The State v Willie Mamata Dumo

• Jurisdiction: Papua New Guinea
• Judge: Berrigan, J
• Judgment Date: 15 November 2018
• Citation: (2018) N7574
• Court: National Court
• Year: 2018
• Judgement Number: N7574

Full : CR (FC) 202 OF 2018; The State v Willie Mamata Dumo (2018) N7574

National Court: Berrigan, J

Judgment Delivered: 15 November 2018

N7574

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 202 OF 2018

THE STATE

V

WILLIE MAMATA DUMO

Waigani: Berrigan, J

2018: 11 October, 7 & 15 November

CRIMINAL LAW – Sentence – Misappropriation – Early cooperation and plea of guilty – No prior conviction –– Position of trust – Impact on victim, public and public confidence - Suspension - Restitution

Cases Cited

Goli Golu v The State [1979] PNGLR 653

The State v Tardrew [1986] PNGLR 91

The State v Frank Kagai [1987] PNGLR 320

Wellington Belawa v The State [1988-1989] PNGLR 496

Lawrence Simbe v The State [1994] PNGLR 38

The State v Paroa Kaia (1995) N1401

The State v Tova (1997) N1522

State v Imoi Maino (2003), N2773

The State v Benson Likius (2004) N2518

The State v Lukeson Olewale (2004) N2758

The State v Alice Wilmot (2005) N2857

The State v Christian Korei (2005) N2946

The State v Niso (No 2) (2005) N2930

The State v Tiensten (2014) N5563.

The State v Gibing Yawing (2017) N6836

The State v Andrick Yagro and Joan Kalama, unreported, 3 September 2018

Counsel

Ms H. Roalakona, for the State

Mr E. Sasingian, for the Prisoner

DECISION ON SENTENCE

15th November, 2018

1. BERRIGAN J: INTRODUCTION: The prisoner, Willie Mamata Dumo, pleaded guilty to one count of misappropriation, that he between the 1st and the 31st of May, 2017 in Port Moresby, Papua New Guinea dishonestly applied to his own use the sum of Eighty Seven Thousand, Seven Hundred and Thirty One Kina, (K87,731.00) the property of the State, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code (Ch.262) (the Criminal Code).

Facts

2. On 4 May 2017 the Department of Education paid Spicta Travel Agency the sum of K97,590.84 for the purposes of hiring a helicopter to transport staff to Ialibu-Pangia in the Southern Highlands Province for the launching of the EQUITV Project, a project for enhancing the quality of teaching through television, in 30 schools. The launch did not go ahead because of the National General Elections.

3. The Spicta Travel Agency refunded the monies after removing an amount for administrative fees. The refund of K87,731.00 was paid in the form of cash cheques payable to the prisoner on 5 and 12 May 2017 instead of to the Department of Education. At the time the accused was the Manager, Operations, E-Learning Section, with the Department.

4. The prisoner did not provide the monies to the Department of Education but instead dishonestly applied them to his own use.

Sentencing Considerations

5. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:

a. the amount taken;

b. the quality and degree of trust reposed in the offender;

c. the period over which the offence was perpetrated;

d. the impact of the offence on the public and public confidence;

e. the use to which the money was put;

f. the effect upon the victim;

g. whether any restitution has been made;

h. remorse;

i. the nature of the plea;

j. any prior record;

k. the effect on the offender; and

l. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.

Comparable Cases

6. In addition the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:

a. K1 and K1000, a gaol term should rarely be imposed;

b. K1000 and K10,000 a gaol term of up to two years is appropriate;

c. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and

d. K40,000 and K150,000, three to five years’ imprisonment is appropriate.

7. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; The State v Tiensten (2014) N5563.

8. Both counsel helpfully referred me to cases in support of their respective submissions. The defence cited The State v Andrick Yagro and Joan Kalama, unreported, 3 September 2018, Salika DCJ (as he then was), (2005) N2930, in which the prisoners were found guilty following trial of one count of misappropriating K138,226.10 belonging to the PNG Teachers Association by directing the payment of monies to the bank accounts of three people for their own use and the use of others. Both were very senior officers at the time and part of the interim management team that oversaw the running of the Association. They were each sentenced to 4 years’ imprisonment which was wholly suspended upon the restitution of K69,000 respectively, within 12 months.

9. The State referred me to the following:

a. The State v Paroa Kaia (1995) N1401, Sawong J, in which the prisoner pleaded guilty to one count of misappropriating K94,478.31 belonging to ANZ Bank over a 2 month period. At the time he was an accounts supervisor with the bank. He was sentenced to 4 years’ imprisonment;

b. The State v Tova (1997) N1522, Batari AJ (as he then was), in which the prisoner pleaded guilty to misappropriating K22,100, the property of Allens Arthur Robinson Lawyers, his employer. He was sentenced to 3 years’, wholly suspended on condition of restitution;

c. The State v Imoi Maino (2003) N2773, David AJ (as he then was) in which the prisoner misappropriated K106,355.02 by drawing 16 cheques, over a period of about 14 months, in favour of others, one in favour of herself, whilst a payroll clerk with the Department of Education. She was sentenced to 4 years’ imprisonment, of which 2 years was suspended on conditions; and

d. The State v Alice Wilmot (2005) N2857, Sevua J, in which the prisoner pleaded guilty to one count of misappropriating K19,960 systematically over a period of 17 months whilst a bank teller from her employer, ANZ. The prisoner failed to express remorse and was sentenced to 3 years’, 18 months of which was suspended upon full restitution. A further 6 months’ was suspended upon entering into her own recognizance with the balance of 12 months’ to serve.

10. I have also had regard to the following which may provide guidance in determining sentence:

a. The State v Lukeson Olewale (2004) N2758, in which the prisoner pleaded guilty to one count of uttering and one count of misappropriating a cheque for K40,000 against the account of the Fly River Provincial Government, his employer. The prisoner conspired with others including a bank manager and was sentenced to 4 years’ imprisonment by David AJ (as he then was), wholly suspended on conditions including restitution with assistance from his family;

b. The State v Benson Likius (2004) N2518 in which Lenalia J sentenced the prisoner to 5 years’ for misappropriating K68,674.06 the property of his employer, Lihir Management Company using a scheme applied over a period of more than 20 months. Three years of the sentence was suspended on conditions including restitution;

c. The State v Christian Korei (2005) N2946 before Lay J in which the prisoner pleaded guilty to misappropriating a sum of K82,202.73 donated for the purpose of building a classroom for his community. On discovery the prisoner made restitution of K65,000. He was sentenced to 4 years’ imprisonment, wholly suspended on conditions including full restitution; and

d. The State v Gibing Yawing (2017) N6836 in which the prisoner was sentenced to 2 years’ imprisonment by Salika DCJ (as he then was). The prisoner, an accountant, pleaded guilty to one count of misappropriating K14,955 from his employer, Simbu Farming and Marketing Ltd.

11. Whilst the above authorities provide useful guidance, the sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. I will now turn to the matters outlined in Wellington Belawa.

Nature and Circumstances of the Offence, including Matters of Aggravation

12. It is well established that in general terms, the greater the amount involved the more serious the offence. In this case a significant amount of money, K87,731.00, was misappropriated following payments received by the prisoner on two separate occasions, a week apart. This was not a one-off, spur of the moment, incident. The monies were applied for the prisoner’s own benefit including to meet personal liabilities.

13. The quality and degree of trust reposed in the prisoner at the time of the offending was high. He was a long term employee with the Department of Education and the Operations Manager with its E-Learning Branch, a senior position responsible for ensuring the effective functioning of the branch using its limited resources.

14. The offence...