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State v Wilmot [2005] PGNC 105; N2857 (17 June 2005)

N2857

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 426 of 2005

THE STATE

-v-

ALICE WILMOT

Waigani : Sevua, J
2005 : 24th May
6th & 17th June

CRIMINAL – Sentence – Misappropriation – Bank employee – Misappropriation of money in course of employment – Crime committed due to "threats" to prisoner – Amount misappropriated K19,600.00 – Part restitution – Whether non custodial sentence appropriate.

MISAPPROPRIATION – Sentence – Restitution – Whether full or substantial restitution should enable prisoner to a non-custodial sentence – Restitution no means to buy freedom.

Held:

1. Restitution of misappropriated money is a mitigating circumstance, however it should never be used as a means by the rich and wealthy to buy their freedom so that they escape criminal responsibility.

2. Where restitution is to be considered as a genuine remorse, the prisoner must make personal contributions towards restitution and not rely solely on family members and relatives. When the prisoner contributes personally, it will be seen as a personal deterrence because he or she will bear the burden of the crime as the real weight is in relation to the money he or she losses towards restitution.
   
3. The prisoner has not expressed remorse despite the opportunity accorded her, and she has not personally contributed to the sum of K10,000.00 paid as part restitution therefore the Court should be very cautious in accepting submissions in relation to restitution and remorse.
   
4. Sentence of 3 years is appropriate with partial suspension to take into account the restitution and other mitigating circumstances.
   

Cases cited:
Wellington Belawa v. The State [1988-89] PNGLR 496
The State v. Welford [1986] PNGLR 253
The State v. Rex Lialu [1988-89] PNGLR 449
The State v. Mapiria, unreported and unnumbered, 7th September 2004
The State v. Lawrie Patrick & 3 Ors [1995] PNGLR 195
The State v. Sukope Tova, unreported, N1522, 17th March 1997

Counsel:
Ms. T. Ganaii for State
Mr. F. Komang for Prisoner

17th June 2005

SEVUA, J: You pleaded guilty to a charge of misappropriation of the sum of K19,960.00 whilst employed as a Teller at ANZ Bank, Port Moresby.

The facts you admitted are these. Up to the period you committed this crime, you were employed as a Central Teller with ANZ Bank at its Port Moresby Branch. Your duties included maintaining the banks retention limit to a minimum, transfer of cash in and out of the bank and supply of cash to other branches. One of your responsibilities also was to count, bundle, staple, pack and send to Bank of Papua New Guinea, the bank’s soiled or mutilated notes. Between 1st April 2003 and 31st July 2004; you stole the sum of K19,960.00 from the bundles of cash you had prepared to send to Bank of Papua New Guinea.

The procedures employed prior to the movement of cash to Bank of Papua New Guinea were that you counted the cash, packed and stapled them in the presence of your supervisor who was required to count and verify the amount of money for shipment. You failed to adhere to those procedures.

When invited to speak during allocutus, you elected not to say anything, instead informed the Court that your counsel would speak on your behalf. Mr. Komang then addressed the Court on a number of submissions and cited several cases in support of his submissions on your behalf.

Regardless of what the National Court might have said in other misappropriation cases, I consider that the starting point for submissions in this type of cases is the Supreme Court decision in Wellington Belawa v. The State [1988-89] PNGLR 496, as that case established the relevant principles and guidelines for misappropriation and other dishonesty offences. However that judgment was delivered over 15 years ago, and because white collar crimes have increased significantly and are quite prevalent, I consider that the penalties imposed by the Court must be increasing not decreasing. In my view, those guidelines are no longer applicable to the circumstances of Papua New Guinea today since misappropriation and other dishonesty offences have become so prevalent.

I have taken into account your personal antecedents favourable to you. You are 23 years old and single. This is your first offence. You have pleaded guilty. You cooperated with police by readily admitting your guilt. Your family, most notably, your father, has made some payments to the Bank as part restitution, although I have not sighted any confirmation of those payments from ANZ Bank. He has further undertaken to repay the total amount you had stolen. Because of the generosity of your father, your counsel has submitted that you have made restitution and would restore fully the monies you stole.

Whilst counsel has addressed significantly on restitution and remorsefulness, I consider that it is not entirely correct to say that you have expressed genuine remorse and made restitution. The Court can acknowledge the level of support from your parents and other family members, however it is not entirely correct to say that the restitution was made by you personally. Rather, the total amount of K10,000.00 said to have been paid to ANZ bank, was paid by your father, not by you personally so that clarification needs to be made for purposes of sentence.

Furthermore, you were given the opportunity when allocutus was administered and you elected not to say anything. I would have thought that expressing your remorse would have come from you personally at that stage of the proceedings. But you did not personally express remorse when given the opportunity, so it is not entirely correct to say that you have expressed genuine remorse, because as a matter of record, you have not despite having the opportunity to do so.

Even if I agree with Wilson, J. in The State v. Welford [1986] PNGLR 253, which counsel cited, especially what His Honour said on restitution at p.256 – "It goes a long way to redressing the harm done and is indicative of genuine remorse......" I could not in good conscience say that you have personally paid back monies to the bank. There is one fundamental difference that counsel has failed to appreciate. In that case, the prisoner’s father did not repay the money stolen by the prisoner, but the prisoner himself made restitution and the amount was quite insignificant compared to your case. It is my view that, in order for the Court to accept expression of remorse through restitution of monies stolen, a prisoner must bear the burden of restoring what he or she has stolen. If I were to accept that the part restitution made to date were made by your father, then I must also accept that you did not make the actual restitution personally, so could I correctly say that the prisoner has actually effected restitution?

Your counsel has referred the Court to other cases decided by the National Court – The State v. Mapiria, unnumbered and unreported, 7th September 2004; The State v. Lawrie Patrick & 3 Ors [1995] PNGLR 195, a decision of this Court, and The State v. Sukope Tova, unreported, N.1522, 17th March 1997. First of all, let me say that Mapiria’s case is not a binding precedent upon this Court, but a case of its own. With the amount of money involved, I doubt if the principles in Belawa (supra) were properly considered and applied. The other two cases are also not binding upon me. I maintain that the Supreme Court decision in Belawa (supra) is the authoritative pronouncement of the law in this area of criminal law and one that must be applied in all misappropriation and dishonesty offence cases.

Having said that let me reiterate that the Court has duly considered the relevant sentencing principles established by the Supreme Court in Belawa (supra).

For the appropriate tariff, this case falls under the third category where the recommended tariff is two to three years for amounts between K10,000.00 and K40,000.00. However as I also adverted to earlier, that case was decided on 1st December 1989, a little over 15 years ago and I am of the view that the tariffs or guidelines suggested therein are no longer applicable these days because this crime is very prevalent. For my part, the Courts should increase sentences for this crime significantly because it is on the increase. Furthermore, despite custodial sentences being imposed on offenders, the warnings issued by the Courts do not seem to be heeded by offenders. So in my view, the sentences must increase to demonstrate the concerns of the Court and society as well.

It is my view that in misappropriation cases, a prisoner must contribute towards restitution of monies he or she has stolen. For the prisoner to plead for leniency, it is not enough to say his or her family members have made part or full restitution. In the present case, how could the Court accept restitution as a genuine remorse, when you have not personally contributed any money towards restitution? It is my view that, unless the monies stolen were used on the family members’ needs, you must either contribute towards restitution or effect full restitution yourself. In that way, the Court might accept that you are truly sorry for your crime.

My view is that, in so far as punishment is concerned, a prisoner must contribute his or her own money towards restitution before the Court can accept that restitution has been made by the prisoner. By doing that, it can be seen as having a deterrent effect on the prisoner personally because it will be seen as the prisoner bearing the weight of the offence as the real weight is in relation to the money he or she loses towards restitution. Furthermore, when a prisoner contributes his or her own money towards restitution, it acts as a personal deterrence however, if the prisoner does not contribute, he or she does not carry the burden of providing the money for restitution.

Mr. Komang submitted that the prisoner should be given a non-custodial sentence in the light of the mitigating factors he has submitted, which include restitution. I would be loathe to accept any argument that because a prisoner has made restitution of monies he or she stole, he or she should be given a non-custodial sentence. I consider that the Courts would be departing from the purpose of criminal law if they do that. In any event, I am of the view that this is tantamount to a prisoner buying his or her liberty, which becomes very unfair to poor prisoners.

The effect of such a principle of punishment is that the well to do, the rich and the wealthy fat cats, if you like, will escape punishment while the poor and ordinary men on the street languish in fail. This is not only unfair and unreasonable to the have nots, but can be seen by many as a form of social injustice in the criminal justice system.

This Court ought to emphasise categorically that no matter the amount of monies misappropriated or stolen, restitution of same must never be utilized as an exception to the rule in criminal sanctions. Offenders must not escape criminal liability or be exonerated from criminal culpability by buying their freedom. This is akin to the issue of compensation which the Court discussed in The State v. Rex Lialu [1988-89] PNGLR 449 at 452-453. There, the Court said,

"The natural flow or effect of the acceptance of such a belief is obvious and would lead to the rich believing they can buy their way out of criminal responsibility, and the less rich feeling aggrieved if they do not receive the same treatment."

This is dangerous and it will create a situation where the Courts will be accused of contributing to a belief that we are encouraging judicial corruption in the sentencing process.

Counsel has also submitted that this case has caused you excessive psychological and nervous drain, especially in view of the likelihood of imprisonment. Loss of employment, public disgrace, possibility of difficulty to find a similar employment in similar institutions are factors that can be considered as punishment in themselves, he said. Firstly, there is no evidence of any psychological or nervous breakdown although I can understand the effect of the prospect of imprisonment. Secondly, all the other matters I have just alluded to which are also discussed in Belawa’s case (supra) are matters that the prisoner should have taken into account before committing this crime.

When I consider the reason which you have advanced for committing this serious crime, I begin to wonder if this is just a lame excuse. I mean, you said you were "threatened" and went to the trouble of explaining the circumstances, but as a matter of fact, you have not actually told anyone the exact nature of the threat. As to why this "threat," if I accept it, was not reported to the police is beyond me. I just do not understand why this so called "threat" was not reported either to your employer or the police. Instead, you decided to steal from your employer to satisfy the greed of unnamed and unidentified extortionists. What a foolish way of keeping criminals happy! Criminals can run, but they will not run forever, because the long arm of the law will always catch up with them. In this case, it would have been wise for you to have reported the so called "threat" to your employer and the police. I have no doubt that given time, the police will catch these unidentified extortionists who were stalking you.

Of course, no one can accept that there is any justification at all for what you did. If we are going to conceal this kind of criminal conduct, we can be rest assured that this country will fall into the hands of extortionists, criminals, etc, resulting in a state of chaos and anarchy with non-existence of the rule of law. This Court cannot and will not accept the reason you advanced for committing this offence. You had ample time to consider the path you were treading, but you decided to support criminals and you must therefore face the consequences. You cannot in my view, like your counsel has submitted, be given a non-custodial sentence because your father has made restitution. The Courts should not allow the rich and wealthy to buy their liberty to escape punishment for their crimes.

The crime of misappropriation is a very prevalent one. It happens in the public sector as well as in the private sector. It is very common in banks and other financial institutions. Should we continue to let people walk free after they have caused losses to these institutions? Perhaps, the amount of money stolen in this case is ‘a drop in the ocean’ so to speak, as far as ANZ Bank is concerned, however that is beside the point. The fact is, it is a crime and it must be punished therefore a personal and public deterrence is called for.

Having considered all the mitigating factors submitted on your behalf, I do not consider that a non-custodial sentence is appropriate in the circumstances. This crime is very prevalent. You were placed on a position of trust and responsibility. People who are customers of the bank would no longer have faith in the banks if they know that their monies are being stolen by employees like you. You abused your position of trust and responsibility for a purpose that the Court finds it hard to accept, therefore you should be punished with a custodial sentence to act as both a personal and public deterrence. It must be a warning and a deterrence to bank employees who might be foolish enough to tread the same path.

Besides, this is not a one off theft, that is, the total sum was not stolen in a single transaction. The theft was systematic and it went on for 1 year 3 months before being detected. So you had a mind set to systematically steal from your employer.

In all the circumstances, I sentence you to 3 years imprisonment with hard labour. However, I order that 18 months be suspended upon full restitution of the K19,960.00 to ANZ Bank, Port Moresby Branch, within 6 months from today. I further order that 6 months be suspended on conditions that you enter into your own recognizance to keep the peace and be of good behaviour for 12 months after your release from prison. You will therefore serve the balance of 12 months. I further order that your cash bail of K500.00 be refunded to you.

Orders accordingly.

Lawyer for State : Public Prosecutor
Lawyer for Prisoner : Gubon Lawyers