The State v Koani Lohia (2019) N8042

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 08 October 2019
• Citation: (2019) N8042
• Docket Number: CR (FC) 103 of 2019
• Court: National Court
• Year: 2019
• Judgement Number: N8042

Full Title: CR (FC) 103 of 2019; The State v Koani Lohia (2019) N8042

National Court: Berrigan J

Judgment Delivered: 8 October 2019

N8042

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 103 of 2019

THE STATE

V

KOANI LOHIA

Waigani: Berrigan J

2019: 12, 13 August and 17 September and 8 October

CRIMINAL LAW – Sentence – S. 383A(1)(a)(2)(d) of the Criminal Code – Misappropriation - K1,008,314.07 – Sentence of 8 years of imprisonment imposed.

Cases Cited:

Papua New Guinea Cases

Goli Golu v The State [1979] PNGLR 653

Lawrence Simbe v The State [1994] PNGLR 38

The State v Daniel Mapiria, unreported, CR1118/2000

The State v David Poholi (2016) N6214

The State v Janet Oba (2016), unreported,

The State v Jimmy Kendi (No. 2)(2007) N3131

The State v Moko Essi Kom (2009) N6199

The State v Nancy Uviri (2008) N6039

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

The State v Peter Tokunai (2015) N6039

The State v Solomon Junt Warur (2018) N7545

The State v Stanley Haru (2014) N5660

The State v Tardrew [1986] PNGLR 91

The State v Tiensten (2014) N5563

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

References cited

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

Counsel

Ms. L. Jack, for the State

Mr. B. Koke, for Offender

DECISION ON SENTENCE

8 October, 2019

1. BERRIGAN J: The offender pleaded guilty to one count of misappropriation such that he dishonestly applied to his own use and the use of others monies in the sum of K1,008,314.07, the property of Australia and New Zealand Banking Group (PNG) Limited (ANZ), contrary to section 383A (1)(a)(2)(d) of the Criminal Code (Ch. 262) (the Criminal Code).

Facts

2. The offender was employed by ANZ in Port Moresby as an Asset Finance Officer.

3. Over a period of 22 months between 27 May 2013 and 30 March 2015 the offender used his unique bank teller identification number on 194 occasions to falsely credit amounts to the bank’s system, recording them either as refunds, reimbursements or lease payments in its “DFR Account – Asset Finance”, or as “unposted items in suspense”. On a few occasions the credits were posted to customer accounts held with the bank. The offender then transferred equivalent amounts to his own personal bank account or that of his associates, namely Sarah T Kaleh, Sarah T Kaleh and Louis Oa (a joint account), or Seri M Baru, from which he accessed the monies, either directly, together with his associates, or via his associates’ bank cards. In total the offender misappropriated K1,008,314.07.

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

Sentencing Principles and Comparative Cases

5. The offender has been convicted of misappropriation contrary to s.383A(1)(a)(2)(d) of the Criminal Code, for which the maximum penalty is 10 years’ imprisonment. In 2013 the Criminal Code was amended by the Criminal Code (Amendment Act), 2013, to include s. 383A(1A)(a) which provides that “Notwithstanding subsection (2), an offender guilty of the crime of misappropriation shall be sentenced to imprisonment for a term of 50 years without remission and without parole if the property misappropriated is of a value of K1 million or upwards, but does not exceed K10 million”.

6. In this case nine (9) of the transactions conducted by the offender occurred prior to the certification of the above amendment on 18 September 2013. When these transactions, totalling K70,589.57, are deducted from the total amount misappropriated, the amount misappropriated by the offender following the amendment to s. 383A of the Criminal Code is K948,879.40. In the circumstances the maximum penalty applicable in this case is 10 years of imprisonment, notwithstanding the total amount involved.

7. 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.

8. 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.

9. Given the amount involved, this case falls outside the categories contained in Wellington Belawa. 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.

10. Both parties referred me to cases in support of their respective submissions.

11. Defence counsel submitted that a sentence in the “range” of three years would be appropriate, wholly suspended on conditions, including restitution. In support of his submission he referred to the following cases:

(a) The State v Daniel Mapiria, unreported, CR1118/2000, Mogish J, in which the offender was found guilty following trial of misappropriating K3.188m from the State, whilst Chairman of the National Gaming and Control Board, by countersigning 41 cheques drawn payable to cash over 10 months, and applying them to the benefit of another, namely the Registrar of the Board, rather than for the purposes of health, welfare and community as directed by the National Executive Council. He was sentenced to 9 years’ imprisonment wholly suspended having regard, in particular, to the fact that the offender’s medical condition would have caused him an excessive degree of suffering in prison;

(b) The State v Jimmy Kendi (No. 2) (2007) N3131, Lenalia J, in which the prisoner was found guilty following trial of one count of obtaining by false pretence, and one of misappropriating, K4,298,037.33 from the State, with the assistance of corrupt officers from the Department of Finance & Treasury and the Department of Defence. At the time the offender was the owner of an earth moving company in Bougainville, and the monies were obtained in payment of a false claim that the Defence Force had unlawfully confiscated the machinery and equipment belonging to his company during the crisis between 1993 and 1997. He was sentenced to imprisonment of 4 and 9 years’ on the false pretence and misappropriation counts, respectively, to be served consecutively, i.e. a total sentence of 13 years of imprisonment;

(c) The State v Stanley Haru (2014) N5660, Salika DCJ (as he then was) in which the prisoner was found guilty following trial of one count of obtaining by false pretence, and one of misappropriating K2,628,825.18 the property of the Kone Tigers Rugby Football League Club, which he sold without authority and in breach of trust. He was sentenced to 4 years and 8 years, respectively on each of the counts, to be served concurrently. The sentence was wholly suspended on condition of restitution; and

(d) The State v Paul Tiensten (2014) N5563, Salika DCJ (as he then was) in which the prisoner was convicted following trial of misappropriating K10m as the Minister for National Planning and Monitoring, by dishonestly approving payment to an airline company. He was sentenced to 8 years’ imprisonment of which 4 years was suspended on condition of full restitution.

12. The State submitted that a sentence in the range of seven (7) to nine (9) years of imprisonment would be appropriate. In support of its submissions it also referred to Tiensten (supra) and Haru (supra), together with the following:

(a) The State v Peter Tokunai (2015) N6039, Salika DCJ (as he then was) in which the prisoner was convicted following trial of one count of misappropriating K1.5 million from the State, over a period of 6 months, received for the purpose of rebuilding the Malaguna Catholic Church. The prisoner was sentenced to 7 years’ imprisonment; and

(b) The State v Nancy Uviri (2008) N5468 in which the prisoner was sentenced to 7 years of imprisonment for misappropriating K300,000 from her employer over an 18 month period through a scheme of bogus invoices. She pleaded guilty.

13. I also have...