State v Fito (No.2) [2011] PGNC 292; N4522 (16 March 2011)

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CRIMINAL LAW – PRACTICE AND PROCEDURE – Stealing by a Security guard manning Automatic Telling Machine (ATMS) – Prisoner dishonestly misled illiterate customer into surrendering his bank Access Card to check balance in Account – Prisoner stole card after customer told him his Account Pin Number – Using pin number, Accused stole K2,000.00 in the account of customer – position of a security guard is the same as an ordinary bank customer and is one of trust and confidence.

The accused, a security guard was employed by Guard Dog Security Services. He was assigned the duty to guard provide security services to the Bank South Pacific ATM's here in the town of Bialla.

The victim, an illiterate old man lined up along with other customers to check his Bank Account balance from the Hargy Oil Palm.

When his turn came to check his balance, the prisoner volunteered to assist him. With this offer of assistance the victim surrendered his bank card to the prisoner. The victim also volunteered his pin number to the prisoner. The prisoner subsequently swapped card with another old card which he gave to the prisoner. After a long trial, the prisoner was found guilty and convicted of both counts under Section 372(1) of the Criminal Code.

Security guards are placed in very high positions of trust. They must be absolutely honest in the performance of their duties and responsibilities. Bank customers pay fees for use of banking facilities. These fees pay security guards. Prisoner action is a breach of trust and confidence expected of him by his employer, the Bank and ultimately the customer. Sentencing trends show imposition of deterrent sentences. Actions of the accused warrant the imposition of a personal deterrent sentence. Accused sentenced to 18 months jail, in respect of the first count and 18 months jail in respect of the second count. Both sentences are to be served cumulatively.

(1) The position of a security guard manning the ATM machines in the bank is likened to the position of a teller and the customer. It entails a position of trust and confidence. The security guard is expected to maintain confidence in all his assistance to the bank customers.

(2) In maintaining that degree of trust and confidence of the victim as well as bank customers, the prisoner is expected to perform beyond par.

(3) The prisoner did not discharge his duties with honesty and diligence. The prisoner breached that degree of trust exposed in him.

(4) Cases involving breach of trust and confidence must be given a strong deterrent and custodial sentence.

The prisoner is sentence to 18 months in hard labour for the first count and another 18 months in respect of the second count. The prisoner will cumulatively serve a total 3 years in jail. All relevant time spent in custody will be deducted and the balance cumulatively served.

Wellington Belawa – v- the State [1988-89] PNGLR 496
Aloises Peter Iboro Kovei –v- the State [2001] SC 676.
The State –v- Paul Simon Korai [2009] N3820
Seo Ross –v- the State [1999] SC 605
The State –v- John Akoko [ 2001] N2061
The State –v- Johnson Maurani [ 2008] N3560
Public Prosecutor –v- Bruce William Tardew [1986] PNGLR 91.
The State –v- Robert Kawin (2001) N2167,
The State –v- Timothy Tio [2002] N2265
Gimble –v- The State [1988-89] PNGLR 271

1. KAWI J: INTRODUCTION: Simon Fito was found guilty and convicted of two counts of stealing pursuant to Section 372(1) of the Criminal Code. I remanded you in custody pending my decision on your sentence. This is now my decision on your sentence.

2. The facts of this case which the state has proven beyond reasonable doubt are that on the 17th April 2009, the accused Simon Fito was stationed as a static security guard manning the BSP ATM here in Bialla. It was about the same time that the one Pious Malken came to the ATM to check his growers fund balance. As Pious Malken stood in the long queue and was approaching the ATM, the accused who was guarding the ATM, offered to assist him, check his balance. At that time the complainant Pious Malken gave the accused his ANZ Bank Access Card, together with his bank pin number and the accused checked the account balance of Pious Malken.

3. After checking the balance, the State alleges that the accused intentionally swapped Pious Malken's ANZ Bank Access card with another. The accused intentionally gave back the wrong card, and he kept Pious Malken's ANZ Bank Access card. Using Pious Malken's Access Card and his pin number the accused withdrew and stole K2,000 in cash between 17th April and 20th April 2009.

4. The sole issue for determination here by the court is; what kind of sentence should the court impose upon you.

5. In determining this issue, the court is guided by quite a number of principles. One of the principles I take into account is that I must consider the mitigating factors operating in your favour and the aggravating factors operating against you. Some aggravating factors may be mildly aggravating while others may be strongly aggravating. The same goes for mitigating factors.

6. In allocutus, rather than being remorseful, and saying sorry, you maintained your innocence, claiming that it was the court that found you guilty. You claimed that you did not do any wrong but it was the court who found you guilty on its own accord. You must understand that the court found you guilty and convicted you on the basis of the evidence before it.

7. A Pre-sentence Report and Means Assessment Report on the prisoner was carried out by the community Based Correction Office here in Kimbe. The Report sought views from across the whole community of Tamba where the accused lives. The Report sought the views of relatives of the accused as well as the views of the victim, who insisted on being repaid his K2000.00. The family and relatives of the accused also indicated their support for the accused in terms of repaying back the amount stolen. They made it clear that the accused himself has to work in their respective oil palm blocks and raise the necessary funds if the accused is to repay the money he stole. They would not assist the accused.

8. Based on this, learned counsel for the prisoner, Mr Doko Kari, submitted that, instead of imposing a custodial sentence, I should impose a non-custodial sentence with one of the conditions being an order that the prisoner repay back the moneys he stole. He submitted that the order for restitution should be included with other strict conditions to be imposed.

9. State Prosecutor, Mr Popeu submitted that a concurrent sentence of 18 months each be imposed considering the aggravating factors operating against the prisoner particularly by his dishonest actions in stealing from an illiterate customer. This is to serve as a warning and deterrence to others who may be inclined to do the same thing.

10. Both counsels did not cite me any case authorities that would assist me in my deliberations.

11. The accused is charged with two counts of stealing under section 372(1) of the code. Section 372(1) is stated in the following terms:

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

12. The accused has been found guilty and convicted of two counts of stealing under s. 372(1). Under the penalty provision of section 372(1) a maximum penalty prescribed for stealing simpliciter is an imprisonment term of 3 years. But this penalty provision is made 'subject to this section'. For other categories of stealing, the maximum prescribed penalties are set out under s.372(2) to 372 (12) of the code. These prescribed penalties range from 7 years to 14 years. The penalties are however to be read subject to section 19 of the code, which gives the court a wide discretion to impose such other sentence which the court considers fair and just depending on the facts and circumstances of each case.

13. You were indicted for stealing under section 372(1) of the code. Because of the placement of the phrase 'Subject to this section' before the penalty clause, I am of the view that, subsection 1 is to be read subject to the other provisions of section 372. According to subsection (10), if the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a terms not exceeding 7 years.

14. The prisoner here is therefore liable to be imprisoned for up to 7 years because the amount of money he stole is in excess of K1,000.00.

15. In the Pre Sentence Report you never said sorry to Pious Malken and the ANZ Bank nor did you offer to make restitution to Pious Malken in particular. I find this to be very arrogant on your part. On top of all these actions displayed by you, I find that you never paid some kind of compensation to the victim as a true mark of Melanesian remorseness, reconciliation and acceptance of responsibility.

16. Even to this day some, one and half years after your stupid criminal actions I note that you still have not made any reconciliation with the victim of your actions. You could have shown some genuine remorseness not only by paying some kind of compensation in accordance with Melanesian custom but also making some form of monetary payments towards the money you stole. If you have done these simple things, then I would have accepted your plea for leniency. Instead, you are waiting for the court to tell you what to do. I will therefore treat your plea for leniency and non custodial sentence as "lip service talk" of a desperate man. I will hold all of these factors against you in computing what an appropriate sentence would be for you.

17. When I do a balancing act between factors operating in your favour and those operating against you, I find that those against you tip the scale. This becomes very relevant when I proceed on to consider what an appropriate sentence would be. In considering an appropriate sentence, I am mindful of the sentencing discretion vested upon the court by virtue of section 19 of the Criminal Code. But before I consider an appropriate head sentence, I must first determine whether your actions can be classed as belonging to the worst type or worst case category. In your case, whilst the money you stole is K2,000.00, there is no evidence to suggest that you used violence to steal that money, although under section 372 (1) that fact makes your case very serious. You only used trickery and dishonesty to steal money from an illiterate bank customer who trusted and relied upon your expertise to help him. Accordingly, I cannot categorize your case as belonging to the worst type category of cases. Instead I find that your case your case is simply a case of stealing by trickery and dishonesty.

18. Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point. Usually a good reference point is a sentence in a previous case, against which the case being dealt with can be assessed. For instance, in misappropriation cases, a convenient starting point case for judges has always been the case of Wellington Belawa – v- The State [1988-89] PNGLR 496. Depending on the circumstances of the case, judges then adjust the sentence upwards or down wards. The judge assess whether the case being dealt with is more, or less serious than the starting point case. If it is, to what extent is it more serious or less serious? In the present case both counsels were very helpful in their respectful submissions and cited me some decisions in similar cases which will help me to compute an appropriate sentence for you.

19. In considering an appropriate sentence for you, I must remind myself that sentencing is not an exact science. It is a discretionary process, guided by factors which I have already mentioned. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be strongly mitigating, while others may be only mildly mitigating. The same goes for aggravating factors.

20. The fact that the amount of money you stole is in excess of K1,000.00 is enough to attract the application of subsection 10, which imposes a maximum penalty of 7 years. One of the well established principles of law in our jurisdiction is that the maximum penalty prescribed by the legislation itself is always reserved for the worst type of offences under scrutiny. Many cases in our jurisdiction have acknowledged and applied this principle of law.

21. One such case is the Supreme Court decision in the case of Aloises Peter Iboro Kovei –v- The State [2001] SC 676. That was a case where the appellant appealed inter alia a life imprisonment sentence imposed by the National Court for the brutal killing of a young woman for her abduction and rape. Amet CJ, Gavara – Nanu and Kandakasi JJ made the following pertinent comments:

"It is a well accepted principle in our jurisdiction now, that the maximum penalty prescribed by the legislature should be reserved for the "worst type or "worst category" of the offence under consideration. This has been made abundantly clear in the context of wilful murder cases. For example, the Supreme Court in Avia Aihi –v- the State (N0.3) [1982] PNGLR 96 referred to its earlier decision in Goli Golu –v- the State [1979] PNGLR 653 where it was said:

"In fact this court has said that the maximum sentence for any offence (including wilful murder) should be reserved for the most serious instance of a particular offence".

22. This principle of law has its genesis in the sentencing discretion vested in the Court by section 19 of the Criminal Code. Section 19 actually gives the Court the discretion to impose a lesser penalty upon an offender if the factual circumstances of a case do not establish a particular case as being a case falling in the "worst case" category of cases or the offender being categorised as a "worst offender".

23. How I exercise that discretion depends upon the factual circumstances of a case under scrutiny. More importantly the Court will look at the factual circumstances of how you perpetrated this crime, the mitigating factors operating in your favour and the aggravating factors operating against you. This leads me to address the factors operating in your favour and those operating against you.

24. Your counsel has submitted factors I should take into account, which I do now. You yourself asked me to take into account some of these factors when you addressed me in your allocutus. Factors operating in your favour which I take into account are;

a) You have a young family. You told the court that you have a four year old child who is with his mother and grandmother who lives with them back in Wewak. You have by your conduct constructively deserted your young family and you are here by yourself.

b) You expressed remorse and begged the court for its mercy and clemency when sentencing you.

c ) You undertook to repay back the amount you deliberately stole, in order to restore the victim, Pious Malken, to his original financial position.

d) There is no evidence to show that you have been engaged in other similar conducts previously. Furthermore, you are not a violent person to your community of Tamba block.

e) You are not a serial offender. Neither is there evidence to show that this offence was committed over a period of time. Instead the court notes that you are simply a first time offender.

a) You were placed in a position of trust and dependency and you were outright dishonest in your dealings with bank customers who placed a lot of trust in your expertise to help them. You simply breached that trust when you cheated a very customer whose interest you were placed to protect by stealing from him his hard earned money.

b) Secondly you did not take any steps to restitute or repay the money you stole. That is to say that you did not make any attempts or take steps to show to the court that you are truly sorry and remorseful for what you did by making some compensation payments to Pious Malken, who was the unfortunate victim of your criminal actions. Your actions bespeaks of a very arrogant man who still thinks that what he did is justified. On top of all these I find that you never paid some kind of compensation to the victim to show how genuine you are in making reconciliation.

You could have shown some genuine remorseness in not only by paying some kind of compensation in accordance with Melanesian custom to show genuine remorseness and reconciliation If you have done these simple things then I would have accepted your expression of remorseness and plea for leniency. Instead you are waiting for the court to tell you what to do.

Upon the court ordering you to make restitution you will then take you time to repay the money you stole. The Pre Sentence Report does not state how long it will take for you to work on the oil palm blocks of your respective family members to repay the monies you stole. This is unacceptable.

c ) The monies you stole have not been recovered from you. Instead you simply used you that money for you own criminal gains. You benefited immensely from the fruits of your stealing, while a poor illiterate customer became poorer by K2000.00. There is no evidence before the court to show that the Bank South Pacific nor Guard Dog Security Services had repaid the victim Pious Malken of the moneys you stole. The Pre Sentence Report and Means Assessment Report simply say that the relatives and Family would allow you the accused person, to work on their respective oil palm blocks to make money to repay the moneys stolen.

Your family and relatives never benefited from the money you stole. But they have been forced by the circumstances to pledge assistance to you. It is understandable for them to insist that you work their blocks yourself to raise the necessary funds to repay the money you stole. While this is a good family gesture of a communal acceptance of criminal responsibility, there is no evidence to show how long it will take you to repay the monies that you stole.

d) In the case of The State –v- Simon Paul Korai, the prisoner was employed by the Bank South Pacific as a security guard. In the course of his employment, he came to know the victim whom he assisted on many occasions. The victim on her part advised the prisoner of her bank account PIN number. The prisoner using this confidential information accessed her account and withdrew more than K21,000 over a period of 2 months during which he conducted 13 unauthorized withdrawals.

David J described the position of a security guard engaged by a bank to provide security services to the bank and his relationship to bank customers using the ATM as follows in the case of The State –v- Paul Simon Korai [2009] N3820:

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. 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 customers. Huge amounts of money is handled and kept at the bank. Threats of armed hold up 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 assistance, on a number of occasions to do her banking. In the course of providing that assistance, the prisoner came to know of the victim's PIN number. The prisoner than took advantage of the trust and confidence placed in him and breached it by conducting 13 unauthorized withdrawals to his benefit, but to the loss of the victim over a period of 2 months which the bank had to be burdened with eventually. This no doubt undermines confidence in the banking system.

26. Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point. Usually a good reference point is a sentence in a previous case, against which the case being dealt with can be assessed. For instance, in misappropriation cases a convenient starting point for judges has always been the case of Wellington Belawa – v- the State. Depending on the circumstances of the case, judges then adjust the sentence upwards or down wards. The judge assess whether the case being dealt with is more, or less serious than the starting point case. If it is to what extent is it more serious or less serious?

27. In considering an appropriate sentence for you, I must remind myself that sentencing is not an exact science. It is a discretionary process, guided by factors which I have already mentioned.

28. A case on point is The State –v- Simon Paul Korai. I have already discussed the facts of this case earlier. In that case, after reviewing other cases of stealing simpliciter David J imposed a head sentence of 3 years. After deducting the time spent in custody, His Honour suspended 2 years of the remaining term. Effectively this meant that the prisoner was to spend two months and one week in custody. In that case the security guard (prisoner) stole more than K21,000.00 using the victim's pin number.

29. In Seo Ross –v- the State [1999] SC 605, the appellant was sentenced to two years imprisonment after he pleaded guilty to counts of stealing pursuant to section 372(5). He was sentenced to two years imprisonment. The trial judge took into account as an aggravating factor the breach of trust position the prisoner was in. On appeal against sentence, the Supreme Court held that the sentences were not manifestly excessive nor did the appellant point to any error committed by the trial judge in imposing a custodial sentence. The Supreme Court then dismissed the appeal.

30. 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. The prisoner was the commander of the police unit who gave chase to the criminal gang. Of the amount the prisoner stole, K5,528.00 was recovered from the prisoner who spent the balance for his own personal use before he was apprehended. The prisoner was charged and he pleaded guilty to two counts of stealing which were proffered under section 372(1)and 372(5). He was sentenced to 5 years imprisonment. The court found that the degree of trust reposed in the prisoner and the breach of it had the tendency of eroding public confidence in the Police Force. This was a compelling consideration and therefore a strong and deterrent sentence was imposed to restore public confidence in the Police Force.

31. In The State –v- Johnson Maurani [2008] N3560 the prisoner pleaded guilty to one count of stealing a chainsaw belonging to a company which was worth over K1000.00 contrary to section 372(1). The chain- saw was recovered within two days of being stolen. One of the co-accused pleaded guilty before another judge and was sentenced to 3 years and 6 months. Applying the principle of parity of sentencing, the prisoner was also sentence to 3 years and 6 months imprisonment.

32. In The State –v- Timothy Tio [2002] N2265, the prisoner a security guard employed a security company was engaged by Steamships Hardware in Wewak to guard their premises. In the course of his duties, the prisoner found that he was the lone guard on night duties. Under the cover of darkness, he stole a portable chain saw valued at K8,000.00 which he sold to a third innocent party for K3,000.00.The third party paid him K1,000.00 which he had used up. The chain saw was however recovered from the third party. On a plea of guilty, the accused was sentenced to 5 years imprisonment to reflect the need for deterrence.

33. Finally in Wellington Belawa –v- The State [1988-1989] PNGLR 496, the Supreme Court laid down a useful guideline in sentencing in misappropriation cases. The Supreme Court recommended that for misappropriating an amount between K10,000.00 and K40,000.00 an imprisonment term of 2 to 3 years is recommended. The Supreme Court set the following scale of sentences which has since been accepted and used as providing a sentencing base to be adjusted either upwards or downwards according to the factors that I have already outlined above. Where the amount misappropriated is between:

Amount misappropriated	Sentencing Range
K1.00 and K1,000.00	Jail term to be rarely imposed
K1,000.00 and K10,000.00	2 years imprisonment
K10,000.00 and K40,000.00	2 to 3 years imprisonment
K40,000.00 and K150,000.00	3 to 5 years imprisonment

34. Going by the sentencing guidelines set out above, the crime you committed would attract a prison sentence of 2 years. However in your case section 372(1) itself prescribes the maximum penalty of 7 years where the amount stolen is K1,000.00 and above.

35. In submissions your counsel Mr Kari submitted that I should seriously consider imposing a suspended sentence with stringent conditions and one of the conditions that he submitted I consider, is a condition for restitution. According to section 19(6) of the Criminal Code, a part of the sentence can be suspended on an offender entering into a recognizance. The relevant principles were discussed by the Supreme Court in Public Prosecutor –v- Bruce William Tardew [1986] PNGLR 91. There the Supreme Court held that suspension may be appropriate in three broad categories; first, where suspension will promote the personnel 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 but in my view a strong deterrent sentence is required in a case such as this which involves a breach of trust. In this regard I take into account the following factors:

a) Prevalence of the offence. This court notes with concerns that the offence of stealing by security guards is becoming quite prevalent in PNG today. With the rise in criminal activities, with so many armed hold ups and armed robberies at homes, shops and business houses, a small town like Bialla is not immune to such criminal activities. That is the reason why security guards like you are employed to protect people's properties and lives. When people like you commit crimes in the way you did, it is much more serious, in my view. The Supreme Court in dismissing the appeal against sentence in Seo Ross –v- The State noted that the stealing in that case occurred in a breach of trust situation and that stealing by security guards are becoming prevalent. In dismissing this appeal the Supreme Court made this comment:

"We agree with the trial judge that this is a serious offence because it involves a breach of trust. Business houses must be able to trust security firms that provide escort services to them at considerable expenses. This is not done for free. It is not correct for the appellant to victimize the employer's client when his grievance was with his employer. The trial judge noted the prevalence of this kind of offence. This is not a simple stealing offence or a one off incident. It was becoming a scheme until discovered.

Your company Guard Dog Security Services was engaged by the Bank specifically to look after the Bank South Pacific (BSP) ATM facilities and the BSP premises at considerable costs. It is the ordinary bank customers who end up paying all these costs. Instead of faithfully and honestly discharging that duty, you broke it by stealing from the very people whose interests you should be safeguarding. You therefore destroyed the trust and confidence placed upon you. Had they known that you would steal, you would not have been employed there in the first place. You told the court that you had problems with your employer, who have been unnecessarily deducting your salary. In my view, it is not correct to victimized a customer when your grievance was with your employer.

36. In your plea in mitigation you apologized to the court and said sorry to the victim and his family. But then you went ahead to maintain your innocence. You told the court that it was really the court who found you guilty. The implication of this statement is that you are not guilty. You must understand that the court found you guilty based on evidence. Your claim to be innocent of any wrong doing, is in my view a clear demonstration of your arrogance and bigheadedness. In my view although you said sorry for what you did, there is no evidence of you showing genuine remorseness to the victim of your criminal actions, Pious Malken and the ANZ bank. You could have shown some genuine remorseness not only by paying some kind of compensation in accordance with Melanesian custom but also making some form of monetary payments towards the value of the money you stole, especially to the victim Pious Malken. If you have done these simple things then I would have accepted your remorseness. I will hold all of these factors against you in computing what an appropriate sentence would be for you.

37. The Supreme Court said in Allan Peter Utieng –v- The State (2000) SCR 15 of 2000 Unnumbered and Unreported judgement delivered in Wewak on the 23rd November 2000, that an expression of sorrow is meaningless unless it is accompanied by some tangible expression of that in terms of saying sorry to the victims of the offence and making it right with them. Accordingly the saying of sorry to the court and the victims in their absence is meaningless and therefore of no real value. I would reject the apology as it is not genuine.

38. Taking a more comparative assessment of the cases I highlighted above, I find that your case is more closer to the other stealing cases involving security guards which involve a breach of trust situation. The courts imposed custodial sentences as a mark of deterrence to offenders and would be offenders. In my view your case calls for a similar approach to be taken.

39. In The State –v- Robert Kawin (2001) N2167, Kandakasi J noted that there were no sentencing guidelines for the offence of stealing simpliciter. He therefore attempted to formulate one in these terms:

" In line with accepted principle that, the maximum prescribed sentence in any offence should be reserved for the worst category of the offence under consideration, I am of the view that the maximum of 3 years should be reserved for the worst category of stealing under s.372(1). A worst 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 de-facto 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 three to four months. Then there would be cases in between. These might be cases in which say the amount of money or value of the 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 the 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 has been made clear in a large number of cases though in the context of other offences as in the case of 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 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".

40. I am not convinced one bit that this case warrants a suspended sentence. In my view this is a case that warrants a strong deterrent sentence to be imposed as it involves a serious breach of trust. Taking into account all the considerations discussed above, I impose the following sentences upon you.

41. For Count 1 you are sentenced to 18 months imprisonment in hard labour. For count 2, I also sentence you to another 18 months imprisonment in hard labour. You are therefore sentenced to a total of 3 years imprisonment. The sentences shall be served cumulatively served at the Lakiemata prison outside Kimbe. The time spent in custody, if any, will of course be deducted.
____________________________________________________________

Acting Public Prosecutor: Lawyer for the Plaintiff
Public Solicitor: Lawyer for the Accused

National Court of Papua New Guinea

State v Fito (No.2) [2011] PGNC 292; N4522 (16 March 2011)