulated through the system. You were truly sorry for your actions that has really caused your investigation and termination of your employment. Of all the things you have done that was the reason you pleaded guilty. The reason you had done such a terrible mistake is that you were having a marital problem with your husband. That made you not to think right because of all the financial constraints you were facing. You said you were born with an asthmatic condition. You normally experience attacks 2 – 3 months. You are not good with dust and cold. You asked court to have pity on you and give you time to repay the money. You assured the court to comply with whatever condition court orders to repay the funds misapplied. You and your family have some contributions to repay the money. You said you have 2 small girls and a sick father.

Court’s View on Sentence

5. What sentence should I pass on you?

6. Court has considered the submissions. Counsels have assisted the court with sentencing considerations and tariffs in decided cases. I will make reference to them a bit later. First let me consider the penalties available at law for offence of misappropriation under s 383A.

7. For property worth below K10 000.00, 5 years is the maximum penalty. For property worth K2000.00 and upwards maximum penalty is 10 years. For property worth 10 million Kina and above maximum penalty is imprisonment for life. [Criminal Code (amendment) Bill September 2013]

8. You misappropriated K143 812.46. Hence, you have attracted upon yourself maximum penalty of 10 years imprisonment. Whether you get the maximum penalty is matter of court’s discretion subject to settled sentencing principles and circumstances of the case. With regard to maximum penalty the law is settled. It is reserved for a case considered the worst type. Your case does not consist of very grave aggravating features to be rated as the worst type deserving the maximum penalty. A penalty lower than 10 years imprisonment will be considered in the exercise of my discretion under s 19.

Sentencing Considerations and Sentencing Trends

9. The case of Wellington Belawa v The State [1988-89] PNGLR 496 is the leading authority on sentencing considerations in stealing and misappropriation cases. The considerations are:

(1) Amount taken.

10. A substantial amount of K143 812.46 was stolen. This factor weighs against you.

(2) The quality and degree of trust reposed upon the offender including his rank.

11. You occupied a Senior Managerial and Supervisory position with ENBPA. You performed your duties with less supervision. Your subordinate officers looked upon you as a leader for direction and advice. There was greater degree of trust expected of you by your employer and your insubordinates. In that regard there was a serious breach of that fiduciary relationship. That factor weighs heavily against you and makes you more culpable.

(3) The period over which the frauds or the theft was perpetrated.

12. This was not a one-off incident. You cleverly planned executed the fraudulent scheme and committed the offence over period of about 11 months. You then deposited the funds into your two personal accounts, one with Westpac Bank and the other with Bank of South Pacific and accessed the funds for your personal benefit. This factor also weigh against you.

(4) The use to which the money or property dishonestly taken was put into.

13. You applied the money for your personal use.

(5) The effect upon the victim.

14. None of the 5 workers under suspension were adversely affected by your deceptive scheme. But your employer suffered a loss which has not been restituted. That factor weighs against you.

(6) The impact of the offence on the public and public confidence.

15. There is so much public concern about corruption and squandering of public funds by Politicians Bureaucrats in positions of trust. What you did no doubt has had serious effect upon public confidence in what goes on in East New Britain Provincial Administration and if not in the whole system of government administration. This is portraying a negative image of our country nationally and internationally. This factor weighs heavily against you.

(7) The effect on fellow employees or partners.

16. Information is not available if your fellow employees were seriously affected by your fraudulent scheme in terms of loss of unpaid salary. I doubt very much they were seriously affected.

(8) The effect on the offender herself.

17. You have lost your job which is a natural consequence of you stealing from your employer. You have brought shame and disgrace upon yourself. The conviction will seriously affect your prospects of securing employment in future. You will be fortunate enough to find one.

(9) The offender's own history.

18. You have no prior convictions. That is a factor in weighs in your favour.

(10) Restitution

19. The amount stolen has not restituted. That would have weighed in your favour. You have made an undertakings to do so in the near future when funds becomes available to you with some assistance from your family members.

(11) These matters of mitigation special to himself such as illness; rely on the sentencing guidelines and tariffs and decided cases.

20. You are an asthmatic since birth. You have a marital problem and a mother of 2 little daughters.

21. Going by the guidelines there are more factors weighing against you than those in your favour to mitigate your sentence.

22. The same court also prescribed sentencing scale depending on the amount stolen or misappropriated set out below.

1. Stolen thing of value between K1.00 – K1000.00: a goal term should rarely be imposed.

2. Stolen thing of value between K 1000.00 – K10 000.00: a goal term of 2 years.

3. Stolen thing of value between K 10 000.00 – K40, 000.00: a goal term of up to 2 to 3 years.

4. Stolen thing of value between K40 000.00 – K150 000.00: a goal term up to 3 to 5 years.

Pre-Sentence and Means Assessment Reports

23. Mr. Asa submitted in recent times there has been a development of a trend favoring the suspension of sentences allowing more time for the offender to be reemployed and to repay the money misappropriated. He made reference to the Supreme Court case of Doreen Liprin v The State (9 November 2001) SC675 and endorsed the views expressed by Amet CJ for alternatives to custodial sentence which will still achieve the purposes of retribution, restitution and rehabilitation in misappropriation cases which are nonviolent offences. In achieving that court should give serious consideration to the...