The State v Rodney Togumagoma

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 17 February 2023
• Neutral Citation: N10129
• Citation: N10129, 2023-02-17
• Counsel: Ms J. Siminji, for the State,Mr J. Kolowe, for the Offender
• Hearing Date: 17 February 2023
• Docket Number: CR (FC) No. 69 OF 2022
• Court: National Court

N10129

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 69 OF 2022

The State

v.

Rodney Togumagoma

Waigani: Berrigan J

2023: 17^th February

CRIMINAL LAW — SENTENCE — GUILTY PLEA — S 383A(1)(a)(2)(d) of the Criminal Code — Guilty plea — Misappropriation of K68,400 — Monies paid in three tranches from old school friend for the purpose of purchasing gold — Some monies applied for daughter's urgent medical expenses — Sentence of 3 years' imprisonment imposed, suspended on conditions including restitution.

Cases Cited:

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

David Kaya and Philip Kaman v The State (2020) SC2026

The State v Felix Kautete (2018) N7544

The State v Joseph Ande (2018) N7536

Doreen Liprin v The State (2001) SC673

The State v Chillen (2008) N3549

The State v Felix Kautete (2018) N7544

State v Gani (2008) N4177

The State v Wiama (2007) N5492

The State v Kandambao (2019) N8025

The State v Simon Paul Vurmete (2000) N2008

The State v Benson Likius (2004) N2518

The State v Paroa Kaia (1995) N1401

The State v Dumo (2018) N7574

Lawrence Simbe v The State [1994] PNGLR 38

Goli Golu v The State [1979] PNGLR 653

The State v Tardrew [1986] PNGLR 91

Legislation and other materials cited:

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

Counsel

Ms J. Siminji, for the State

Mr J. Kolowe, for the Offender

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Offender

DECISION ON SENTENCE

17^th February, 2023

1. Berrigan J: The offender, Rodney Togumagoma, was convicted after pleading guilty to one count of misappropriating K68,400 belonging to Tony Christie Waisi, contrary to Section 383A(1)(a)(2)(d) of the Criminal Code, for which the maximum penalty is 10 years of imprisonment.

2. In July 2020 the complainant, Mr Tony Waisi, contacted the offender after hearing from a mutual friend, Mr Diweni, that the offender was operating a gold-buying business. Discussions followed and the offender convinced the complainant to join the business.

3. On 22 July 2020 the complainant made an initial deposit of K2000 to an account nominated by the offender for the purposes of buying gold. On 24 July 2020 the complainant made a second deposit of K22,400 to the same nominated account. After the second deposit the complainant bought airline tickets for the offender to travel with some gold to Port Moresby. The offender gave excuses and did not board the flight. On 4 August 2020 the offender informed the complainant that his daughter was going into surgery at Pacific International Hospital. The complainant transferred K1000 to the offender. On 12 August 2020 the complainant made a third deposit of K44,000 to the same nominated account to buy more gold. In total K68,400 was deposited by the complainant into the nominated account for the purpose of buying gold.

4. On 9 September 2020 the offender informed the complainant that he had sold 600 gm of gold for K94,600 cash and that he would deliver the amount to the complainant when he arrived in Port Moresby. The offender arrived two days later but avoided the complainant until about 3pm when the complainant confronted him. The offender told him that he must have left the money in a bag at the backseat of a taxi when he got on to travel to Gurney Airport, Alotau. The complainant was not convinced by the offender's explanation and had him arrested. Not long afterwards the offender sent a message to the complainant and Mr Diweni admitting that he used up the money without buying any gold.

Allocutus

5. On allocutus the offender apologised to the Court, the State and the complainant. He was pushed into a situation where he needed to attend to his daughter's medical situation. He expended much of the money on his daughter as well as attendant sundries, travel and other things. He has been self-employed since 2014 and does a lot of community work back in Alotau. He begged for leniency and a non-custodial sentence to allow him to restitute the complainant's money which were applied for a purpose other than originally intended. He is able to do that and has been prevented from doing so only because his bail conditions restricted his ability to travel back to his place of business. It has been difficult and he has lived between three homes in Port Moresby whilst also trying to support his family back in Alotau.

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. Having regard to the scale outlined in that case, and following amendments to s 383A, the Supreme Court (Batari and Berrigan JJ) in David Kaya and Philip Kaman v The State (2020) SC2026 suggested that the following scale of sentences may usefully be accepted as a base, to be adjusted upwards or downwards according to the factors outlined in Wellington Belawa, such that where the amount misappropriated is between:

a) K1 and K1000 a gaol term should rarely be imposed;

b) K1,000 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;

d) K40,000 and K100,000, three to five years of imprisonment is appropriate;

e) K100,000 and K500,000, five to seven years' imprisonment is appropriate; and

f) K500,000 and K999,999.99, seven to 10 years of imprisonment is appropriate, bearing in mind that the maximum under s 383A(2) should be reserved for the worst types of offending involving amounts less than K1 million.

8. Defence counsel submitted in mitigation that the prisoner is a first-time offender and has expressed genuine remorse. He has no prior convictions and pleaded guilty. As said during allocutus, the offender has known the complainant for a long time. They have been friends since university days. The offender was in a difficult situation and used the money to save his daughter. He acknowledged in aggravation that the offence is prevalent, involved a large amount of monies and the abuse of the trust of his friend. Having regard to Wellington Belawa, an appropriate sentence fell between 2 and 3 years.

9. He referred to the following cases:

a) The State v Felix Kautete (2018) N7544, Berrigan, J: The prisoner, the prisoner pleaded guilty to one count of misappropriation. The prisoner received K24, 000 on the basis that he would purchase a vehicle on behalf of the complainants but instead applied the monies to his own use. He repaid K9,000.00 prior to sentence. He was sentenced to 3 years' imprisonment wholly suspended on conditions, including restitution. He also referred to another case The State v Wilma Mai, unreported. In both cases the amount involved was lower.

b) The State v Joseph Ande (2018) N7536, Miviri AJ: The offender pleaded guilty to falsely representing himself to be another person with intent to defraud Westpac Bank. He deposited two PNG Electoral Commission cheques for the sum of K 41, 000 and K 20, 000 into this account and made withdrawals from it. He deposited an Electoral Commission Cheque in the sum of K121,000 to an account in the same name but attempts to withdraw funds were unsuccessful. The bank discovered his false identity and referred him to Police where he was charged with the offence. He was sentenced to: 1 year for impersonation; 4 years for misappropriation of K41,000; 2 years for misappropriation of K20,000; and 2 years for attempted misappropriation, all to be served concurrently, less time spent in custody. The sentence was wholly suspended on strict conditions including restitution.

10. Counsel submitted that suspension in this case was appropriate having regard to the above cases, and the fact that in this case the complainant and the offender remained friends. He asked the Court to have regard to the comments of Amet J in Doreen Liprin v The State (2001) SC673 concerning K6000 in which he said in:

“I believe it is time to consider seriously whether offences of misappropriation of amounts of this kind warrants custodial sentences. I do not believe so. I believe the Court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment.”

“wherever a person is charged for a crime of non-physical violence such as misappropriation, the judge should for the purposes of imposing any effective punishment that will rehabilitate the offender it must explore all options for taking what might be regarded as a drastic step of imposing a prison sentence.”

11. Counsel asked the Court to allow the offender to be given an opportunity to repay the monies.

12. The State submit in aggravation that the amount involved was substantial, the offence involved a breach of trust involving a gross level of dishonesty, the offender is a lawyer by profession, there have been no attempts to restitute, and the offending involve three separate transactions. The offence is prevalent. The State acknowledged in mitigation that the offender is a first-time offender and that he used the money for his daughter's medical expenses. It submitted that a sentence of three to five years imprisonment was appropriate. In addition, the sentence should be suspended on the basis that the offender make restitution within three...