The State v Christopher Chapau & Rhoda Kerea (2019) N7783

• Jurisdiction: Papua New Guinea
• Judge: Berrigan, J
• Judgment Date: 22 March 2019
• Court: National Court
• Citation: (2019) N7783
• Docket Number: CR (FC) 1070 and 1071 of 2018
• Year: 2019
• Judgement Number: N7783

Full Title: CR (FC) 1070 and 1071 of 2018; The State v Christopher Chapau & Rhoda Kerea (2019) N7783

National Court: Berrigan, J

Judgment Delivered: 22 March 2019

N7783

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 1070 and 1071 of 2018

THE STATE

V

CHRISTOPHER CHAPAU & RHODA KEREA

Waigani: Berrigan, J

2018: 20 November;

2019; 7, 22 March

CRIMINAL LAW –Sentence –Misappropriation –383A(1)(a)(2)(d) of the Criminal Code

Cases Cited:

Papua New Guinea Cases

Goli Golu v The State [1979] PNGLR 653

Lawrence Simbe v The State [1994] PNGLR 38

Sanawi v The State (2010) SC1076

The State v Alice Wilmot (2005) N2857

The State v Benson Likius (2004) N2518

The State v Frank Kagai [1987] PNGLR 320

The State v Gibing Yawing (2017) N6836

The State v Imoi Maino (2004) N2773

The State v Lukeson Olewale (2004) N2758

The State v Nancy Uviri (2008) N5468

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

The State v Philip Wiamai (2007) N5492

The State v Rachel Tony (2018) N7268

The State v Simon Savoa Feaviri, CR(FC) 103 of 2017, 8 December 2017, unreported

The State v Sukope Tova (1997) N1522

The State v Tardrew [1986] PNGLR 91

The State v Tiensten (2014) N5563

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

Overseas Cases:

Mario Postiglione v The Queen (1997) 189 CLR 295

Counsel:

Ms L. Jack, for the State

Mr R. Habuka, for Christopher Chapau & Rhoda Kerea

DECISION ON SENTENCE

22nd March, 2019

1. BERRIGAN J: Both accused persons pleaded guilty to one count of misappropriation, that they between 1 December 2013 and 31 March 2014 dishonestly applied to their use and to the use of others the sum of K22,252.55 belonging to the Independent State of Papua New Guinea, contrary to section 383A(1)(a)(2)(d) of the Criminal Code (Ch.226) (the Criminal Code).

Facts

2. At the relevant time, the offenders, who are husband and wife, were employed by the Royal Papua New Guinea Constabulary (RPNGC), based at its Konedobu Headquarters. Rhoda Kerea was Acting Team Leader “Edits” in the Human Resource Payroll Section while Christopher Chapau was attached as an IT Technician.

3. On four occasions between 1 December 2013 and 31 March 2014, a total of K22,252.55 was paid by Rhoda Kerea, in common purpose with Christopher Chapau, into his BSP bank account, number 1002046710, purportedly for overtime worked. Payments comprised: K3,250.35 on 11 December 2013; K6,867.24 on 25 December 2013; K5,737.93 on 19 February 2014; and K6,397.03 on 19 February 2014. In fact, no such overtime was worked or authorised by Christopher Chapau’s superiors during the said period, of which both accused were well aware. Upon receipt, the monies were dishonestly applied by the two offenders for their own use or the use of others.

Sentencing Considerations

4. 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.

5. 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.

6. Contrary to defence counsel’s submission, the scale of sentences suggested above are not absolute and binding. The Supreme Court made it clear they are guidelines to be adjusted up or down according to the other factors identified. Moreover, whilst the principles identified 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.

7. I am grateful, however, for the detailed written submissions of both counsel. I have had regard to the following cases referred to by the defence in support of his submissions generally:

a. 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; and

b. The State v Imoi Maino (2004) N2773, David AJ (as he then was), in which the prisoner misappropriated K106,355.02 by drawing 16 cheques, 15 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.

8. The State also referred me to a number of decisions, including:

a. 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’ imprisonment, 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 in prison;

b. State v Nancy Uviri (2008) N5468, Cannings J, in which it was suggested that a sentence of between 4 and 6 years’ imprisonment would be appropriate where a sum of between K10,000 and K40,000 is involved; and

c. State v Tony (2018) N7268, Miviri AJ (as he then was), in which the prisoner was employed by the National Judicial Staff Services (NJSS) as Private Secretary to the office of the Chief Justice. Without approval, she used the Deputy Chief Justice’s name on two separate occasions to hire vehicles for a total of 30 days at a total combined cost of K 25, 844. 50. The prisoner was sentenced to 4 years IHL.

9. I have also had regard to the following:

a. 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;

b. The State v Lukeson Olewale (2004) N2758, David AJ (as he then was), 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, wholly suspended on conditions including restitution with assistance from his family;

c. The State v Philip Wiamai (2007) N5492, Cannings J, in which the prisoner pleaded guilty to one count of misappropriating K16, 848.70 from his cousin brother.The prisoner was sentenced to 4 years’ wholly suspended on conditions, including restitution;

d. The State v Simon Savoa Feaviri, CR (FC) 103 of 2017, unreported 8 December 2017, in which the prisoner was found guilty by Kandakasi J (as he then was) following trial of one count of misappropriating K18,931.25 belonging to Bank South Pacific. He was sentenced to 3 years’ imprisonment wholly suspended on conditions including restitution; and

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

10. I have considered the defence submissions regarding what distinguishes this case from those relied upon by the State. The sentence in this case will, of course, be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Nature and Circumstances of the Offence, including Matters of Aggravation

11. It is well established with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. The offence in this case involves a substantial amount of money, K22, 252.55...