DC4091
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
	SITTING IN ITS CRIMINAL (GRADE 5 COURT) JURISDICTION]
GFC: 07 of 2017
BETWEEN
Police
Informant
AND
Innah Yehinei
Defendant
KOKOPO: SLavutul
2016: 18th November, 20th December, 2017: 21st, 28th February, 07th March, 04th April, 18th, 
           19th May, 15th, 22nd August, 05th, 14th September.

CRIMINAL PRACTICE AND PROCEEDURE – One Count of Stealing – Section 372 (7) (b) Criminal Code Act – Plea of Guilty – Submissions on Sentence.
Cases Cited
Wellington Belawa v State [1988 – 89] PNGLR 496
The State –v- Sabarina Yakal [1988-89] PNGLR 129

Goli Golu v The State [1979] PNGLR 653.

References
Criminal Code Act
Counsel
Sgt Elizabeth Munap for Prosecution.
Defendant Appeared In Person

                                                                     Decision
03rd October 2017
Samuel Lavutul, Principal Magistrate, The defendant Innah Yehinei, age 29 years old of Nordup village, Rabaul District, East New Britain Province, was charge under Section 372 (7)(b) of the Criminal Code for one (1) count of stealing from her employer Kada Poroman Microfinance Limited.
2. It was alleged the defendant did on 07th day of April 2015 at the Kada Poroman Microfinance Office at Kokopo, whilst being employed as a Senior Bank Teller stole the sum of K7, 000.00 which had come into her possession on account of her employer.
3. It was alleged the defendant in her capacity as the Senior Bank Teller did process payments of K7, 000.00 and transferred to account name Pauline Vagilom Maono. The defendant transferred the monies and created the new account without the knowledge and approval of the company, Kada Poroman Microfinance Limited.
5. The alleged funds were drawn from a client’s account namely a John Monak. The actions of the defendant were a breach of company policy to fraudulently process the alleged payment totaling K7, 000.00.
6. Upon arraignment the defendant pleaded guilty to the alleged charge and raised that she had earlier approached the account holder Mr. John Monak with her husband Benson Paul, if she could borrow the sum of K4, 000.00 to enable her pay for her husband’s school fees at Port Moresby Technical College. They undertook that they would repay the sum of K4, 000.00 with interests in which Mr. Monak agreed. Mr. Monak then endorsed a Withdrawal Slip and gave it to the defendant.
7. The defendant in the process of withdrawing the sum of K4, 000. 00 then used her position in the Bank and increased the amount by K3, 000.00 and made a total withdrawal of K7, 000.00 from Mr. Monak’s account without his knowledge and approval. She then paid all the monies into a new account no. # 100200200023323 bearing the name Pauline Vagilom Maono which she created to deposit all the monies.
8. However, investigations revealed and concluded the defendant whilst being employed by Kada Poroman Microfinance Limited as a Senior Bank Teller used her position to manipulate the system to benefit her. The property which was in the custody of Kada Poroman Microfinance is still the company’s property based on the trust relationship between the bank and its client Mr. John Monak. Despite the fact Mr. Monak had agreed to lend the K4, 000.00 to the defendant, the bank did not authorize nor approve the alleged transaction.
9. Now based upon the facts before the court the defendant’s guilty plea was confirmed and the defendant was found guilty as charged.
13. The defendant’s antecedent reveals she was 29 years old on the date of the alleged offence, married with one child, she is of the Catholic Faith, resides at Gelegele Nordup, educated to Grade 12 at Kokopo Secondary School in 2006 and later entered college at the International Training Institute, Port Moresby in 2008 and later employed as a Teller with Kada Poroman Micro Finance Limited. 
14. Defendant Innah Yehinei whilst addressing the court on sentence pleaded that , she was guilty for what she did and she seeks the court’s mercy as she has come to realized what she did was wrong. She expressed remorse and that she was sorry and she apologies to the victim and she seeks the court for leniency.
15. She also added she seeks the court to grant her reasonable time to repay the monies stolen as she has some savings with NASFUND which she could draw from. She pleaded she is currently unemployed including her husband.
16. In its reply prosecution submits to the court the penalty provision under Section 372 (7) (b) carries a maximum penalty of an imprisonment term not exceeding seven (7) years. Prosecution added the crimes of this nature which involves circumstances of dishonesty and substantial amounts of money by people placed in positions of trust and authority is prevalent.

17. In mitigation they take into account the fact the defendant pleaded guilty on arraignment which has saved everyone’s time in running a trail and that the defendant is a first offender who is married and currently unemployed.

18. Prosecution further stressed that the penalty provision indicates that the crime for which the defendant is charged with is serious in nature in that;

(a)	the crime was committed within her place of work and against her employer
(b)	involved circumstances of dishonesty
(c)	involved a substantial amount of money
(d)	monies stolen was used by the defendant for her own use.
(e)	did breach a position of trust

19. Prosecution refers the court to consider the principles set out in the case of Wellington Belawa v State [1988 -89] PNGLR 496; where the prisoner appealed his sentence of two (2) years to the Supreme Court claiming severity of sentence after he was found guilty for stealing the sum of K1, 979.00 from the state.
20. Barnett J stated in the above case;
“The following factors are among those which should be taken into account on sentencing an offender for an offence involving dishonesty where the offender is in a position of trust”:
(1)      the amount taken;
(2)      the quality and degree of trust reposed in the offender including his rank;
(3)      the period over which the fraud or the thefts have been perpetrated;
(4)      the use to which the money or property dishonestly taken was put;
(5)      the effect upon the victim;
(6)      the impact of the offences on the public and public confidence;
(7)      the effect on fellow-employees or partners;
(8)      the effect on the offender himself;
(9)      the offender’s own history;
(10)    restitution; and
(11)    those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.
21. It further submits that the manner in which the present crime was committed involves circumstances of dishonesty as an employee of Kada Poroman Microfinance Limited; she was placed in a position of trust but had seen fit to betray that trust that was bestowed upon her. The crime which involved a substantial amount of money was committed in a professional manner. The defendant’s action had incurred some loss to her former employer that was paying her wages in order to support her family over the duration of her employment.

22. Prosecution also submitted and led the court to consider the following scale of sentencing set out by His Honor in the matter of Wellington Belawa v State whilst considering the appropriate sentence in the two offences the defendant is charged with;

“The following scale of sentences may usefully be accepted as a base to be then adjusted 
upwards or downwards according to the various factors above:
(1)      where the amount misappropriated is between K1 and K1, 000, a goal term should rarely be imposed;
(2)      where the amount misappropriated is between K1, 000 and K10,000, a goal term of up to two years is appropriate;
(3)      where the amount misappropriated is between K10, 000 and K40,000, two to three years imprisonment is appropriate;
(4)      where the amount misappropriated is between K40, 000 and K150,000, three to five years imprisonment is appropriate.”
23. In conclusion Prosecution stated for the purposes of the present case the total amount of money stolen falls under the second category and it therefore submits that the appropriate sentence the court should consider would be a custodial sentence. It also added in addition to the appropriate sentence it further submit that restitution of the total sum be ordered and thus to deter not only this defendant but others as well. 

Sentencing

24. I have given careful consideration to the respective submissions and the facts laid before me. I am left with the question, “What is the appropriate sentence to be given to the defendant?” So from the outset there is authority for the use of depositions to extract the relevant facts for sentencing purposes as per the view in The State –v- Sabarina Yakal [1988-89] PNGLR 129

25. In the present case the defendant was an employee of Kada Poroman Microfinance Limited at its Kokopo Branch when the alleged offence was committed. She was the Senior Bank Teller when she committed the offence. She was entrusted by her employer to deal with large amounts of cash daily however she betrayed that trust.

26. The defendant must understand that she was placed in a position of trust with the task to handling large sums of monies daily. The defendant was tasked with a huge responsibility by her employer with the requirement to employ due diligence, honesty and safe keeping of the monies she was entrusted to receive and also pay out to customers as they come to the bank with their transactions. The defendant must realize what she did was outright dishonesty and carelessly used her position to perform the alleged transactions. It was also unethical for her to have opened a new account under another person’s name also raises suspicion on the mind behind her actions. Despite her reason to justify her actions does not distinguish the fact that what she did was unlawful and at the same time unethical for her as a banker.
27. Due to the prevalence of such offences within financial institutions I consider a custodial sentence would suit the crime the defendant has committed and it would stand as a deterrent not only to the defendant but others as well.
28. Prior to handing down sentence, I have given consideration to section 19 of the Criminal Code Act not to impose the maximum penalty but reserve it for the worst type of cases as affirmed by the view in Goli Golu v The State [1979] PNGLR 653. I have given careful consideration to both mitigating and aggravating factors of the case. I will therefore sentence the defendant accordingly.
Court Order
1.	That the defendant is convicted and sentenced to two (2) years IHL.
2.	However 18 months be suspended on condition the defendant repays to the Kada Poroman Micro Finance Limited the sum of K7, 000.00 by the end of November 2017, if default defendant would serve the full term.
3.	Defendant to serve the remainder of six (6) months IHL.