N3708

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1049 OF 2005

THE STATE

V

ROSELYN WAIEMBI

Mt. Hagen: David, J
2008: 05, 19 & 26 March

CRIMINAL LAW – sentence – stealing – stealing from employer – offence committed over a long period of time - guilty plea – nor priors - expression of remorse - three (3) years imprisonment in hard labour – sentence suspended with strict conditions attached – ss. 19 & 372 (1) & (7)(a) Criminal Code. 

Cases cited:

Wellington Belawa v. The State [1988-89] PNGLR 496
Seo Ross v. The State (1999) SC605
Doreen Liprin v. The State (2001) SC673
The State v. John Akoko (2001) N2061
The State v. Robert Kawin (2001) N2167
The State v. Timothy Tio (2002) N2265
The State v. Louise Paraka (2002) N2317
The State v. Richard D. Bix & Siprian S. Karo (2003) N2415
The State v. Romney N. Simonopa (2004) N2551
The State v. Allan Nareti (2004) N2582
The State v. Lukeson Olewale (2004) N2758
The State v. Philip Andia, CR. 328 of 2006, 20 July 2007 

Counsel:

J. Waine, for the State
P. Kumo, for the Prisoner 

26 March, 2008

1. DAVID, J: INTRODUCTION: On 05 March 2008, the State presented an indictment charging Roselyn Waiembi (the Prisoner) that between 28 June 2002 and 26 November 2004 whilst being employed as a clerk of Kunai & Co. Lawyers stole Fifteen Thousand Kina (K15,000) the property of her employer contrary to s. 372 (1) and (7)(a) of the Criminal Code (the Code). The Prisoner pleaded guilty. I accepted the plea and recorded a conviction after reading the depositions.

2. During the course of submissions, Mr. Kumo of counsel for the Prisoner sought the Court’s sanction for a Means Assessment Report (the Report) to be furnished in respect of the Prisoner. I granted the request and adjourned to 19 March 2008 to give the Probation Service here time to prepare the Report. Mr. Ingke of the Probation Service prepared the Report and had it filed in Court within the time required for which I am grateful. Submissions in respect of that were heard on 19 March 2008.

INDICTMENT

3. The indictment was preferred as follows:-

ROSELYN WAIEMBI of KALA village, Mt. Hagen, Western Highlands Province, stands charged that between 28 June 2002 to 26 November 2004, being a clerk of Kunai & Co. Lawyers stole Fifteen Thousand Kina (K15,000.00) the property of her employer, Kunai & Co. Lawyers.

FACTS

4. The facts to which the Prisoner pleaded are these.

5. The Prisoner was employed as an Accounts Clerk with Kunai & Co. Lawyers (the law firm) here in Mt Hagen, Western Highlands Province. She was employed by the law firm because she also comes from the same tribe as the principal of the law firm, Mr. Kunai. Her duties involved:-

1. Receiving and banking monies paid by clients on account of costs into the law firm’s Trust Account;

2. Doing monthly bank reconciliations and trial balances for the law firm’s Trust Account;

3. Maintaining clients’ trust ledgers and cash books;

4. Maintaining debtors and creditors list;

5. Arranging payments for overheads including staff wages;

6. Debt collection.

6. Between 28 June 2002 and 26 November 2004, the Prisoner is alleged to have stolen a total of K15,000.00 whilst employed by the law firm as its Accounts Clerk. She stole this money by including extra monies in the Cheque Requisition Forms every payday Friday; she would then take them to Mr. Kunai for his verification and endorsement. Fridays being a busy day for Mr. Kunai, he would sign the wages cheques without checking or verifying the details of the wages that were being paid. The extra monies the Prisoner took using this method on a single occasion ranged from K50.00 up to K700.00.

THE RELEVANT LAW

7. The penalty prescribed for stealing simpliciter under s.372 (1) of the Code is imprisonment for a term not exceeding three (3) years. For other categories of stealing, the penalties are set out under s.372 (2) to (12) of the Code. These penalties are subject to s.19 of the Code which gives the Court a wide discretion to impose such other sentence which is appropriate depending on the facts or circumstances of a particular case. The Prisoner is charged under s. 372 (1) and (7) (a) for stealing whilst an employee from her employer. The penalty prescribed is imprisonment for a term not exceeding seven (7) years. I set out the relevant provisions below:-

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………………..

(7) If the offender is a clerk or servant, and the thing stolen –

(a) is the property of his employer; or ……………

he is liable to imprisonment for a term not exceeding seven years.

8. In The State v. Robert Kawin (2001) N2167, His Honour, Kandakasi, J noted that there were no sentencing guidelines for the offence of stealing and therefore he attempted to formulate one in the following terms:-

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 reduce 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.

9. Robert Kawin is a case where the prisoner was charged for two (2) counts of stealing under s.372 (1) of the Code. The prisoner and the victim worked for a company that had decided to retrench them. On the day they were retrenched, their employer did not pay them their respective retrenchment pay out. That was to be done sometime later. Both of them therefore had to wait for their finish pay. The prisoner was then entrusted with a PNGBC transaction account book belonging to the victim who was travelling out from his locality to visit his sick child. The prisoner was instructed by the victim to collect his retrenchment pay from their employer and deposit it into his account. During the victim’s absence, the prisoner completed a withdrawal form, forged the victim’s signature and withdrew from the account K50.00 and K2,200.00 on two (2) separate occasions. On a guilty plea with the prisoner being a first time offender and in a breach of a position of trust, the prisoner was sentenced to six (6) months and eighteen (18) months respectively to be served cumulatively.

10. In The State v. Timothy Tio (2002) N2265, His Honour, Kandakasi, J considered what he said in Robert Kawin as a useful guide for adoption with necessary modifications for an offence under subsection (10) or for any other offence under s. 372 generally. His Honour said:-

But these cases do not clearly provide us with any guideline for sentencing for any or all of the offences under s.372 of the Code. In the circumstances, I consider what I said in the Robert Kawin (supra) case as a useful guide, which should be adopted with necessary modifications for an offence under subsection 10. When what I said in that case is considered in the light of the above cases a number of principles emerge.

First, the maximum prescribed penalty should not be readily imposed. Instead it should be reserved for the worse type of the offence under consideration. Secondly, guilty pleas, and the offender being a first time young offender and the existence of such good factors operate in favour of sentences lower than the prescribed maximum. Thirdly, if the properties stolen are recovered it may operate as a factor in mitigation of an offender whilst on the other hand if the properties stolen is substantial and or has not been recovered a higher sentence may be imposed. Fourthly, prevalence and effect of the offence against the victim and the community or society as a whole is an important factor for consideration.

11. Timothy Tio is a case where a security guard stole a brand new chainsaw valued at about K8,000.00 from a Hardware he was guarding and sold it to a third party for K3,000.00. The third party paid K1,000.00 and the balance of K2,000.00 was to be paid later. Before the third party could pay the balance, the prisoner was arrested and charged for stealing under s.372 (1) & (10) of the Code. The chainsaw was recovered from the third party. On a guilty plea, the prisoner was sentenced to five (5) years imprisonment in hard labour less time spent in custody. 

12. In The State v. Louise Paraka (2002) N2317, Kandakasi, J dealt with a case where the prisoner was charged with two (2) counts of forgery and a further two (2) counts for uttering two (2) cheques worth K6, 000.00, offences contrary to s.462 (1) and s.463 (2) of the Code. The prisoner pleaded guilty to all the charges. The Prisoner was a claimant together with others as previous customary landowners in a compensation claim made against the State in respect of the land upon which the Holy Trinity Teachers College stands. The claim was settled by the State paying K800,000.00. Out of the settlement proceeds, the Prisoner received a cheque for K1,700.00, but he changed the figure 1 to 4 making the cheque to read K4,700.00. He also did the same with another cheque made in favour of a Paul Akil for K1,150.00 which came into his possession and changed it to read K4,150.00. The cheques were cashed. In the process, the Prisoner benefited by K6,000.00. The Prisoner was given a three (3) years suspended sentence with conditions including the repayment of K6,000.00. 

13. His Honour suggested that the sentencing guidelines in Wellington Belawa v. The State [1988-89] PNGLR 496, a case involving dishonesty, should apply to all cases involving forgery, obtaining goods by false pretence, fraud, misappropriation and the like with necessary modifications in the absence of any authority to the contrary as an element of dishonesty is involved in all such cases. I agree with His Honour. The offence of stealing should also be included in the list. 

14. In Wellington Belawa, the Supreme Court said that the following factors may be taken into account when considering sentence:-

1. The amount taken;

2. The degree of trust reposed in the offender;

3. The period over which the offence was perpetrated;

4. The use to which the money was put;

5. The effect upon the victim;

6. The effect upon the offender himself;

7. The offender’s own history;

8. Restitution;

9. Matters of mitigation special to himself, such as ill health, young or old age, effect of excessive nervous strain, co-operation with the police.

15. In that case, the Supreme Court also recommended a scale of sentences to be used as a base from which to make adjustments upward or downward depending on the various factors mentioned above and these are, where the amount misappropriated is:-

1. Between K1.00 and K1,000.00, a gaol term should rarely be imposed;

2. Between K1,000.00 and K10,000.00, a gaol term of up to two (2) years;

3. Between K10,000.00 and K40,000, a gaol term of two (2) to three (3) years;

4. Between K40,000.00 to K150,000.00 a gaol term of three (3) to five (5) years.

16. It is generally accepted now that while the factors set out in Wellington Belawa are still relevant, the tariff recommended is outdated due to the prevalence of the offence. 

17. In considering the appropriate sentence in this case, I will be guided by the guidelines suggested in Robert Kawin which were discussed and modified in Timothy Sio and those in Wellington Belawa. 

18. I will also refer to some other cases that have been decided specifically in relation to offences under s.372 of the Code and also other dishonesty cases arising under other provisions of the Code to assist the Court in determining the appropriate sentence for the Prisoner.

19. In Seo Ross v. The State (1999) SC 605, the Appellant was convicted and sentenced by the National Court for two (2) counts of stealing under s.372 (5) of the Code. The maximum penalty prescribed is imprisonment for a term not exceeding seven (7) years. The Appellant, pleaded guilty to both counts and was convicted and sentenced to two (2) years imprisonment for each account. Mitigating factors advanced in the trial Court were that the Appellant had pleaded guilty, he was a first time offender, all monies stolen were recovered, he had a large family who were dependent on him and had expressed remorse for the crimes. The trial Court found that the aggravating factors outweighed the mitigating factors advanced for the Appellant and that the case was serious because it involved breach of trust. The Supreme Court reaffirmed the sentence.

20. In The State v. John Akoko (2001) N2061, a policeman stole K7,000.00 from the sum of K180,000.00 which was recovered after a robbery of K254,000.00 belonging to a bank at the Nadzab Airport. He was the leader of the police unit who gave chase to the robbers. Of the amount the prisoner stole, K5,528.40 was recovered from the prisoner when he was apprehended. He had already spent K1,477.60 by then. The prisoner was charged under s.372 (1) & (7) of the Code. He pleaded guilty and was convicted and sentenced to five (5) years imprisonment in hard labour less time spent in custody. The Court found the degree of trust reposed in the prisoner and the breach of it had the tendency of eroding public confidence in the police force to be compelling considerations and therefore a strong and deterrent sentence was necessary to restore public confidence.

21. In The State v. Richard D. Bix & Siprian S. Karo (2003) N2415, the prisoners were drinking in a motel when they used a piece of timber to scare off a bar attendant and then stole K2,700.00 from the bar. The sum of K800.00 was recovered. They were charged for one (1) count of stealing under s.372 (10) of the Code. The Court with the aid of a pre-sentence report took into account their guilty pleas and that they were first time offenders when sentencing them to three (3) years imprisonment in hard labour. The sentence was to be wholly suspended on the condition that K1,900.00 being the balance of the stolen money be paid with other strict conditions also applying. 

22. In The State v. Allan Nareti (2004) N2582, the two (2) prisoners pleaded guilty to a charge laid under Section 372 (1) & (10) of the Code for stealing K10,250.00 in cash from a person who had earlier withdrawn the money from a bank to purchase food rations for a Health Centre. The prisoners met that person during the day and stole the money from his bag in the wee hours of the next morning when he was fast asleep. They were each sentenced to three (3) years, but the sentences were wholly suspended with strict conditions attached including an order to repay the amount stolen in equal shares of K5,125.00 within twelve (12) months.

23. In The State v. Romney N. Simonopa (2004) N2551, the prisoner and an accomplice confronted a man who was walking to his daughter’s house at a primary school with a spade and tried to grab from him the bag he was carrying and a struggle ensued. During the struggle, the bag broke into two (2) parts and the part containing, amongst other things, cash of K600.00 ended up with the prisoner. The prisoner was apprehended with the help of others at the school. The prisoner was charged under Section 372 (1) of the Code to which he pleaded guilty and was sentenced to three (3) years imprisonment. The Court was to consider whether or not to suspend any part of the sentence upon receiving from the Probation Service within one (1) month from the date of sentence additional information to meet deficiencies in the pre-sentence report submitted.

24. In Doreen Liprin v. The State (2001) SC673, the Prisoner was convicted by the trial judge on three (3) counts of forging, uttering a bank withdrawal slip and misappropriation of a sum of K6,000.00. She was sentenced to one (1) year each for forgery and uttering and three (3) years for misappropriation all of which were to be served concurrently. The sentences were suspended on the condition that she repaid the money she fraudulently obtained within two (2) months of sentence and in default she would be taken into custody to serve the sentences. She defaulted and was subsequently ordered to be taken into custody to serve the sentences. She lodged an appeal herself whilst she was in prison against conviction and sentence, but later engaged counsel to prosecute the appeal. Although her appeal was lodged out of time, the Supreme Court granted leave to review the matter in the exercise of its powers under s. 155 (2)(b) of the Constitution. The Supreme Court unanimously dismissed the appeal against conviction, but by a majority of 2-1 upheld her appeal against sentence which was reduced to eighteen (18) months. 

25. In The State v. Johnson Bale (2004) N2626, the prisoner was convicted after a trial for stealing K78,074.03 from his previous employer. Briefly, the prisoner was directed to do his employer’s banking involving K78,074.03 made up of cash and cheques. He was followed by a car that had earlier parked outside the company premises as soon as he left. Instead of driving to the bank, he drove past it and parked at a location behind a tucker box. The car following him arrived and the occupants in it then stole the money from him. It is not clear under which of the aggravated offences set out under s.372 of the Code was the prisoner charged, however the offence attracted a penalty of seven (7) years. I have not been able to locate the decision on verdict. The Court considered in the prisoner’s favour the fact that he was a first offender and his antecedents. Against that was the substantial amount of money involved which was not recovered and that he was in a position of trust which was abused, the prevalence of the offence. A custodial sentence of four (4) years was imposed less time for pre-trial custody.

26. In The State v. Lukeson Olewale (2004) N2758, the Prisoner pleaded guilty to two (2) counts, one for uttering and the other for misappropriation. The first was for uttering a cheque for K40,000.00 against the account of Fly River Provincial Government which was operated at Papua New Guinea Banking Corporation, Port Moresby Branch. The cheque was deposited into the Prisoner’s personal account which was also operated at that bank. An amount of K38,000.00 was withdrawn immediately after the cheque was cleared. From that amount, the Prisoner used K12,000.00 whilst the balance was distributed to his fellow conspirators and others. The Prisoner was sentenced to be imprisoned for three (3) years for uttering and four (4) years for misappropriation all of which were to be served concurrently. The sentences were wholly suspended with conditions.

ALLOCUTUS

27. On allocatus, the Prisoner apologised for what she had done to the Court, to Mr. Kunai, his family and staff. She tearfully expressed remorse as she addressed the Court and said she had repented and would not re-offend. She asked the Court to have mercy on her because; she was a first offender; she was the sole bread-winner in the family currently earning K250.00 fortnightly and had five (5) children whose ages ranged from one (1) year and six (6) months to ten (10) years, with the three (3) older ones attending school and an unemployed husband to look after; that she wanted to restitute with cash and pigs with the assistance of relatives, conversion of bail moneys as part payment and setting aside K100.00 from her wages for that purpose over a period of five (5) years; that she was a holder of a Diploma in Accounting from the University of Technology, Lae; that before her employment with the law firm, she was employed by Boroko Motors, Port Moresby and Securimax, Port Moresby without any blemish; that her fortnightly earnings of K350.00 at the law firm was not commensurate with the kind of qualification and experience she had including looking after the law firm’s Accounts and its real estate business and this resulted in her resorting to stealing to pay for family expenses and obligations such as school fees, bride price, compensation, etc. and the amount accrued over time. 

ANTECEDENTS

28. The antecedents mentioned here supplement those that the Prisoner has already mentioned on allocatus. These are as follows. The Prisoner is now aged thirty three (33) years and is originally from Kala village, Mt Hagen, Western Highlands Province. She is currently residing at a settlement at Warakum in Mt. Hagen. She has also completed Grade 12. 

29. The Prisoner’s husband is of mixed parentage from Madang and Mt. Hagen. The couple operates a small video house at Warakum from which they receive nightly K20.00 to K25.00. 

30. When the Prisoner was employed by Boroko Motors and later by Securimax Security in Port Moresby, she was earning fortnightly salaries of K480.00 and K500 respectively. 

31. The State alleged no prior convictions against the Prisoner. 

MEANS ASSESSMENT REPORT

32. According to the Report, the Prisoner is prepared to pay the amount stolen. The Report also confirms that the Prisoner’s sources of income are limited and they are her fortnightly wages of K250.00 plus nightly gate takings of about K25.00 from television shows conducted from her house. Of the wages she now receives, she is left with K100.00 after meeting her expenses. She does not have a bank account or other savings. She does not have bank loans or other debts as well.

33. It is recommended therefore that the amount stolen be paid over a period of two (2) to two and one half (2 ½) years by monthly instalments of K400.00 under the supervision of the Probation Service. The author of the Report has also remarked that a custodial sentence would deprive the Prisoner of her current job as well as the well being of her children. 

SUBMISSIONS OF THE PRISONER

34. Mr. Kumo invited the Court to consider in the Prisoner’s favour the following factors:-

1. The Prisoner freely came to Court, confessed and pleaded guilty despite not cooperating with police investigations exercising her constitutional right to remain silent. This has saved the Court and the State the time and expense of conducting a trial and making it easier for the State to secure a conviction given the file was voluminous;

2. The Prisoner was a first time offender;

3. The Prisoner succumbed to the temptation to steal. She accepted responsibility for breaching the trust placed on her whilst she was in a position of trust and expressed remorse openly to the victim and staff of the law firm;

4. The Prisoner was the sole bread winner in the family, six (6) of whom including her husband were dependent on her;

5. The Prisoner was in custody for one (1) month and released on a K1,000.00 National Court bail;

6. The Prisoner wants to restitute and it was in the interest of the victim to do so. This, counsel said, can be done with the assistance of relatives over a period of time that is sanctioned by the Court given the state of her means and notwithstanding that the amount involved exceeds the statutory limit allowed under the Criminal Law (Compensation) Act 1991. Counsel suggests that restitution should take place within three (3) years with the immediate conversion of bail moneys of K1,000.00 towards part payment of the amount stolen. Of the K14,000.00 remaining, counsel also suggests that K5,000.00 be paid within six (6) months.

The Prisoner with her relatives in fact attempted to restitute by offering to pay to the victim K1,000.00 cash and two (2) pigs valued at K1,000.00, but the offer was refused.

35. As to penalty, counsel submitted that the guidelines in Wellington Belawa apply and this case falls under category three (3) subject to the Court exercising its discretion under s.19 of the Code. Counsel also suggested that a wholly suspended sentence with full restitution was appropriate in this case.

SUBMISSIONS OF THE STATE

36. Mr. Waine of counsel for the State in his opening submissions stated that this was a case involving dishonesty, stealing, fraud and deceit against the hands that paid for her livelihood at the material time. It was not a one off situation. He said that the Prisoner’s action was consistent and calculatedly executed towards stealing from her employer every fortnight Friday spanning over a period of two (2) years and five (5) months.

37. As to penalty, he agreed with the defense counsel that the guidelines in Wellington Belawa were useful and could be applied with modification in this case despite it being outdated. He referred to The State v. Philip Andia, CR. 328 of 2006, 20 July 2007, a case involving uttering and Louise Paraka as examples of the application of those guidelines in recent times. 

38. In Philip Andia, the prisoner was charged for one (1) count for uttering a cheque made payable in cash for K500.00 contrary to s.463 (2) of the Code. The fraud was discovered when the cheque was presented at the bank for encashment. No cash was taken. The prisoner pleaded guilty. I considered that the case fell under category 1 of the tariff recommended in Wellington Belawa and imposed a sentence of one (1) year imprisonment in hard labour less eight (8) months and five (5) days for the time spent in custody. The remaining term of three (3) months and twenty three (23) days was suspended on the condition that the prisoner entered into his own recognizance without any surety to keep the peace and be of good behaviour for the duration of the suspended sentence. 

39. Counsel suggested that a sentence of three (3) to four (4) years wholly suspended, conditional upon full restitution comprising of K10,000.00 in cash and five (5) pigs @ K1,000.00 each, was appropriate in this case.

40. Counsel’s submissions in relation to the factors suggested in Wellington Belawa have been considered and are subsumed in the Court’s discussion below. 

CONSIDERATION OF FACTORS AND SENTENCING GUIDELINES

41. In applying the sentencing guidelines alluded to above, I consider each of the factors as follows:-

1. The amount taken

The evidence suggests that K22,598.37 was actually stolen. The Prisoner has been indicted for a lesser amount of K15,000.00 and the brief facts put to her also is consistent with that. The amount taken is therefore K15,000.00.

2. The degree of trust

The Prisoner was the Accounts Clerk of the law firm. She was employed by the law firm because she was also from the same tribe as Mr. Kunai. There is evidence showing that she was the only person overseeing the operations of that section at the material time. Her job description alluded to earlier in the brief facts speaks for itself. She was the only one preparing the Staff Wages Break-up sheets, Requisition Forms and the wages cheques with the inflated figures and then taking them to Mr. Kunai for his verification and endorsement including the signing of the cheques. She personally went to the bank to cash the wages cheques. Upon her return she would organise the pay packets for each staff with the appropriate amounts, gave them out and then kept the extra monies. She benefited from those moneys.

From the evidence, it is quite apparent that Mr. Kunai completely trusted the Prisoner therefore he did not bother to do any cross-checking. When Mr. Kunai did cross-check on 07 January 2005, after she had prepared the staff wages due to the absence of the Accountant and inflating the total by K600.00, that was when he became suspicious resulting in him conducting his own investigation. The Prisoner took advantage of the trust placed on her and abused it to her benefit. 

3. The period over which the offence was committed

About two (2) years and five (5) months was involved. This indicates that the Prisoner was persistent and adamant to steal from her employer and this would have continued had Mr. Kunai not discovered the fraud.

4. The use to which the money was put

The Prisoner was the only person involved in the crime. She personally benefited from the moneys stolen.

5. The effect on the victim

The law firm was K15,000.00 poorer.

6. The effect on the offender

The Prisoner is an educated and sophisticated woman. She lost her employment with the law firm as a result of a scheme she had calculatedly executed. She brought it upon herself and her family.

After her arrest, she was held in custody for one (1) month before being admitted to bail. Whilst in custody, her husband and children were left with no financial support as she was the sole breadwinner. Since being admitted to bail and having been committed to stand trial in the National Court on 26 July 2005, she has been waiting to be brought to her trial until now.

She is currently employed as an Accounts Clerk elsewhere earning K250.00 gross fortnightly which is about K100.00 less than what she was earning at the law firm. 

7. The offender’s own history

I repeat the antecedents above.

8. Restitution/recovery of stolen property

None. However, counsel for the Prisoner has submitted that there was an attempt to restitute to the value of K3,000.00 consisting of K1,000.00 in cash and two (2) pigs @ K1,000.00 each, but the offer was rejected.

Counsel agreed to the suggestion of a suspended sentence being imposed conditional upon full restitution.

The Report shows that the Prisoner is incapable of fully restituting without the assistance of family members and relatives irrespective of the length of the period that may be given for payment. At the same time, I am mindful of the fact that it is the Prisoner who is being punished and not the relatives and therefore any assistance that may be forthcoming from them should not operate to reduce the sentence that I intend to impose. How that favour is returned to the family members and relatives rests entirely upon the Prisoner although there are cases where the Court has treated the assistance given by family members and relatives as loans and specific orders have been made to return that favour. 

9. Matters of mitigation special to himself, such as ill health, young or old age, effect of excessive nervous strain, co-operation with the police

The Prisoner is aged thirty three (33) years, an educated and sophisticated woman.

The defense counsel does not dispute that the Prisoner did not cooperate with the police investigations, but he submitted that she was exercising her constitutional right to remain silent. However, in her undated Inter-Office Memorandum to Mr. Kunai in reply to Mr. Kunai’s Inter-Office Memorandum of 4 March 2005 asking her for an explanation on the stolen monies and received by Mr. Kunai on the same day, the Prisoner admitted the crime. She was therefore not totally uncooperative.

10. Gravity of the offence

I do not think that this is a case of the worst category despite the amount stolen being substantial and the offence having been committed over a period of over two (2) years and five (5) months by a person in a position of trust. The Court notes however that there is evidence of the Prisoner deliberately destroying the data base which had the trust account records for the law firm, some receipt books and cheque books relating to part of the period concerned in an attempt to conceal her fraudulent scheme. 

11. Other mitigating factors

The Prisoner pleaded guilty and does not have any prior convictions. She openly expressed remorse.

12. Prevalence of the offence

The offence is prevalent.

GENERAL REMARKS AND SENTENCE

42. I agree with counsel that this case falls under category three (3) of the tariff recommended in Wellington Belawa. 

This case also comes a little bit closer to Allan Nareti and Lukeson Olewale in terms of the amounts that were dishonestly taken and breaches of trust to some degree although those cases arose from one off incidents. 

43. Considering the seriousness of the offence as is indicated by the prescribed maximum penalty of seven (7) years and taking into account all factors going in favour and against the Prisoner including the Prisoner’s guilty plea, that she is a first time offender and has shown compunction, she was in a position of trust, the offence was committed over a long period of time, the Prisoner’s antecedents with the State alleging no prior convictions and her address on allocatus, submissions of counsel and prevalence of the offence, I consider a sentence of three (3) years imprisonment in hard labour less one (1) month for the time spent in custody as appropriate. That leaves a balance of two (2) years and eleven (11) months (the remaining term) to be served. 

44. In the exercise of my discretion under s. 19 of the Code, I will suspend the remaining term subject to the following conditions:-

1. That the Prisoner shall fully restitute Kunai & Co. Lawyers K15,000.00 on or before 26 March 2009 and be effected as follows:-

(a) The sum of K1,000.00 from bail monies shall be converted and applied towards part payment of restitution and disbursed to Kunai & Co. Lawyers when ready;

(b) The balance of K14,000.00 shall be paid to the National Court Trust Account for disbursement to Kunai & Co. Lawyers as follows:-

(i) K7,000.00 to be paid by 26 September 2008;

(ii) K7,000.00 to be paid by 26 March 2009.

2. That the Prisoner shall enter into her own recognizance to keep the peace and be of good behaviour during the period of suspension.

3. That the Prisoner shall contact the Mt. Hagen Provincial Probation Officer within twenty four (24) hours after the passing of this sentence and thereafter as and when required by him or her.

4. That the Prisoner shall not change her residential address at Warakum, Mt. Hagen, Western Highlands Province unless she has given the Mt. Hagen Provincial Probation Officer reasonable notice of her intention to do so and the reason for the proposed change.

5. That the Prisoner shall not leave the Western Highlands Province without the leave of this Court during the period of suspension.

6. That the Prisoner shall, for the purpose of the Probation Act, allow a Probation Officer to enter her home during reasonable hours to monitor her compliance of these terms and to make such recommendations as the Probation Officer considers appropriate either for a variation or an implementation of these terms. The Probation Service shall produce and furnish to the Court a report every three (3) months until completion of the suspended sentence. 

7. During the period of suspension, the Prisoner shall provide free community service of one (1) hour per day every Thursday at a public institution in Mt. Hagen to be determined and supervised by the Mt. Hagen Provincial Probation Officer. 

8. The Prisoner will be at liberty to apply for a review of any of these terms including the lifting of any of them provided that there has been substantial compliance.

45. In the event that any one of the conditions is not complied with, then the Prisoner’s probation will be breached and she will be arrested and sent to gaol at Baisu to serve the balance of the term which I have suspended.

I order accordingly.

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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner