The State v Peman Etami (2012) N4769

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 07 August 2012
• Citation: (2012) N4769
• Docket Number: CR. No.346 of 2009
• Court: National Court
• Year: 2012
• Judgement Number: N4769

Full Title: CR. No.346 of 2009; The State v Peman Etami (2012) N4769

National Court: David, J

Judgment Delivered: 7 August 2012

N4769

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. No.346 OF 2009

BETWEEN:

THE STATE

AND:

PEMAN ETAMI

Prisoner

Mt. Hagen & Minj: David, J

2012: 10 & 26 July & 7 August

CRIMINAL LAW - sentence – misappropriation - monies belonging to employer – amount taken substantial - degree of trust reposed in prisoner by employer high - offence committed over a period of about three months – sophistication of fraudulent scheme - prisoner used monies - victim company deprived of use of monies misappropriated and balance held by bank to support its operations - prisoner a sophisticated well educated professional accountant – prevalence of offence – plea of guilty - first offender - genuine remorse and contrition expressed or demonstrated – prior good character – welfare of family treated with caution - Criminal Code, Sections 19 & 383A (1)(a)(2)(b)(d).

Cases cited:

The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

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

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

Doreen Liprin v The State (2001) SC673

The State v Dobi Ao No.2 (2002) N2247

The State v Lukeson Olewale (2004) N2758

The State v Imoi Maino (2004) N2773

The State v Daniel Mapiria, CR 1118 of 2000, Unreported & Unnumbered Judgment of Mogish, J delivered at Waigani on 7 September 2004

The State v Ruth Mamando (2008) N3709

Counsel:

Joe Kesan, for the State

Felix Kua & Charles Kos, for the Prisoner

SENTENCE

7 August, 2012

1. DAVID, J: I convicted the prisoner, Peman Etami on Tuesday, 10 July 2012, on a plea of guilty to an indictment that between 1 June 2008 and 31 August 2008 at Mt. Hagen in Papua New Guinea, he dishonestly applied to his own use and to the use of others, the sum of K42,000.00, the property of Oilmin Field Services Limited (the victim company) contrary to Section 383A (1)(a) of the Criminal Code. The prisoner appears before me for sentence from bail.

2. After administering the allocutus, Mr. Kua for the prisoner requested for a pre-sentence report and means assessment report from the Probation Service, Mt. Hagen before submissions on sentence were made. I granted the request and directed the Probation Service to compile and file the reports by 09:30 am on Tuesday, 24 July 2012 and also have copies of the reports served on all parties within that time. Ms. Lilly Songoa, Probation Officer of the Probation Service compiled the reports and had them filed in Court within the time I had given for which I am grateful.

3. I did not hear submissions on sentence as scheduled for one reason or another, but eventually did on Thursday, 26 July 2012 and reserved to deliver sentence here. This is the sentence of the Court.

4. The short facts put to the Court for purposes of arraigning the prisoner were these. In 2008, the prisoner was employed by the victim company as Taxation Officer and Accounts Payable Assistant. Whilst in its employ, he was responsible for raising requisitions for cheques to be raised to pay creditors.

5. The company had three main creditors namely, BOC Limited, ESCO Limited and ISAS Limited at the time. The prisoner formed an intention to misappropriate funds from his employer and therefore proceeded to incorporate three bogus companies using the pseudonym Ipkesh Yangipesh. These companies were ZIBOCK Limited, LESCOPS Limited and LISASI Limited. Ipkesh Yangipesh was the sole shareholder and director of all three companies.

6. The prisoner opened three bank accounts with Westpac Bank -PNG- Limited at the Mt. Hagen Branch in the name of the three companies thereafter.

7. The prisoner then proceeded to raise two requisitions to pay ESCO Limited, one for K35,317.63 and the other for K35,317.62. Two cheques in the amounts requested and totalling K70,635.25 were raised in favour of ESCO Limited. After the cheques were signed by the authorized signatories, the prisoner altered the name of the payee appearing on the cheque by adding the letter “L” in front of the name “ESCO” and the letters “PS” at the back of the name which then read as “LESCOPS”. These cheques were then deposited into the account of LESCOPS Limited opened at Westpac Bank –PNG- Limited at its Mt. Hagen Branch. After the cheques were cleared, the prisoner withdrew monies from the account and applied them to his own use.

8. He adopted the same scheme in respect of BOC Limited. The prisoner raised a requisition for K80,849.98 to pay BOC Limited and a cheque for that amount payable to BOC Limited was raised. After the cheque was signed by the authorized signatories, the prisoner altered the name of the payee appearing on the cheque by adding the letters “ZI” in front of the name “BOC” and the letter “K” at the back of the name which then read as “ZIBOCK”. The cheque was then deposited into the account of ZIBOCK Limited opened at Westpac Bank –PNG- Limited at its Mt. Hagen Branch. After the cheque was cleared, the prisoner withdrew monies from the account and applied them to his own use.

9. He also adopted the same scheme in respect of ISAS Limited. The prisoner raised a requisition for K13,600.95 to pay ISAS Limited and a cheque for that amount payable to ISAS Limited was raised. After the cheque was signed by the authorized signatories, the prisoner altered the name of the payee appearing on the cheque by adding the letter “L” in front of the name “ISAS” and the letter “I” at the back of the name which then read as “LISASI”. The cheque was then deposited into the account of LISASI Limited opened at Westpac Bank –PNG- Limited at its Mt. Hagen Branch. After the cheque was cleared, the prisoner withdrew monies from the account and applied them to his own use.

10. The prisoner ended up with monies totalling K165,086.18, the property of the victim company. From these monies, the prisoner used K42,000.00 for his own use. About K30,000.00 was given to his accomplice which is now the subject of another case before the National Court.

11. As at 31 August 2008, after the fraudulent scheme was discovered, a total of K88,735.28 was held at Westpac Bank –PNG- Limited, Mt. Hagen Branch: see relevant statements at pages 37-39 (LESCOPS Limited), page 85 (LISASI Limited), and page 96 (ZIBOCK Limited) of the depositions. The brief details are as follows:

(a) LESCOPS Limited Account No.6001431482 - K221.10

(b) LISASI Limited Account No.6001447598 - K9,382.75

(c) ZIBOCK Limited Account No.6001431482 - K79,131.43

The funds held by the bank might be less than K88,735.28 now allowing for bank fees charged over the years. No fresh bank statements were produced to ascertain the exact amount now held by the bank.

12. On his allocutus, the prisoner in a lengthy address told the Court about the circumstances leading up to the commission of the offence. He first got involved with the victim company in 2002 at its request in his capacity as a tax accountant to have the company’s tax liability which was assessed at about K7.8 million at the time reviewed by the Internal Revenue Commission. This had come about after the then Papua New Guinea Banking Corporation had rejected the victim company’s application for a loan of K5 million due mainly to the massive tax liability. His submission for review to the Internal Revenue Commission was successful when the tax liability was substantially reduced to K70,000.00. A further application for a loan was again lodged with Papua New Guinea Banking Corporation thereafter and was successful. He also conducted an investigation into the operations of the victim company’s major competitor and that resulted in the discovery of serious irregularities in that company’s operations which led to its demise and leaving the country subsequently.

13. The victim company through its then General Manager, one Raymond Appa promised that the company would buy him a house in Port Moresby and reward him monetarily in return for his services towards the establishment and growth of the company, but these promises were not fulfilled despite many written reminders. After getting employed by the victim company in 2007, he continued to pursue the issue with the company’s management, but got nowhere. At one stage in the brief history of his employment with the company, he was terminated for being absent from work during the ethnic clash in Mt. Hagen between Western Highlanders and Engans, but was invited back later. His frustrations and discontentment at work led to the commission of this offence and termination from employment. He has written to the victim company on two occasions after his termination, one in August 2008 and the other on 16 February 2009, apologizing for his conduct and requesting to be forgiven and for leniency and stating his reasons for committing the offence accompanied by proposals to repay the monies he had misappropriated. No response was received to these letters.

14. He said sorry to the Court and the victim company for committing the offence which was the result of an overreaction...