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State v Vincent [2014] PGNC 248; N5698 (26 June 2014)

N5698

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 947 OF 2013

BETWEEN

THE STATE

AND:

MATHIAS VINCENT

Waigani: Salika, DCJ
2014: 25 July

PRACTICE & PROCEDURE – Criminal Law – Sentence – dishonesty offence – stealing – Section 272 of Criminal Code – Bank teller – in position of trust – stole K100,000.00

Cases cited:

Belawa v the State (1988-89) 496
State v Eliakim N3190
State v Johnson Bale N2626
State v Neville Miria N5102
State v Timothy Tio N2265
State v Pongowen Popei and Mark Regione, CR 659 and 660 of 2012 Unreported and Unnumbered

Counsel:

Mr W Paka, for the State
Ms M Ainui, for the Defense

25th July, 2014

1. SALIKA DCJ: Introduction: The prisoner pleaded guilty to one count of stealing K100,000.00 the property of Westpac Bank Limited, his then employer. At the time of the offence the prisoner was a corporate teller of the bank at its Waigani Branch and he simply walked out of the bank with K100,000.00 cash in a back pack. He then went absent without leave to Madang where he used up some of the money until he was apprehended by Police and charged for stealing pursuant to s.372 (7) and (10) of the Criminal Code.
   

Issue

2. The court now has to decide on what sentence to impose on the prisoner.
   

Personal Particulars

3. The prisoner is 26 years old and comes from Maroro village in the Kagua District of the Southern Highlands Province. He is married and has a two year old son. He was educated up to grade 10 level at the Ialibu Secondary School and got further education at the International Training Institute (ITI) but left due to work commitment. His wife is a journalist with the National newspaper.
   

Circumstances of offence

4. The prisoner in the pre-sentence report is reported to say that he did not intend to steal the money but that he wanted to buy gold with the money, sell the gold and repay the bank and start his own Information Technology company.
   
5. To me that is the dumbest thing to say especially when he was working in the bank, where he knows he could apply for a loan or ask his friends like Peter Konigi for a loan. You wanted to start a business you need money and if you do not have money you must borrow either from the bank or friends. You just cannot secretly get someone else's money without the consent of that someone and use it to make money. That amounts to stealing.
   
6. Stealing is a serious offence. The maximum penalty for simple stealing is 5 years but where the prisoner is a clerk or servant and the thing stolen exceeds K1,000 the prisoner is liable to be imprisoned for up to 7 years.
   
7. The court has a duty not only to ensure rehabilitation of the offender but also has the duty to ensure that the sentence imposed has a deterrent effect on the offender and also other prospective offenders.

Case Precedents

8. The Supreme Court in The Belawa v the State [1988-89] PNGLR 496 confirmed a sentence of 2 years imprisonment for misappropriation. In that case the prisoner misappropriated K1,979.00 and had the money fully reimbursed and he appealed the sentence on the basis that it was excessive but the court said the 2 years imprisonment was not excessive.
   
9. In The State v Eliakim N3190 the prisoner pleaded guilty to one count of conspiracy to defraud and one count of stealing K3,360.01. He was sentenced to 18 months imprisonment for submitting ghost names of employees and obtained cheques for those ghost employees. He did this for 3 months before he was caught.
   
10. In The State v Johnson Bale N2626 the prisoner was sentenced to 4 years imprisonment for stealing K78,074.03 from his employer. The prisoner was in a position of trust and he abused that trust.
    
11. In The State v Neville Miria N5102 the prisoner was sentenced to 4 years imprisonment for stealing K100,000 from his employer the Bank South Pacific. He had premeditated the crime before executing it.
    
12. In The State v Timothy Tio N2265 the prisoner there was sentenced to 5 years imprisonment for stealing a chain saw valued at K8,000 from his employer and then sold it to a third party for K3,000.00
    
13. In the recent cases of The State v Pongowen Popei and Mark Regione, CR 659 and 660 of 2012 Unreported and Unnumbered judgement given on 14 April 2014 the court sentenced the two men to 3 years to conspiracy to defraud and 4 years for stealing with both sentences to be served concurrently.
    
14. By the foregoing and numerous other unmentioned case precedents the National Court is consistently imposing stern punishments to offenders with no sign of those sentences having any deterrent effect on prospective offenders. It is also evident from the number of stealing and misappropriation cases listed in our Crimes Track cases. There are 3 crime courts in Waigani. One of those crime tracks is this track which is the Fraud Cases Track. This track is the heaviest of the 3 courts. The track is even heavier that the other 2 crimes track put together. This trend shows that more and more fraud and dishonesty cases are committed than the other crimes. What lessons can we draw from this trend. I think I will leave that to each and every one of us to seriously ponder over. It is food for thought for the moment.
    

Sentencing Guide

15. The Belawa case precedent lists down factors and consideration that are relevant and which assists the sentencing tribunals in coming to a sentencing decision. Those factors are:
    
    • - Amount taken
    • - Degree of trust held by the offender
    • - Period offence was committed
    • - Use to which the stolen money was put
    • - Effect on the victims
    • - Impact of offence as public and public confidence
    • - Offenders history
    • - Effect on the offender himself
    • - Restitution
      • -

Amount Taken

16. The prisoner stole K100,000 which is a lot of money.

Degree of trust held by the offender

17. Every bank teller, working for and in any bank has a very high degree of trust laced on them by then employing banks. The prisoner is no exception. Bank tellers handle lots of money, large and small amounts in their daily routines. The prisoner here was a corporate teller, therefore a high degree of trust was bestowed on him. He obviously abused that trust.

Period offence was committed

18. The offence itself took place on 24 October 2012. It took a few moments to commit the offence. However, the planning, the desire and the urging to commit the offence would have taken a lot longer.

Use to which the stolen money was put

19. The prisoner's plan was to get the money and use it to buy gold. He made arrangements with people from Simbai in the Madang Province to buy their gold and to take the gold to Port Moresby and sell it and then repay the bank and he would keep the profit. His plan did not work out because the Simbai people were selling their gold at K115 to K120 per gram while prisoner was hoping to buy at K90.00 per gram. That plan fell through. The prisoner then bought 11 bags of betelnut to sell in Lae to make money to repay the bank. He also used part of the money to hire a car while in Madang. He spent K51,578 and K48,422.00 was returned to the bank. Some of it would have been for food and accommodation.

Effect on the victims

20. The Westpac Bank at its Waigani Branch is K51,578.00 poorer but has not suffered very much.

Impact of offence as public and public confidence

21. There is no evidence of any adverse impact on the public. There is also no evidence as to whether public confidence in the banking industry will be affected by this incident.

Offender's history

22. The prisoner is a young man, 26 years of age and married with a child. He worked as a teller or with the bank for years. He completed Grade 10 at Ialibu High School and did some training at the International Training Institute in Port Moresby. He then got employed by the bank. What training the bank gave him is not before the court.

Effect on the offender himself

23. The offender has lost his employment with the bank. He will find it extremely difficult to find another similar job. The prisoner's wife will now have to fend for the family which is a heavy responsibility in itself. The prisoner has brought this upon himself and his family. His craving for fast money has landed him in this situation.

Restitution

24. The prisoner has not made any restitution. The K48,422 found on him was refunded to the bank. The amount of K51,578 remain outstanding. I wonder how much was made from the sale of the 11 bags of betelnuts in Lae. Asi understand it the 11 bags of betelnut is bought to raise money to repay the bank. As it is the K51,578 remain outstanding.

Mitigating Factors

25. Factors taken into account in his favour are:

- Plea of guilty
- First time offender with no prior convictions
- Did not squander the entire K100,000.
- He expressed his regret and is remorseful about his deed.

• -

Aggravating Factors

26. The factors taken into account against him are:

- In a position of trust and he abused the trust.
- A large amount of money was taken and remains outstanding.
- No real effort made for restitution.

• -

Sentence

27. I consider all dishonesty offences as serious offences because in a lot of these cases, large amounts of money is stolen or misused. Moreover, while I appreciate that there is no one perfect place on earth free from such crimes, I believe the rate and frequency of dishonesty offences committed in this country is and must be of great concern to the law abiding people of this country. It is indeed a great concern to this court. The frequency of these offences being committed is alarming.

28. The prisoner was in a position of trust. He was handling huge amounts of money everyday. The feeling and the sight of lots of money in his hands must have been too much of a temptation on his young enterprising mind. The temptations they go through each working day handling such huge sums of money only to receive K245 per week can sometimes be heart breaking and demoralizing.

29. The court has a responsibility to ensure rehabilitation of offenders but at the same time must ensure that offenders are deterred from committing any such offences in the future. It must also send out the warning that offenders risk jail terms. The general trend is the higher the amount stolen, the higher the sentence. It is also generally accepted that the higher the degree of trust the higher the sentence. Furthermore it is generally accepted that the higher the position of responsibility the higher the sentence. There are other such classes of cases and the ones listed above are not exhaustive.

30. The seriousness of this case is similar to the case of The State v Zachery Pasiliu N5696, which I just dealt with before your case in that in that case he was a police officer with over 30 y ears of service and although he stole only K4,200, the money he stole was a court exhibit. He therefore destroyed evidence that is meant to be adduced in court for another case, and the money was given to him as the Supervisor to keep safe until the matter went to court. Yours likewise was a serious breach of trust endowed upon you by your employer.

31. Considering all the circumstances and taking into account all the mitigating factors and the aggravating factors, I sentence you to 3 years imprisonment with hard labour. Time spent in custody is taken off from the 3 years. You will now serve the balance
___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner