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State v Sam [2014] PGNC 255; N5766 (30 July 2014)

N5766

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 168 OF 2012

THE STATE

-V-

RICHARD SAM

Kokopo: Lenalia, J.
2014: 9th & 30th July.

CRIMINAL LAW – Particular offences – Stealing – Plea of guilty – Criminal Code Section 372 (7) (b)

CRIMINAL LAW – Offence of stealing – Offender admits he committed the offence – No restitution has been made – Appropriate case for a custodial penalty – If restitution is ordered, the prisoner has no means to effect such payment – Deterrence be considered – Sentence of 2 years appropriate

Cases cited

Taiba Maima v Ben Hambakon Sma [1971- 1972] PNGLR 49
State-v- Tardrew [1986] PNGLR 91
John Elipa Kalabus v The State [1988] PNGLR 193
Wellington Belawa v The State [1988-89] PNGLR.496
The State-v-Bill Baru (1997) N1546
The State v Louise Paraka (2004) N2317
The State v Benson Likius (2001) N2618
The State v Shirley Tainoli (24/11/2004) unnumbered judgment
The State v Lukeson Olewale (2004) N2758
The State v Daniel Mapiria (unreported judgment dated 1st October 2004
The State-v-Christian Korei (2005) N2946
The State-v-Frank Amban (2005) N2961
The State-v-Alice Wilimot (2005) N2857
The State v Jack Oseketal Metz (2005) N2824
The State v Ansong Ising (2005) N2994
The State v Jimmy Kendi (No.2) (2007) N3131 1
The State v Joyce Bune (20.7.06) CR.NO.887 of 2006
The State v Joseph Pokali (30.11.04) CR.N0.71 of 2004

Counsel:

L.Rangan, for the State
J. Wala, for the Accused.

30th July, 2014

1. LENALIA, J. The accused in this case was charged with one count of stealing simplicita pursuant to s.372 (7) (b) of the Criminal Code. After reading the charge and putting the brief facts to the accused, the court asked the accused if the charge was true or not. In his answer, the accused said, "The charge is true". The court entered a provisional guilty plea. The State Prosecutor then tendered the District Court committal file to the court. After reading the facts, the court found that, the guilty plea was consistent with the facts contained in the committal file and the court then confirmed the guilty plea and convicted the prisoner on the charge of stealing by misappropriation.

Brief Facts

2. At the time the prisoner committed the offence, he was working with NGIP Agmark Group of Companies as a Wet Bean Buyer. He was based in Warongoi branch and it is alleged that between February 2011 and May 2001, he stole the money from his employer when the money came into his possession for purposes of buying wet cocoa beans. Daily, the prisoner was given K1, 000.00 for purposes of buying wet beans.

3. It is further alleged that, without approval from his employer, he stole an amount of K19, 000.00. He used to live with a friend at Reiet near Warongoi. The facts also reveal that the prisoner also conspired with others who were involved in the same practice. When such practice was detected, the prisoner was referred to the police. The record of interview contains admissions made by the prisoner and said, there were other co-workers involved. The amount charged on the indictment is K4, 000.00.

Addresses on sentence

Prisoner in allocutus.

4. The prisoner said sorry for what he did and extended the same concern to his employer. He said, he may have been influenced by other co-workers who do or carry out the similar practice of stealing money from the company given to them for purposes of buying wet beans. He asked for mercy and asked to be given a suspended penalty.

Defence submission.

5. Mr. Wala addressed the court on the prisoner's antecedent reports. Counsel asked the court to consider the following factors:

- The prisoner's guilty plea,
- He is the first time offender,
- There are no prior convictions,
- The court to consider the pre-sentence report and the means-assessment reports.

6. Counsel submitted that this would be an appropriate case for imposition of a non-custodial sentence with a possible fine.

Prosecution submission

7. Mr. Rangan, counsel for the State replied by citing the case of Wellington Belawa v The State [1988-89] PNGLR 496 and submitted that the court must consider the action by the accused for the fraudulent dealing which counsel argued that, it was too prevalent for employees and servants to commit misappropriation or stealing as was the case on the current case.

8. Counsel submitted that, K4, 000.00 by ordinary man's standard is big money for a villager and the prisoner should be given a custodial penalty to show the aspect of deterrence.

Relevant Law

9. The prisoner is charged pursuant to s.372 (1) (7) (a) (b) of the Criminal Code. Subsection (1) of this Section creates the offence of stealing and states that where a person steals anything capable of being stolen is guilty of the offence of stealing. Subsection (7) (a) (b) states:

"(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."

10. Sentencing approach taken by Judges of this Court for various dishonest offences vary from case to case. This depends on the circumstances of each case such as the amounts involved, the degree of trust, the time taken to commit the offence and whether an offender was a servant or not.

11. The Supreme Court in Wellington Belawa v The State [1988-89] PNGLR 496 set out certain considerations to be considered by judges of the National Court in misappropriation cases involving breach of trust. They include the following:

- the amount of money involved
- the quality and degree of trust placed on the offender and his or her position
- the period of time it took to commit the offence
- the use to which the money taken was applied for
- the effect on the victim
- the impact of the offence on the public
- the effect on the offender
- the offender's background history
- whether restitution had been effected, and
- special mitigations.

12. The instant case would fall into the second category set by the Supreme Court in Belawa's case where the Court there said that for an amount stolen or misappropriated between K1, 000.00 and K10, 000.00 an appropriate jail term should be up to two (2) years. The stolen amount on the instant case was K4, 000.00.

13. The company that you worked for trusted you and it further entrusted you with great responsibility to handle the cash money that came into your possession. What is serious about the prisoner's case is that, Richard, you were entrusted with great responsibility and accountability for looking after the funds that came to your hands in cash. You somehow manipulated the system and used the money for your own benefit. Your action was against the law.

14. In the State-v- Tardrew [1986] PNGLR 91 the Supreme Court comprising of Sir Buri Kidu CJ, Bredmeyer & Barnett JJ), set down three broad categories but not exhaustive on suspending a sentence in a misappropriation case. They are where a suspension will promote personal deterrence, reformation or rehabilitation. Secondly where suspension will promote restitution of stolen money or goods, and thirdly where imprisonment would create excessive degree of suffering where an offender has bad physical or mental health. On the current case, the prisoner is a healthy young man. In that case, the Court said, the appropriate sentence in a case where there was restitution of the whole amount misappropriated of K82,202.73, was five years.

15. The Court in that case set down three broad categories but not exhaustive on suspending a sentence in a misappropriation case. They are where a suspension will promote personal deterrence, reformation or rehabilitation. Secondly where suspension will promote restitution of stolen money or goods, and thirdly where imprisonment would create excessive degree of suffering where an offender has bad physical or mental health. On the current case, the prisoner is a healthy young man.

16. In The State-v-Lukeson Olewale (2004) N2758, a misappropriation case involving an amount of K40, 000.00 where the offender in that case uttered the cheque after he conspired with others. He pleaded guilty and he was sentenced to a term of 4 years. The sentence was fully suspended.

17. In The State-v-Louise Paraka (2002) N2317, the prisoner in that case was charged with two counts of forgery and two for uttering cheques worth K6, 000.00 contrary to Sections 462 (1) and 463 (2) of the Criminal Code. The accused in that case pleaded guilty and was sentenced to 3 years imprisonment but the sentence was suspended.

18. In The State-v-Benson Likius (2001) N2518, this court sentenced the offender to a 5 years imprisonment term in hard labour for misappropriating K68, 674.06,the property of Lihir Management Company. Three years of that sentence was suspended with certain conditions. He only served 2 years with orders to restitute.

19. In The State-v-Christian Korei (2005) N2946 a case in Manus, Lay, J; sentenced the prisoner to a term of 4 years for misappropriation of an amount involving K82, 529.68 with substantial restitution of K65, 000.00. The sentence was fully suspended with orders to restitute within specified time.

20. In The State-v-Frank Amban (2005) N2961 a case in Lae before Kirriwom, J; the prisoner pleaded guilty to stealing a sum of K27, 512.10 from May Bank. He was sentenced to 18 months which sentence was fully suspended with orders to restitute.

21. In The State-v-Bill Baru (1997) N1546 a stealing case before His Honour Batari A. J, (as he then was) he was charged with three counts involving K9, 790.00. He was sentenced to twelve months each on counts 1 and 2 and Count 3 for 18 months ordered to be served concurrently with the sentence for counts 1 and 2. The sentence was fully suspended with orders to restitute.

22. In The State-v-Alice Wilimot (2005) N2857 a misappropriation case by a bank employee at Kavieng, New Ireland Province. She pleaded guilty to the charge. She was sentenced to 3 years partially suspended. In that case, Justice Sevua (as he then was) said that either full restitution or partial restitution should not operate as buying freedom for misappropriation or similar offences.

23. Many cases now involve large sums of money such as in The State v Jimmy Kendi (No.2) (2007) N3131 where the prisoner was found guilty of obtaining monies by false pretence and misappropriation. The amount involved more than K4, 229, 037.33 the property of the State. In that case the prisoner was sentenced to four (4) years for false pretence and nine (9) years for misappropriation. The effective sentence was thirteen (13) years imprisonment.
In the above case, I commented that due to the large sum of money obtained by false pretence and misapplied a deterrent sentence should be imposed.

24. In The State v Shirley Tainoli (24/11/2004) unnumbered judgment, the offender had deposited a stolen cheque to the value of K185, 000 into an account controlled by her and her husband. At the time of sentence she had a 9 months old baby, the whole of the amount was recovered, she did not benefit from the fraud, there was no breach of trust and the offence was perpetrated only once. Mogish J, sentenced the offender to four (4) years imprisonment in light labour which was wholly suspended on probation conditions.

25. In another case involving a large sum of money, in The State v Daniel Mapiria (unreported judgment dated 1st October 2004, the prisoner misappropriated an enormous sum of money amounting to K3.188 millions of kina, the property of National Gaming Control Board (NGCB). As Chairman of the Board, he was a signatory to the board's operating account. He would sign blank cheques and left them with the then Registrar of the board who was also one of the signatories. The cheques were filled out for various sums large sums of money.

26. The prisoner was found guilty after a trial and he was sentenced to a term of 9 years imprisonment. He was however found to have been suffering from a medical condition of some sort. This resulted in the whole sentence being suspended. According to the trial Judge, if the offender was sent to jail, his condition would have been worsened and life threatening.

27. It is noted here that, that case had special mitigating circumstances. In fact the presiding judge commented in the judgment that, the case before him was regarded and treated with special mitigations.

28. In The State v Jack Oseketal Metz (2005) N2824, the prisoner incurred a bill of K70, 445.36 by falsely pretending that he was expecting millions of kina from sales of treasury bills. The accused in that case pretended to the complainants that the payments would be made through the then Papua New Guinea Banking Corporation. Amounts incurred were for accommodation, meals and drinks, cigarettes and provisions for extra guests at the DALCREST Guest House in Madang. He was sentenced to three and a half years imprisonment.

29. In The State v Ansong Ising (2005) N2994 a case involving a sum of K4, 275.00, the accused was sentenced to 3 years imprisonment with a community work order and further orders for restitution. In The State v Joseph Pokali (30.11.04) CR.N0.71 of 2004, a case in Waigani, the accused pleaded not guilty to one count of false pretence but entered a guilty plea to misappropriation to an amount involving a sum of K4, 400.00. He was sentenced to a term of 3 years. The whole sentence was suspended with various probation orders and an order for restitution.

Pre-Sentence & Means Assessment Reports

30. In the instant case, the prisoner has not made any restitution. According to the Means Assessment and Pre-Sentence reports, the prisoner may not have any means to make restitution. He has indicated too that even his immediate parents will not assist him since they are in West New Britain. The prisoner comes from Atui village in Gasmata Local Level Government, Kandrian District W. N. B. Province.

31. I have considered the accused's address on allocutus and counsels submissions on sentence. I have considered all mitigations and aggravations raised in favour and against the prisoner. The prisoner managed monies belonging to the company given him for a specific purpose. The offender engaged in a scheme and commenced to steal the money from time to time until he was detected.

32. The prisoner was vested with a very high degree of trust and responsibility. He was the custodian of the money which came into his custody as he was vested with authority to receive and receipt such monies then apply it to the purpose of buying cocoa beans.

33. On this stage of the criminal process, there are combinations of factors that will be considered by the court. They include the entire circumstances of the case, the relevant law and sentencing principles set by the Supreme Court, the public interest and interests of individuals concern including the victim or the company from which, the prisoner stole from and then the court must then decide what should be the appropriate penalty in any particular case all of which are relevant and pertinent questions on consideration in the proper exercise of the courts sentencing discretion. This country has gone into great turbulence in the process of managing its finances. If the money concern belongs to the government or a private company as was in this case, ought to be applied for its intended purpose.

34. In the most recent past, there has been a sharp increase in the number of dishonest offences particularly offences such as stealing, misappropriation, false pretences and like offences. Judges on primary judgments in the National Court and Supreme Court Judges on appeals have consistently given warnings that, due to the prevalent nature of the offence of dishonest offences, the courts must uphold the Constitution and impose appropriate penalties that would be-fit for the crime committed and the community concern over such offences.

35. However, both the nature and circumstances of the crime must be considered: Taiba Maima v Ben Hambakon Sma [1971- 1972] PNGLR 49. Despite what I have stated above, the sentencing principle is, each case depends on its own merits. It is not always the case that where a case falls into the worse category, the maximum will be imposed. As was stated in John Elipa Kalabus v The State [1988] PNGLR 193, the fact that a case falls into the worst type category, it does not mean that the maximum penalty would automatically be imposed.

36. I consider the principle set in State-v- Tardrew which say that a sentencing Judge ought to consider if a suspension will promote personal deterrence, reformation or rehabilitation. Secondly where suspension will promote restitution of stolen money or goods, and thirdly where imprisonment would create excessive degree of suffering where an offender has bad physical or mental health. The pre-sentence report says, if a monetary compensation is considered or even ordered, the prisoner will find it difficult to pay up.

37. In the circumstances of this case, I consider that, a custodial sentence should be imposed but should be partially suspended. I consider a sentence of 2 years imprisonment is appropriate. Richard Sam, you are sentenced to two (2) years imprisonment.

38. The court orders that, 1 year of the head sentence be suspended on condition that, after serving one (1) year, the prisoner shall enter into a recognition to keep the peace and be of good behavior for a period of two (2) years.

39. If the prisoner had been in custody prior to being bailed, the custody period shall be deducted from the one year that, he is to serve. His bail money shall be converted toward part payment or restitution of the amount stolen.
___________________________________________________

The Public Prosecutor: Lawyer for State
The Public Solicitor: Lawyer for Accused.