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State v Mongu [2019] PGNC 169; N7896 (17 May 2019)

N7896

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 72 OF 2019

THE STATE

V

ESTHER MONGU

Kiunga: Koeget, J
2019: 9^th, 15^th, 17^th May

CRIMINAL LAW- Indictable offence of Stealing – section 372(7)(b) of the Criminal Code Act – prisoner sentence on guilty plea – first time offender – prevalent offence – the company concern interested in restitution of money stolen – Exercise of court’s discretionary powers under section 19 of the Code.

Cases Cited:

The State –v- Warai Kisua (2018) N7513
The State –v- Nicholas Bunn and Elizah Anato

Counsel

Mr. D. Mark, for the State
Mr. E. Sasingian, for the Accused

17^th May, 2019

1. KOEGET, J: INTRODUCTION: The accused is charged with one count of Stealing from her employer pursuant to section 372 (7) (b) of the Criminal Code Act chapter 262.
   

FACT

2. The accused was employed by Kiunga Fuel Distributors Limited at Kiunga as a Senior Accounts Clerk.
   
3. Her duties included collection of daily takings cash flow from fuel depots and other sections of the company including banking for the company. Between 22^nd March 2018 and 22^nd August 2018, the accused knowingly falsified daily sales summaries and actual cash collections and proceeds of it, applied them to her own use.
   
4. The variance between sales summaries and actual cash collection were manipulated over a period of six months before it was discovered by the employer. A total variance of K36,629.60 were allegedly stolen by the accused.
   

ISSUE

5. The accused pleaded guilty to the charge and she was convicted accordingly. The issue for the court to determine is what is the appropriate sentence the court should impose upon the prisoner.
   

LAW

“Section 372 – Stealing.

(1) A person who steals anything, capable being stolen is guilty of a crime.

Penalty: subject to section, imprisonment for a term not exceeding three years.

(7) If the offender is a clerk or servant, and the thing stolen –

(b) come into the possession of the offender on account of his employer, he is liable to imprisonment for term not exceeding seven years.”

PERSONAL PARTICULARS

6. The prisoner is 33 years of age and is married with four children whose ages range from one year nine months the youngest to nine years the oldest. All children reside with the prisoner and the father. One of the child is handicapped and cannot sit on her own without support by the mother or father. This child is the youngest.
   
7. She obtained a Certificate in Business Management from International Training Institute (ITI) at Badili, Port Moresby. She is a first time offender.
   

AGGRAVATING FACTORS

8. The prisoner is well educated employee, planned to commit the crime and executed it well so the scheme was not detected for six months. A large sum of money was stolen within six months from the employer. Such offence is prevalent in the country.
   

MITIGATING FACTORS

9. The prisoner is a first time offender and she cooperated with the police when she admitted the commission of the offence to them. She pleaded guilty to the charge and saved valuable time of the court. She has commenced repayment of the sum stolen.
   
10. The former employer is interested in the restitution of the money stolen by the prisoner.
    

SENTENCE

11. The prisoner, a well educated person stole monies from her employer within a short period of time. A large sum of money was stolen and much of it is to be repaid.
    
12. The former employer is interested in the restitution of the sum stolen and in view of that, the prisoner has commenced repayment of the amount. The prisoner has through the Probation officer a plan of how she will generate income to repay the stolen amount and I am impressed with the plan. Should the plan succeed, the sum stolen can be repaid in full within two years as projected.
    
13. Since the prisoner commenced repayment of the sum stolen before coming to this court and the former employer is interested in having its money reimbursed, I am inclined to impose a suspended sentence similar to that imposed in the case of The State –v- Warai Kisua (2018) N7513. So the prisoner is sentenced to be imprisoned for a period of three years in hard labour.
    
14. The sentence of 3 years is wholly suspended on the following conditions:
    
    • (1) The prisoner enters into recognisance and promise to Keep Peace and be on Good Behaviour Bond for 3 years.
      
    • (2) The prisoner shall repay the sum in full within the suspended period.
      
    • (3) The prisoner is to remain in Kiunga for 3 years until the amount stolen is fully repaid.
      
    • (4) These conditions are to be reviewed by the court each time there is National Court Sittings either in Kiunga or Tabubil.
      

ORDER

(1) The prisoner’s bail money is to be refunded to her forthwith.

Accordingly ordered.

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused