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State v Yahresase [2012] PGNC 233; N4803 (21 September 2012)

N4803

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1271 OF 2010

THE STATE

V

DAVID WILFRED YAHRESASE

Waigani: Gauli AJ.
2012: 21 September.

CRIMINAL LAW – Sentence – Guilty after trial – Stealing – Stealing from the employer – Criminal Code Act, s. 372 (1)(7) (10) – Stole a vehicle from his employer – Vehicle not recovered – First time offender – Sentenced to 5 years imprisonment

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
The State v Allen Naret (2004) N2582
The State v Tion [2002] PGNC 67; N2265
The State v Luva [2010] PGNC 19; N3909

Counsel

Public Prosecutor, for the State
Paul Paraka Lawyers, for the Accused

SENTENCE

21 September, 2012.

1. GAULI AJ: The accused David Wilfred Yahresase is found guilty after trial on one count of stealing, charged under Section 372 (1) (7) (10) of the Criminal Code Act. He is convicted of stealing a motor vehicle, a Toyota Land Cruiser registration number ZPL 127 from his employer the PNG Power Ltd on 30th January 2010. He drove the subject vehicle out from the PNG Power car park between 11.00am and 12.00 noon at Hohola in Port Moresby. The vehicle has not been recovered to date. The vehicle was purchased at the value of K84, 199.95 in 2008.
   
2. At the time of the offence, the prisoner was the employee of the PNG Power Ltd. Thus, Section 372 (7) & (10) of the Criminal Code Act applies to him in sentencing. The maximum penalty under this provision is a term of imprisonment not exceeding 7 years. It is trite law that a maximum penalty is reserved for the worst type of offences: see Goli Golu v. The State [1979] PNGLR 653.
   

MITINGATING FACTORS

3. The following are the mitigating circumstances favouring the prisoner:
   
   • First time offender.
   • Showed remorse.
   • No violence used in committing the offence.
     

AGGRAVATING FACTORS

4. The aggravating circumstances that work against the prisoner are:
   
   • Stole from his employer.
   • Breach of trust.
   • Vehicle cost substantial amount.
   • Vehicle not recovered.
   • Pre planning in the crime.
     
5. Defence referred to The State v Allen Naret (2004) N2582 where two prisoners were convicted and sentenced each to 3 years imprisonment wholly suspended with conditions. Defence submitted that Court has discretionary powers in sentencing as per Section 19 (1) of the Criminal Code Act. And defence submitted that sentence of 3 years imprisonment to be appropriate with suspension.
   
6. The State referred to The State v Tio [2002] PGNC 67; N2265 where the prisoner stole a chain saw from his employer (Steamships Trading) and sold it for K3,000.00 and the prisoner was sentenced to 5 years. And in The State v. Luva [2010] PGNC 19; N3909, the prisoner the employee of the PNG Power Ltd as a meter reader, collected fees from customers for service fees totalling to K4, 618.00 which he stole them. He was sentenced to 4 years 5 months with part of the sentence, 3 years 5 months suspended.
   
7. I have heard submissions from both the defence and the State. In the present case the property stolen was valued over K84,000.00. The amount is quite substantial compared to the amount involved in the cases referred to by both counsel. The prisoner used a duplicate key to drive away the vehicle and the vehicle has never been recovered. He was not an officer in-charge of the keys to the fleet of vehicles of his employer. How he came to have in his possession of the duplicate key of the subject vehicle is uncertain. He was the officer in-charge of the stock and supply division with the PNG Power Ltd at its Hohola Headquarters premises. Though he was not directly responsible for the fleet of his employer's vehicles, the prisoner, being an employee, surely was in breach of a trust bestowed on him by his employer. It is not expected that every employee is entitled to drive employer's vehicles but the employees are entitled to use them for official duties. In my view this case falls in a worst type of stealing cases though no violence was applied.
   
8. Those who abuse their position of trust ought to be dealt with severely. Stealing of vehicles from the employers may not be prevalent offence in this jurisdiction. The present case may be the first of its kind. However stealing from the employers in terms of other properties is a prevalent offence. Thus a sentence to be imposed must reflect the seriousness of the offence been committed. The prisoner denied stealing the subject vehicle therefore it is not likely to recover the said vehicle nor did he indicate to restitute the vehicle. There is no suggesting that he has the means for the restitution of the vehicle.
   
9. I do take into account that he is the first time offender. On that note a sentence less than the maximum penalty should be imposed. I also take into account of the aggravating factors against the prisoner. The aggravating factors far outweighed the mitigating factors. In the circumstances, a sentence of Five (5) years imprisonment is appropriate.
   
10. Should the sentence be suspended? I have considered the discretionary powers vested on me by Section 19 (1) of the Criminal Code Act. It gives the court wider discretionary powers in sentencing. The suspension of sentence could be considered where the prisoner indicates that he has the means to restore the stolen property. In the absence of any means assessment report for the prisoner, I am not satisfied that the prisoner has the means to restore the property. Due to the seriousness of this case, I consider that this is not an appropriate case to impose suspended sentence.
    

ORDERS

11. The prisoner DAVID WILFRED YEHRESASE is convicted and sentenced as follows:
    
    • Sentenced to 5 Years imprisonment IHL.
    • No suspension of sentence applied.
    • Sentence to be served at Bomana C.I.S.
    • Bail of K300.00 be refunded.
      

____________________________________
Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Accused