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State v Kissip [2020] PGNC 151; N8340 (5 June 2020)

N8340

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 119 of 2019

THE STATE

V

JOAN KISSIP

Waigani: Berrigan J
2020: 9^th March & 5^th June

CRIMINAL LAW–SENTENCE –S 372 of the Criminal Code – Stealing - Bank employee convicted of four counts of stealing a total of K36,140 following trial – Sentence of 4 years, wholly suspended on strict conditions including restitution.

Cases Cited

Wellington Belawa v The State [1988-1989] PNGLR 496
The State v Niso (No 2) (2005) N2930
The State v Tiensten (2014) N5563
The State v Neville Miria (2013) N5102
The State v Simon Paul Korai (2009) N3820
The State v Roselyn Waiembi (2008) N3708
The State v Timothy Tio (2002) N2265
The State v Ian Sevevepa, CR No.2007 of 2005, unreported, 10 May 2006
The State v Maurani (2008) N3560
The State v. Steven Luva (2010) N3909
The State v Taba (2010) N3939
The State v Bobo (2011) N4416
State v Pasliu (2014) N5696
The State v Vagi (2017) N6994
The State v Agnes Jimu and Charles Andrew Epei (2019) N8046
The State v Yani Paul & Anor (2019) N8026
Lawrence Simbe v The State [1994] PNGLR 38.
Goli Golu v The State [1979] PNGLR 653
Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Tremellan v The Queen [1973] PNGLR 116
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
The State v Joan Kissip (2020) N8184

Legislation and other materials cited:

Sections 19, 372(1)(7)(a)(10) of the Criminal Code.

Counsel

Ms T. Aihi, for the State
Mr J. Kolowe, for the Accused

DECISION ON SENTENCE

5^th June, 2020

1. BERRIGAN J: The offender was convicted following trial of four counts of stealing property belonging to her employer, Bank of South Pacific (BSP), contrary to s. 372(1)(7)(a)(10) of the Criminal Code: The State v Joan Kissip (2020) N8184.
   
2. The offender stole the monies in each case whilst employed as an Automated Telling Machine (ATM) Support Officer with BSP’s Transaction and Channel Support (TCS) Business Unit. It was her responsibility to rectify dispensing errors at the bank’s ATMs by removing cash from a “divert” or “reject” bin so that the machine could function again. She was then responsible for counting the cash, placing it in a bag and placing the bag back inside a separate part of the vault of the ATM for collection by other bank officers at a later time. On four separate occasions she stole the following monies from four ATMs across Port Moresby in the course of performing her duties:
   

Count 1: K7,350 on the 19^th day of January 2017 from ATM device number 8230072 located at Gordon Bank South Pacific Commercial Centre.

Count 2: K5,290 on the 19^th day of January 2017 from ATM device number 8230086 located at Brian Bell Home Centre Gordons.

Count 3: K11,500 on the 20^th day of January 2017 from ATM device number 8230106 located at the Boroko Banking Centre.

Count 4: K12,000 on the 16^th day of February 2017 from ATM device number 8230093 located at the Stop and Shop North Waigani.

3. In total K36,140 in cash monies was stolen.
   

Sentencing Principles and Comparative Case

4. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:
   
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
       
5. In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount misappropriated is between:
   
   1. K1 and K1000, a gaol term should rarely be imposed;
   2. K1000 and K10,000 a gaol term of up to two years is appropriate;
   100. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
   4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
      
6. Whilst the suggested scale of tariffs in Wellington Belawa is relevant it is to be noted that the offender in this case has been convicted of stealing. Unlike misappropriation which attracts a maximum of 10 years for amounts more than K2000 (and less than K1 million post the 2013 amendments), stealing contrary to s 372(1)(7)(a)(10) of the Criminal Code attracts a maximum penalty of 7 years of imprisonment.
   
7. It is generally accepted that whilst the principles to be applied when determining sentence remain relevant and applicable, the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; and The State v Tiensten (2014) N5563.
   
8. The defence submits that an effective sentence of two to three years of imprisonment would be appropriate. The State submitted that a sentence of one year of imprisonment should be imposed in respect of each count, to be served cumulatively. The State relied on the following cases:
   
   1. The State v Neville Miria (2013) N5102, Gauli AJ, in which the offender, a data input officer with BSP, pleaded guilty to stealing K100,000from his employer. He transferred the monies to an account in a single transaction. The theft was discovered promptly by the bank, which limited its losses to K28,183.05. The offender was sentenced to 4 years of imprisonment. One month in custody was deducted and 2 years of the balance of 3 years, 11 months was suspended on conditions including restitution of the monies lost;
      
   2. The State v Simon Paul Korai (2009) N3820, David J, in which the offender was employed by BSP, Kundiawa Branch, as a security guard. The offender was familiar with the victim and assisted her on several occasions to do her banking as she was illiterate. He came to know her PIN number and stole K21,460 from her account. He pleaded guilty and was sentence to three years of imprisonment less 9 months 3 weeks already served. Two years of the balance was suspended on the offender entering into his own recognisance to be of good behaviour; and
      
   100. The State v Roselyn Waiembi (2008) N3708 in which the prisoner pleaded guilty to stealing K15,000 between 28 June 2002 and 26 November 2004, whilst employed by a law firm as its accounts clerk. She stole this money by including extra amounts in the cheque requisition forms every payday Friday and taking the balance of between K50 and K700 on each occasion. She was sentenced to three years’ imprisonment, less one month for time spent in custody. The balance of which was suspended upon conditions including restitution with the assistance of her family.
        
9. I have also had regard to the following cases:
   
   1. The State v Timothy Tio (2002) N2265, Kandakasi J (as he then was) in which a security guard pleaded guilty to stealing a chainsaw, valued at K8000 from his employer, which he sold on to a third party for K3000. The chainsaw was later recovered. The offender was sentenced to 5 years’ imprisonment less time spent in custody;
      
   2. The State v Ian Sevevepa, CR No.2007 of 2005, unreported, 10 May 2006, Lenalia J, in which the offender pleaded guilty to stealing the sum of K17,000 belonging to a service station proprietor. The offender walked into the office, pushed a female employee who was present away, and ran away with the bag of money, giving it to another person. He was sentenced to 3 years of imprisonment. The time spent in custody awaiting trial was deducted and the balance was ordered to be served out of custody;
      
   100. The State v Maurani (2008) N3560, Davani J, where the prisoner pleaded guilty to one count of stealing a chainsaw that was the property of a company, together with his co-accused. Both were sentenced to 3 years, 6 months’ imprisonment;
        
   4. The State v. Steven Luva (2010) N3909, Lenalia J, in which the offender was sentenced to 4 years, 5 months on 13 counts of stealing a total of K4,618.20 from his employer, PNG Power Limited. He was ordered to serve 12 months, while the balance of 3 years 5 months was suspended;
      
   5. The State v Taba (2010) N3939, Cannings J, in which the prisoner was convicted of stealing 1000 cartons of tinned fish valued at K58,399 from his employer, RD Tuna Canner Ltd. He had joined other employees to steal the tinned fish and sell it to a third party. The prisoner was sentenced to 2 years, 6 months’ imprisonment less the 1 year 5 months spent in custody, leaving the balance of 1 year 1 months’ to be served; and
      
   6. The State v Bobo (2011) N4416, Maliku AJ, in which the offender pleaded guilty to stealing his brother-in-law’s ANZ bank card whereupon he went into town and purchased goods from various shops spending K1840.40. The prisoner was sentenced to 2 years’, wholly suspended on the condition that the prisoner repay the money spent within 6 months from the date of his sentence;
      
   7. State v Pasliu (2014) N5696 Salika DCJ (as he then was), in which the offender, a police officer, pleaded guilty to stealing K4,200 of cash, which was a court exhibit. He was sentenced to 2 years of imprisonment;
      
   8. The State v Vagi(2017) N6994, Salika DCJ (as he then was) in which the prisoner, a manager of a petrol station stole K119,187.58 cash from a petrol station. She was sentenced to 5 years of imprisonment, wholly suspended on condition of restitution;
      
   9. The State v Agnes Jimu and Charles Andrew Epei (2019) N8046, Berrigan J. The offender, Agnes Jimu, was employed by the RPNGC as the Divisional Administrative Officer attached to Central Command at the Boroko Police Station, reporting to the Divisional Commander for the National Capital District. She pleaded guilty to stealing K47,700 cash, held as an exhibit in an ongoing investigation from the Divisional Commander’s safe (and to arson for setting fire to the Divisional Commander’s office to disguise the offence). Her husband, Charles Epei, was convicted following trial of aiding and abetting the offence(s). The stolen monies were recovered that night from the offenders’ home upon admission by Agnes Jimu. Having regard to their respective levels of culpability, matters of mitigation and personal circumstances, each were sentenced to 4 years of imprisonment on the charge of stealing (and 12 years on the charge of arson, to be served concurrently, 4 years, 9 months of the 12 year sentence was suspended, with 7 years to serve after time spent in custody was taken into account); and
      
   10. The State v Yani Paul & Anor (2019) N8026, Berrigan J, in which two offenders pleaded guilty to stealing, in the company of others, electrical cable, worth K37,633.18 from a warehouse, for sale on the black market. Both were sentenced to three years of imprisonment, with time spent in custody taken into account.
       
10. The sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    

Considerations on Sentence

11. Having regard to the principles outlined in Wellington Belawa, the following matters have been taken into account.
    
12. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. The offences in this case involve amounts between K5,290 and K12,000, and a total of K36,140.
    
13. The offences also involved a serious breach of trust by an employee who abused her position for personal gain. She was a long-term employee of BSP, having worked for the bank for more than 10 years and been promoted to the role of ATM Support Officer in 2012, a role which necessarily involved a substantial degree of trust.
    
14. The offences were committed on four occasions on three separate days over a period of less than a month. The offences clearly involved planning in each case. In accordance with the bank’s standard practice, the emptying of the divert bins and the transfer of those monies to the vault of the ATMs was filmed by security guards who were also present on each occasion. Aware of this the offender deliberately tried to disguise the stealing by taking only some of the total monies she dealt with from the ATM on each occasion, and by moving cash in and out of, and between, two cash collection bags, one of which she used to remove the stolen cash from the ATM feeder room. There is no evidence about how the offender ultimately used the monies but there is no doubt that she stole them.
    
15. The victim, BSP, has suffered the loss of monies, and spent time and further resources investigating the offending. It has expressed a preference to recover the monies. Having regard to the amounts involved, and the efficiency and effectiveness of the bank’s detection and investigation of the offences, I am not satisfied that the offending has had any appreciable impact on the confidence of the bank’s client base as submitted by the State. Nor does BSP itself suggest that that has occurred.
    
16. Nor has the State demonstrated any appreciable impact on the public or on public confidence. There is clearly a need to deter offending by bank officers to protect against a loss of public confidence in the banking system generally and the sentence in this case will reflect that need. I am not satisfied, however, that the State has demonstrated that such a loss of confidence has actually occurred as a result of the offending, given its nature, size, early detection and prosecution.
    
17. The offender is 33 years old and from Lomaku, Kavieng, in New Ireland Province. Since losing her employment she has lived with her father and his wife at Korobosea, together with her three children aged nine, five and two years of age. She is expecting her fourth child in late May. She is a single parent to her children, who are financially dependent on her. The father of her children does not provide financial support. She also physically cares for her father, who is bedridden.
    
18. She completed Grade 12 at Port Moresby Grammar in 2004 and later graduated with a Diploma in Human Resource Management from the PNG Institute of Public Administration. She was employed by BSP in 2006. She is currently unemployed.
    
19. In mitigation this is the offender’s first offence. The Probation Service was unable to speak to her former supervisor at BSP. Nevertheless, I accept that she was previously of good character. She held a position of trust for a substantial period at the bank. Harold Dunn Papaol, New Ireland Provincial Government and Community Leader, also states that he has known the offender since her childhood and that he has previously known her to be an honest and committed leader within her community.
    
20. The offender expressed remorse on allocutus. She apologised to the Court, the State and the bank for what happened and pleaded for a sentence served outside of prison so that she might care for her children. Upon conviction she paid K7000 into the National Court Trust Fund towards restitution. I accept both of these matter as indicative of remorse on her part.
    
21. The impact of the offence on the offender has been and will continue to be significant. She has lost a long term, secure position in a large institution. I am sure that she has suffered a loss of standing in her community and brought shame to her family. The loss of income and any time spent in custody will also have a significant effect upon her four children. These matters are relevant but a result of the offender’s own action and must be weighed against the aggravating factors in this case.
    
22. There are no matters of mitigation special to the offender.
    

Sentence

23. The offender has been convicted of four counts of stealing cash in the amounts of K7,350, K5290, K11,500 and K12,000, contrary to s.372(1)(7)(a)(10) of the Criminal Code. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Although this case does not fall within that category, the offences remain serious ones.
    
24. I have taken into account the offender’s personal circumstances. I have also taken into account her lack of previous conviction, prior good character, expression of remorse and partial restitution post-conviction. These are factors in her favour but they are outweighed by the aggravating factors in this case, namely the nature and quantum of the offences, the planning involved and the period over which the offences were conducted, the position of trust held by the offender, and the impact on the victim. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.
    
25. Having considered all of the above matters, including comparative cases, I sentence the offender to:
    
    1. 2 years of imprisonment on Count 1;
    2. 2 years of imprisonment on Count 2;
    100. 3 years of imprisonment on Count 3; and
    4. 3 years of imprisonment on Count 4.
       
26. I have considered whether the sentences should be made concurrent or cumulative, and the longstanding common law principle of totality: Mase v The State [1991] PNGLR 88 at 92 and Public Prosecutor v Kerua [1985] PNGLR 85. The principle of totality requires a judge who is sentencing an offender for a number of offences to ensure that the total or aggregate sentence of the appropriate sentences for each offence is just and appropriate for the totality of the criminality involved.
    
27. There is no “all-embracing” rule as to when sentences for two or more convictions should be made concurrent: Tremellan v The Queen [1973] PNGLR 116. Whilst conducted at different times and locations, the offences in this case were all of the same nature, using essentially the same methodology, and against the same victim. The first three offences were conducted over two days on the 19^th and 20^th of January 2017. In the circumstances those sentences should be served concurrently. However, to reflect the fact that the final offence took place almost a month later, whilst also taking into account the principle of totality, the sentence on Count 4 will be made partially cumulative on the first three sentences and will commence one year after the commencement of the sentences on Counts 1 to 3. Accordingly, I sentence the offender to an effective head sentence of 4 years imprisonment. No time has been spent in custody to date.
    
28. The offender has pleaded for her sentence to be suspended so that she may make restitution, and continue to care for her three young children, infant child, and elderly father.
    
29. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
    
30. I am not satisfied that the offender’s asthma cannot be managed by Correctional Services and would cause her to suffer excessively in prison. The State has failed to address me, however, on whether or not the prison has the facilities to allow the offender to appropriately care for her newly born child in detention and if so up to what age. Neither party has addressed me on what might happen to the child if it does not go into detention with the offender.
    
31. There is strong support for the offender to be released on suspension. Her father and her brother have indicated that they are willing to assist her financially. Probation Services also recommends the offender as suitable for probation and confirms the offender’s capacity to repay the monies with family support. The State also supports suspension on condition of restitution. The victim has indicated a preference for the monies to be repaid.
    
32. I am further satisfied that suspension of the sentence would promote her rehabilitation by enabling her to continue to support herself and her young family. This is not an exercise in leniency but an order made in the community interest: The State v Frank Kagai [1987] PNGLR 320.The repayment will take time and sacrifice on the part of the offender, albeit that she is being assisted by her family. She will also need to perform community service for a period of 12 months, commencing in 12 months time.
    
33. In conclusion I make the following orders.
    

Orders

(1) The offender is sentenced to:

1. 2 years of imprisonment on Count 1;
2. 2 years of imprisonment on Count 2; and

100. 3 years of imprisonment on Count 3.
     

(2) The sentences on Counts 1, 2 and 3 are to be served concurrently commencing today.

(3) The offender is sentenced to 3 years of imprisonment on Count 4, commencing 12 months from today.

(4) Thus the offender is sentenced to a total head sentence of 4 years of imprisonment.

(5) The sentence is wholly suspended on the following conditions:

1. the sum of K29,140 is to be restituted to BSP, through the National Court Trust Account, within two years from today;
2. the offender shall perform appropriately designed community work under the supervision of Probation Services;

100. the work and supervision regime is to commence 12 months from today and be undertaken one day per week for a period of 12 months;

4. Probation Services is to supervise the payment of restitution and provide 6 monthly reports; and
5. on completion of restitution, the offender shall immediately enter into her own recognisance to keep the peace and be of good behaviour for the period of her sentence.
   

(6) Any bail monies are to be immediately refunded.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender