The State v Leamega Noka (2019) N7849

• Jurisdiction: Papua New Guinea
• Judge: Toliken, J
• Judgment Date: 10 May 2019
• Citation: (2019) N7849
• Docket Number: CR (FC) NO. 1102 OF 2018
• Court: National Court
• Year: 2019
• Judgement Number: N7849

Full Title: CR (FC) NO. 1102 OF 2018; The State v Leamega Noka (2019) N7849

National Court: Toliken, J

Judgment Delivered: 10 May 2019

N7849

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 1102 OF 2018

THE STATE

V

LEAMEGA NOKA

Alotau: Toliken, J.

2019: 18th February, 07th, 10th May

CRIMINAL LAW – Sentence – Misappropriation – Plea of guilty – First time offender – Breach of trust – Prevalent offence – 3 years imprisonment – Suspension – Probation – Full restitution – Criminal Code Ch. 262, s 383A (1).

Cases Cited

Avia Aihi v The State (No. 3) [1982] PNGLR 92

Belawa v The State [1988 – 89] PNGLR 496

Goli Golu v The State [1979] PNGLR 653

Public Prosecutor v Don Hale (1998) SC 564)

Public Prosecutor v Tardrew [1988 -89] PNGLR 91

The State v John Watangia (2018) N7175

The State v Kautete (2008) N7544

Thress Kumbamong v The State (2008) SC 1017

The State v Marita Rama Miria; CR 1275 of 2010 (Unnumbered and unreported judgment dated 25 July 2014)

The State v Mercy Lohia (2018) N7614

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

The State v Tiensten (2014) N5563

The State v Warai Kisua (2018) N7513

Counsel

L Rangan and A Kupmain, for the State

N Wallis, for the Prisoner

JUDGMENT ON SENTENCE

23rd April, 2019

1. TOLIKEN, J: On 18th February 2019, the prisoner Leamega Noka pleaded guilty to an indictment charging that between 28th of October 2016 and 22nd November 2016, at Alotau Town, Milne Bay Province, she dishonestly applied to her own use the sum of K9555.50 in cash, belonging to the Parents & Citizens (P&C) of Koyabule Primary School thereby contravening Section 383A (1) of the Criminal Code Ch. 262. (the Code)

2. I entered a provisional guilty plea which I confirmed after perusing the committal court depositions. The defence requested for a Pre-Sentence Report (PSR) which has now been duly filed. I administered the allocutus and heard submissions on 07th May 2019. This is my judgment on sentence.

FACTS

3. The brief supporting facts are that between 28th October 2016 and 22nd November 2016, parents and citizens of Koyabule Primary School resolved to raise funds to buy school uniforms from Alotau Enterprises. They also resolved that all funds raised will be given to the School Bursar to deposit into the School’s account with BSP Alotau.

4. The prisoner was appointed to co-ordinate the fund-raising activies. A total of K9555.50 was subsequently raised. The prisoner received the funds which were supposed to be handed over to the bursar and dishonestly applied the monies to her own use.

THE OFFENCE

5. The offence of misappropriation carries a maximum penalty of 5 years imprisonment unless the offender is a director of a company and misapplied company property, the property dishonestly applied belongs to the offenders employer, the property is subject to a trust, direction or condition or the value of the property is K2000 or upwards, in which case, the offender is liable to be imprisoned for a period not exceeding 10 years. Section 383A of the Code relevantly provides:

383A. MISAPPROPRIATION OF PROPERTY.

(1) A person who dishonestly applies to his own use or to the use of another person–

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:–

(a) where the offender is a director of a company and the property dishonestly applied is company property;

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

(c) where the property dishonestly applied was subject to a trust, direction or condition;

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

(3) …

6. The amount misapplied by the prisoner here exceeds K2000 and she is therefore liable to be imprisoned for a term not exceeding 10 years. This is one of the statutory circumstances of aggravation under subsection (2) of s 383A which call for the higher sentence of 10 years. Circumstances of aggravation are defined by Section of the Code to include “…any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance.”

7. Where a circumstance of aggravation is intended to be relied on Section 528 (2) of the Code provides in very clear terms that such circumstance of aggravation must be charged in the indictment subject only to subsections (3) and (4) which deal with prior convictions. The purpose of pleading a circumstance of aggravation as evident from the definition of the term in Section 1 of the Code is to subject the offender to a higher punishment than that which he might get if the offence was committed without the existence of that circumstance. (See Palma v The State (2008) SC 1214; State v Thomas Binga (2005) N2828, The State v James Yali (2005) N2989, and The State v Lucas Benjamin Urareo (No. 1) (2005) N3086)

8. In this case the circumstance of aggravation under Subsection (2)(d) of the Code was not pleaded in the indictment hence the prisoner is liable only to term of imprisonment not exceeding 5 years.

ISSUE

9. The issue for me then is; what should be an appropriate sentence for the prisoner?

SENTENCING PRINCIPLES

10. While the maximum penalty is 5 years imprisonment this does not necessarily mean that the accused will receive the maximum penalty. This is because the maximum, as is trite, is usually reserved for the worst instances of offending. Furthermore each case must be treated according to its own circumstances so that punishment fits the crimes. (Goli Goli v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92).

11. The sentencing principles this offence are well settled since the seminal case of Belawa v The State [1988 – 89] PNGLR 496. The Supreme Court in Belawa held there that the following factors ought to be taken into account when sentencing offenders:

· the amount taken

· the quality and degree of trust reposed in the offender

· the period over which the theft or fraud was perpetrated

· the use to which the money or property dishonestly taken was put

· the effect upon the victim

· the effect of the offence upon the public and public confidence

· the effect on fellow employees or partners

· the effect on the offender himself

· the offender's own history

· whether restitution has been made

· the matters of mitigation special to the offender such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; any help given by him to the police by him to the police.

12. The court also suggested the following sentencing scale as shown below:

Amount obtained or misappropriated	Appropriate term of imprisonment
K1.00 - K1000.00	Imprisonment should rarely be imposed
K1000 - K10,000		Up to 2 years
K10000 – K40000		2 – 3 years
K40000 – K150000		3 – 5 years

13. It has been suggested quite consistently now by judges of the Court that these tariffs are now out-dated and I do agree that they are. (The State v Niso (No 2) (2005) N2930; The State v Tiensten (2014) N5563).

SENTENCING TREND

14. The offence of misappropriation is very prevalent. Defence counsel Mr. Wallis cited several recent cases to me, not only to assist me in fixing an appropriate sentence for the prisoner, but also to show what the sentencing trend for this offence has been.

15. In The State v Warai Kisua (2018) N7513 per Koeget, J.: The offender there was the Branch Manager of PNG Microfinance Ltd in Daru. Over a period of time he directed two tellers to advance him varying amounts of monies totalling K30,000. An audit by the company showed that he only reimbursed K25,000 while the balance remained unpaid. He pleaded guilty to one count of misappropriation and was sentenced to 18 months which was wholly suspended with condition that he makes full restitution with 18 months.

16. In The State v Mercy Lohia (2018) N7614 per Berrigan, J.: The prisoner was an accounts officer with the Papua New Guinea Red Cross Society. On various occasions between 1 December 2017 and 31 March 2018 the prisoner forged the signature of the Society’s authorised signatories on 25 Bank of South Pacific (BSP) cheques belonging to the Red Cross Society and uttered those cheques at BSP to obtain K19,151.75 from its account which she dishonestly applied to her own use and the use of others. She pleaded...