The State v Wilma Pole

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 02 February 2023
• Neutral Citation: N10109
• Citation: N10109, 2023-02-02
• Counsel: Mr N. Needham, for the State,Mr F. Timbi, for the Offender
• Hearing Date: 02 February 2023
• Docket Number: CR (FC) NO. 10 OF 2022
• Court: National Court

N10109

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 10 OF 2022

The State

v.

Wilma Pole

Waigani: Berrigan J

2023: 2^nd February

CRIMINAL LAW — SENTENCE — GUILTY PLEA — S 383A(1)(a)(2)(d) of the Criminal Code — Misappropriation of K182,081 by Provincial Treasury Cash Officer — Sentence of 5 years of imprisonment.

CRIMINAL LAW — SENTENCE — GUILTY PLEA — S 462(1) of the Criminal Code — Forgery of cheques in the sum of K30,000 and K18,000 — Sentence of two years on each count. All sentences to be served concurrently, and suspended on conditions, including restitution.

Cases Cited:

Papua New Guinean Cases

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

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

Lawrence Simbe v The State [1994] PNGLR 38

Goli Golu v The State [1979] PNGLR 653

The State v Benedict Simanjon (2020) N8637

State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252

The State v James Paru (No 3) (2021) N9248

The State v Tardrew [1986] PNGLR 91

Sanawi v The State (2010) SC1076

The State v Merimba (2022) N9604

The State v Raka Benson (2006) N4481

The State v Louise Paraka (2002) N2317

The State v Frank Kagai [1987] PNGLR 320

State v Tiensten (2014) N5563

The State v Ludwina Tokiapron (2005)

State v Isaiah Guda (2015) N5955

The State v Pohien (2016) N6564

State v Paul Guli & Ors (2017) N6866

State v Warai Kisua (2018) N7513

State v Dumo (2018) N7574

State v Solomon Junt Warur (2018) N7545

State v Mercy Lohia (2018) N7614

State v Lousie Paraka (2002) N2317

Liprin v The State (2001) SC673

State v Tongayu (2021) N8975

The State v Emba (2011) N5012

The State v Tanner & Anor (2014) N5808

The State v Ruth Tomande (2019) N8153

State v Yegiora (2012) N4641

The State v Paroa Kaia (1995) N1401

The State v Karo (2008) N3521

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

The State v Bobby Leva (2021) N8801

The State v Hevelawa (No 2) (2017) N6875

The State v Vavine Elizabeth Emil (2021) N8789

The State v Dumo (2018) N7574

The State v Posakei (2019) N8000

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

Overseas Cases

R v Law; Ex parte A-G [1996] 2 Qd R 63

Legislation and other materials cited:

Sections 19, 383A(1)(a)(2)(d), 462(1) of the Criminal Code

Counsel

Mr N. Needham, for the State

Mr F. Timbi, for the Offender

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Offender

DECISION ON SENTENCE

2^nd February, 2023

1. Berrigan J: The offender, Wilma Pole, pleaded guilty to one count of misappropriating K182,081 belonging to the State, contrary to s.383A(1)(a)(2)(b)(d) of the Criminal Code, together with two charges of forgery contrary to s 462(1) of the Criminal Code. The maximum penalties for the offences are 10 years and 3 years of imprisonment, respectively.

2. The offender was employed by the Western Highlands Provincial Treasury as its Cash Officer, a position she had held since 2009. In this position she held the delegation to countersign cheques for three accounts, the Provincial Government Grant Account, Provincial Government Operating Account and the Provincial Treasury Operating Account. She was also responsible for confirming by monthly report to the Provincial Accountant, Jonah Posa, that all expenses were accounted for.

3. In 2014 it became apparent that a substantial amount of money had gone missing from the Province's accounts. An independent investigation revealed that between 30 December 2013 and 1 August 2014 a large number of cheques had been paid out without payment vouchers, that is without the Finance Form 3 and 4 required under the Public Finances (Management) Act 1995, supporting documentation, or approval by the section 32 officer. A number of the cheques were made payable to, and countersigned, by the offender. The offender presented those cheques to the Mt Hagen Branch of Bank South Pacific. All of the cheques were cashed out on their face but for one in the sum of K7775, which was paid directly into the offender's account. In total the offender countersigned six cheques made payable to herself and received K182,081.

4. The cheques were signed by the Accountant, Jonah Posa, with a letter purporting to authorise payment for cash and falsely justify the payment to the accused on the basis of expenses and tasks that did not form part of her duties. At the time the offender dishonestly applied the monies to her own use she knew that the monies were not for the stated purpose but for her own benefit. Mr Posa also benefitted from the transactions.

5. As part of the scheme with Mr Posa, the offender also forged two cheques, one made payable to Maria Agil on 24 February 2014 and another made payable to Joe Pawa on 10 April 2014 in the sums of K30,000 and K18,000, respectively. Both Ms Agil and Mr Pawa were employees of the Provincial Treasury. The cheques were again accompanied by statements purporting to authorise cash payment. The authorisations were not given by either Ms Agil or Mr Pawa and neither received any monies. The offender admitted forging the signatures of Ms Agil and Mr Pawa. She did so on the instruction of Mr Posa, cashed the cheques, and gave the monies to him.

Allocutus

6. On allocutus the offender apologised to the Government of Western Highlands and the Courts of Papua New Guinea. She asked the Court to have mercy on her and impose a non-custodial sentence. She is currently employed as a Provincial Support District Advisor, in the Finance Department in Jiwaka, which allows her to provide advice to officers to do the right thing and not to do what she had done. The experience has given her a lot to teach them and her family.

Sentencing Principles and Comparative Cases

7. 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.

8. 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.

9. Despite prior notice, the State failed to appear for submissions, and the Court heard from defence counsel, to whom I am grateful for his helpful written submissions.

10. Defence counsel acknowledged in aggravation that the offence involved a high breach of trust, the loss of a substantial amount of State monies, and was conducted over a period of time. In mitigation this is the offender's first offence, she cooperated from a very early stage with police, and has expressed remorse. At least some of the monies were given to her co-offender, Jonah Posa, from whom she took instructions. He submitted that a sentence of between 3 and 5 years was appropriate on Count 1 of the indictment for misappropriation, and a sentence of one to two years, on Counts 2 and 3, for forgery, all of which to be served concurrently as occurring as part of the one transaction. He asked the Court to suspend sentence on strict conditions including restitution having regard to the fact that it will promote restitution of the monies, as well as the personal reformation and rehabilitation of the offender. He notes that the offender has five young children, the youngest of which is just one month, 4 days old.

11. Counsel referred to the following cases on misappropriation:

a) State v Tiensten (2014) N5563 — the prisoner was found guilty of one count of dishonestly applying to the use of another namely Travel Air K10 million the property of the State. He was sentenced to nine years IHL by Salika DCJ. Four years was suspended on condition that the prisoner repay ten million Kina;

b) 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 obtained from the victims on the pretext that they would be invested in a pyramid scheme in Singapore but were used by the prisoner instead. He was sentenced to 6 years' imprisonment;

c) State v Isaiah Guda (2015) N5955 – the prisoner pleaded guilty to misappropriating K436, 000 the property of the Moga Incorporated Land Group over a period of about two months. The prisoner was assisted by his lawyers and produced false certificates authorizing his access to the monies which he presented to the bank. He was sentenced to 6 years' imprisonment with hard labour;

d) The State v Pohien (2016) N6564, Liosi AJ (as he then was). The accused was convicted of one count of misappropriation of hardware materials valued at K462,864.00 the property of his...