The State v Ruth Tomande (2019) N8153

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 22 November 2019
• Court: National Court
• Citation: (2019) N8153
• Docket Number: CR (FC) 63 of 2019
• Year: 2019
• Judgement Number: N8153

Full Title: CR (FC) 63 of 2019; The State v Ruth Tomande (2019) N8153

National Court: Berrigan J

Judgment Delivered: 22 November 2019

N8153

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 63 of 2019

THE STATE

V

RUTH TOMANDE

Waigani: Berrigan J

2019: 24th September, 10th October, 4th, 5th and 22nd November

CRIMINAL LAW – Sentence – S. 383A(1)(a)(2)(d) of the Criminal Code – Misappropriation - K300,933.71 – Sentence of 5 ½ years of imprisonment imposed.

Cases Cited:

Papua New Guinea Cases

Gaiari-Ganereba v Giddings [1967-1968] PNGLR 246

Tapopwa Thomas v The State [1979] PNGLR 140

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 Imoi Maino (2004) N2773

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 Nancy Uviri (2008) N5468

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 David Poholi (2016) N6214

The State v Paul Guli & Ors (2017) N6866

The State v Tracy Tiran (2018) N7375

The State v Solomon Junt Warur (2018) N7545

The State v Ruth Tomande (2019) N8030

The State v Bae (2019) N8029

The State v Lohia (2019) N8042

Overseas cases

R v Gordon; Ex parte Attorney- General [1975] Qd R 301

References cited

Sections 16, 383A (1)(a)(2)(d), 404(1)(a), 508B(1) and 530 (6)(7) of the Criminal Code (Ch. 262) (the Criminal Code).

Counsel

Ms. H. Roalakona with Ms T. Kametan, for the State

Mr. E. Sasingian, for Offender

DECISION ON SENTENCE

22nd November, 2019

1. BERRIGAN J: A trial proceeded against the offender on an indictment containing 14 counts of obtaining monies by false pretence, one count of money laundering and one count of misappropriation contrary to ss. 404(1)(a), 508B(1) and 383A(1)(2) of the Criminal Code (Ch. 262) (the Criminal Code), respectively.

2. During examination of the State’s second witness the accused indicated that she wished to plead guilty. She was arraigned and pleaded guilty to all 16 counts.

3. I was unable to accept the accused’s pleas of guilty to Counts 1 to 14 as a matter of law. The State subsequently offered no evidence on those counts. For the reasons set out in my earlier decision, I confirmed the offender’s pleas of guilty to Counts 15 and 16: The State v Ruth Tomande (2019) N8030.

4. Count 15 of the indictment alleged that between 30 April 2017 and 1 January 2018 the accused “dealt with monies in the sum of… K368,141.64 that is criminal property by concealing and disguising the property and had knowledge or reasonably ought to know that the property is criminal property”, contrary to s. 508B(1) of the Criminal Code, also referred to as money laundering.

5. Count 16 alleged that during the same period the accused dishonestly applied to her own use and the use of the others monies in the sum of K368,141.64, the property of BSP, contrary to s. 383A(1)(2) of the Criminal Code, also referred to as misappropriation.

Facts

6. At the relevant time the accused was employed as a Home Loan Officer with Bank South Pacific (BSP) Boroko Banking Centre. Between 30 April 2017 and 1 January 2018 the accused extracted from the bank’s records, fourteen (14) loan applications previously submitted by existing bank customers but which had been declined. Each application had a unique customer identification (CIF) number and was supported by documentation including the original applicant’s payslips, confirmation of employment and photo identification.

7. The accused used the declined applications, and supporting documentation, of those initial customers, together with inflated salary figures, to apply for loans in the names of 14 different bank customers through the bank’s automated loan system, the “Lend Fast System”.

8. As a result of the inflated salary figures entered by the offender, the loans were approved on the system and the accused uploaded the loan contracts to the Lend Fast System for Lending Support to fund the loans.

9. Once the loans were funded into the loan recipients’ accounts, the offender manually transferred monies via the tellers from those accounts to the other accounts belonging to her relatives and other bank customers. The monies were also credited back to the loan accounts to fund repayments and avoid revealing her conduct.

10. For the reasons set out in N8030, I was satisfied that the facts pleaded, supported by the depositions, established that at the time the offender transferred the monies from the loan recipients’ bank accounts to the other accounts, she dealt with monies in the sum of K300,9333, which was criminal property by concealing and disguising the property and knew or ought reasonably to have known that the property was criminal property, or in other words, the offender was guilty of laundering criminal property in the sum of K300,933.71, contrary to s. 508B(1) of the Criminal Code.

11. For the reasons set out in my earlier decision, I was also satisfied that at the time the offender manually transferred monies from the loan recipients’ accounts to other bank accounts, including to individual customer accounts and loan ledger accounts, the offender dishonestly applied monies in the sum of K300,933.71, which belonged to the bank, to her own use, that is she dishonestly diverted the monies from the purposes of the bank, which would not have permitted the transfers had it been aware of the circumstances in which the loans were approved.

12. I note here that the amount established on the depositions, K300,933.71 was less than that averred in the indictment. Variation between the amount of monies averred in an indictment and established on the evidence is not usually a basis for avoiding liability. Section 530 (6) and (7) of the Criminal Code read together make clear that an averment of money will be sustained “so far as regards the description of the property, by proof that the offender obtained or dealt with any coin or anything that is included in the term “money”, or any portion of the value of it, in such a manner as to constitute the offence”.

13. The issue to be determined today is an appropriate sentence.

Section 16 of the Criminal Code

14. S. 16(1) of the Criminal Code provides that a person cannot be punished twice under the provisions of the Code for the same act or omission.

15. The proper test to be applied in determining whether s. 16 of the Criminal Code applies is whether the same wrongful act or omission is the “central theme, the focal point or the basic act or omission” in the second offence: Gaiari-Ganereba v Giddings [1967-1968] PNGLR 246.

16. In this case the acts establishing both the offence of money laundering and the offence of misappropriation are the same, that is the transferring of funds from loan recipients’ accounts to other accounts. In the circumstances s. 16 of the Criminal Code applies.

17. In Tapopwa Thomas v The State [1979] PNGLR 140 Prentice CJ said the following in approval of Minogue J’s reasoning in Gaiari-Ganereba v Giddings [1967-1968] PNGLR 346 (emphasis added):

“The section seems to me to intend to include a conviction standing alone, as a punishment certainly where it can clearly as a matter of English meaning, be seen to punish. Without wishing to decide that every conviction must necessarily of itself amount to a punishment and potentially give rise to the application of s. 16; I consider that the second conviction in such a case as this must be considered a punishment at least in so far as it becomes established on the man’s criminal record.”

18. I am also of the view that it would amount to double punishment to record convictions for both misappropriation and money laundering. The State has properly conceded this in my view.

19. I also agree with the State Prosecutor that the most appropriate charge in this case is misappropriation. The money laundering in this case, whilst not as technical as that in The State v Bae (2019) N8029, nevertheless derives its criminality from the greater scheme to misappropriate the monies. It follows that misappropriation is the principal offence. A sentence for misappropriation will also properly reflect the offender’s criminal conduct in its entirety.

20. Accordingly, I refuse to enter a conviction for money laundering. I confirm a conviction for misappropriation. It now remains to sentence the offender for that offence.

Sentencing Principles and Comparative Cases

21. 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 involving dishonesty, 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...