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State v Kawin [2001] PGNC 42; N2167 (24 December 2001)

N2167

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1712 of 2001

THE STATE

-V-

ROBERT KAWIN

VANIMO: KANDAKASI, J.
2001: 21st and 24th December

CRIMINAL LAW & PRACTICE – Sentencing – Stealing - No sentencing guidelines – Maximum to be reserved for worse type of case and a term of few months imprisonment may be appropriate for less serious offences – Stealing in breach of trust and in circumstances which disclose the commission of another unlawful conduct may amount to a worse case of stealing – The sentence should reflect guilty pleas and first time offenders.

CRIMINAL LAW - Sentence – Stealing – Forging signature of work mate who had entrusted his transactions account with the offender – Two counts of stealing by same means in same setting - Total of K2,250.00 was stolen and only K500.00 recovered – Offence falling into the worse category of its type – Maximum sentence of 3 years called for but reduced to 2 years on account of guilty plea and offender being a first time offender – Criminal Code ss. 372 and 19.

Cases cited:
The State v. Bill Baru (06/03/97) N1546.
Gimle v The State [1988-89] PNGLR 271

Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000
The State v. Abel Airi (20/11/00) N2007
The State v. Sabarina Yakal [1988-89] PNGLR 129
The State v. James Gurave Guba (19/12/00) N2020

Counsel:

M. Ruarri for the State
G. Korei for the Accused

24th December, 2001

DECISION ON SENTENCE

KANDAKASI J: On the 21st of this month, you pleaded guilty to two counts of stealing from Philip Nabal a sum of K50.00 on the first occasion and K2, 200.00 on the second occasion. What you did was contrary to section 372 (1) of the Criminal Code. After having heard you and your lawyer as well as the State on the kind of penalty you should receive, I reserved a ruling to today. This is my ruling on that.

The Facts

The facts giving rise your guilty plea is straightforward. Vanimo Forest Products ("VFP") employed Philip Nabal and you. You were therefore work mates. In July this year, VFP decided to retrench you and your work mate, Mr. Philip Nabal. On the day you were retrenched, VFP did not pay you your respective retrenchment pay out. That was to be done sometime later. Both of you therefore had to wait for your finish pay.

Meanwhile Philip Nabal had to visit a sick son in Aitape. Before leaving for Aitape, he left his PNGBC transaction account book with you on the 25th of July 2001. That was to enable you to put his finish pay from VFP into his account.

While Philip Nabal was away in Aitape you wrote out a withdrawal slip, forged his signature and took out a sum of K50.00. That took place at the PNGBC here in Vanimo on the 14th of August 2001. Following your success with the first attempt, you followed the same procedure to take out a further and larger amount on the 31st of August 2001. The amount you stole on that occasion was K2, 200.00.

Eventually, Philip Nabal discovered what you did against him through the PNGBC branch in Aitape. So he reported the matter to police. The police eventually arrested, charged and had you brought to this Court on the 21st of December 2001.

Allocutus

In your allocutus, you expressed remorse for what you had done and said sorry to those in Court and to God almighty. You also informed the Court that you are a married man with 4 children. You have brothers and sisters the eldest of whom his married with 7 children of her own who are all married to their fathers side in the Rabaul area in the East New Britain Province.

In addition to what you total the Court, your lawyer informed the Court that you currently reside at a settlement here in Vanimo. You are educated up to grade 6 in 1977. You learned to become a bulldozer operator and were employed in that capacity by VFP until your retrenchment. Currently you are unemployed and have no means to repay the amount you stole from Mr. Philip Nabal.

Submissions and Considerations

In considering an appropriate sentence for you, your lawyer has asked me to consider your expression of remorse, your educational and family background. He also asked me to consider and take into account in your favour that, you freely pleaded guilty to the two counts of stealing from the time of your arrest. That made police work easy and that this Court’s time that would have been taken by a trial was saved. He also asked this Court to note that you are a first time offender and that, of the total amount you stole, K500.00 was recovered.

I take all of these factors into account in your favour. At the same time, I am required to take into account the State’s submissions as well has the community or country’s call for appropriate punishments to be given to people like you who break the law and commit offences. This proceeds on the basis that, although an offence may be against a particular person, it is collectively against the society because the society does not allow this kind of behaviour.

The state submits and I accept that, there are two charges against you. You have pleaded guilty to both. Each of the offences attracts a maximum sentence of 3 years imprisonment. You committed the offence in breach of a trust that was place in you by Mr. Philip Nabal who entrusted you with his transaction account book. He did not expect you to forge his signature, which is also, an offence on its own, and steal from his account because, if he did have such an expectation, he would not have left his transaction book with you. You destroyed that trust and may be your relationship with him and his family members with that of your own. You also showed no sympathy toward Philip Nabal who was attending to his sick child. Further, of the total K2, 250 you stole from Philip Nabal, you used K1, 750.00. That was a substantial amount of money given our current level of the economy and the ability of the Kina to buy goods and services. These factors operate against you.

The Law

The offence of stealing is prescribe by section 372(1) of the Criminal Code in these terms:

"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."

There appears to be no case on point to assist on the kind of sentence that should be imposed for an offence under this section. A case that at the least dealt with an offence under s. 372 (1) is the case of The State v. Bill Baru (06/03/97) N1546. Nevertheless that case dealt with a case of three counts of stealing and the charges were laid in association with subsection 10. That subsection provides that if the amount stolen exceeds or is up to K1, 000.00, imprisonment can be up to a term of 7 years subject of course to s. 19 of the Criminal Code. No sentencing guidelines were suggested and a respective sentence of 12 months, 12 months and 18 months were imposed. The total amount of money involved was over K9, 000.00. That amount of money was stolen through fraudulent misrepresentation by the prisoner to a number of villagers wanting to buy vehicles through him who was a car salesman. The prisoner was ordered to serve the 12 months cumulatively and the 18 months term concurrently with the cumulative term of 24 months on the first two counts. He was therefore ordered to serve a total of 24 months in hard labour.

In line with the accepted principle that, the maximum prescribe sentence in any offence should be reserved for the worse category of the offence under consideration, I am of the view the that the maximum of 3 years should be reserved for the worse category of stealing under s. 372 (1). A worse case of stealing would be one that might have factors like, the total value or the actual amounts of money stolen falls just short of K1, 000.00, thereby escaping an application of the provisions of subsection 10. It would also be a worse case if say an element of a breach of trust whether legal or a defector kind of trust not caught by any of the other subsections in s. 372 exists and the offence is committed in furtherance of an illegal activity or another offence.

At the end of the scale would be simple cases of stealing, such as, pocket pickings, or someone leaving some valuable item mistakenly at a place and another person steals it with full knowledge of its owner. Stealing in such a situation should attract a sentence of a few months say about 3 to 4 months. Then there would be cases in between. These might be cases in which say the amount of money or the value of item stolen is small but the offence is committed in pursuance of an illegal activity or another offence. In this category might be cases where the amount of money or value of item stolen is substantial but not necessarily up to K1, 000.00. In such cases the sentence could range from more than 4 months and closer to the maximum prescribed sentence of 3 years.

Of course a guilty plea by a first time offender, or a young offender could reduced the kind of sentence suggested. The need to do that as been made clear in a large number of cases though in the context of other offences as in the case Gimble v The State [1988-89] PNGLR 271, by the Supreme Court at page 275. The above suggestion is only put forward as a guide in the absence of any other guideline to the contrary. A judge may impose a sentence outside what is suggested, provided there is a good reason to depart from the suggested guideline.

As I said in The State v. Abel Airi (20/11/00) N2007,

"... [T]he exercising of a sentencing judge or court’s discretion is not a matter of mathematics but rather an application of that discretion judicially having regard to the particular circumstances of the case, noting that a case as to be determine on its own facts. Exercising that discretion may well defer from judge to judge and that they may well be differences in the number of years imposed for similar offences depending on the nature and circumstances in which the offence is committed."

Your Case

In your case, you were entrusted with a transaction account by a work mate for the purposes of depositing his final or finish pay form his and your former employer. He could have done it himself but he had to attend to his sick son in Aitape. Whilst he was in Aitape, you filled out a withdrawal slip, forged his signature and stole from his account at first a sum of K50.00. I find that, you did that as a test case to see if you would have any difficulty in stealing from your friend’s account. Upon finding out that you could do so without any difficulty, you used the same procedure to this time steal K2, 200.00.

You showed no sympathy for your work mate when you stole from him in this way. You destroyed the trust he placed in you. In the process you committed another illegal activity or offence, when you forged your work mate’s signature. You are a grown up man with 4 children. You were therefore in a position to fully appreciate what you were doing and the effects of that on your work mate and his family.

In your allocutus, you told the Court that you were sorry for what you had done. You also said sorry to God and those present in Court for what you had done. As the Supreme Court said on circuit to Wewak in Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000 at page 5 in response to the appellant saying sorry for his wrongs, your:

" ... [U]tterance of sorry must be accompanied by something tangible which befits the wrong he has brought upon the victim, her family and relatives, if such utterances are to be of any value and meaning. In the present case, there is no evidence of the Appellant paying any compensation or has taken any step to correct the wrong he has perpetrated. This Court or any other court for that matter should be slow to act on such meaningless and or valueless pleas for mercy or leniency."

You have not taken any step to repay the money you have stole from Mr. Philip Nabal. Only K500.00 was recovered because you had not yet used them. You are now in no position to repay the K1, 750.00 you used up. So your saying sorry has no practical meaning.

The God to whom you have said sorry says in his 10 commandments particularly in the 8th commandment (Exodus 20:15) that, "you must not steal". Yet you stole from a person you knew very well and one that required some sympathy instead of stealing from him. The Holy Bible, which is Gods word, says a transgression or a breaking of his commandments is sin. Gods holy word also says in Romans 6:23 that the wages or penalty for sin is death, unless we turn away from our sinful ways and return to him completely changed persons. As to whether you wish to change and become a new person to qualify to go to God’s kingdom, heaven, is a matter for you to decide. I can not be your judge in that regard. I can only suggest that you seriously consider changing your life to becoming a God fearing man to avoid the death penalty and to have life everlasting with God.

Under our laws I find the circumstances in which you stole from Philip Nabal very serious. You are therefore liable to receive the maximum penalty of 3 years imprisonment. However because of your guilty plea and you being a first time offender, I am going to give you a sentence lesser than that. For the first count, which I find not necessarily in the worse case because of the small amount of money involved, I impose a term of 6 months. For the Second count, which involves a theft of K2, 200.00 I impose a term of 18 months. I order that you serve these terms cumulatively, bringing the total term of imprisonment to 24 months or two years.

In arriving at that sentence, I have had regard to the fact that you could have been charged under section 372(1) and (10), especially for the second count because of the amount of money involved. You clearly admitted to stealing K2. 200.00 from Philip Nabal on the 31st of August 2001. For reasons only known to the prosecution you were not charge under subsection 10 of section 372. If you were, you would have been looking at 7 years maximum sentence. In line with authorities on point such as that of, The State v. Sabarina Yakal [1988-89] PNGLR 129 and The State v. James Gurave Guba (19/12/00) N2020, I can only note that, to determine an appropriate sentence for you.

I have taken into account the principles concerning making sentences cumulative or concurrent. I covered those principles in The State v. James Gurave Guba (supra) case, which I need not repeat here. In summary however, the law is that a sentencing judge has the discretion to either make sentences cumulative or concurrent. If the offences are committed in the same transaction against the same victim, it is appropriate to make the sentence concurrent. If however, the offences arise out of two different transactions, the sentence could be make cumulative. If the sentence is to be made cumulative, then the court must consider the totality of the sentence and impose a sentence that is not crushing on the offender.

In your case, there were two different acts of forgery leading to stealing from the same victim. They were committed on two different dates. The amount stole substantially varied between each other. You are relatively stronger and not advanced in age. I considered all of these aspects and arrived at the conclusion that making the sentences cumulative is appropriate and that the total of 24 months is not crushing on you.

Ultimately, I order that you serve your term of 24 months less the time you have already spent in custody awaiting your trial at the Vanimo CIS.
__________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor