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State v Hanua [1997] PGNC 114; N1625 (24 September 1997)

Unreported National Court Decisions

N1625

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 1024 OF 1997
THE STATE
v
BLUEY HANUA

Waigani

Batari AJ
22 September 1997
24 September 1997

CRIMINAL LAW - Sentence - Misappropriation - Banker - K5,850.00 misappropriated - Full restitution - Early plea of guilty - No prior conviction - Good background - Sentence - Increase of - Sentence of two years with eighteen months suspended on entering into two years good behaviour bond.

Cases Cited:

State v Win Thomas (unreported National Court Judgment) - CRNo. 837 of 1994

R v Welford [1986] PNGLR 531

Wellington Belawa v The State [1988-89] PNGLR 496

The accused stole K5,800.00 from his employer, the Papua New Guinea Banking Corporation (PNGBC). He pleaded guilty. The facts and sentence appear on the following judgment.

Counsel:

P Kaluwin for the State

P Tusais for the Accused

SENTENCE

24 September 1997

BATARI AJ: You have pleaded guilty to a charge upon indictment that between 27 March and 5 May, 1997 you committed the offence of misappropriation. The charge was laid under s. 383A of the Criminal Code.

The brief facts upon which I shall proceed on your sentence are that, during the period in question, you were employed as the Appointment Teller with the PNGBC Branch at Waigani. Your duties and responsibilities included handling and control of bulk coins in the Branch for corporate clients. As the bag of coins passed through your Teller Counter, you would record a lesser amount than the actual amount in the bag and the balance was entered in the computer as deposits into your brother’s account. Withdrawals were then made from the account for your own use. Over a period of nearly two months, Five Thousand, Eight Hundred and Fifty Kina (K5,850.00) was lost to the bank through that scheme.

From the Court depositions tendered upon your plea, I noted that this offence came to light when your own conscientious guilt caused you to inform your supervisor. At the time of your arrest, you had repaid about half of the amount taken. You made full admissions to the police and following your committal to this court last month, you have now pleaded guilty.

Your conduct from the time of the offence to your early plea of guilty is a relevant consideration. In the circumstances, I accept that your plea is a genuine and honest one and deserves substantial consideration. I adopt and apply to your case, what His Honour Justice Los stated in the case of The State v Win Picinon Thomas (un-numbered National Court Judgment) CR No. 837 of 1994:

“I consider that an honest plea of guilty must be taken into account in an apparent fashion so that the prisoner must know that his guilty plea has been well appreciated and take into account by the Courts. This would also encourage other people who genuinely want to plead guilty must do so knowing that it will help them in their punishment.”

It has been considered important with the increasing length, complexity and costly criminal trials at public expenses that guilty persons when charged with offences be encouraged to enter honest pleas of guilty at the earliest possible time. (See R v Pickett (1986) 2 QR 441). The encouragement must of course come from what is apparent on the final sentences of the Court.

There are other factors that I have taken into account from Counsel’s submissions. It is suffice to say, you have no prior convictions and are married with four (4) young children. You have since been re-employed, but your new employers, the National Provident Fund (NPF) have indicated through your lawyer the prospect of keeping your employment may not be guaranteed upon this conviction. It is likely that despite your efforts to lead a useful working life, the prospects is now in jeopardy.

You committed the offence under some financial constraints. Your father in-law had taken out a mortgage on the house that you are also residing with your own family. Because he had ceased working, you felt obliged to assist in the repayment of the mortgage in order to keep the house. You may have also felt obliged to assist because of your father/son in-law relationship. There is however no evidence of customary impositions directly connected with such relationship in your society. I cannot therefore venture beyond the accepted norm. Be it as it may, your salary of One Hundred and Fifty Kina (K150.00) to Two Hundred Kina (K200.00) per fortnight was submitted to be inadequate and this put pressure on you to commit this offence.

A factor which I consider has relevance in your offence is restitution which you began to make prior to your arrest. The amount taken is now fully repaid and the Bank has formally acknowledged that it is restored to the position it was in before the commission of the offence. In the case of The State v Welford [1986] PNGLR, 531, Justice Wilson commented at p. 256 where full restitution was made:

“in my view in a case such as this, the fact that restitution has been made is a significant fact in mitigation. It goes a long way to addressing the harm and is indicative of genuine remorse and unqualified recognition of wrong doing.”

In the judgment of Justice Barnett, in the Supreme Court case of Wellington Belawa v The State [1988-89] PNGLR, 496, at p. 507 a similar view was expressed on the effect of restitution. Justice Barnett however stated:

“...depending on the circumstances of the restitution, (it) may demonstrate remorse and that the prisoner is unlikely to repeat the offence.”

The circumstances which His Honour may have in mind included cases where the prisoner takes the first step to admit his offence and proceeds to make restitution prior to his arrest and committal and pleads guilty at the earliest possible opportunity. This case falls into that category.

Having considered those factors in the accused’s favour, I bear in mind this offence involved some degree of trust. You were a Bank Teller in whom the public and Bank Management held in high regard and trust. The amount taken, Five Thousand, Eight Hundred and Fifty Kina (K5,850.00) is neither small nor substantial and the loss may be easily sustained by the Bank. Nevertheless, you abused and turned that trust you had into your own gain. There was also some degree of scheming involved to commit the offence.

Your conduct will inevitably subsume a custodial sentence.

I consider that the purpose of sentence will be met by imposing a sentence that will have a personal deterrent effect. I bear in mind that your experiences to date and the sentence I impose will bring home to you at personal level that stealing from others does not pay. It only brings about disgrace, shame and misery to you and your loved ones.

I am hopeful that this episode in your life is now completed and that your commitment to your church activities marks a new chapter in your life. I consider it unlikely that you will offend again.

The sentence I impose will also have a general deterrent component. The early detection of your offence, the publicity received and the punishment should sufficiently warn off others who might be like-minded.

The case of Wellington Belawa, which I have referred suggested a term base of imprisonment of two (2) years to be adjusted upward or downward where the amount taken is between One Thousand Kina (K1,000.00) and Ten Thousand Kina (K10,000.00). Belawa’s case was decided eight (8) years ago. Since then, the offence of misappropriation has been one of the most prevalent offences coming before the Courts. I think the starting point suggested in Belawa’s case for this category of misappropriation should increase to three (3) years where the accused pleads guilty. Because of your plea, the appropriate sentence in my view is two (2) years imprisonment. There are in my view circumstances which compel exercise of the discretionary power to order suspended sentence. Paramount is the consideration that you are not a violent offender and that a part-suspended sentence may assist your reformation.

You are sentenced to two (2) years imprisonment with hard labour. I order that eighteen (18) months be suspended and that you be placed on a two (2) year good behaviour bond after you have served six (6) months imprisonment with hard labour. In making these orders, no custody period is taken into account as you served none.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor