Unreported National Court Decisions
N1501
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR NO. 211 OF 1996
THE STATE
-V-
MICKY KAURI
Waigani
Batari AJ
4 November 1996
7 November 1996
CRIMINAL LAW - Sentence - Dishonestly offences - First offender - Sole bread winner - Mother - Effect on children - Considerations of - Degree of trust.
CRIMINAL LAW - Sentence - Obtaining money through fraudulent scheme - Cash Register Operator - Theft perpetrated over period of time - Plea of not guilty - Amount appropriated K19,084.70 - Sentence of 2 years and 6 months with 18 months suspended on entering into 2 years good behaviour bond.
Cases Cited
Public Prosecutor v. Vangu’u Ame [1983] PNGLR, 424
Public Prosecutor v. Tardrew [1986] PNGLR, 91
Wellington Belawa v. The State [1988-89] PNGLR, 496
Sentence
On a trial on a charge of one count of Misappropriation of K19,084.70 the accused was found guilty and convicted. The following judgment was delivered on sentence.
Counsel
L. Maru, for the State
L. Siminjii, for the Accused
6 November 1996
BATARI AJ: Micky Kauri, I have found you guilty of one count of Misappropriation and convicted you as charged. I must now pass sentence on you.
The circumstances surrounding the commission of your offence have been canvassed at length in the course of the trial and my decision on your guilty verdict. It is necessary to refer only fairly briefly to them.
I consider that for sentencing purposes, I should proceed on the following factual basis.
Between December 1994 and June 1995 you were employed as a Cash Register Operator at Andersons Foodland Supermarket at Koki. Your duty was to ring-in details of purchases, and issue receipts to customers with their cash change, if any. If an error was made on the Register by over-ring of the price, it would be corrected by a Supervisor who was the only person authorised to press the return mode button. This button serves the purpose of correcting errors made on the Register.
I have found generally that, at the start of each shift, a Cash Register Operator would ring-in on the Register a nominated amount prior to any sale transaction. By pressing the return mode button, the total to the Register’s cash takings was able to be reduced by that amount. The evidence of that unauthorised transaction was destroyed by removing the first parts of the customer receipt roll and detail roll from the Register. This permitted the Operator to remove the exact amount from the Register at a convenient time without interfering with the balance takings for the shift.
Details of Cash Register readings, validation slips and office records of dates you operated Registers during the period in question revealed the number of over-rings, both authorised and unauthorised made during your various duty shifts.
I do not need to set out in detail, those entries from the Registers you operated. It is sufficient to say that you made numerous unauthorised over-rings with the first one on 8 December, 1994 and the last one on 11 June, 1995. The value of such over-rings varied from small amounts to the largest amount of K800.00 taken in a day over a period of six months. The evidence showed a consistent pattern in your operation. You started by stealing a small amount of K343.13 in December, 1994 and steadily increased to K6,100.00 in the month of April, 1995. You were not at work for five weeks between 24 April and 29 May, 1995 which explained the reduced amount in May. The amount in June, 1995 was also less as your scheme was discovered early that month
You were strongly implicated as the person who introduced the use of the return-mode button to steal from the supermarket. You taught some Operators who in turn introduced others into it. Those who co-operated benefitted from the proceeds of over-rings as well as gained knowledge of operating the return mode button which allowed them to remove money from the company till at their own conveniences. Others who did not co-operate received threats and warnings from your accomplices to keep quiet.
Over the period through what was a racket amongst the Supermarket Staff involving collusion and conspiracy you alone benefited from an aggregated sum of K19,084.70. There was every indication that if your fraudulent scheme was not discovered early, the loss to the company would have been greater.
The offence of Misappropriation in your case carries a maximum penalty of ten years. That shows how serious your conduct was. You may be gaoled up to that maximum term.
The process of sentencing by a judge is not an easy task. Your case in particular had caused me much concern because on the one hand, the offence involved substantial amount of money and was committed over a long period of time. Normally, imprisonment terms without any form of suspension are called for in cases as this. On the other hand, there are compelling factors that I must consider in your favour. 
You are aged twenty-nine years with no prior convictions. Your up-bringing was described as good. This meant that up to the time of your conviction, you had been law abiding. The period of six months over which you committed the offence is however against you. What you did was not a “spur of the moment” act which was unlikely to be repeated. You committed the offence with some degree of sophistication and adopted means to avoid detection. You also appeared discreet in your conduct. But everyone implicated seemed to know you were the main perpetrator. Your prime concern was no doubt your own personal gain. The others could benefit themselves by learning from you. It did not seem to matter to you that your actions were not only wrong in law, but it also offended against good moral values and standards of the community you live in. Although you seemed convinced that your scheme was fool proof, the truth is that, it was easily detectable at this computerised age. This is particularly so as I consider your method to be less professional. You were foolish to have thought, if not believed, you would get away with the crime, when you should have known that a missing number in a sequential transaction was bound to be discovered anytime. You should have also known that an unauthorised over-ring was easily detectable by comparing the ‘Z’ receipts reading with the Cash Register Authority Slip.
As you did not plead guilty, you are not entitled to the benefit of a plea, although you admitted much of the evidence against you. This indicated also lack of remorse on your part. Those considerations however does not permit of any increased sentence above what is appropriate. They simply do not entitle you to a discount on any otherwise appropriate sentence.
You are married with three children, the eldest being twelve years old and the youngest is five years old. The first and second children are in Community School and the youngest is in your care. Your husband is unemployed and has been so for sometime. You were the sole wage earner at the time of your offence. There is no doubt your family will suffer considerably, in particular, your young children if you were incacerated. The difficulties your unfortunate family members will suffer is sad. It seems so unfair that the children especially the young ones will often suffer for the crimes their parents committed. That is a fact that you ought to have considered when you set out on your criminal path. In the case of Public Prosecutor v. Vangu’u Ame [1983] PNGLR, 424 the Supreme Court had cautioned that the effect a custodial sentence might have on the welfare of the children of the accused must not be allowed to over-ride the seriousness of the offence.
In that case, the father had the sole care of four young female children when he was convicted of incest with his adult sister and the passing of a two year sentence was deferred upon imposition of a good behaviour bond on the basis of the effect of a custodial sentence on the welfare of the children. That sentence was increased on appeal.
I think what the Supreme Court was saying is that, the welfare of the accused’s children have a place in mitigation but not as an over-riding factor. In appropriate cases however, I think the welfare of the children may have significance especially where the offence is less serious, or where the children are very young and the effect of a custodial sentence would deprive them totally of parental care in cases involving both parents, or where the children have health conditions which required the attention of the mother, in particular. In this case, I consider the children to be all young and at this stage of their lives, their mothers’ love and care in their upbringing is a relevant factor.
There is no submission before me as to how you spent the money you took. But then, you did not admit the offence. Your lawyer said you were paid K96.68 per fortnight at the time of your employment. I can only assume that you used the money to supplement your income for your family food and clothings as it might have been difficult for you to support your three children and your unemployed husband on your wages alone.
You have had no means of income since June, 1995 after you were suspended from work. For the last seventeen months, you and your husband have been unemployed. There is no information on how you had fended for yourselves and your children but it could be stated that you have suffered greatly from the consequences of your conduct. You had gained useful employment after completing only Grade 9. I do not think your chances of re-employment is good because of the history of your conviction. I take this into account also which means you and your family may continue to suffer. I also take into account, the public disgrace you and your family would go through following your conviction.
On your physical health, I accept that your operation in mid 1995 might have caused you some disability and restricted you to light manual labour. There is no evidence however on the likely impact of jail on your general health. You look outwardly well and I can only assume that your operation in 1995 has had no significant effect on your health and ability to cope with conditions which might be harsh.
I bear in mind that a substantial amount of money was misappropriated by you. It make some difference that you stole from a well established company as the effect on the victim may not be great as compared to an offence committed against a struggling sole trader. This is however not to say that it is permissible to steal from profitable business houses. The act is still unlawful and the analogy lies only on the effect of the loss on the victim.
I also considered that you held a position of trust in the company and you breached that trust. You were nevertheless under supervision which reduces the degree of trust on you. The involvement of some supervisors in the scheme also encouraged and provided you the cover. Without their involvement, the scheme would have been unveiled earlier.
I have considered the question of restitution and whether or not suspension of sentence, if I order a goal term, would promote repayment or restitution. (See Public Prosecutor v. Tardrew [1986] PNGLR, 91). I am however unable to get much assistance on the issue. Your position, I perceive from your lawyer’s submission is that you are unable to repay the money but would seek employment to do so. I conclude that it would be unrealistic to expect you to repay the company within a specific period if so ordered. I think however, that suspension of sentence will promote your personal deterence and reformation. I do not consider you to be an habitual offender or a violent offender or a dangerous offender who is a threat to those law abiding citizens who wish to live in a society of harmony and peace.
I rely on the case of Wellington Belawa v. The State, [1988-89] PNGLR, 496 and I am guided by the principles stated in that case when I deliberated your penalty. That case says where the amount misappropriated is between K10,000.00 and K40,000.00, imprisonment term of two to three years is appropriate. In your case, I consider the starting point to be 3 years imprisonment to be adjusted upward or downward. Taking into account all your personal circumstances and the circumstances of your offence, I make the following orders:
You are sentenced to two and a half years imprisonment with light labour. I order that monies held on your behalf by your former employer, Andersons Foodland together with your contributions to NPF, overrall total of which is K783.73 is forfeited to Andersons Foodland as part of the restitution. I suspend six months as considerations of the part restitution orders.
I suspended twelve months of the remaining term if you promise to be of Good Behaviour Bond for a period of twenty-four months after you have served twelve months imprisonment in light labour.
Your bail money of K100.00 is ordered to be refunded.
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: A/Public Solicitor