The State v William Modudula (2020) N8247

• Jurisdiction: Papua New Guinea
• Judge: Toliken, J
• Judgment Date: 04 February 2020
• Court: National Court
• Citation: (2020) N8247
• Docket Number: CR (FC) No 1330 of 2018
• Year: 2020
• Judgement Number: N8247

Full Title: CR (FC) No 1330 of 2018; The State v William Modudula (2020) N8247

National Court: Toliken, J

Judgment Delivered: 4 February 2020

N8247

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 1330 OF 2018

THE STATE

V

WILLIAM MODUDULA

Alotau: Toliken, J

2019: 15th August

2020: 4th February

CRIMINAL LAW – Sentence – Misappropriation of employer’s property by employee – Plea – Mitigating and aggravating factors considered – Prisoner has propensity for dishonest application of property – Offer for full restitution – Appropriate sentence – 4 years – Wholly suspended with condition for full restitution – Criminal Code Ch. 262, s 383A(1)(2)(b)(d).

Cases Cited:

Avia Aihi v The State (No.3) [1983] PNGLR 92

Belawa v The State [1988-1989] PNGLR 496

GoliGolu v The State [1979] PNGLR 653

Public Prosecutor v Tardrew[1988 – 89] PNGLR 91

The State v Felix Kautete(2018) N7544

The State v LeamegaNoka(2019) N7849

The State v Mercy Lohia(2018) N7614

The State v WaraiKisua(2018) N7513

The State v Watangia (2018) N7175

Counsel:

A Kupmain, for the State

N Wallis, for the Prisoner

JUDGMENT ON SENTENCE

04th February, 2020

1. TOLIKEN, J: William Modudula, on 15th August 2019, you pleaded guilty to an indictment charging with one count of misappropriation, an offence under Section 383A(1)(2)(b)(d) of the Criminal Code, Ch. 262.

2. You were charged that on 18th March 2015 at Losuia Station, Kirriwina Island, you dishonestly applied to your own use K12,000.00 worth of Office Stationery, the property of Nur Printing & Office Supplies Limited.

FACTS

3. The brief facts upon which I am going to sentence you are as follows: On 18th March 2015, you were employed by Nur Printing as a Sales Representative at Losuia Station. You were responsible for the Sales and Distribution of Office Supplies for the company at Kirriwina and especially to schools there. You would normally visit the schools and collect orders which you would then send to the Head Office here in Alotau. Upon receipt of these orders, the company would then deliver the supplies to the schools.

4. In this case, you raised two Invoices. The first was Invoice No.031682 for the amount of K7,576.84 and the second was Invoice No.031683 for the amount of K5,011.88 for a total sum of K12,588.72 under Vakuta Primary School.

5. You, however, did not secure those invoices from the school. Rather, you fraudulently raised them and sent them off to Head Office, which subsequently shipped out the supplies to Kirriwina. These supplies were, however, not delivered to the school and remained unaccounted for, because you had subsequently dishonestly applied them to your own use.

THE OFFENCE

6. The offence of misappropriation normally carries a maximum penalty of 5 years imprisonment. However, where the offender, among other things, is an employee and the property dishonestly applied is the property of his employer, or the property misapplied is of a value of K2,000.00 or upwards, as in your case, an offender is liable to imprisonment for a term not exceeding 10 years.

7. In your case, the property you misapplied belonged to your employer and was worth more than K2,000.000, hence, you are liable to be imprisoned for 10 years.

8. It is, however, settled that the maximum penalty is usually reserved for the worst instances of offending and that each case must be treated on its own facts and circumstances so that the punishment must fit the crime as often said. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92).

ISSUE

9. And so, if I find that this is a worst case, I might impose the maximum penalty on you. Other than that, you will be sentenced to a lower period should I am of the view that your offence is not a case of misappropriation.

10. At the outset, I can say that yours is not a worst case, hence, it will not attract the maximum penalty of 10 years but something lower. Whatever your sentence will be will depend on your mitigating and aggravating factors and other considerations which I shall presently consider.

SENTENCING PRINCIPLES

11. To give you some idea about what you should expect, it is appropriate to refer to the prevailing sentencing principles set by the Supreme Court in the case of Belawa v The State [1988-1989] PNGLR 496. There, the Supreme Court held that the following factors ought to be taken into account when sentencing an offender:

(a) The amount or value of property taken;

(b) The quality and degree of trust reposed in the offender;

(c) The period under which the offence was perpetrated;

(d) The effect of the offence on the public and public confidence;

(e) The use to which the money was used;

(f) The effect upon the victim;

(g) Whether any restitution was made;

(h) Any expression of remorse;

(i) The nature of the plea;

(j) Any prior record;

(k) The effect on the offender; and

(l) Any matters in mitigation special to the offender such as i.e.

health, young or old age, being placed under great strain or perhaps long delay in being brought to trial.

12. The Supreme Court also suggested the following sentencing scale (even though these may now be outdated)depending on the amount or value of property misapplied:

K1 – K1,000 - a goal term should rarely be imposed.

K1,000 – K10,00- up to two years.

K10,000 – K40,000 - up to three years.

K40,000 – K50,000 - up to five years.

13. It is also worth noting that Parliament has since made some amendment to the penalties for misappropriation so that where the amount misapplied is between K1 million but does not exceed K10 million an offender may be sentenced to 50 years imprisonment. Where the amount exceeds K10 million an offender shall be sentenced to life.

14. This increase in the penalties has largely been brought about, not only by the prevalence of this offence, but also by the huge amounts of money now being misappropriated.

15. While the majority of offenders will continue to be those that misapply properties below K1 million, it is apparent that Parliament is not oblivious to the increase or upsurge of this type of offence and the huge amounts of money now being misappropriated which run into millions of Kina.

SENTENCING TREND

16. Let me now consider a few cases of misappropriation, most of which were cited to me by your lawyer, and the sentences they attracted.

17. The State v Warai Kisua (2018) N7513 per Koeget, J: The offender there was employed by PNG Micro Finance Limited in Daru as its Branch Manager. He directed two tellers to lend him varying amounts of money totaling K30,000.00 which he did not repay fully. He only repaid K25,000.00. He pleaded guilty for misappropriating K30,000.00 belong to his employer and was sentenced to 18 months imprisonment which was wholly suspended with conditions including restitution.

18. The State v Watangia (2018) N7175) per Susame, AJ. The offender there was employed by Oceania Communication Limited as Operations Logistics Officer and Stock Controller. He had over sight of stock, dispatch and sales of Digicel PNG Products while the Ground Manager was on leave. Audits were done by the company’s Operations Manager and later by the Ground Manager after he resumed duties. The Audits revealed that K10,000.00 cash, Prepaid SIM Cards and Phones valued at K6,814.50 were unaccounted for while the offender was in-charge of the company’s operations. He was originally charged for misappropriating K17,114.50 but on plea bargaining. This was reduced to K9,000.00.

19. On a plea of guilty was sentenced to 3 years which was wholly suspended with an order for restitution.

20. The State v Felix Kautete (2018) N7544 per Berrigan, J. The offender there met the complainant and her husband at the NCDC Office and showed them the photographs of a motor vehicle which he said was on internal tender for sale. All that they needed to do was make the payment to him and he’ll take care of things for them. The next day, they gave him K24,00.00 cash. He asked them to return at 4.00 pm while he sort things out including processing a cheque from NCDC to MVIL for payment of registration. They returned but were advised that things will be sorted out the next day. The offender never returned to the complainant but instead applied the money to his own use. On his guilty plea, the offender was given 3 years suspended sentence with a condition for restitution.

21. The State v Mercy Lohia (2018) N7614 per Berrigan, J. The offender was employed by the PNG Red Cross Society as an Accounts Clerk. Over a period of time, she forged the signatures of authorized signatories for 25 cheques for a total sum of K19,151.75 belonging to the Society. She pleaded guilty to one count of forgery and one count of uttering. She was sentenced to 3 years which was wholly suspended with condition for restitution.

22. In The State v Leamega Noka (2019) N7849, in a fundraising drive by parents and citizens of Koyabule Primary School here in Alotau, the offender was appointed to collect the funds raised and pass them over to the school’s Bursar....