The State v Moko Essi Kom

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 02 December 2009
• Citation: (2009) N6199
• Court: National Court
• Year: 2009
• Judgement Number: N6199

Full : CR. No 114 of 2008; The State v Moko Essi Kom (2009) N6199

National Court: David, J

Judgment Delivered: 2 December 2009

N6199

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 114 OF 2008

THE STATE

-v-

MOKO ESSI KOM

Prisoner

Waigani: David, J

2009: 29 & 30 September & 2 December

CRIMINAL LAW – sentence – misappropriation – monies belonging to the State – substantial amount taken – money used by prisoner and accomplices – no restitution - well-planned premeditated and sophisticated scam - offence committed over a period of 14 months – prisoner played a significant role - crime committed in concert with others who were public officials and a banker – State suffered greatly from substantial loss of money - delivery of goods and services to people of Papua New Guinea by public servants affected – people of Papua New Guinea missed out on goods and services – prisoner’s conduct had some impact on banking system as an accomplice was a banker – systems and processes in Department of Finance & Treasury manipulated by accomplices who were public officials working there to commit crime – adult offender, should know better - prevalence of offence – plea of guilty – first time offender – co-operation with police – long delay in bringing prisoner to his trial - genuine remorse or contrition expressed or demonstrated – prior good character – welfare of family treated with caution – custodial sentence of 8 years imposed Criminal Code, Sections 19 & 383A (1)(a)(2)(d).

Cases cited:

Public Prosecutor v Tom Ake [1978] PNGLR 469

Goli Golu v The State [1979] PNGLR 653

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

The Public Prosecutor v Vangu’u Ame (1983) PNGLR 424

Ure Hane v The State [1984] PNGLR 105

Kalabus v The State [1988] PNGLR 193

Wellington Belawa v The State (1988-89) PNGLR 496

Lawrence Simbe v The State [1994] PNGLR 38

The State v Yaip Joshua Avini & Plaridel Nony Acosta, Unreported & Unnumbered Judgment dated 14 November 1996

Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997

Yaip Joshua Avini & Plaridel Nony Acosta v The State [1997] PNGLR 212

Public Prosecutor v Don Hale (1998) SC564

The State v Sylvanus Siembo & 2 Ors, CR 97/1999, CR 722/1999 & CR 1220/2000, Unreported & Unnumbered Judgment dated 30 May 2002

Edmund Gima and Siune Arnold v The State (2003) SC730

The State v Daniel Mapiria (2004) CR 1118 of 2000, Unreported & Unnumbered Judgment of Mogish, J delivered on 1 October 2004

The State v Iori Veraga [2005] N2921

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

The State v Ludwina Tokiopron (2005)

Richard Liri v The State (2007) SC883

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

Counsel:

Ravunama Auka, for the State

John Mesa, for the Prisoner

SENTENCE

2nd December, 2009

1. DAVID, J: INTRODUCTION: The prisoner, Moko Essi Kom was charged upon an indictment that between the months of October 2004 and December 2005 at Port Moresby in Papua New Guinea, he dishonestly applied to his own use and to the use of others the sum of K3,780,000.00, the property of the Independent State of Papua New Guinea which contravened Section 383A (1)(a) of the Criminal Code. The State also alleged that the prisoner was deemed a principal offender by operation of Section 7 of the Code. The prisoner pleaded guilty to the charge. I was satisfied that the evidence contained in the committal depositions supported the charge and therefore accepted the prisoner’s guilty plea and convicted him as charged.

BRIEF FACTS

2. The prisoner pleaded guilty to the following short facts which were put to him when arraigned.

3. Between the months of October 2004 and December 2005 in Port Moresby, Papua New Guinea, the prisoner was approached by others to use the name or pseudonym, Simon Wapo so that by using that name he and others would embezzle funds from the Department of Finance and Treasury. The prisoner willingly agreed to use that name to claim from the Department of Finance and Treasury. As a result of the agreement, it enabled the others to make up certain documents under the name of Simon Wapo which were then submitted to the Department of Finance and Treasury requesting payments to be made based on them. As a result of the use of the documents made under that name, certain payments totalling K3,780,000.00 were made by cheques payable to the prisoner under the pseudonym Simon Wapo.

4. A new current account number 1001013152 was opened at the Bank of South Pacific, Waigani Branch where various cheques collected by the prisoner from the Department of Finance and Treasury were deposited. The prisoner then made arrangements with a bank officer working at the bank called John Vailala who made the cheque clearances which then led to cash payments being made to the prisoner totalling K3,780,000.00. The prisoner and others took the money and used it.

5. The Prisoner by agreeing to use the name Simon Wapo as his name, he had assisted others to receive payments from the Department of Finance and Treasury which he and others benefitted from. The Prisoner therefore dishonestly applied to his own use the sum of K3,780,000.00, the property of the Independent State of Papua New Guinea.

ANTECEDENTS

6. The prisoner has no prior convictions.

7. The prisoner is aged about 38 years now and is originally from Mata village, Kamtai in the Simbu Province. He is married and has four children. He is unemployed. He was residing at Hohola No.1, Port Moresby in the National Capital District when he committed the offence. The prisoner was arrested on or about 8 August 2006. He has been in custody ever since and that works out to be about 3 years and 4 months. He was committed to stand trial in the National Court on 1 February 2008.

ALLOCUTUS

8. When I administered the allocutus, the prisoner said that; he was used by others to commit the crime; he was sorry for the trouble he had caused; and he was married and had a family. He then asked the Court to have mercy on him.

SUBMISSIONS FOR THE PRISONER

9. Mr. Mesa of counsel for the prisoner submitted that the aggravating factors going against his client were; first, a substantial amount of money had been misappropriated perhaps the second largest known in our jurisdiction so far; second, it was a well planned scam that the prisoner acting in concert with others had executed over a period of about 2 years; and third, the State has suffered greatly from such a substantial loss of money.

10. Counsel submitted that the mitigating factors that should be applied in favour of the prisoner were; first, his guilty plea; second, he has co-operated with the police investigations as is shown by the Record of Interview and has furnished information that has led to the arrest of the others involved in the crime; third, he was unemployed, semi-literate with no form of formal education; and fourth, he was married with 4 children living with relatives at Hohola in the National Capital District.

11. As to penalty, counsel submitted that this case should be considered and decided on its own merits. In this case, the prisoner was a “carrier mule” involved in a sophisticated scheme hatched by other persons using him under a pseudonym he said. The prisoner could not have planned the sophisticated scheme given his lack of sophistication inferred from his level of education he said. Counsel conceded that the prisoner did play a role in the crime, but it was minor notwithstanding that he was a principal offender within the meaning of Section 7 of the Code. Counsel submitted that the prisoner was unemployed and had a family to look after at the relevant time and therefore when money was offered he was lured into accepting what was proposed by the others.

12. Counsel brought to the Court’s attention the case of The State v Jimmy Kendi (No 2) (2007) N3131 where the court determined the sentence of the prisoner who was found guilty and convicted on two counts after a trial, one for obtaining monies by false pretence and the other for misappropriation contrary to Sections 404 and 383A (1)(a) of the Code respectively. The total amount involved in the two counts was K4,298,037.33, the property of the State.

13. In that case, the prisoner operated an earthmoving company called Jimendi Enterprises Limited in Arawa on what used to be known as the North Solomons Province, but now called the Autonomous Region of Bougainville. Apart from the machinery the company had, it leased a number of other machinery and equipment from Credit Corporation (PNG) Limited for purposes of road construction and maintenance. In 1987, the prisoner’s company ran into financial difficulties and was unable to meet its financial obligations under the lease arrangement with Credit Corporation (PNG) Limited. That resulted in Credit Corporation (PNG) Limited repossessing its machinery and left them on site. In order to complete the road project, the North Solomons Provincial Government as it was then known entered into an agreement with Credit Corporation (PNG) Limited to complete the uncompleted work left by the prisoner’s company. After the work was completed, Credit Corporation appointed a Receiver...