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State v Korai [2009] PGNC 200; N3820 (18 December 2009)

N3820

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1752 OF 2005

THE STATE

V

SIMON PAUL KORAI

Kundiawa: David, J
2009: 10 & 17 June &
18 December

CRIMINAL LAW – sentence – stealing – stealing by prisoner as security guard – prisoner an employee of bank – victim bank customer – victim illiterate – prisoner assisted victim to do her banking – victim’s PIN number known by prisoner in the course – prisoner conducted 13 unauthorised withdrawals – offence committed over a period of 2 months – victim reimbursed by bank - substantial amount stolen – prevalence of offence - guilty plea – nor priors - expression of remorse prisoner has medical condition – no evidence that health condition not life threatening or incurable - prisoner in position of trust - breach of trust - 3 years imprisonment IHL – sentence part custodial and part non-custodial – ss. 19 & 372 (1) & 10 Criminal Code.

Cases cited:

R v. Mary Josephine Harley [1971-1972] PNGLR 399
Public Prosecutor v. William Bruce Tardrew [1986] PNGLR 91
Wellington Belawa v. The State [1988-89] PNGLR 496
Lawrence Simbe v. The State [1994] PNGLR 38
Seo Ross v. The State (1999) SC605
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. Rocky Walesa Peraki (2003) N2463
The State v. Romney N. Simonopa (2004) N2551
The State v. Allan Nareti (2004) N2582
The State v. Janet Morgan (2004) N2704
The State v. Ian Sevevepa, CR No. 2007 of 2005, Unreported Judgment of Lenalia, J delivered on 10 May 2006
The State v. Jack Maite (2007) N3269
The State v. Johnson Maurani (2008) N3560
The State v. Geo Rayner Laina (2008) N3344
The State v. Roselyn Waiembi, CR1049 of 2005, Unreported Judgment of David, J delivered on 26 March 2008 at Mt. Hagen
The State v. Francisca Iralu, CR 269 of 2007, Unreported Judgment of David, J delivered on 10 July 2008 at Mt. Hagen
The State v. Joe Dekene, CR 667 of 2006, Unreported Judgment of David, J delivered on 9 June 2009 at Kundiawa
The State v. Paul Dom, CR No. 329 of 2009, Unreported Judgment of David, J delivered on 20 June 2009 at Kundiawa

Counsel:

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

SENTENCE

18 December, 2009

1. DAVID, J: INTRODUCTION: The Prisoner pleaded guilty to a charge that between 4 April 2005 and 3 June 2005, he stole K21,460.00 the property of Agetha Gena (the victim). Upon reading the depositions, I was satisfied that the evidence contained therein supported the charge. I therefore accepted the Prisoner’s plea of guilty and convicted him of the charge.

BRIEF FACTS

2. Facts put to the Prisoner by State Prosecutor, Mr. Waine for purposes of arraignment are as follows. At the material time, the Prisoner was employed by the Bank of South Pacific, Kundiawa Branch as a security guard. The Prisoner was familiar with the victim and her husband. This is because, the victim and her husband often fronted up at the bank to do their banking. The Prisoner at times assisted the victim who was illiterate. In the course of assisting the victim, the Prisoner came to know the victim’s PIN number. The PIN number was a name of something. Between 4 April 2005 and 3 June 2005, the Prisoner wrote out 13 withdrawals in different amounts using the victim’s PIN number. The Prisoner withdrew a total of K21,460.00 and he used the money for his own benefit. The victim never authorised the Prisoner to make any of those withdrawals. The management of the bank was alerted and eventually led to the arrest of the Prisoner for stealing that amount.

PRE-SENTENCE REPORT

3. To assist me in making a decision on the appropriate sentence for the Prisoner, I directed that a pre-sentence report be filed by the Community Corrections and Rehabilitation Service here at the request of the Prisoner’s counsel. The pre-sentence report was prepared and filed. I have read the pre-sentence report and note the details and recommendation of the Community Corrections and Rehabilitation Service to impose an appropriate sentence that befits the crime and that if the Prisoner were to be released on probation, he would be placed under the supervision of a volunteer probation officer, namely Api Kamane who comes from the Prisoner’s village.

4. I also note that the Bank of South Pacific has paid the victim the full amount of the monies stolen by the Prisoner. The victim confirms that.

5. I also note the victim’s views that he trusted the Prisoner when he engaged him to assist her with her banking. She wants to see that an appropriate punishment that befits the crime should be imposed.

ANTECEDENTS

6. The Prisoner has no prior convictions.

7. According to the Antecedent Report, the Prisoner was born on 15 May 1979 and should therefore be over the age of 30 years by now. He is originally from Womai village, Sinasina District, Simbu Province. He is currently residing at the Nawai Block in Lae with his family. His parents who are old are alive and reside with him. He is the first born in the family. He has 3 other brothers and a sister. He has completed formal Grade 10 education. He has been baptised into the Revival Church. He is married and has 3 children who are aged 12, 7 and 3 years respectively. Prior to committing the crime, he was employed by the Bank of South Pacific, Kundiawa Branch as a security guard earning a fortnightly salary of K109.00. He had been employed by Securimax in Goroka in 1997.

8. After being apprehended, charged and detained, he spent a total of 9 months and 3 weeks in custody.

ALLOCUTUS

9. On allocatus, the Prisoner admitted committing the crime. He said he was sorry for what he had done and asked the Court to have mercy on him and grant him a suspended sentence. His reasons for asking for a suspended sentence were that; he was a first offender; he got sick thinking about the case; he was the sole bread-winner in the family consisting of his immediate nuclear family, his parents and younger siblings; his parents were old; he was renting a property the retention of which will be affected by his incarceration; and they resided in an area in Lae where security was not good and he feared for the safety of his family if he were incarcerated.

SUBMISSIONS OF THE PRISONER

10. Notwithstanding that the amount stolen was substantial, Mr. Kapi of counsel for the Prisoner pleaded for leniency and for a short and sharp non-custodial sentence to be imposed because of the Prisoner’s plea of guilty, lack of prior convictions, expression of remorse; the effect of the crime upon the victim was not so serious because the Bank of South Pacific had repaid the victim with the amount stolen by the Prisoner, but in the course the bank although a commercial entity also suffered; the Prisoner has a big family; this was a non-violent crime; and the Prisoner has a chronic health problem associated with his abdomen which is confirmed by a medical report issued under the hand of Dr. Kabaiye of the Kundiawa General Hospital on 15 June 2009.

11. Mr. Kapi submitted that the maximum penalty prescribed under s.372 (1) was imprisonment for a term not exceeding 3 years. He also stated that it was trite that the maximum penalty is usually reserved for cases of the worst category for a particular offence and that each case must be considered on its own merits relying on Lawrence Simbe v. The State [1994] PNGLR 38 to support those propositions. He suggested that the circumstances of the present case warranted a sentence between 2 to 3 years which should be wholly suspended in the light of the mitigating factors operating in the Prisoner’s favour and that the time spent in custody by the Prisoner was sufficient punishment.

12. Mr. Kapi referred me to a number of cases to guide me in considering an appropriate sentence for the Prisoner. They are; Wellington Belawa v. The State [1988-89] PNGLR 496; The State v. Janet Morgan (2004) N2704; The State v. Ian Sevevepa, CR No. 2007 of 2005, Unreported Judgment of Lenalia, J delivered on 10 May 2006 and The State v. Paul Dom, CR No. 329 of 2009, Unreported Judgment of David, J delivered on 20 June 2009 at Kundiawa. Apart from Wellington Belawa which I will discuss later, I briefly discuss the other cases below.

13. In Janet Morgan, the prisoner pleaded guilty to 1 count of stealing an amount of K8,772.01 from her employer, a company contrary to s.372 (1) and (7). She was employed as an Accounts Clerk. Her duties included receiving monies, maintaining expenditure records, compilation of staff wages and doing the company’s banking. She failed to do the banking of the takings for 3 consecutive days which was the total amount stolen. Taking into account the prisoner’s guilty plea, that there was part-restitution of the amount stolen soon after the discovery was made, the prevalence of the offence; the amount stolen was substantial; the amount stolen was made up of takings for 3 consecutive days which meant that she was determined and fearless in committing the crime; and the degree of trust reposed in the prisoner was high and she breached that trust, a sentence of 2 ½ years imprisonment to be served IHL was imposed. The Court ordered the suspension of 1 ½ years with conditions including orders for full restitution and bail monies to be converted and applied towards part-payment of restitution.

14. In Ian Sevevepa, the prisoner pleaded guilty to 1 count of stealing an amount of K17,000.00 belonging to a service station proprietor contrary to s.372 (1) and (10). The money which was contained in a bag was placed on a table in the office by a female employee in order for her supervisor to check before she started sweeping the office. While the female employee was sweeping the office, the prisoner walked into the office, pushed the female employee away, took the bag of money and ran away with it. Taking into account the prisoner’s guilty plea, that he was a first time offender, the crime occurred in broad daylight; and part of the amount stolen was given to another person, the Court there imposed a sentence of 3 years to be served IHL. The time spent in custody awaiting trial was deducted and the balance was ordered to be served out in custody.

15. In Paul Dom, the prisoner who was an accountant pleaded guilty to 1 count of misappropriating the sum of K20,000.00, the property of his employer, the Simbu Provincial Government contrary to s.383A (1)(a) and (2)(b). The prisoner and other staff of the Provincial Treasury were in the process of doing reconciliation of cheques and other accounts of the provincial government when a cheque drawn by the provincial government to pay their administration staff was discovered by the prisoner. The prisoner took the cheque to the Bank of South Pacific, Kundiawa and negotiated it. A bank cheque made payable to a company operating in Kundiawa was raised. The prisoner then took the cheque to that company and obtained goods and services to the value of K20,000.00 from which he personally benefited. I sentenced the prisoner to 3 years imprisonment to be served IHL. The time spent in custody awaiting trial was deducted and the remaining term was suspended with conditions attached including an order for full restitution. I also ordered that bail monies be applied as part-payment of restitution.

SUBMISSIONS OF THE STATE

16. Mr. Waine of counsel for the State submitted that the guidelines recommended in Wellington Belawa were applicable in the present case. The present case falls under category 3 he said.

17. One aggravating factor operating against the Prisoner here he said was that he was a security guard of a financial institution and what he did was a breach of trust reposed in him that should result in a higher sentence. Counsel submitted that evidence of prior good character will not go far in mitigation because good character will usually be required of persons filling positions of trust anyway relying on R v. Mary Josephine Harley [1971-1972] PNGLR 399 to support that proposition.

18. As to the Prisoners medical condition, counsel submitted that there was no evidence before the Court to indicate that the Barawagi CS does not have a facility or a system in place to address prisoners’ health problems. In any event, the medical report did not show that the Prisoner’s condition was life threatening, he said.

19. As to the welfare and security of the Prisoner’s family, counsel submitted that the Prisoner should have thought about this before committing the crime because committing a crime has consequences. Less weight should be given to those mitigating factors, he said.

20. Counsel submitted that the Prisoner stole the victim’s money over a period of time. No money was recovered from the prisoner and there was no attempt for restitution. The bank had to repay the money stolen to the victim because of its special relationship with the victim as its customer, and it lost out in the end, he stated further. The Pre-sentence does not speak favourably about the financial standing of the Prisoner as well, he said. Those factors should operate against the Prisoner, he said.

21. Mr. Waine agreed with his friend though that the maximum penalty prescribed under s.372 (1) was imprisonment for a term not exceeding 3 years. He suggested that the circumstances of the present case warranted a sentence closer to 3 years.

22. Mr. Waine referred me to a number of cases as well to guide me in considering an appropriate sentence for the Prisoner. They are; The State v. Roselyn Waiembi, CR1049 of 2005, Unreported Judgment of David, J delivered on 26 March 2008 at Mt. Hagen; The State v. Francisca Iralu, CR 269 of 2007, Unreported Judgment of David, J delivered on 10 July 2008 at Mt. Hagen; The State v. Joe Dekene, CR 667 of 2006, Unreported Judgment of David, J delivered on 9 June 2009 at Kundiawa and Paul Dom. Apart from Paul Dom which I have already briefly discussed above, I briefly discuss the other cases below.

23. In Roselyn Waembi, the prisoner aged 33 years who was the Accounts Clerk of a law firm pleaded guilty to stealing K15,000.00, the property of her employer. The offence was committed over a period of 2 years and 5 months. She stole that amount by including extra monies in the Cheque Requisition Forms every pay Friday; she would then take them to the principal of the law firm for his verification and endorsement. Friday being a busy day for the principal, 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. I sentenced the prisoner to 3 years IHL less the period of pre-trial detention. The remaining term was suspended with conditions including restituting the amount stolen within 12 months and doing free community work.

24. In Francisca Iralu, the prisoner was aged 42 years when sentenced. She was the Office Manageress. She pleaded guilty to misappropriating K9,000.00 over a period of about 6 months from her employer. She did this by altering the cash sales figures on the yellow copies of the invoices issued in respect of 36 transactions to amounts less than what were actually stated. She would then go to the bank, do the deposits, but kept the difference of each of those transactions and used the moneys for her benefit. She was sentenced to 3 years IHL less time spent in custody. The remaining term was wholly suspended with strict conditions applying including an order for restitution.

25. In Joe Dekene, the Prisoner was the District Manager of the Kerowagi District. He was also the officer responsible for Village Court matters. He picked up a cheque for K11,829.36 from the Simbu Provincial Government, funds meant for the payment of allowances for Village Court officers in the Kerowagi District. Out of K11,829.36, the Prisoner used the sum of K2,5000.00 for his own use. The balance of that money was returned and used for the purpose intended. On a guilty plea to a charge of misappropriation, the prisoner was sentenced to 2 years imprisonment IHL less time spent in custody. The remaining term was wholly suspended on terms including an order for full restitution within 3 months.

THE RELEVANT LAW

Penalty

26. 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 maximum prescribed penalties are set out under s.372 (2) to (12) of the Code. They range from 7 years to 14 years. These penalties are subject to s.19 of the Code which gives the Court a considerable discretion to impose such other sentence which is appropriate depending on the facts or circumstances of a particular case.

27. The Prisoner is charged under s. 372 (1) for stealing, but sub-section (1) is to be read with the other sub-sections of s.372 in the light of the placement of the phrase "Subject to this section" at the beginning of the penalty clause of sub-section (1). In this case, I am of the view that the Prisoner is liable to imprisonment for up to 7 years because the amount stolen exceeds K1, 000.00. According to sub-section (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 7 years.

Sentencing guidelines

28. 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."

29. Robert Kawin is a case where the prisoner was charged for 2 counts of stealing under s.372 (1). 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 2 separate occasions. An amount of K500.00 was recovered. 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 6 months and 18 months respectively to be served cumulatively.

30. 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."

31. 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 5 years imprisonment IHL less time spent in custody.

32. In The State v. Louise Paraka (2002) N2317, His Honour, Kandakasi, J dealt with a case where the prisoner was charged with 2 counts of forgery and a further 2 counts for uttering 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 3 year suspended sentence with conditions including the repayment of K6,000.00.

33. His Honour suggested that the sentencing guidelines in Wellington Belawa 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 on the list.

34. In Wellington Belawa, the Supreme Court said that the following factors may be taken into account when considering sentence namely; the amount taken; the degree of trust reposed in the offender; the period over which the offence was perpetrated; the use to which the money was put; the effect upon the victim; the effect upon the offender himself; the offender’s own history; restitution; and matters of mitigation special to himself, such as ill health, young or old age, effect of excessive nervous strain, co-operation with the police.

35. 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 between; K1.00 and K1,000.00, a gaol term should rarely be imposed; K1,000.00 and K10,000.00, a gaol term of up to 2 years; K10,000.00 and K40,000, a gaol term of 2 to 3 years; and K40,000.00 to K150,000.00 a gaol term of 3 to 5 years.

36. 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.

THE PRESENT CASE

37. 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.

38. I will also have regard to some other cases that have been decided specifically in relation to offences under s.372 of the Code which I will discuss below and the other cases referred to by counsel.

39. In The State v. Rocky Walesa Peraki (2003) N2463, the prisoner was charged for stealing a Toyota Land Cruiser utility valued at K80,000.00 which belonged to the State. He was previously employed by the Porgera District Administration as a driver for 2 years, but was terminated for misconduct in his work. He was paid his entitlements. The reasons the prisoner advanced on allocatus for stealing the motor vehicle were that he was unlawfully terminated, his entitlements were underpaid by K1,368.00 and that he had incurred about K8,116.00 of his own money on the maintenance of a State-owned house at the direction of the former District Administrator. The Court there viewed the conduct of the prisoner as taking the law into his own hands by holding the State to ransom. This was because it was the prisoner’s intention to force the State into submission to pay K9,484.00 he was demanding before he could release the motor vehicle. The motor vehicle was recovered more than 1 ½ years later with a substantial repair bill. His Honour, the late Jalina J. imposed a sentence of 6 years and 6 months to be served IHL.

40. In Seo Ross v. The State (1999) SC 605, the appellant was convicted and sentenced by the National Court for 2 counts of stealing under s.372 (5). The appellant, pleaded guilty to both counts and was convicted and sentenced to 2 years imprisonment for each account. Mitigating factors advanced in the trial Court in favour of the appellant were that; the appellant pleaded guilty; he was a first time offender, all monies stolen were recovered, he had a large family who were dependent on him; and he had expressed remorse for the crimes. Aggravating factors considered against the prisoner were that; the offence committed was serious because it involved a breach of trust; it was not a simple stealing offence or one-off incident, but rather it was becoming to be a scheme until discovered; and the offence was prevalent. The trial Court, in finding that the aggravating factors far outweighed the mitigating factors advanced for the appellant and that the case was serious because it involved breach of trust, imposed a sentence of 2 years for each count and ordered them to be served cumulatively. The appellant appealed against sentence arguing that the trial judge should have imposed a non-custodial sentence. The Supreme Court held that the sentences were not manifestly excessive nor did the appellant point to any error in the trial Court’s judgment to impose a custodial sentence and therefore dismissed the appeal and reaffirmed the sentence.

41. 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). He pleaded guilty and was convicted and sentenced to 5 years imprisonment IHL 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.

42. 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 1 count of stealing under s.372 (10). 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 3 years imprisonment IHL. 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.

43. In The State v. Allan Nareti (2004) N2582, the 2 prisoners pleaded guilty to a charge laid under s.372 (1) & (10) 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 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 12 months.

44. 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 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 s.372 (1) of the Code to which he pleaded guilty and was sentenced to 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 1 month from the date of sentence additional information to meet deficiencies in the pre-sentence report submitted.

45. In The State v. Jack Maite (2007) N3269, the 2 prisoners pleaded guilty to 1 count of stealing a 40 horsepower outboard motor belonging to an individual which was valued at K10, 500.00 contrary to 372 (1). Mitigating factors considered in favour of the prisoners were; their guilty pleas; they were first time offenders; and that the prisoners returned the outboard motor to the complainant 2 days after they had stolen it and before they were charged. They were each sentenced to 2 years imprisonment less 1 year 5 months and 21 days for time spent in custody. The remaining term was fully suspended on condition that they kept the peace and were to be of good behaviour for a period of 12 months.

46. In The State v. Johnson Maurani (2008) N3560, the Prisoner pleaded guilty to 1 count of stealing a chainsaw belonging to a company which was worth over K1,000.00 contrary to s.372 (1) and (10). The prisoner was involved in the commission of the offence with several others. Mitigating factors considered in favour of the prisoner were; his plea of guilty which resulted in saving the Court a lot of time; he had shown remorse; there were no weapons or violence used when the offence was committed; and he also co-operated with the police by admitting the offence. Aggravating factors considered against the prisoner were that stealing is a very prevalent offence and he had committed the offence with several others. One of his co-accused pleaded guilty before another judge during an earlier court circuit and was sentenced to 3 years and 6 months. Applying the principle of parity of sentencing, the prisoner was sentenced to 3 years and 6 months.

47. In The State v. Geo Rayner Laina (2008) N3344, the prisoner pleaded guilty to 1 count of stealing an amount of K16,000.00 belonging to Finschhafen District Council of Women (the Council) contrary to s.372 (1). She was at the material time the Secretary of the Council, a non-profit community organisation responsible for the welfare and advancement of women in Finschhafen. She was the custodian of the Council’s Trust Account Cheque Book and was also a co-signatory to the account. The Council was the beneficiary of an amount of K20, 000.00 paid to them by the National Council of Women several years back and this money was held in the Council’s bank account. At the material time, the prisoner, in the pretext of paying registration fees for the Council, got the other 2 signatories to the account to sign a blank cheque. She later filled in the amount of K16,000.00, counter-signed the cheque and cashed it. She used some of that money to pay for private and personal expenses and deposited the balance in an IBD Account. At the time the plea was taken, she had repaid most of the money to the Council except for K503.95.

48. Mitigating factors applied in the prisoner’s favour were that; she pleaded guilty; she had repaid a substantial portion of the money stolen; she expressed remorse; she was a first time offender; and she fully cooperated with the police. Aggravating factors applied against the prisoner were that; she had stolen K16,000.00 which was a substantial amount of money; and she held a position of trust and breached that trust when she stole that money in a very deceitful and dishonest manner and applied the funds to her own use.

49. The prisoner was sentenced to imprisonment for 2 years which was wholly suspended conditional upon; the prisoner repaying K503.95 to the Council within 3 months; the prisoner doing certain amount of community work; the prisoner not holding any public office for the duration of the suspended sentence; and the prisoner keeping the peace and to be of good behaviour for the duration of the suspended sentence.

50. There are several factors operating in favour of the Prisoner in the present case. I note that he has pleaded guilty to the charge. By doing that he has saved the State the expense and time of conducting a trial to secure a conviction. I also note that he is a first time offender. He had an unblemished record until he committed the offence. I further note that he has expressed remorse; he has a medical condition associated with his abdomen, but there is no evidence that it is deteriorating therefore life threatening or is not incurable; he has a big family which is dependent upon him; and that the Bank of South Pacific has repaid the victim the total amount that was stolen.

51. I also note that there are several factors operating against the Prisoner in the present case.

52. First, the amount stolen in the sum of K21,460.00 is quite substantial. The case falls under category 3 of the tariff suggested in Wellington Belawa. As I have alluded to earlier, the Supreme Court in that case recommended that for an amount between K10,000.00 and K40,000.00, an offender may be imprisoned for a term of 2 to 3 years which could be adjusted upward or downward depending on the circumstances of each case. However, as the amount stolen exceeds K1, 000.00, according to s.372 (10), the Prisoner is liable to imprisonment for a term not exceeding 7 years.

53. Secondly, the Prisoner personally benefited immensely from the crime while the victim was poorer by K21,460.00 initially until reimbursed by the Bank of South Pacific.

54. Thirdly, this was not a one-off incident. The Prisoner committed the offence over a period of about 2 months. This shows that the Prisoner was persistent and unwavering in his resolve to steal from the victim. If the fraud had not been discovered, the Prisoner would have continued to steal from the victim.

55. Fourthly, the offence of stealing by security guards is prevalent. This alarming state of affairs was noted by the Supreme Court in Seo Ross.

56. Fifthly, the Prisoner did not restitute nor did he make any attempt to do so. This is probably because he was not financially capable considering that he was only earning K109.00 per fortnight whilst working at the Bank of South Pacific. The pre-sentence report also does not give a favourable report about the Prisoner’s financial standing. It merely reports that he does not have any problem with finance. However, as to how the Prisoner has no problems with finance, it is not detailed. The Bank of South Pacific actually paid the victim the amount that was stolen. By making the payment, the bank unnecessarily suffered loss.

57. Sixthly, the Prisoner was employed by the Bank of South Pacific, as a security guard. The Bank of South Pacific is a leading financial institution in the country offering a variety of banking services to the people of this country. It employs a lot of personnel in various capacities who participate in the delivery of those services. It employs security guards as well who I would think would usually be persons of good character and without criminal records. The position of a security guard employed by a bank, I think, is no different to a teller or any other bank officer. This is because, just like a teller or another bank officer who will usually be privy to confidential information of customers because of the nature of their work, there will be times when a security guard in the course of performing his or her duties will also have access to confidential information of customers, usually illiterate ones, who seek his or her assistance to do their banking. That was the scenario in the present case.

58. The Prisoner was in a position of trust of the highest degree. This is because he was employed to protect the bank’s interest which extended to the bank’s shareholders and its customers. Huge amounts of money is handled and kept at the bank. Threats of armed-holdups are ubiquitous. Therefore the need for security to be provided by trustworthy security personnel is unfathomable. Notwithstanding the law governing the relationship between the bank and its customers on funds deposited, customers who deposit their monies into their bank accounts ordinarily expect their monies to be kept there safely so that when the need arises, the monies can be withdrawn without much hassle. The Prisoner was trusted by the victim when she asked him for his assistance on a number of occasions to do her banking. In the course of providing that assistance, the Prisoner came to know the victim’s PIN number. The Prisoner then took advantage of the trust and confidence placed in him and breached it by conducting 13 unauthorised withdrawals to his benefit, but to the loss of the victim over a period of about 2 months which the bank had to be burdened with eventually. This no doubt undermines confidence in the banking system.

59. I have also taken into account the fact that the Prisoner was aged 26 years when he committed the offence and after he had been apprehended, charged and detained, he spent a total of 9 months and 3 weeks in custody. Whilst in custody, those who depended on him were left with no financial support as he was the sole breadwinner for his big family. His conviction will no doubt impact upon employment opportunities in future when it is disclosed.

60. This is a serious case not only because the maximum prescribed penalty is 7 years imprisonment, but because it involves a breach of trust which undermines confidence in the banking system. However, I do not think this is a case of the worst category for the offence under consideration when all of the facts and circumstances of the present case are taken into account. The facts and circumstances of the case in Rocky Walesa Peraki I think are far worse than the present case. I will therefore consider imposing a sentence that is less than the sentence imposed in that case.

61. The present case comes a little bit closer to Roselyn Waiembi, Geo Rayner Laina and Ian Sevevepa in terms of the amounts that were stolen. As to breach of trust, this case is a little closer to Seo Ross, Timothy Tio and Geo Rayner Laina although the facts can be distinguished. Of all the other types of dishonesty cases, Paul Dom is the closest. I will consider a sentence between 2 to 5 years.

62. Taking into account all the factors going in favour and against the Prisoner, I consider a sentence of 3 years imprisonment IHL less 9 months and 3 weeks for time spent in custody appropriate. That leaves a balance of 2 years, 2 months and 1 week (the remaining term) to be served. Incarceration will be at the Barawagi CS.

63. According to s.19 (6) of the Code, a part of a sentence can be suspended on an offender entering into a recognizance. The relevant principles were discussed in Public Prosecutor v. William Bruce Tardrew [1986] PNGLR 91. There the Supreme Court held that suspension may be appropriate in 3 broad categories; first, where suspension will promote the personal deterrence, reformation or rehabilitation of the offender; secondly, where suspension will promote the repayment or restitution of stolen monies or goods; and thirdly, where imprisonment will cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. I have considered those principles.

64. In the exercise of my discretion, I will suspend 2 years of the remaining term on the following conditions:-

1. That the Prisoner immediately serve 2 months and 1 week in custody;

2. Upon completion of the custodial sentence, the Prisoner shall be released and will enter into his own recognizance to keep the peace and be of good behaviour for the duration of the suspended period.

65. The Prisoner has made application for all bail monies to be refunded to him. The State did not take issue with the application. The State also has made no application to have those monies to be paid to the Bank of South Pacific by way of part-restitution of monies paid by the bank to the victim. In the circumstances, the Prisoner having met his conditions of bail whilst waiting to be tried, I think he is entitled to the refund of his bail monies.

66. A warrant shall issue forthwith to execute the sentence.

67. I order accordingly.

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