The State v Jonah Kandambao (2019) N8025

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 19 September 2019
• Court: National Court
• Citation: (2019) N8025
• Docket Number: CR (FC) 107of 2019
• Year: 2019
• Judgement Number: N8025

Full Title: CR (FC) 107of 2019; The State v Jonah Kandambao (2019) N8025

National Court: Berrigan J

Judgment Delivered: 19 September 2019

N8025

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 107of 2019

THE STATE

V

JONAH KANDAMBAO

Waigani: Berrigan J

2019: 7, 23August and 19September

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

Cases Cited:

Goli Golu v The State [1979] PNGLR 653

Lawrence Simbe v The State [1994] PNGLR 38

State v Frank Kagai [1987] PNGLR 320

The State v Tardrew[1986] PNGLR 91

The State v Lukeson Olewale (2004) N2758

The State v Benson Likius (2004) N2518

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

The State v Christian Korei (2005) N2946

The State v Philip Wiamai (2007) N5492

The State v Teka (2008) N3509

The State v Tiensten (2014)

The State v Gibing Yawing (2017) N6836

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

The State v Felix Kautete (2018) N7544

The State v Chapau & Anor (2019) N7783

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

References cited

Section 383A (1) (a) (2) (d) of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms. L. Jack, for the State

Mr. G. Pumuye, for Offender

DECISION ON SENTENCE

19 September, 2019

1. BERRIGAN J: The offender pleaded guilty to one count of dishonestly applying to his own use and the use of others monies in the sum of K12,955, the property of Helai Willie, contrary to section 383A (1)(a)(2)(d)of the Criminal Code (Ch. 262) (the Criminal Code), also known as misappropriation.

Facts

2. The offender owns and operates Sauoxtron Education Consultancy PNG, a business which makes arrangements for students from Papua New Guinea to study at universities in China under scholarship.

3. In early 2018 the offender told the complainant, a Grade 12 student at Kila Kila Secondary School that he had been selected to undertake studies in China. The offender met with the complainant and his parents in February 2018 where he informed them of the fee and other requirements, including the deadline for applications. The offender met with the complainant and his parents again in March 2018 where they gave him the completed application form together with supporting documentation. With assistance from his parents, the complainant paid a total of K12,955 into the bank account held with Bank South Pacific (BSP) in the name of Sauoxtron Education Consultancy PNG for fees, airfares and on the basis that the offender would make the necessary arrangements, including obtaining travel documentation. The offender cut communication with the complainant following the final payment. He was subsequently apprehended by police on 29 November 2018 and admitted that he had failed to deliver the services promised and had instead used the monies for his own use.

4. The issue to be determined today is an appropriate sentence.

Sentencing Considerations and Comparative Cases

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.

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. This case falls within the third category of Wellington Belawa. 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; and The State v Tiensten(2014) N5563.

8. Defence counsel submitted that a sentence in the range of two to three years would be appropriate, wholly suspended on conditions. In support of his submissions he referred to the following cases:

(a) 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;

(b) The State v Benson Likius (2004) N2518, Lenalia J, in which the prisoner was sentenced to 5 years’ imprisonment 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; and

(c) The State v Christian Korei (2005) N2946, Lay J, in which the prisoner pleaded guilty to misappropriating K82,202.73 donated for the purposes of building a classroom for his community. After receipt of the money, the offender withdrew the money and applied the money to his own use. Upon discovery of the misappropriation the offenders account was frozen by the bank. At the time of freezing his account, there was a balance of K51,493.46 remaining. The money was later transferred to the community school’s account. He was sentenced to 4 years’ imprisonment, wholly suspended on conditions including full restitution.

9. The State also submitted that a sentence in the range of two to three years of imprisonment would be appropriate. In support of its submissions it referred to the following cases:

(a) 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;

(b) The State v Teka (2008) N3509, Makail AJ (as he then was), the prisoner pleaded guilty to misappropriating K37,000 provided to her for the purchase of a vehicle once one was in stock. The prisoner deposited the monies to her account and withdrew them over time until her account was depleted. The prisoner was sentenced to 5 years’ imprisonment, wholly suspended on conditions, including restitution; and

(c) The State v Felix Kautete (2018) N7544,in which the prisoner pleaded guilty before me to one count of misappropriation. The prisoner received K24,000 on the basis that he would purchase a vehicle on behalf of the complainants but instead applied the monies to his own use. He repaid K9,000 prior to sentence. He was sentenced to 3 years’ imprisonment wholly suspended on conditions, including restitution.

10. I also have regard to the following cases:

a. 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;

b. The State v Gibing Yawing (2017) N6836, Salika DCJ (as he then was), where 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; and

c. The State v Chapau & Anor (2019) N7783, in which both offenders pleaded guilty before me to one count of misappropriating K22,252.55, belonging to the Independent State of Papua New Guinea. Both offenders were sentenced to 3 years’ imprisonment IHL, wholly suspended on conditions including restitution.

11. The sentence in this matter will 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

12. Applying the considerations set out in Wellington Belawa, the following matters have been taken into account.

13. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved...