N11763

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR No.257 OF 2020

THE STATE

V

TERSIE KOMEK of PILIWA (DJAUL) VILLAGE, KAVIENG NEW IRELAND PROVINCE
Accused

LAE: POLUME-KIELE J
24 JULY, 11 & 13 AUGUST, 1 SEPTEMBER,
6 &12 NOVEMBER, 3 DECEMBER 2025; 9 & 17 FEBRAURY 2026

CRIMINAL LAW - Sentence- trial – plea of not guilty - Criminal Code - s 372 (1) (10) verdict of guilty returned – Accused convicted of one count of stealing – sentence to be wholly suspended upon restitution in full

Brief facts

The facts upon which the prisoner was arraigned and convicted are set out in the decision made on 30 May 2025 in the proceedings - CR No. 257 of 2021- State v Tersie Komek (Unreported)

Cases cited

Ure Hane v The State. [1984] PNGLR 105
Goli Golu v The state [1979] PNGLR 653
Avia Ahi v The State (No. 3) [1982] PNGLR 92
Lawrence Simbe v The State, [1994] PNGLR 38  
Wellington Belawa v The State [1988-1989] PNGLR 496
The State v Musalu [2025] N11220
The State v.Neville Maria (2013) N5102
State v Paul [2019] N8026
The State v Maurani (2008) N3560
The State v Taba (2010) N3939
The State v Sobo (2011) N4416
The State v Roselyn Waiembi (2008) N3708
Public Prosecutor v- Don Hale (1998) SC564 
State v Musalu [2025] N11220 
The State v Tardrew [1986] PNGLR 91
State v Ao (No 2) [2002] N2247
State v Alekun [2004] N2636
State v Moewe [2024] N10801
Tamara Player Tomscoll v The State [2012] SC1208 
The Acting Public Prosecutor v Aumane & Ors (1980) PNGLR 501

Counsel:

Ms Susan Joseph, for the State 
Mr. P. Yama, for the prisoner

SENTENCE

1.	POLUME-KIELE J. 	On 30 May 2021, the accused was convicted for one count of stealing pursuant to s 372(1) (10) of the Criminal Code. 

2.	This is my ruling on sentence.

Penalty provision

3.	Section 372 of the Criminal Code provides that:

"372. 	STEALING.

(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)
(6)
(9)…
(10)	If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years”.

4.	Further, stealing is defined under Section 365 of the Criminal Code. It states:

“385.	Stealing

(1)	...

(2)	a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(3)	The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise deals with it by some physical act”.

The Issues for determination

5.	There are two issues before this court. Firstly, what is an appropriate sentence or penalty that should be imposed on the prisoner? If a sentence is imposed, whether a suspension of sentence is suitable in this case?

Sentencing principles

6.	Sentencing is a matter for the Court's discretion pursuant to Section 19 of the Code, wherein the Court is granted wide powers to consider what appropriate penalty should be. It is settled law that the maximum penalty prescribed for an offence is reserved for the worst form or category or offending for that particular offence: see Ure Hane v The State. [1984] PNGLR 105; Goli Golu v The state [1979] PNGLR 653; Avia Ahi v The State (No. 3) [1982] PNGLR 92. Further in the case of Lawrence Simbe v The State, [1994] PNGLR 38  the Supreme Court held, that the principle in determining sentence is that each and every case should be decided on its own peculiar facts and circumstances.

Sentencing considerations and comparative cases

7.	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:

(i)	the amount taken
(ii)	the quality and degree of trust reposed in the offender.
(iii)	the period over which the offence was perpetrated.
(iv)	 the impact of the offence on the public and public confidence.
(v)	the use to which the money was put.
(vi)	the effect upon the victim
(vii)	whether any restitution has been made.
(viii)	 remorse.
(ix)	 the nature of the plea.
(x)	 any prior record.
(xi)	 the effect on the offender; and
(xii)	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.

8.	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 involved is between:

(i)	K1 and K1000, a gaol term should rarely be imposed.
(ii)	K1000 and K10,000 a gaol term of up to two years is appropriate
(iii)	K10,000 and K40,000, two to three years' imprisonment is appropriate.
(iv)	K40,000 and K150,000, three to five years' imprisonment is appropriate.

9.	This case falls within the fourth category of the guidelines in the Balewa's case where an amount of K93, 590. 31 is stolen. To determine sentence, counsel referred the Court to several case authorities which he considered relevant for the Court’s deliberations. These cases are set out in the judgment.

Comparable Sentences

10.	The State invited this Court to refer to and consider several comparable sentence in the Court’s deliberation on sentence in The State v Musalu [2025] N11220. In that case, the offender was convicted and sentenced pursuant to Section 372 (1) (10) of the Criminal Code. These comparable sentences are set out below: 

No	Case Citation	Facts (details)	Sentence	
1.	The State v.Neville Maria (2013) N5102	Prisoner pleaded guilty to stealing K100, 000. From his employer (SSP) 	183.05 was used by the prisoner SSP made a total 1 loss of K28, 183.05.	4 years was imposed. 2 years was suspended leaving the balance of 2 years.	
2	State v Paul [2019] PGNC 270; N8026, Waigani:
Berrigan J	Both offenders pleaded guilty to one count of stealing, that they between 6 April 2018 and 27 April 2018 at Glory Garden Estate in the National Capital District, stole four hundred and thirty-four metres of electrical cable valued at K37, 633.18, the property of Glory Holdings Limited, contrary to section 372(1 )(10) of the Criminal Code. The cables was not recovered.	Both offenders were given a suspended sentence.	
3	The State v Maurani (2008) N3560, Davani J	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 Taba (2010) N3939, Cannings,J	The prisoner was convicted of stealing 1000 cartons of tinned fish valued at K58,399 from his	The prisoner was sentenced to 2 years 6 months'	
		employer, RD Tuna Canner Ltd. He had joined other employees to steal the tinned fish and sell to a third party.		
5	The State v Sobo (2011) N4416, Maliku AJ	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 Kl 840.40.	The prisoner was sentenced to 2 years', wholly suspended on the conditions that the prisoner repay the money spent within 6 months from the date of his sentence.	
6	The State v Roselyn
Waiembi (2008) N 3708,
David J	The prisoner in this matter was employed as a clerk and pleaded guilty to stealing K15,000. over a period of three years from his employer the Kunai & Company Lawyer.	3	years sentence . Sentence suspended condition restitution.	IHL
was on of	

11.	With reference to the above cases, the Court considered the need for deterrence and sentenced the offender to 4 years imprisonment in hard labour. 

Aggravating circumstances

12.	The State submits the following factors against the prisoner:

(i)	Substantial amount of money was stolen a sum of K93, 590. 31
(ii)	Serious breach of trust as the offender acted as an agent for the school at the time of the offence;

(iii)	The actions of the offender denied the school of its supplies and uniform;

(iv)	The actions of the offender caused the school and its board financial hardship to recoup that container;

(v)	Pre-planned and pre-meditated offence

(vi)	Prevalence of the offence.

13.	Overall, the State further submits that this is a case where there is strong need for both personal and general deterrence and a punitive sentence is appropriate. Hence the State submits a custodial sentence of 4 years imprisonment is appropriate. However, should the offender consider restitution then it would be in the interest of both parties for restitution.

14.	Mr. Yama for the prisoner adopts the submission of the State that this case falls under category (4) of the Belawa guidelines for which a prison term of three to five years' imprisonment be imposed. He however submits that whilst factors of aggravation exist in that the prisoner did hold and was in a position of trust, and she abused that trust; she still denies enjoying the benefit of the said amount of money.  She maintained that it is the Managing Director of the company who has admitted using the said money for the use of the company; factors which he submits should be considered in her favour. 

15.	Further and in addition, according to the Means Assessment Report (MAR) and Pre-Sentence Report (PSR), the appropriate penalty would be three years' imprisonment as stated in Wellington's case but subject to suspension highlighted in the case of Public Prosecutor v- Don Hale (1998) SC564 that suspension of a sentence is at the discretion of the court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report. 

16.	Counsel also referred this court to the recent case of  State v Musalu [2025] N 11220 where the Court adopted and applied the categories set out in the case of The State v Tardrew [1986] PNGLR 91, in that case, the Supreme Court set out three broad, but not exhaustive categories where it would be appropriate to suspend a sentence, namely:

(i)	where it will promote the general deterrence or rehabilitation of the offender;
(ii)	where it will promote the repayment or restitution of stolen money or goods.
(iii)	or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.

17.	Mr. Yama submits further that the prisoner in this present case has met the criteria set out above, firstly, she is a sick patient, has six children who indeed need their biological mother, and her detention would cause serious suffering to her children. Further the prisoner is willingly to make repayments of the money as per the PRS and MAR thus this court to exercise discretion under s 19 (1) (c ) (d) of the Criminal Code to impose a fine and make orders that the prisoner make restitution and enter recognizance as an appropriate penalty to the prisoner. Reliance is based on the case of State v Ao (No 2) [2002] N2247, where his honour Kandakasi J held that non-custody and restitution can be a penalty in case of misappropriation of K37, 526.58 and attempted to misappropriate a further K5, 980.70 from the State. 

18.	Overall, Mr. Yama submits that non-custodial sentence is applicable to this case as it is a nonviolent crime as stipulated in State v Alekun [2004] N2636 per David J. In that case, the prisoner was sentenced to a head sentence of 3 years which was suspended. The prisoner was ordered to pay restitution of the total amount misappropriated and also gave orders as to allow for and permit Probation Services and further for own recognizances to keep peace or the currency of the suspended sentence. 

19.	By reason of the foregoing, it was submitted for the prisoner that a sentence of 5 Years as head sentence be imposed to be wholly suspended on terms. Further, the prisoner be placed on supervisory probationary orders given that the prisoner is a first-time offender. She has been cooperating since her arrest and when also out of bail she has complied with her bail conditions. Through her allocutus, she has shown remorse. She undertakes to make restitutions. 

20.	It is important to point out that no probationary supervisory orders were submitted for consideration. Given the lack of details as to the terms of probationary orders and how these can be supervised, this Court is minded to decline to consider this aspect of the submission.

Conclusion

21.	Having considered the submissions of both counsel and the law relating to the offence of stealing under s 372(1) (10) of the Criminal Code; I have arrived at a finding that there are several factors which are consistent with the principles of the  Wellington Belawa v The State case and I have taken that into account in my deliberation. This offence involves dishonesty where the prisoner stole a sum of K93, 590. 31 (category 4 of the guidelines in Belawa). The prisoner held a position of trust, and the complainant has a high degree of trust in her to comply with the contractual arrangements which payment was made promptly; that trust was breached when the prisoner failed to deliver the clearance and delivery of the goods or services paid for on 6 February 2020. Instead, the prisoner did make a false transaction and delivered a fake transaction transfer receipt to hide the theft which occurred on 23 February 2020 (within two weeks of payment being made).  

22.	I am of the view that the action taken involved the calculation of making payment into a fake BSP Account Number and presenting a fake transfer receipt with the intention to deceive the recipient that actual cash or money has been transferred is cunning and intentional. The fake receipt Reference No. is recorded as "20201AE1 002892.  It implies some pre-planning.

23.	 Further, the impact on the school was profound. Students did not have uniforms and other essential school supplies for a long period of time. The actions of the prisoner greatly impacted public confidence in service providers. Further as to how, the money stolen was utilised, there are no details available. The only explanation given is that the Managing Director has misused the funds. Due to the theft, the school had to then find some other form of action to recover the supplies. At this stage, no restitution has been made. In effect, the prisoner maintained her innocence till today when making submission on sentence. She says that it is the husband who used the money and not her and therefore should not be punished. So out of the twelves factors identified in Belawa, I find that 7 of these factors go against the prisoner. Factors which can be used as mitigating factors are that she has shown some remorse, she has no prior conviction and the effect of the trial on the prisoner such as ill health and her young family’s wellbeing. 

24.	However, in spite of all these factors, I would in this instance refer to my earlier decisions on matters affecting family circumstances and would be minded to say that family situations are not matters for consideration where sentencing is involved as an individual is personally responsible for their own actions. In regard to the family circumstances, I reiterate the sentiments expressed in State v Moewe [2024] PGNC 135; N10801 (5 April 2024) in paragraph 68 where I referred to and adopt several statements made by the Courts which have consistently stated that the issue of the care of children or circumstances of family situations are matters which are within the control of the prisoner. In your case, you should have considered all these matters prior to the offending not after the offending. It is a bit too late to raise it now. A case on point is that of Tamara Player Tomscoll v The State [2012] SC1208 (although a bail application), the principle is relevant to sentence. In that case, the Court stated at [44- 47]:

“44. 	In relation to the plea for Tamara's own and that of her children and her families' needs, we do sympathize with her, her children and family. However, these can have no consequence on the sentence she should receive as an offender. Indeed, numerous cases say that an offender should think of the possible consequences that could flow against themselves and their family, friends and or business on account of their choosing to commit a crime before committing it. After the commission of an offence, it is a little too late to plead personal or family needs.

45.	One of the earlier decision of the courts on this point in our country is the decision by Amet J (as he then was) in The State v Oa Seseka [20] That was a case of fraud. There His Honour said:

46.	"I said before and I repeat that all of these factors and matters ought always to be in the minds of fathers and all offenders when they are tempted and begin offending in this way. Educated, intelligent adults who knowingly and yet deliberately over a long period of time, such as 17 months, embark upon a life of fraud have no excuse whatsoever. They bear full responsibility for the suffering occasioned to their families as a result of their actions."

47.	Later in 2000, the Supreme Court consisting of the late Jalina, Kirriwom and Kandakasi JJ., in the matter of Allan Peter Utieng v. The State,[21] re-echoed this principle by saying an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offender's personal background including the needs of his family and concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed and the particular circumstances in which the offence was committed.

This position has been and is consistently applied in our Courts when offenders plead their personal needs including medical needs and that of their respective families. The Supreme Court's decision in Thress Kumbamong v. The State [22] is one of the latest Supreme Court decisions on point. That decision reaffirmed this position in these terms:

"It is now settled law that, an offender should consider his or her personal and family backgrounds and needs before committing an offence. It follows therefore that, once a person is found guilty of committing an offence, it is a little too late for the offenders to raise their personal and family backgrounds and needs with a view to getting a more lenient sentence. 

This was made clear by this Court's decision in Allan Peter Utieng v. The State...which has been followed in a long list of National Court judgments including the recent decision in The State v. Danny Makao...

What this means is that the medical conditions or other personal and family backgrounds and needs of an offender should not form any foundation for a lenient sentence unless, it is a case of life and death, and no arrangements can be made administratively by the Correction Services for a prisoner with a medical condition to access and receive appropriate medical attention and treatment."

25.	Given the above statement, I am minded to accept the submission of counsel for the State that this is a case where there is strong need for both personal and general deterrence and a punitive sentence is appropriate. Hence a custodial sentence of 4 years imprisonment is appropriate. However, should the offender consider restitution then it would be in the interest of both parties for restitution.

26.	With regard to the issue of restitution, whilst I note that the prisoner has offered to pay restitution, the proposal offered appears to be very unreliable and to me would not serve the interest of both parties. It is more appropriate to offer some restitution prior to sentence but then again, I accept that not all parties possess the financial capacity and to have cash readily available. Furthermore, there is no evidence of the company being in existence for purposes of confirming the prisoner’s capacity to make restitution. 

27.	Whilst I also note that the Pre-Sentence Report although favourable, it does not provide any recommendation for probationary supervisory orders and or a non-custodial sentence.

28.	In conclusion, I reiterate the sentiments echoed in State v Moewe (supra) and state that conduct such as the crime of the stealing only gives encouragement, support, and vigour for like-minded criminals to engage in such crime. 

29.	All kinds of offences are on the increase and therefore, it is the role of society to improve in its efforts to minimize the frequency and number of serious crimes of stealing against people who facilitate and carry out such transaction, thus the penalty must be appropriate so as to have an effect of deterrence: The Acting Public Prosecutor v Aumane & Ors 1980) PNGLR 501. This will have the effect of stopping if not reducing the number of offences that are committed.

Sentence

30.	Thus, having convicted you, Tersie Komek of one count of stealing contrary to s 372(1) (10) of the Criminal Code, I hereby sentence you, Tersie Komek to 4 years imprisonment less the pre-sentence period of 8 month 17 days pursuant to  3(2), Criminal Justice (Sentences) Act which leaves a term of 3 years 3 months 13 days of sentence to serve.

31.	By virtue of s.19 (a) (1) of the Criminal Code, 1 year of the balance of the sentence term of 3 years 3 days 13 days be suspended.
32.	This leaves the balance of the sentence term of 2 years 3 month 13 days to be served in custody, at CIS, Buimo such term to be wholly suspended on the condition that the prisoner pay full restitution of the sum K93, 590. 31 to the complainant, Brandi Secondary High School, Wewak, within the 2-year period and evidence of payment is presented to the CIS, Buimo and the Public Prosecutor respectively.

33.	The CIS is to confirm receipt of the payment prior to release upon consultation with the State lawyers and the Counsel for the defence, Mr. Yama currently of Apo Lawyers.

Orders of the Court

34.	Having convicted you, Tersie Komek on one count of stealing contrary to s 372(1) (10) of the Criminal Code,  you are now sentenced as follows:

(1)	Length of sentence imposed: 			4 years.

(2)	Pre-sentence period deducted:			9 months 17 days 

(3)	Term of sentence to  be served: 			3 years 3  months 13 days.

(4)	Amount of sentence suspended: 			1 year.

(5)	Time to be served in custody:			2 years 3 months 13 days

(6)	The sentence term of 2 years 3 months 13 days be wholly suspended upon payment of full restitution of the sum of K93,590.31 to the complainant.

Sentenced accordingly.
________________________________________________________________
Lawyer for the State: Public Prosecutor 	
Lawyers for the offender: Myles Legal Services