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State v Tova [1997] PGNC 27; N1522 (17 March 1997)

Unreported National Court Decisions

N1522

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 845 OF 1996
THE STATE
v
SUKOPE TOVA

Waigani

Batari AJ
12 March 1997
17 March 1997

CRIMINAL LAW - Sentence - Misappropriation - Casual employee - Plea of guilty - K22,100.00 - No restitution - Mitigation factors - Considerations of.

CRIMINAL LAW - Sentence - General principles - Considration of.

CRIMINAL LAW - Sentence - Amount taken between K10,000.00 and K40,000.00 appropriate range - Two to five years considered - Sentence of three years part suspended if repaid.

Cases Cited:

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

Webb v O’Sullivan [1952] SASR 65

Counsel:

P Kaluwin for the State

D Sakumai for the Accused

SENTENCE

17 March 1997

BATARI AJ: Sukope Tova, you have pleaded guilty that between 12 January and 2 February, 1996 you dishonestly applied to your own use, money in the sum of K22,100.00 the property of Allens Arthur Robinson Lawyers. You are now presented before me for sentence.

FACTS

Between 12 January and 2 February, 1996 you were employed in the office of Allens Arthur Robinson Law Firm located on the 11th Floor, Pacific Place, Port Moresby as a casual employee. Your duties involved largely office cleaning, but at times you performed such other duties as banking for the firm. In the course of your employment, you gained access to the firm’s cheque book and uplifted blank cheque forms which you filled out and forged the signatures of Office Manageress, Jenny Pilloti and Principal Lawyer, Benjamin Passingan. You did this on eight different occasions and cashed the cheques at Westpac Bank for your own use.

That is a brief summary of what was an example of a serious crime of misappropriation which involved fraudulent stealing of a substantial amount of money by an employee. Under s.383A(1) and (2) of the Criminal Code Act Ch. 262 you are liable to be imprisoned for a term of 10 years and that shows how serious your offence is.

MITIGATION

Your lawyer Mr Sakumai has presented a well considered plea in mitigation. His preparation and presentation has been of assistance when I consider your punishment.

(i) Arrest and Custody

When you became aware that your fraudulent conduct was discovered, you absconded from work and seemingly went into hiding. You were arrested some three weeks later and detained. You were allowed bail but again detained on 8 February, 1997 on an unrelated matter. I do not consider your subsequent time of detention is relevant. For this offence, you spent three weeks in custody which I will deduct from the sentence I impose.

(ii) Plea of guilty

It has been held in a case such as this, a plea of guilty is a substantial factor in mitigation. You also admitted the offence from the beginning making police investigations and your subsequent conviction much easier.

(iii) Personal Circumstances

You are aged 31 years married with dependant children. You were educated to Grade 6 and went on to do a Welding course at a Vocational School. In the latter part of your life, you worked briefly as a Security man before Allens Arthur Robinson Law Firm offered you casual employment.

You commenced work with the law firm in October, 1994 and lived at 3 Mile with your family at the time of the offence. You had four children and besides you supported your parents and your wife’s relatives on your fortnightly wages of K100.00. You have lost your job and with this conviction your future prospects of employment may now be in jeopardy.

Your concern is that your family members will face difficulties if you are sent to prison. Indeed it seems unacceptable that family members and in particular young children will suffer as a result of the wrongs committed by their parents. That is however, the unfortunate consequence of your conduct which you should have considered when you set out on your criminal enterprise.

(iv) Motive

You explained in your allocutus and in your record of interview that you were the sole bread-winner for the family at the time of the offence. I can understand the difficulty you faced while trying to maintain your young family and at the same time put up with the pressures of customary obligations to support your extended families on a meagre K100.00 salary. You were placed under much financial strain and this caused you to scheme up a way of stealing from your employer. Although your method did not involve high degree of sophistication it nevertheless involved a substantial amount of money. It can be said that you stole in order to feed and cloth your own family and those others who depended on your financial support.

There is however, some indication that the money you stole were not on spent on basic necessities of life as one would have expected in your situation. Within a short space of five weeks to your time of arrest, it seemed you used up the whole of K22,100.00 as none has been recovered. There is some indication you spent extravagantly at high places. And the fact suggests a considerable amount of money were spent on alcohol. It is common knowledge that alcohol abuse has been one of the root causes of evils in our society today. Its destructive effects are found in personal tragedies, broken lives, broken homes and crimes. The use to which the money taken was put, suggest it was not used to maintained “desperately unpoverished family or for some other worthwhile purpose which can be treated as a mitigating factor” (See Wellington Belawa v. The State [1988-89] PNGLR, 496 per Barnett, J At p.506.

(v) Restitution

There is no offer of restitution and this leaves the company the uncertainty of ever recouping anything from the prisoner.

AGGRAVATING CIRCUMSTANCES

The commission of this offence occurred over a period of less than four weeks and a substantial amount was taken. The frequency of negotiating forged cheques within a short space of time suggest determination and intensity in the prisoner’s conduct. Obviously, a consideration amount of money would have been lost to the company if the prisoner’s fraudulent scheme was not detected early.

The crime did not involve breach of trust to any greater degree then his accessibility to office records, files and account books by virtue of his employment as office cleaner. There is however some degree of planning which involved removal of the cheque leaves, falsification of signatures and uttering of the false bank documents.

These are the factors that operate against the prisoner.

DETERRENCE

I consider both personal and public deterrence are relevant matters in assessing the prisoner’s punishment. It is an unfortunate observation against the prisoner that stealing offences of similar features to his are quite prevalent. I consider that the general deterrence component of punishment will be served by imposing a sentence that would serve as a warning to others who might be like-minded.

The experiences the prisoner has gone through up to now together with the sentence I am about to impose, I think will bring home to him at personal level that there is no advantage to be gained in stealing from others.

FURTHER CONSIDERATIONS IN SENTENCING

In the exercise of my discretion to sentence the prisoner, I bear in mind the importance of reflecting on the objectives of the Criminal Justice System, which is to bring wrongdoers to justice for the protection of the community. A sentencing judge must first and foremost bear in mind, the protection of the community. (RV Cuthbert (1976) 86 WN (Pt.1) NSW 272, per Herron, CJ at 274). In some cases this protection can be extended by severe punishment and in other situations a judge would reach the view that probation or suspension of sentence is appropriate. In approaching the prisoner’s sentence in this case, I adopt and follow the position in law as stated by Napier CJ in Webb v O’Sullivan [1952] SASR 65 at p.66:

“The Courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but subject to that, the Court should lean towards mercy. We ought not to award the maximum, but rather the minimum which is consistent with a due regard for the public interest.”

RANGE

I also have regarded to the range of sentences applicable in circumstances pertinent to this case as an aid to the proper exercise of my sentencing discretion. The starting point is the case of Wellington Belawa v. The State [1988-89] PNGLR, 496 which suggests imprisonment term of two to three years where the amount misappropriated is between K10,000.00 and K40,000.00. With respect Belawa’s case was decided six years ago and in the meantime, the Courts have sounded warnings that the sentence will go up in line with the increasing number of missappropriation cases since that Supreme Court decision. I think it would be fair to say a range in the vicinity of two years to five years has been set by the sentencing tendency of this court in similar cases which involved substantial amounts of money. The sentence may be adjusted upwards or downwards according to the individual factors of the offender and the seriousness of the crime as suggested in Belawa’s case.

SENTENCE

I have set out the factors which I consider as appropriate in assessing your punishment. I accept that you are sorry for what you did.

I consider your remorse also as an expression of personal shame and acceptance of the disgrace you have brought your family.

You are sentenced to three years imprisonment IHL. Taking into account your pre-trial custodial period you will serve a term of two years and eleven months imprisonment. Two years is suspended if you repay the sum of K22,100.00 and enter into a recognition to be of Good Behaviour Bond for a period of two years.

Lawyer for the State: P Mogish - Public Prosecutor

Lawyer for the Accused: D Koeget -A/Public Solicitor