N7825

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 218 OF 2016

THE STATE

V

BARTHOLOMEW DAVID

Kimbe: Miviri J
2019: 05th 24th April

CRIMINAL LAW – Practice and Procedure – s372 Stealing CCA –Plea – Customer Services officer – PNG Power Ltd – K9, 294. 26 on account of employer – stolen – application to personal use – dishonesty – serious breach of trust–deterrent sentence
Facts
The prisoner was a customer services officer with PNG power Limited and collected the money on account of his employer which he personally used.

Held
Plea
Very serious breach of trust
First offender
PSR discretion of court.
2years IHL wholly suspended.

Cases Cited:
Tardrew, Public Prosecutor [1986] PNGLR 91 
The State v Belawa [1988-89] PNGLR 49
The State v Eliakim [2007] PGNC 76; N3190 
The State v Johnson Bale [2004] PGNC 161; N2626 
The State v Kintau [2014] PGNC 55; N5761 
The State v Norris [1979] PNGLR 605
The State v Vagi [2014] PGNC 254 ; N5697 

Counsel:

E. Kave, for the State
D. Kari, for the Defence
		
SENTENCE
25th April, 2019
1.	MIVIRI J: This is the sentence of a Customer Services Officer employed with PNG Power Limited into whose possession moneys of the employer were stolen.

Background

2.	Between 23rd February and the 2nd June, 2015 at the PNG Power Office Bialla, K 9, 294. 26 came into his possession on account of his employer. He applied that money to his own use. The matter came to light when the customer raised that he had already paid his electricity bill.

Charge

3.	He pleaded guilty to Section 372 (1) (7) (a) of the Code which reads;-
“(1) Any person who steals anything capable of being stolen is guilty of a crime.
Penalty: Subject to this section, imprisonment for a term not exceeding three years.
(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.”

4.	A maximum of seven years imprisonment could be imposed for the offence. Of course due in a worst case scenario which wasn’t the case here. But a determinate term was in view considering. His punishment must fit his facts and circumstances in other words the sentence must be proportionate to the gravity of the offence: Norris v The State [1979] PNGLR 605 (7 December 1979).

Issue

5.	What is the appropriate sentence for the prisoner?

Mitigation
6.	In so determining the first matter in his favour is his guilty plea not recent but made all alone in his record of interview detailed unequivocally to police confirming in open court that he received the K 9, 294. 26 which he used for personal gain because of pressure from his family regarding customary obligations. He is honest in admitting his wrong at the first given opportunity to police. It is an offence out of character depicted out by the character references put out in the presentence report that has been ordered pursuant to application by his lawyer.

7.	This report dated the 23rd April, 2019 confirmed that on the 1st April, 2019 he had deposited K1500 into account number 1000752780 PNG Power Limited. And on the 27th December, 2018 he deposited K1800 into that same account and again on the 27th June 2016 he deposited K6000 into that same account. This confirmed independently the deposit of the moneys that were stolen. It was made without any formal orders of the court adding that he was intent on making amends to what he had caused. It showed that he took responsibility for his actions. Coupled with his guilty plea it was very strong mitigation in his favour in sentence.

Antecedents

8.	A first offender aged 45 years old, married with seven children originally from Wakes village Gasmata LLG, Kandrian, West New Britain. He was educated to grade 10 in 1991 at Kimbe Secondary School. And did 2 years diploma program at the National Fisheries College in Kavieng. But was awarded community base Management Program Certificate as he did not complete because his sponsorship was not continued. He started employment with PNG power Limited since 2002 and was there for eleven years until the commission of the offence. He explained that the offence was committed out of family pressure. He has by this maintained a good life until this offence.

Allocutus

9.	When given an opportunity to address the court on sentence, he apologised and asked to be given a chance.

Aggravation

10.	It is a very serious abuse of the trust that was placed upon him accorded by his employer. He was by his employment as customer services officer discharged with receiving large amounts of cash for his employer which he abused by stealing that money to personally benefit. He had no excuse to do what he did. He was overcome by his personal problems and he resorted to committing the offence. Two wrongs do not make a right. But by the facts set out above the prisoner can be considered as laying out extenuating circumstances by his own facts to call for sentence at the lower end of the range of sentences of this offence.

11.	Like Section 383A the offence of stealing involves firstly, dishonesty and secondly, application of the use of property either to one’s own use or another. It is relevant to be guided by the principles laid out in Wellington Balewa v The State [1988-89] PNGLR 496, applicable here given the facts and circumstances including both the mitigating and aggravating factors here in the following order:

(i)	Amount that was taken;
(ii)	Degree of trust held by the prisoner;
(iii)	Period over which the offence is committed;
(iv)	Use of what the property was put to;
(v)	Effects on the victims;
(vi)	Effects on the offender herself;
(vii)	Effect on the public confidence;
(viii)	Restitution.

12.	K 9, 294.26 is a large amount of money including the degree of trust both of which have been discussed above. Including the period over which the offence was committed. He ought to have known it was wrong he was working in the office of were money was receipted in large volumes as part of his duty. He acted irresponsibly leading to the offence. It did not excuse him that he had personal problems. He took the money over almost four months period without heed that he would be caught for it. His actions affected the customers of PNG power paying for their supply of electricity particularly with the fact that this was a public company that contributed to the revenue of the nation.

13.	The effect upon him was that he lost his job of eleven years and was no longer employed as at the date of this sentence. His family who depended on him also suffered the fate of his actions. He was in a way punished for what he had caused coupled with his repayment of the moneys stolen he paid abundantly for his wrong. It reflected very well on him and amounted to strong mitigation in his case in the determination of sentence. Because he had squared off what he took.

14.	Applying Wellington Balewa (supra) given that the amount K10, 000.00 to K 40, 000.00 is 3 to 4 years imprisonment. Here it is K 9, 294. 26 which is under K10, 000 a sentence of 2 years would be in order considering. Given the facts and circumstances set out above imprisonment straight out would not be proportionate. But the facts warrant the application of section 19 (6) of the Code where three broad categories could be summarized upon which suspension can be considered in sentence,  (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example because of his bad health: Tardrew, Public Prosecutor [1986] PNGLR 91 (2 April 1986). Here restitution has been made out in full personal deterrence and reformation would be more in order given.

15.	This would be more so viewed for example in State v Vagi [2014] PGNC 254; N5697 (26 July 2014) 3 years imprisonment in jail was imposed there were no prospects or evidence she could repay back the K65, 924.90. Where the amount stolen is small the sentence has corresponded where the amount is large the sentence has likewise followed suit: The State v Eliakim [2007] PGNC 76; N3190 (16 March 2007); The State v Johnson Bale [2004] PGNC 161; N2626 (23 June 2004); and State v Kintau [2014] PGNC 55; N5761 (30 July 2014) the amount involved was K 87,500.00 both prisoners had paid off the money as at the date of sentence. Four (4) years IHL was imposed upon both but fully suspended.  

16.	Prisoner here has fully paid off the sum stolen. Suspension of sentence would be on par considering that he has lost his job of 11 years and is now unemployed as a direct consequence. I determine that a sentence of 2 years imprisonment in hard labour would be proportionate which I so impose upon the prisoner for the crime of stealing as a servant pursuant to section 372 (1) (7) of the Code.

17.	But I suspend this in the exercise of my discretion pursuant to section 19 (6) of the Code given all set out above on a 2 years Good behaviour bond.

18.	I further order that his Bail of K1000 is refunded forthwith.

Orders accordingly. 

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