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State v Vala [1997] PGNC 33; N1527 (21 March 1997)

Unreported National Court Decisions

N1527

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 985 OF 1996
THE STATE
v
KEPI VALA

Waigani

Passingan AJ
11 March 1997
13 March 1997

REASONS FOR SENTENCE

PASSINGAN AJ: On your own plea of guilty the Court has convicted you on a charge of misappropriation pursuant to S.383A of the Criminal Code.

The facts were briefly this: The prisoner was employed as a Bookkeeper with the PNG Homes Finance Limited at the time of the offence. Between the 1st of February and 2nd September, 1995 she was employed as such. At times she acted as the Company’s accountant. Her duties included collection of loan repayments and issuing of receipts, Custody and banking of monies. During the period in question a total of K12,401.37 was paid to her. She issued the receipts, made records of the payments, but did not bank the money. Instead she used the monies for her own purposes. The offence of misappropriation carries the maximum penalty of 10 years. Your case falls under S. 383A (2)(b) of the Criminal Code, where you are liable to imprisonment for a term not exceeding 10 years.

Your position in the Company as a Bookkeeper or an Accountant was a responsible one. You were in a position of trust. Alot of money would have passed through you daily. The Company relied on you to collect the money, issue receipts and to make deposit into the Company’s Bank Account. But you failed to do that. The second factor to be taken into account is the period over which you cheated your employer. You did this for a period of six (6) months.

Now, on the materials before the Court there is no explanation as to how the money was used. There is no explanation as to why you needed so much money during that period of 6 months.

There is no doubt that the Company was affected by your action. The money you took and used was a loss to the Company. It remains a loss until the money is put back into the Company’s Account.

On sentence I take into account your statement, on allocutus and your lawyer’s submissions in mitigation. I take these factors into account:

(a) that you are a first offender;

(b) good steady employment record dating back to 1973, a period of 22 years;

(c) your plea of guilty to the charge;

(d) that you are remorseful and your promise not to do this again;

(e) your family background, married with four children, the youngest being 3 years; and

(f) your undertaking to make restitution.

I also take into account the Affidavit evidence of Reverend Alu Daniel (Exhibit “A”) as to the prisoner’s character and to further give Counselling to her on spiritual matters.

Your Counsel cited a number of decisions on the exercise of the Court’s discretion in sentencing. I take note of those decisions. But the sentencing guidelines for the offence of misappropriation are set out in Wellington Belawa v The State [1988-89] PNGLR 496. The Supreme Court said in that Case that where the amount misappropriated is between K10,00.00 and K40,000.00, two to three years imprisonment is appropriate. Two to three years imprisonment is the starting point to be adjusted upwards or downwards according to factors set out in that decision. I have referred to those that are relevant in this case.

To conclude, I consider a sentence of 16 months imprisonment in light labour appropriate.

SENTENCE

16 months imprisonment in light labour.

ORDERS

I order that the whole of the sentence be suspended on the following Conditions:

(a) that by virtue of S.19 (1)(b) of the Criminal Code, you pay a fine of K500.00 within seven (7) days (by 21st March, 1997);

(b) that you repay the sum of K12,401.36 within a period of ten (10) months (by 13th January, 1988).

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: S Mulina Lawyers