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State v Karo [2008] PGNC 160; N3521 (3 October 2008)

N3521

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 115 OF 2008

THE STATE

V.

RANU KARO

Waigani: Paliau, AJ
2008: 7th, 8th & 22nd July,
25th September & 3rd October

CRIMINAL LAW – Sentencing – Dishonestly applied to own use property belonging to another – Charge of – Guilty Plea – Criminal Code s. 383 A (1)(a).

Cases cited:
The State v. David Kaki; CR No. 604 (4th September 2008)
Lawi v. The State [1987] PNGLR 183
The State v. Paroa Kaia N1401
The State v. Bygonnes Tuse Nae (1996) N1476 (18/09/96)
Doreen Liprin v. The State (2001) SC675 (09/11/01)
The State v. Dobi Ao (No. 2) (2002) N2247
The State v. Gibson Haulai (2004) N2555 (25/03/04)
Wellington Belawa v. The State [1988-89] PNGLR 496
The State v. Eric Emmanuel Vele (2002) N2252 (24/07/02)
The State v. Louise Paraka (2002) N2317 (24/01/02)
The State v. Makeu Kig (2001) N2177 (21/06/01)

Counsels:
Ms. M. Zurenuoc & Mr. A. Wohuinangu, for the State
Mr. J. Mesa & Mr. F. Kirriwom, for the Accused

3rd October, 2008

1. PALIAU, AJ.: The accused pleaded guilty to one count of dishonestly applying to her own use and the use of another the sum of K 99, 600.53. The monies belonged to Badili Hardware Limited.
   
2. At the time of misappropriation, the accused was a cashier with Badili Hardware Limited. She misappropriated these monies between 15th June 2005 and 4th February 2006.
   
3. The issue for determination is what would be the appropriate penalty to be imposed on the prisoner?
   

Antecedent Report

4. The prisoner has no prior convictions.

Allocutus

5. The prisoner apologized to the Court and her employer Badili Hardware Limited. She expressed remorse and stated that she would have not taken the money had it not been for her supervisor who persuaded her to take it.
She asked the Court to be lenient as she has five (5) children and her husband is also unemployed. A custodial sentence will definitely shatter the welfare of her family.

Pre-Sentence Report and Means Assessment Report

6. The Pre-Sentence Report assessed the prisoner as not a danger to the community. She lives a normal simple village life with her husband, five (5) children and three (3) grandchildren at Hanuabada village in her 3 bedroom family house, built over the sea. She is responsible for the upkeep of 10 to 11 individuals including her husband for food and clothing.

7. The Means Assessment Report does not offer much of assistance to the prisoner if there was to be any repayment to the victim of the full amount of K 99, 600.53. Even the amount offered by her relatives as repayment of K 500.00 per month will not meet the demands of the victim for an upfront payment of 25%.
Even then the remainder cannot be repaid within 3 years as demanded by the victim going by the K 500.00 per month repayment schedule.

Decision as to the appropriate penalty

8. Section 383A (1) and (2) of the Criminal Code states that:

"(1) A person who dishonesty applies to his own use or to the use of another person –

(a) property belonging to another; or
(b) .............;

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five (5) years except in any of the following cases when he is liable to imprisonment for a term not exceeding ten (10) years –

• (a) ...............; or
• (b) where the offender is an employee and the property dishonestly applied is the property of his employer; or
• (c) where the property dishonestly applied was subject to a trust, direction or condition; or
• (d) where the property dishonestly applied is of a value of K 2, 000 or upwards."
  

9. The maximum term of imprisonment for the offence of misappropriation is five years. However, the offender is liable to imprisonment for a term of ten years if he is an employee and the property dishonestly applied is the property of his employer, or where the property dishonestly applied was subject to a trust, direction or condition, or where the proper dishonestly applied is of a value of K 2, 000.00 or upwards.

10. The prisoner in the present case was an employee and the monies belonged to her employer. She was placed in a position of trust by virtue of her position as cashier and the money was of a value of more than K 2, 000.00. I will refer to these factors as aggravating factors. The presence of only one factor will render the prisoner liable to imprisonment term not exceeding 10 years. The maximum term of imprisonment applicable to the prisoner Ranu Karo is ten (10) years.

11. Misappropriation of properties, in particular monies by employees from their employers are on the increase at an alarming rate. This crime is committed both within the public and private sectors and is committed by employees who are entrusted by their employers to receive and account for monies on a day to day basis. These employees seem to acquire skills not only to account and make money for their employers but also acquire skills to make money for themselves in a dishonest way. The prisoner in the present case is no exception.

12. The Courts must seriously look at these type of employees and subject to the attitude of the victims must either impose custodial sentences or non-custodial sentences with stringent conditions to be imposed. One of the conditions must be full restitution within a time frame that is just and appropriate to the prisoner.

13. A custodial sentence I think will not assist the victim as the victim has made a loss as a result of prisoner’s wrongdoing. The victim would as much as possible want its monies to be repaid. That is in fact the attitude of the victim in the present case. The victim wants the prisoner to repay the monies in full with 25% upfront payment and the balance to be repaid within 3 years.

14. The range of sentences imposed in misappropriation cases are from 18 months to 6 years. I refer to these cases in my judgment in the case of The State v. David Kaki, CR No. 694 of 2008 (Kavieng, 4th September 2008): Lawi v. The State [1987] PNGLR 183; The State v. Paroa Kaia N1401; The State v. Bygonnes Tuse Nae (1996) N1476; Doreen Liprin v. The State (2001) SC 675; The State v. Dobi Ao (No. 2) (2002) N2247; The State v. Gibson Haulai (2004) N2555 and Wellington Belawa v. The State [1988-89] PNGLR 496.

15. In the following cases wholly suspended sentences were imposed; The State v. Eric Emmanuel Vele (2002) N2252; The State v. Louise Paraka (2002) N2317; The State v. Dobi Ao (No. 2) (supra) and The State v. Makeu Kig (2001) N2177.

16. I have considered the above range of sentences, the submissions by Counsels, the mitigating and aggravating circumstances and the factors that should be taken into consideration in the Wellington Belawa case (supra) and I consider that 6 years is the appropriate penalty to be imposed.

17. Taking into account the Pre-sentence and Means Assessment Reports and my above comments, I will wholly suspend the 6 years imprisonment term and impose the following conditions: -

(3) The prisoner shall enter into her own recognizance and shall keep peace and be of good behaviour for three (3) years commencing today, 3rd October 2008;

(4) The prisoner shall repay the whole of K 99, 600.53 to the victim by paying K 5, 000.00 up front within seven (7) days from today, 3rd October 2008;

(5) The prisoner shall repay the balance of K 94, 600.53 at K 1, 000.00 per month commencing October 2008 to September 2016;

(6) The Community Based Corrections Services in the Department of Justice & Attorney General will supervise conditions (1), (2) and (3) above; and

(7) If the prisoner breaches any of the conditions (1), (2) and (3) above, she shall be brought before the National Court to show cause why she should not be detained in custody to serve the rest of the sentence.

Sentence

18. RANU KARO, having been convicted of the crime of Misappropriation of property belonging to another person, you are sentenced to:

Cash Bail of K 500.00 is refunded to the prisoner upon production of receipt and to be used as part of repayment schedule.

Sentenced accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused