The State v Felix Luke Simon (2020) N8321

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 30 April 2020
• Court: National Court
• Citation: (2020) N8321
• Docket Number: CR (FC) No 104 of 2019
• Year: 2020
• Judgement Number: N8321

Full Title: CR (FC) No 104 of 2019; The State v Felix Luke Simon (2020) N8321

National Court: Berrigan J

Judgment Delivered: 30 April 2020

N8321

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 104 of 2019

THE STATE

V

FELIX LUKE SIMON

Waigani: Berrigan J

2020: 4th March & 30th April

CRIMINAL LAW–SENTENCE –383A(1)(a)(2)(d) of the Criminal Code – Employee convicted following trial ofmisappropriation of K60,550 – sentence of 4 years of imprisonment imposed.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653

The State v Tardrew [1986] PNGLR 91

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

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

The State v Marita Rama Miria, unreported, CR 1275 of 2010

State v Chillen (2008) N3549

State v Etami (2012) N4769

State v Vagi (2014) N5697

State v Tiensten (2014) N5563

State v Kom (2018) N7362

Legislation and other materials cited:

Sections19, 383A(1)(a)(2)(d) of the Criminal Code

Counsel

Ms. T. Aihi, for the State with Mr B. Sabarei

Offender in person

DECISION ON SENTENCE

30 April, 2020

1. BERRIGAN J: The offender was convicted following trial of one count of misappropriating K60,550.00 belonging to Joshua Ipi, contrary to s.383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (the Criminal Code).

2. At the time the offender was employed as the caretaker of a number of rental properties owned by Mr Ipi in Port Moresby. The evidence established that between the 6th day of July 2017 and the 3rd day of January 2018 the offender dishonestly applied to his own use six cheques received on behalf of his employer from the tenants of three different properties for the payment of rent. Instead of depositing the cheques to his employer’s account he deposited them to a bogus account set up in the name of the complainant for his own use.

Sentencing Principles and Comparative Cases

3. 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.

4. 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 misappropriated 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.

5. It is also 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; and The State v Tiensten (2014) N5563. Nevertheless, the principles to be applied when determining sentence remain relevant and applicable.

6. Mr Simon represented himself on sentence and effectively sought asuspended sentence. The State submitted that a sentence in the range of three to five years is appropriate.The State relied primarily on the case of The State v Marita Rama Miria, unreported, CR 1275 of 2010, Toliken AJ (as he then was), in which the offender pleaded guilty to misappropriating K75,570.40 over a one year period from her employer, BSP. She was sentenced to 5 years of imprisonment.

7. I have also had regard to the following cases:

a) State v Benson Likius (2004) N2518, Lenalia J, in which the offender misappropriated K68,674.06, the property of his employer, Lihir Management Company using a scheme applied over a period of more than 20 months. He was sentenced to five years of imprisonment, three of which was suspended upon conditions including restitution;

b) 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;

c) State v Chillen (2008) N3549, Davani J, in which the prisoner pleaded guilty to the misappropriation of K65,000. He applied to the National Gaming and Control Board (NGCB) for funding on behalf of his church group to build a church. The prisoner collected the cheque and opened a new bank account in his name with three others, deposited the cheque and made several withdrawals thereafter to his own use. He was sentenced to 4 years’ imprisonment;

d) State v Etami (2012) N4769, David J in which the prisoner pleaded guilty to one count of misappropriation of K165,086.18, the property of his employer, Oilmin Field Services. Whilst employed as a Taxation Officer and Accounts Payable Assistant he incorporated three bogus companies with similar names to those of his employer’s three main creditors, drew up false requisitions, altered the payee and deposited the cheques to the accounts of those companies. He was sentenced to four years, wholly suspended on conditions, including restitution;

e) State v Vagi (2014) N5697, Salika DCJ (as he then was) in which the prisoner was sentenced to 3 years’ imprisonment after he pleaded guilty to one count of misappropriation of K65,924.90, the property of her employer, PNG Gardener. She was employed as an accounts clerk and banked monies received from flower sales to her own account;

f) State v Kom (2018) N7362, Miviri AJ (as he then was). The prisoner was sentenced to 4 years upon pleading guilty to misappropriating K41,859. He was employed by ANZ Bank as a Small Medium Relation Officer and put a stop on the account of a deceased person. He instructed his colleagues to lift the stop and linked the deceased’s account with his own phone before applying the monies through the mobile banking system to his own use.

8. The sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Considerations on Sentence

9. Having regard to the principles outlined in Wellington Belawa, the following matters have been taken into account.

10. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. This case concerns a substantial amount of money in the sum of K60,550, and falls within the fourth category of Wellington Belawa.

11. The offence also involved a serious breach of trust by an employee who abused his position for personal gain. The offence was committed over a period of 6 months, and involved a number of transactions and deposits to a bogus account. It clearly involved planning and ongoing dishonesty. It is not in dispute that the offender applied the monies to his personal use. The victim has suffered the loss of a significant amount of money as a result of the offending. Other than the usual concerns about the prevalence of dishonesty offences, the offence had no particular impact on the public and public confidence in my view.

12. The offender himself is from Birip, Wabag in Enga Province and is 23 years old. He completed Grade 10 at Porgera High School. He then moved to Port Moresby in 2013 to work as the complainant’s caretaker and lived in one of the complainant’s properties until he was dismissed for reasons unrelated to this matter. He is single but provided some support to his elderly parents until he lost his job. He says that they have suffered and are on medication as a result of his imprisonment. That is, however, a regrettable consequence of the offender’s own behaviour.

13. In mitigation this is the offender’s first offence. Despite several attempts, Probation Services was unable to make contact with community leaders in the offender’s village but I accept that he is previously of good character. Mr Ipi gave evidence at trial that the offender was recommended to him from amongst his local church community by one of his relatives, and that the offender was a trusted employee for a number of years.

14. In addition, the offender expressed remorse on allocutus and in submissions, which I accept as genuine. He apologised to God, to the Court and to the State. He apologised to the complainant for the “stress and unnecessary...