N5161

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR.NO. 808 OF 2008

BETWEEN

THE STATE

V

NEWTON SIMBIRI
Popondetta: Toliken AJ
2012: 07th, 24nd of August

CRIMINAL LAW – Sentence – Stealing from Employer – Stealing by School Headmaster - High degree of trust – Abuse of trust – Prevalent offence - Appropriate sentence for cases of stealing by servants of the State – Sentences should serve to punish, deter and exact restitution out of offenders and hopefully also rehabilitate offenders - Partial imprisonment to restore public confidence in public institutions, public servants and our system of justice – Head sentence of 2 years - Partial suspension with condition for restitution – Criminal Code Act Ch. 2626, ss 19, 372(1)(7)(b).

CRIMINAL LAW – Sentence – Mitigating factors considered – Extenuating circumstances – Involvement of others and prisoner's degree of participation considered - Allegation of conspiracy by Board members in theft in allocutus and defence submission – Not negatived by the State – Considered and applied to benefit of prisoner.
 
Cases Cited

The following cases are cited in the judgment:

The Public Prosecutor v. Sam Minimo [1977] PNGLR 226
Wellington Belawa v The State [1988-89] PNGLR 496 
The State v. Paulus Takesi [1997] PNGLR 507
Allan Peter Utieng v The State (2000) SCR 15 of 2000(unreported and unnumbered judgement) 
The State v. John Akoko (2001) N2061
The State v. Robert Kawin (2001) N2167
The State v. Timothy Tio (2002) N2265
The State v. Louise Paraka (2002) N2317
The State v. Shirley Tainoli (24/11/2004) (unreported and unnumbered judgment)
Saperius Yalikabut v The State [2006] PGSC 27; SC890 (27 April 2006)
The State v. Roselyn Waiembi (2008) N3708 
The State v. Simon Paul Korai (2009) N3820
The State v. Steven Luva (2010) N3909

Counsel

M. Ruarri, for the State
A. Ninkama, for the Prisoner

SENTENCE

24th August, 2012

1.	TOLIKEN AJ. Newton Simbiri, you were committed by the Popoendetta District Court on 02nd August 2008 to stand trial for one count of fraudulent uttering contrary t o Section 463 of the Criminal Code Act Ch. 262 (the Code). However, on 07th August 2012, the State presented an indictment charging you with the offence of stealing from your employer. The indictment charges that:

"... between the 15th and 31st of August 2007 at Popondetta in Papua New Guinea [you] stole K10,400.00, the property of [your] employer Urio Primary School"

Stealing is an offence under Section 372 (1)(7)(b) of the Criminal Code Act Ch. 262.

2.	You entered a guilty plea which I confirmed after perusing the statements of witnesses and your Record of Interview in the committal file and satisfying myself that evidence supported your plea.

3.	I deferred my sentence to today and I hereby deliver it. 

BRIEF FACTS

4.	The State alleged that at the time of the offence you were the Headmaster of Urio Primary school. On three different occasions between the 15th and 31st August 2007 you withdrew a total of K10,400.00 from the school account after forging the signatures of the school's Board Chairman and Treasurer. You made the first withdrawal of K5000 on 15th of August 2007, followed by a second withdrawal of another K5000 two days later on 17th August. Then on 31st August 2007 you made the final withdrawal of K400.00. All these withdrawals were done without the approval of the school's Board. You put these monies to your own use.

ANTECEDENTS

5.	The following are your antecedents:

(i)	You are from Buna village, Oro Bay Local Level Government, Oro Province.

(ii)	You are 46 years old, a school teacher by profession and until very lately were a Senior Teacher at Popondetta Primary School.

(iii)	You are married with 4 children aged 20, 18, 17 and 14 years. Your wife is also a teacher by profession. You reside with your family at Popondetta Primary School.

(iv)	You are a member of the Anglican Church.

(v)	You have no previous convictions.

YOUR ADDRESS ON SENTENCE (ALLOCUTUS)

6.	You verbally addressed the Court on sentence and also relied on an affidavit that you filed on 17th October 2011. You apologised to God, the Court, lawyers, your wife who is a professional teacher like you and your children, the students, parents and the community of Urio Primary School. You said you were sorry for bringing shame to your family (especially your wife) and yourself. You admitted getting the money but said that this was a joint enterprise between you and the Board Chairman and Treasurer whom you said are biological brothers. You said that the Board Chairman came to your house with withdrawal slips which he and his brother the Treasurer had pre-signed.

7.	 You said that you only personally benefitted from the first and third withdrawals of K5000.00 and K400 while the rest was used by your alleged co-conspirators. You also said that you used some of the monies to buy school materials but you were unable to produce the receipts as you were not allowed back into your office after you were released on bail or earlier when the arresting officer did not listen to your pleas to have access to your office.

8.	You said that this matter has affected you and your family to the extent that you have not been able to live a normal life without being constantly bothered by criticisms. You have been demoted to Senior Teacher and until very lately have been teaching at Popondetta Primary School where you assisted the Senior Subject Master and the Deputy Headmaster in school administration. You were also the Teachers' representative on the school Board.

9.	You said in your affidavit that you are married with 4 children aged 20, 18, 17 and 14 years of age who are doing Grades 12, 10, 9 and 6 respectively. You also said that you are now 46 years old. You were first posted here to the Oro Province after graduating from Madang Teachers College in 1984 and have faithfully served in various rural and urban schools in the province for the last 27 years.

10.	You deposed that you are the 7th in a family of 11. Both your parents have died and you lost three of your brothers in 2008, 2009 and 2011. You said you had taken out loans to assist with funeral expense and you are still repaying these loans. You said that you have been so psychologically affected as a result and therefore you have since tendered your resignation from the Teaching Service so that you can use your service entitlements to repay the money you stole.

11.	 You said that you realized that it was pointless denying the offence and therefore instructed your lawyers that you will plead guilty in the August 2011 National Court Circuit. You acknowledged that your tarnished reputation is the direct consequence of what you did.

12.	Finally you deposed that you have taken steps to repay what you stole. On 12th October 2011 you paid a first instalment of K800.00 to the school. A copy of the deposit slip is annexed to your affidavit. You undertook to continue to make instalment payments and will also use your service entitlements to repay the sum of K5400 which you said you benefitted from personally.

SUBMMISSION ON YOUR LAWYER

13.	Your lawyer submitted that between 15th, 17th, and 31st August 2011, while employed by the Department of Education as the Headmaster of Urio Primary School you fraudulent conspired with the Board Chairman and Treasurer and stole K10,400.00 from the school. You had signed withdrawal slips and withdrew the monies on the three occasions alleged in facts by the State. The monies were used by the three of you. Counsel submitted that there are two sentencing issues for the Court to consider. These are:

(i)	What would be the appropriate sentence to be imposed on you?
(ii)	Whether or not the whole or part of the sentence can be suspended.

14.	Counsel submitted that while simple stealing under Section 372(1) of the Code attracts a penalty of 3 years imprisonment, your case is aggravated with the application of s. 372(7) as you committed the offence in the course of your employment. The penalty there is imprisonment for a term not exceeding 7 years.

15.	He also submitted the following factors as mitigating your offence:

(i)	You were 43 years old at the time of the offence but are now 46.
(ii)	You are the father of a young family and although you wife is also a teacher your needs your support
(iii)		All your children are in school and need your support daily
(iv)		You are a first time offender
(v)	You entered an early plea thereby saving judicial time and expense
(vi)	 	You expressed remorse for your offence
(vii)		You committed the offence with other known persons who have not been prosecuted as they have become State witnesses
(viii)		You only benefitted from K5400 while the rest of the money was used by your accomplices
(ix)		You spent two weeks in custody awaiting trial

16.	There are, however, aggravating factors against you, counsel submitted: These are:

(i)	You stole from your employer
(ii)	You were in a position of trust when you committed the offence
(iii)	Innocent children were affected

17.	Counsel also put to the Court's attention what he considered to be extenuating circumstances in your favour. These are:

(i)	The actual planning and execution of this crime involved the Board Chairman and Treasurer who were also signatories to the school account

(ii)	You only benefitted from K5000.00 whilst your co-conspirators benefitted from the remaining sum of K5400.00.

(iii)	You have made an attempt to make restitution with the initial payment of K800.00

18.	Your lawyer referred the Court to several cases which he said could assist the Court in arriving at an appropriate sentence for you. These are The State v. Simon Paul Korai (2009) N3820, The State v. Roselyn Waiembi (2008) N3708 and The State v. Shirley Tainoli (24/11/2004) (Mogish J.) unnumbered judgment. These cases involved the theft of K21,460.00, K15,000.00 and K185,000.00 respectively and attracted head sentences of three years for the first two cases and 4 years in the last case. I will discuss these cases in detail further down in this judgment. Counsel further said that all the above cases involved sums of money in excess of K11,000.00. They attracted sentences between two (2) years and six (6) years.

19.	Counsel argued that your case differs from the above cases on several aspects:

(i)	You successfully conspired with the Board Chairman and Treasurer who were also signatories to the school account to defraud Urio Primary School.

(ii)	You are the only one who has been prosecuted while your accomplices will go unpunished.

(iii)	You did not benefit alone from the proceeds of the offence as they were shared between the three (3) of you.

20.	Counsel therefore said that the mitigating factors and extenuating circumstances of the case renders your offence less serious. The cases cited above, he argued, were committed with some sophistication in that they involved skilful uttering of documents and use of passwords to obtain monies. Those sentences were therefore warranted because of the more aggravated nature of the cases but the sentence in your case should therefore be less.

21.	Counsel also asked the Court to take into account your degree of involvement in the commission of this crime. He said that the nature and manner in which this crime was committed shows an equally instrumental role by your co-conspirators. 

22.	While appreciating the seriousness of the offence of stealing from one's employer, counsel said that each case must be viewed on its own circumstances and the sentence must be warranted by the circumstances of the crime. He conceded that you wronged your employer. You were responsible for the running of a school where there was higher trust reposed in you. You, however, betrayed and abused your position. He conceded that your offence indeed warranted a custodial sentence similar to or less than the sentences of those cases referred to above.

23.	Counsel further submitted that your sentence should be "short and sharp" for deterrence but at the same time it should be rehabilitative so that you are given an opportunity to reform yourself and make restitution. He appealed to the Court to adopt the same approach as was done in the case of Shirley Tainoli (supra) to your case. That case involved a substantial amount of money but the court was swayed by the prisoner's mitigating factors and a wholly suspended sentence was imposed. In your case counsel said that your mitigating factors outweigh the aggravating factors and it therefore calls for a non-custodial sentence.

24.	In light of the foregoing counsel therefore submitted that an appropriate sentence for you should be two (2) years imprisonment less the pre-trial custody period. The balance of the sentence should thereafter be wholly suspended with conditions that you will keep the peace and be of good behaviour for the whole period of the suspended sentence and further that you repay K5400.00 to Urio Primary School within 12 months.

SUBMISSION BY THE STATE

25.	Mr. Ruarri for the State submitted that the main aggravating factors against you are:

(i)	You were in a position of trust as Headmaster of Urio Primary School and you betrayed that trust

(ii)	The offence is prevalent and thus called for stiff penalties

(iii)	The offence is an aggravated form of stealing

26.	Counsel referred me to The Public Prosecutor v. Sam Minimo [1977] PNGLR 226 where the Supreme Court stated that the legislative intention of the special cases set out in s 372 - cases involving circumstances of aggravation - requires increased sentences. He further referred to The State v. Timothy Tio (2002) N2265 and The State v. Robert Kawin (2001) N2167 – cases of stealing under s 372(10) and s 372(1) – where the prisoners were sentenced to 5 years and 3 years respectively.

27.	Mr. Ruarri left it to the Court to exercise its discretion but suggested that a sentence in the middle range would be appropriate.

RELEVANT LAW

28.	The offence of stealing from an employer is provided by s 372 (7) in the following terms:

372.	Stealing.

(1)	Any person who steals anything capable of being stolen is guilty of a crime.
...
(2)...
(3)...
(4)...
(5)...
(6)...
(7)	If the offender is a clerk or servant, and the thing stolen—

(a)	is the property of his employer; or
(b)	came into the possession of the offender on account of his employer,

he is liable to imprisonment for a term not exceeding seven years.

29.	As provided for by this provision the maximum penalty is 7 years imprisonment. It is, however, well settled law that the maximum penalty is reserved for the worst category of offences.

CONSIDERATIONS ON SENTENCE
 
30.	Now in deciding the sentencing issues that have been posed I will take the following approach. First, I will look at the objective considerations and sentencing trend for this crime. Secondly I will then consider the subjective considerations or circumstance peculiar to your particular crime. Thirdly I will fix an appropriate head sentence and fourthly consider whether to suspend the sentence or not.

(i)	Objective Considerations & Sentencing Trend

31.	 Section 372 provides generally for the crime of stealing. Subsection (1) provides for what is generally known as stealing simpliciter or simple stealing. The Legislature, however, recognised that in certain cases the crime may be aggravated by certain circumstances such as the existence of certain relationships or as regard certain types of property. It therefore legislated for those cases of aggravation and accordingly prescribed higher penalties for them. These are to be found from subsection (2) through to subsection (12). The penalties prescribed start from 3 years for simple stealing to life imprisonment for the most serious or aggravated cases of stealing testamentary instruments (subs.(2)) and stealing things in the course of transmission by post (subs. (3). In between lay the theft of an aircraft (subs. (4) which attracts a penalty of 14 years while the rest including stealing as a servant, clerk or an employee of the Public Service all attract penalties of up to 7 years imprisonment.

32.	There is therefore clear legislative intention that those special cases set out in s 372 must attract increased sentences. This was recognized by the Supreme Court in The Public Prosecutor v. Sam Minimo (supra). This was an appeal against inadequacy of sentence where the National Court had sentenced the respondent to 3 months each for two (2) counts of stealing as a servant. The Supreme Court noted that there were circumstances of aggravation such as premeditation and of course the Legislature's intention for this type of cases. It allowed the appeal and substituted a sentence of 12 months for each count to be concurrently served.

33.	Section 372(6) and (7) cover stealing in the course of employment. Employment relationships necessarily involve varying degrees of mutual trust. Generally, the higher or more important the position one holds, the higher the trust reposed and the stiffer the penalty should be. Take for instance, employment in the Public Service where certain officers are reposed with higher degrees of trust which increases with one's position in a department or Office. Hence, teachers, policemen, magistrates and judges, departmental heads and those holding managerial or supervisory positions are reposed with varying degrees of trust. When such a person steals State property or property that came about by means of his employment as servant of the State he abuses the trust reposed in him and the law requires that his crime be met with an appropriately higher sentence.

34.	However, on the other end of the spectrum are those occupations such as that of a steward, butler or a domestic servant where such persons are held in near absolute confidence or trust by their masters and mistresses despite their seemingly lowly station. Appropriately high sentence ought also to be imposed in such cases and in those involving clerks and other employees in private business organizations. 

35.	 Let me just mention in passing here that you are neither a clerk nor a servant as defined by s 1(1) of the Code. Rather you were at the time of the offence a member of the Teaching Service who for the purpose of the criminal law was "a person who is employed in the Public Service" (see s 1(1) of the Code).

36.	Therefore you should have been charged under s 372(6) of the Code which in similar terms to subsection (7) provides:

(6)	If the offender is a person employed in the Public Service, and the thing stolen—

(a)	is the property of the State; or
(b)	came into the possession of the offender by virtue of his employment,

he is liable to imprisonment for a term not exceeding seven years.

37.	Be that as it may, the circumstances of aggravation in these provisions are essentially directed at persons who steal the property of their employers or property that came about by virtue of their employment whether as a servant or clerk or as a person employed in the Public Service.

38.	Your lawyer, however, did not object to the charge in its present form nor do I think that you were under any illusion as to what you were pleading to or the peculiar circumstances under which you committed the crime.

39.	That being the case, apart from the cases that have been referred to me by counsel I think it is also appropriate to consider cases involving stealing by public servants under s 372(6) since you are or were a public servant when you committed this crime. So how have the courts treated offenders for this crime?

40.	Let us now consider the sentencing trend over the years for these types of offences. In The State v. Robert Kawin (supra) the prisoner had on two different occasions withdrew money from a fellow workers' bank account who had entrusted his account with him after forging his signature. On the first occasion he withdrew k50.00 and, emboldened by his success on that first occasion, he later withdrew K2200 on the second occasion. He was indicted and convicted for two counts of stealing (simpliciter) under s 372(1) of the Code. Kandakasi J. was of the view that there were no sentencing guidelines for stealing simpliciter and therefore proposed the following guidelines:

(1)	The maximum prescribed penalty should not be readily imposed but reserved for the worse type of the offence under consideration

(2)	Where there is a guilty plea and the offender is a first time young offender such good factors should attract sentences lower than the prescribed maximum

(3)	If the property stolen is recovered it may operate as a factor in mitigation

(4)	Where the property stolen is substantial and/or has not been recovered a higher sentence may be imposed

(5)	The prevalence and effect of the offence against the victim and the community or society as a whole is an important factor for consideration.

41.	Applying these to the case before him his Honour took into account that there was a serious breach of trust and that only K500 was recovered. He considered that this matter fell in the worst category that should attract the maximum of three years. He, however, took into consideration the prisoner's plea and that he was a first time offender and sentenced him to 6 months and 18 months respectively for the two counts. 
 
42.	In The State v. Timothy Tio (supra) the prisoner stole a chainsaw from Steamships Hardware. He was employed by a Security Firm which was contracted by Steamships to guard its shop. He was convicted under s 372(1) (10) for stealing property worth K1000 and above. His Honour Kandakasi J. adopted the principles he laid down in The State v. Kawin (supra) which he said could be modified to apply to other offences under s 372 of the Code. He noted the prisoner's guilty plea and that he was a first offender. However, against these were the following factors:

(1)	Although the prisoner apologised for his crime there nothing was before the court to show that he had apologized to Steamships Hardware and the person to whom he had sold the stolen chainsaw. His Honour, repeated what the Supreme Court said in Allan Peter Utieng v. The State (unreported and unnumbered judgement) SCRA 15 of 2000) that an expression of sorrow is meaningless unless it is accompanied by some tangible expression of that in terms of saying sorry to the victims of his crime

(2)	The prisoner was employed specifically to look after Steamship Hardware and its property. Instead he stole from the company and therefore destroyed the trust and confidence placed in him.

(3)	The value of the property was substantial

(4)	The offence of stealing by security guards was prevalent

(5)	The prisoner substantially benefited from his criminal conduct.

(6)	The impact of such cases on business was grave and might lead to businesses closing down.

43.	 His honour viewed the offending as deserving of a higher sentence for personal as well as general deterrence. He imposed a sentence of 5 years less time spent in custody.

44.	In the case of The State v. Shirley Tainoli (supra) the prisoner had deposited a stolen cheque to the value of K185,000.00 into an account controlled by her and her husband. The whole sum was recovered and she did not benefit from the fraud. There was no breach of trust and it was a one-off offence. She was also 9 months pregnant at the time of sentence. She was sentenced to 4 years imprisonment. The sentence was wholly suspended and the prisoner was placed on probation with conditions.

45.	In The State v. Roselyn Waiembi (supra) David J. convicted the prisoner on a plea of guilty for stealing under s 372 (1)(7)(a) of the Code. The prisoner was employed as an Accounts Clerk in a law firm. Over a period of time she stole K15,000.00 from her employer by including extra monies ranging between K50 – K700 in Cheque Requisition Forms that she prepared every payday. She kept those monies for herself. The court viewed the offence as serious but was mitigated by an early plea, the prisoner was a first offender and she showed genuine remorse. She was sentenced to three years less 1 month in pre-trial custody. The balance of 2 years and 11 months was wholly suspended on conditions which included restitution.

46.	His Honour David J. agreed with and applied the guidelines espoused by Kandakasi in Kawin and Tio (supra). He also agreed with the view expressed yet again by Kandakasi J. in The State v. Louise Paraka (supra), a case of dishonesty and that the long established guidelines of Wellington Belawa v. The State [1988-89] PNGLR 496 for crimes of dishonesty should apply to all cases involving forgery, obtaining goods by false pretence, fraud, and misappropriation. His Honour then said that the offence of stealing should also be included in the list though he observed that the sentencing scales in Belawa are outdated. 
 
47.	In The State v. Simon Paul Korai (supra) the prisoner pleaded guilty to the charge of stealing K21,460.00. He was employed as a Security officer at the Bank of South Pacific in Kundiawa. In the course of his employment he assisted the victim in filling out withdrawal forms and in the process came to memorize the victim's PIN number. He then obtained the monies in question on 13 different occasions. The crime was perpetrated over a period of two months. The prisoner was sentenced to a term of three years. One year was deducted for time in custody awaiting trial. The balance of 2 years was wholly suspended on the condition that he keeps the peace and be of good behaviour.

48.	In that case David J. took the following factors in favour of the prisoner; he had pleaded guilty to the charge, was a first time offender, had expressed remorse and had a medical condition though there was no evidence that it was life threatening or incurable, he had a big family who depended on him and that the bank had repaid the total amount stolen from the victim.

49.	But against the prisoner were the following aggravating factors. The amount stolen was quite substantial, the prisoner personally benefited immensely from the crime, crime was committed over a period of 2 months, stealing by security guards was prevalent, no restitution was made or attempted, the prisoner was employed by the Bank of South Pacific as a security guard and hence was in a position of trust of the highest degree.

50.	His Honour, however, did not think that this was a case of the worst kind. He therefore imposed a sentence of 3 years less 9 months and 3 weeks for time spent in custody, leaving a balance of 2 years, 2 months and 1 week. He suspended 2 years and ordered the prisoner to immediately serve 2 months and 1 week in custody after which he was to be released to enter into his own recognizance to keep the peace and be of good behaviour for 2 years. Again his Honour was guided by the guidelines in Belawa, Kawin and Tio.

51.	In The State v. John Akoko (2001) N2061 the prisoner, a former policeman attached to the Police Task Force in Lae pleaded to one count of stealing K7000, money which came into his possession by virtue of his employment as a servant of the State. The money was part of K180,000 which the Task Force had recovered from criminals in a bank robbery. He was charged under s 372(7) of the Code.

52.	Injia J. (as he then was) agreed that the long list of mitigating factors and extenuating circumstances of the offence which included lack of pre-planning, sudden temptation to steal, having risked his own life in leading the pursuit of the armed robbers involving a fierce gun-battle and eventual recovery of the loot and other good factors and character evidence by his superiors and others would justify the exercise of leniency. His Honour, however, said that: 

"But it is only fair and just that these mitigating factors which are personal to the accused should be balanced against the severity of the crime he committed and the interests of the community ... The Police Force is a honourable and disciplined service which is loyal to the State and its people. A good, efficient and more importantly an honest and trustworthy police force is the pillar of a safe and prosperous society. There is no room in the police force for corrupt and dishonest policemen. The public confidence in the police force is eroded by the conduct of men and women in police uniform who go out of their call of duty to steal from the very community they are duty-bound by law to serve with honour and dignity.

This case marks the beginning of a new trend in the police force where corrupt policemen use their position to conceal, deceive and steal money recovered in the course of investigating serious crimes. As such, it ought to be visited with a stern punitive sentence in the form of custodial sentence to serve as a deterrent to the other potential offenders."

53.	Commenting on sentencing tariffs set out in Belawa v The State (supra) which counsel referred to him, His Honour said these were only guidelines. He said that the "degree of trust reposed in the [prisoner] and the breach of it ... [had] tendency to erode public confidence in the police force, both of which are relevant considerations mentioned in Wellington Belawa's case, to be a compelling considerations."

54.	He therefore imposed a sentence of 5 years imprisonment. He deducted 3 months for period spent in custody and suspended 2 years from the balance on conditions for good behaviour and restitution. He ordered the prisoner to serve 2 years and 9 months.

55.	More recently in The State v. Steven Luva (2010) N3909, the prisoner pleaded guilty to 13 counts of stealing and was sentenced to an effective term of 4 years and 5 months. The prisoner in that case was employed as a meter reader with the state-owned enterprise PNG Power Ltd. He took various sums of monies as service fees from 13 individuals for Service Connections and Supply Kits. He did not deposit these monies into the appropriate company account but instead used them. There his Honour Lenalia J. re-affirmed that the Belawa guidelines apply also to stealing cases.

56.	Therefore as we have seen from all these cases the question of the applicability of the Belawa guidelines to stealing cases – with the necessary modifications of course – now seems well settled. The last two cases cited above (Akoko and Luva) involved a policeman and an employee of a state-owned enterprise – the latter, I might add – also a servant of the State in the widest possible sense. There may be other cases but I am unable to find any because of the limited resources available to me while on circuit.

57.	There is, however, a case which I think has some relevance on the issue of abuse of trust by officers of the State is The State v. Paulus Takesi [1997] PNGLR 507. There the prisoner pleaded guilty to two counts of false pretences under s 404 of the Code. He was a lawyer in the employ of the State Solicitor's Office who had assisted the relatives of a deceased person to claim for compensation from Office of the Commissioner for Workers Compensation. He falsely represented to an employee of the Office of the Commissioner that he had the claimants' authority to collect the payments and collected K7000.
 
58.	On his plea for leniency, he, among other things, submitted that he was a first time offender, that his offence had brought shame upon himself and his family, that he be given every opportunity to make restitution, that he was a law abiding citizen and therefore posed no danger to the community. He further asked the court to consider the sentencing guidelines set out in Belawa (supra).

59.	His Honour Sevua J., however, did not think that this was a case for a non-custodial sentence. He reasoned that the amount involved was substantial, that there was greater culpability because of the higher degree of trust reposed in the accused in his capacity as lawyer and that whilst the fraud was executed within a very short period of two days, the impact on the public and public confidence and of course the victims were such that he could not easily overlook them.

60.	On the plea for an opportunity to make restitution his Honour noted that even after two and half years after the offence was committed the prisoner had not made any genuine attempts to set things right with his victims. Furthermore the accused had not shown any real remorse and the shame and disgrace that have befallen him and his family were outweighed by the abuse of the high position that he held. He was sentenced to 2 years imprisonment for each count to be served concurrently.

61.	The sentences in the cases I have reviewed ranged from between 5 years and 3 years and were either served in full, partly or wholly suspended. What stands out in all these cases is that where there was a high degree of trust and a subsequent abuse of that trust the court did not hesitate to impose appropriately high sentences. But on the same token the court did not shy away from exercising its discretion under s 19 of the Code when mitigating factors and extenuating circumstance warranted the exercise of discretion through partly or wholly suspended sentences.

62.	In the final analysis, when viewed objectively, the offences of stealing under s 372(6) or (7) are serious and must necessarily incur stiff custodial sentences. The sentencing guidelines in Belawa and Kawin place sentences around the mid-range, particularly where there is a high degree of trust reposed in the prisoner for both for personal and general deterrence.
 
(ii)	Your Offence – Subjective Considerations
 
63.	Let me now consider your offence in light of your peculiar circumstances. Firstly, your mitigating factors. I accept that you pleaded guilty to the charge, are a first time offender and that you have shown some remorse. I accept also that you have paid K800.00 as the first instalment towards repaying the money you stole which I take as a tangible expression of your remorse for your crime. I also accept that you have since retired from your job and that you want to use some of your service entitlements to make a full restitution. That is commendable and probably the only honourable thing for you to do.

64.	 Against these, however, are aggravating factors. You stole from the school that you were charged with administering. You and the School Board were entrusted with the power to control, manage and administer the school's financial accounts and affairs. And it goes without saying that the position you held and the responsibilities that come with it reposed in you a very high degree of trust which in turn demanded honesty, integrity and prudent management of the school's financial affairs. You abused your position and ultimately the trust that the State as your employer and the community of Urio Primary School placed in you.

65.	Your action directly and adversely affected the education of the children of Urio Primary School. If the funds you stole were school fees or school subsidies (and I believe they were) then obviously the school would have been deprived of much needed school curriculum materials and funds for projects and maintenance. As it is, school funds can be substantial depending on enrolment and that means a lot of money in the hands of headmasters like you and school boards. The temptation to steal or misappropriate is ever present particularly when signatories to school accounts have no firm moral resolve and where parents and citizens committees and provincial education authorities are not diligent in keeping school boards and headmasters in check. The dangers are more pronounced in rural schools because of their isolation.

66.	Another thing that aggravated your offence is the fact that you perpetrated your crime over a period of two weeks. This was not a one-off case. Rather you made three fraudulent withdrawals on separate occasions for substantial sums, which, according to the evidence in the depositions left the school account almost completely depleted.

67.	You deposed in your affidavit and again claimed in your allocutus that you did not act alone but that you conspired with the Board Chairman and Treasurer. To your credit the State did not counter your claim by calling evidence to the contrary. Your counsel therefore prayed that the Court considers this as an extenuating circumstance that should be held in your favour. I do accept that where a prisoner denies a fact alleged by prosecution and which is not effectively challenged such should be applied to the benefit of the prisoner. See Saperias Yalikabut v The State [2006] PGSC 27; SC890 (27 April 2006) where the Supreme Court held at para. 53:

"If there are significant issues of fact arising from the depositions or the allocutus that were not in the summary of the facts to which the accused pleaded guilty, the court should generally act on the version of the facts, which, within the bounds of possibility, is most favourable to the accused."

68.	That may very well be the case here. However, your claim of conspiracy between the Board Chairman, the Treasurer and yourself can also be taken as an aggravating factor in that the three of you whose combined and over-riding duty was to prudently manage the school's finances collectively abused your positions and betrayed the trust reposed individually and collectively in you as members of the Board.

69.	But if what your lawyer says is true i.e. that your so-called co-conspirators have been granted immunity by the State in other to testify against you in this matter, and in the absence of anything to the contrary from the prosecution, then certainly I must and I do apply any doubt to your benefit as an extenuating factor or circumstance. So what would be an appropriate sentence for you? 

AN APPROPRIATE HEAD SENTENCE

70.	In deciding an appropriate sentence for I am guided by the sentencing guidelines in Belawa and Kawin (supra) which I agree are useful in all cases involving dishonesty. I have alluded to the Kawin guidelines above in paragraph 41. But for completeness it is appropriate for me to allude to the considerations laid down in Belawa which are relevant to your case. These are: 

a)	the amount taken 
b)	the quality and degree of trust reposed in the offender including his rank
c)	the period over which the theft or fraud had been perpetrated 
d)	the use to which the money or property dishonestly taken was put
e)	the effect upon the victim
f)	the effect of the offence upon the public and public confidence
g)	the effect on fellow employees or partners
h)	the effect on the offender himself
i)	the offender's own history
j)	restitution
k)	the matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; any help given by him to the police by him to the police.

71.	The Supreme Court then set a sentencing scale upon which sentences can be adjusted upwards or downwards according to the factors enumerated above. The scale is as follows:

Category	Amount Misappropriated	Appropriate Sentence	
1	Between K1 – K1000	Gaol term should rarely be imposed	
2	Between K1000 – K10000	Up to 2 years	
3	Between K10000 – K40000	2 to 3 years	
4	Between K4000 – K150000	3 to 5 years	

72.	 Now the amount you were indicted for, which you admitted withdrawing from the school account was k10,400.00. You, however, said that you only personally benefited from K5400.00 whilst the balance was used by your "co-conspirators." But regardless of whether this truly reflects the truth or otherwise the total amount involved is by anybody's standard a substantial amount for a rural school.

73.	I should say, however, that in cases of servants of the State, particularly those who are reposed with a higher degree of trust, and who control public funds, the starting point should be between 3 to 3 ½ years. These can be adjusted either up or downwards depending of the peculiar circumstances of each particular case.

74.	There is no denying that a lot of public funds meant for much needed services in the communities, both urban and rural, have been siphoned off by thieving public servants and their cohorts. This downward trend has to be arrested by appropriately stiff custodial sentences. Such sentences should serve to punish, deter and exact restitution out of offenders and hopefully also rehabilitate them in the long run.

75.	I strongly feel that the approach taken by Injia J. (as he then was) in Akoko (supra) and Lenalia J. in Luva (supra) should be followed. Public servants who abuse the trust reposed in them by stealing public funds or funds intended for the running of public institutions should serve a portion of their sentences so that public confidence can be restored in our public institutions and public servants and also in our system of justice.

76.	Now justice must be done in every case not only for the offender but also for the community and the State. The courts must not be over indulgent toward offenders of prevalent offences which have the potential of seriously eroding public confidence in government, public institutions and public servants. The community demands to see justice being done for them too. For as much as it is true that "justice must not only be done but also be seen to done", it is also true that "justice must be seen to be done in order to be believed." At the very least that is what the community demands.

77.	Therefore looking at your case objectively, given the amount you stole regardless of whether you benefited personally from K5400 only (which I shall give you the benefit of a doubt) and the high degree of trust reposed in you as Headmaster of Urio Primary, your case would be fall within the lower rung in Category No. 3 of the Belawa sentencing scale – a sentence between 2 to 3 years. Given the dramatic increase in misappropriation and stealing cases similar to yours, I must echo what some of my senior brothers have said – that the scales in Belawa are now out-dated and appropriate sentences may be imposed in appropriate cases where peculiar circumstances warrant. 

78.	So taking into account your mitigating (and extenuating) circumstances I feel that a head sentence of 2 years will be appropriate for the reasons I have already alluded to. It cannot be over-stated that the government system of service delivery has been over the years - and it sadly continues seemingly unabated presently – crippled by blatant misuse and theft of funds by some unscrupulous public servants and leaders in all branches of government.

79.	This sentence will not only deter you personally and others. It is also punitive and an expression of the community's disapproval of such behaviour. Hopefully you will also be reformed along the way. And of course there has to be restitution which must feature prominently in sentences for this and like offences.

80.	In all this I am not insensitive to the damage your offence has done on you professionally and personally. What you have brought upon yourself is the direct result of your criminal behaviour. Unfortunately some people very close and precious to you have been seriously affected, shamed if not demoralized by your offence – out of no fault of their own. The pain of having hurt them will obviously be something that you will carry with you for the rest of your life. You may have been under great strain because of losing family members successively over that period of time but there was really no need for you to have taken the course you took.

81.	I therefore impose a head sentence of 2 years of which two weeks will be deducted for time spent in custody awaiting trial. You would therefore serve a period of 11 months and 2 weeks. But should the sentence be suspended?

WHETHER TO SUSPEND THE SENTENCE

82.	As I already alluded to above I consider the approach taken in John Akoko and Steven Luva to be preferred so that the objects of deterrence, retribution, restitution and rehabilitation can be of real effect and benefit not only to offenders but also to the community.

83.	I propose therefore that you serve eleven (11) months and two (2) weeks of your sentence. The remaining one (1) year will be suspended on that condition that you will repay the sum of K4600 to Urio Primary within 6 months from today and further that you will enter into your own recognizance to be of good behaviour and keep the peace after you have served part of your sentence for a period of twelve (12) months.

84.	I therefore make the followings orders:

1)	You are sentenced to 2 years imprisonment with hard labour of which 2 weeks are deducted for pre-trial custody period.

2)	One (1) year of the sentence is suspended on the condition that –

i.	You shall pay K4600.00 to Urio Primary School within 6 months
ii.	Upon your discharge you shall enter into your own recognizance to be of good behaviour and to keep the peace without surety for a period of 12 months 

3)	You shall serve a period of 11 months and 2 weeks imprisonment at the Biru Corrective Institution

4)	Your bail of K100 shall be refunded in full.
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The Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Prisoner