The State v Moses Karnhick (2020) N8341

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 05 June 2020
• Court: National Court
• Citation: (2020) N8341
• Docket Number: CR (FC) No 197 of 2019
• Year: 2020
• Judgement Number: N8341

Full Title: CR (FC) No 197 of 2019; The State v Moses Karnhick (2020) N8341

National Court: Berrigan J

Judgment Delivered: 5 June 2020

N8341

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 197 of 2019

THE STATE

V

MOSES KARNHICK

Waigani: Berrigan J

2020: 5th February, 4th March & 5th June

CRIMINAL LAW–SENTENCE –S 383A(1)(a)(2)(d) of the Criminal Code – Guilty plea - Misappropriation of K300,000 by bank officer from land owners association – Sentence of 5 years of imprisonment.

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

Lawrence Simbe v The State [1994] PNGLR 38.

The State v Paroa Kaia (1995) N1401

The State v Tova (1997) N1522

The State v Imoi Maino (2004) N2773

The State v Alice Wilmot (2005) N2857

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

The State v Iori Veraga (2005) N2849

The State v Ludwina Tokiapron (2005), unreported

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

The State v Nancy Uviri (2008) N5468

The State v Emba (2011) N5012

The State v Etami (2012) N4769

The State v Mathew Kana,CR No 843 of 2012, 11 June 2014, unreported

The State v Tiensten (2014) N5563

The State v Isaiah Guda (2015) N5955

The State v Tanner & Anor (2014) N5808

The State v Guda (2015) N5955

The State v David Poholi (2016) N6214

The State v Pohien (2016) N6564

The State v Paul Guli & Ors (2017) N6866

The State v Sarry Moere, CR (FC) 153 of 2017, 6 November 2017, unreported

The State v Tracy Tiran (2018) N7375

The State v Solomon Junt Warur (2018) N7545

The State v Ruth Tomande (2019) N8153

Legislation and other materials cited:

Sections 19, 383A(1)(a)(2)(d) of the Criminal Code.

Counsel

Ms L. Jack, for the State

Mr E. Sasingian, for the Accused

DECISION ON SENTENCE

5th June, 2020

1. BERRIGAN J: The offender pleaded guilty to one count of misappropriating K300,000, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code, on the basis of the following agreed facts, which were confirmed by the depositions.

2. The offender was employed as a Mortgage Specialist Officer with Australia and New Zealand Bank Limited (ANZ) at the Harbour City Branch, Konedobu, National Capital District. He was also the owner and director of Jehay Limited, which operated an account at the same bank.

3. In 2015 the offender assisted the complainants, Ponson Rombo (Chairman), Nick Angue (Secretary) and Wanpis Lea (Treasurer), to open an account for the Kuabini Land Owners Association Incorporated, of whom they were the executive officers. The offender became a trusted contact for the complainants when conducting the Association’s banking.

4. On 26 January 2018 the offender assisted the complainants deposit K800,000 belonging to the Kuabini Landowners Association into the bank account of his company, Jehay Limited, for safe keeping for and on behalf of the Association. Between 6 February and 9 February 2018 the complainants asked the complainant for the Association’s monies. On 9 February the offender withdrew K500,000 cash from the Jehay Limited account and gave it to the complainants. On the same day the offender gave the complainants an undated cheque for K300,000.

5. The cheque was dishonoured upon presentation by the complainants to the bank towards the end of that same month. The bank statement for the Jehay Limited account showed that the offender had withdrawn the funds on a continuous basis from his company’s account following deposit until there were no monies left in the account.

Sentencing Principles and Comparative Cases

6. 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 of misappropriation, 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.

7. 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.

8. It is generally accepted that whilst the principles to be applied when determining sentence remain relevant and applicable, 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.

9. Defence counsel submitted that a sentence in the range of three to five years of imprisonment would be appropriate. The State submitted that a sentence in the range of five to ten years would be appropriate. I note here, however, that the State concedes the case does not fall within the worst category. The State relied on the following cases:

a) The State v Paroa Kaia (1995) N1401, Sawong J, in which the prisoner pleaded guilty to one count of misappropriating K94,478.31 belonging to ANZ Bank over a 2 month period. At the time he was an accounts supervisor with the bank. He was sentenced to 4 years’ imprisonment;

b) The State v Tova (1997) N1522, Batari AJ (as he then was), in which the prisoner pleaded guilty to misappropriating K22,100, the property of Allens Arthur Robinson Lawyers, his employer. He was sentenced to 3 years’, wholly suspended on condition of restitution;

c) The State v Imoi Maino (2004) N2773, David AJ (as he then was), in which the prisoner misappropriated K106,355.02 by drawing 16 cheques, 15 in favour of others, one in favour of himself, whilst a payroll clerk with the Department of Education. He was sentenced to 4 years’ imprisonment, of which 2 years was suspended on conditions;

d) The State v Alice Wilmot (2005) N2857, Sevua J, in which the prisoner pleaded guilty to one count of misappropriating K19,960 systematically over a period of 17 months whilst a bank teller from her employer, ANZ. The prisoner failed to express remorse and was sentenced to 3 years’ imprisonment, 18 months of which was suspended upon full restitution. A further 6 months’ was suspended upon entering into her own recognizance with the balance of 12 months’ to serve; and

e) The State v Nancy Uviri (2008) N5468, Cannings J. The offender 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.

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

a) 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 4 years of imprisonment, wholly suspended on conditions, including restitution;

b) The State v Niso (No 2) (2005) N2930, Gavara-Nanu J, in which the prisoner was found guilty following trial of conspiracy, fraudulently uttering a false document, and the misappropriation of K500,000.00 belonging to his employer, the Bank of Papua New Guinea. The offences took place over a period of about 3 weeks. At the time he was the Senior Clerk and Supervisor in the General Ledgers Section. The prisoner was sentenced to an effective term of 7 years, 6 months of imprisonment (from which 8 months spent in custody was deducted);

c) The State v Iori Veraga (2005) N2849, Sakora J, in which the prisoner was found guilty following trial of conspiracy to defraud and misappropriation of K144,955 from the National Provident Fund as a result of inflated land valuations. The prisoner was sentenced to 4 years on each conspiracy count to be served concurrently, and 2 years on each misappropriation count, to be served concurrently. The misappropriation sentences were made cumulative on the conspiracy sentences, with an effective sentence of 6 years of imprisonment;

d) The State v Ludwina Tokiapron (2005), Salika DCJ (as he then was), unreported, in which the prisoner was sentenced to 6 years’ imprisonment after pleading guilty to misappropriating K200,000.00. The monies were...