N5776 

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO. 774 OF 2011

BETWEEN:

THE STATE
Applicant

AND:

ROBIN YAMBO
Accused

Mendi: Kassman J
2014: 4th & 16th June &
8th & 19th September

CRIMINAL LAW – Sentence – stealing – taking goods charged to employers account without authority – breach of trust – guilty plea – no genuine expression of remorse - no prior conviction – sentence of two years – wholly suspended with conditions including twelve months good behavior bond and repayment of monies.

Cases Cited:

Goli Golu v. The State [1979] PNGLR 653
Wellington Bellawa v the State [1988 – 89] PNGLR 496 
St v Morgan [2004] PGNC N2704
St v Eliakim [2007] PGNC 76, N3190

Legislation Cited:

Criminal Code Act Section 327(1) and (7)(b) and Section 19 

Counsel:

Sheila Luben, for the State 
Cecilia Koek, for the Accused

DECISION

19th September, 2014 

1.	KASSMAN J: This is my decision on sentence following a plea of guilty to a charge of stealing monies that came into his possession on account of his employer. 

2.	The Indictment presented stated that "Robin Yambo of Humbura Village, Southern Highlands Province stands charged that he between February and March 2011, at Mendi in Papua New Guinea being Line Drain Supervisor employed by Civil Pacific Limited, stole materials worth Eleven Thousand Three Hundred and Fifty Five Kina Ninety Toea (K11,355.90) which had come into his possession on the account of his employer."

3.	The Statement of Facts presented by the State to which the offender pleaded guilty read as follows: "The Defendant now before the court is Robin Yambo, age 42 of Humbura Village Southern Highlands Province. The defendant was employed by Civil Pacific Limited in Ialibu/Pangia at the time when this offence was committed. The Defendant Robin Yambo at the time of his employment with Civil Pacific Ltd as Line Drain Supervisor between February and March 2011 obtained materials worth K11,355.90 from Tininga Hardware, Mt Hagen using the company's initial deposit of K29,500.00 into its account. It was until the defendant's Project Manager; Mr Joseph Alphonse discovered when invoices were compared to the dockets submitted by the accused. The defendant was then arrested and charged for the offence of stealing under section 372 (7)(b) of the PNG Criminal Code Act, read in conjunction with Section 7(1)(c) of the criminal code chapter 262 and was placed in the cells and is now appearing before the court."

4.	In allocatus, Yambo said "First of all I would like to say sorry to the Lord above for what I have done in his eyes. Secondly I would like to say sorry to the company for this wrong I have done when he was good to me. Thirdly I would like to ask this Court to give me mercy in taking the court this as far as today. That's all."

5.	Section 372 of the Criminal Code provides "(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

(b) came into the possession of the offender on account of his employer, he is liable to imprisonment for a term not exceeding seven years."

6.	I have considered the oral submission of counsel of the offender and the State including the written submission of the offender filed 8 September 2014 and the State filed 2 September 2014, Yambo's Affidavit filed 7 September 2014, the Pre–sentence Report and Means Assessment Report filed 16 June 2014. 

7.	The Supreme Court said in Goli Golu v. The State [1979] PNGLR 653 that the maximum penalty should be reserved for the worst type of cases in terms of the facts and circumstances leading up to, during and following the crime.

8.	This court may also suspend part of or the entire sentence with or without conditions. This is authorised under Section 19 of the Criminal Code. This section of the Criminal Code provides among others, a shorter term may be imposed [subsection] (1)(a), a fine not exceeding K2,000.00 in addition to, or instead of imprisonment may be imposed [subsection (1)(b)], a good behaviour bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d)], the offender can be discharged and the sentence postponed [subsection (1)(f) or a part of or all of the sentence can be suspended subject to conditions [subsection (6)]. 

9.	Each case should be considered on its own set of facts and circumstances. The factors set out in Wellington Belawa v the State [1988 – 89] PNGLR 496 are relevant in considering the appropriate sentence. These include (1) the amount taken, (ii) the degree of trust held by the offender, (iii) the period over which the offence was committed (a case of sudden impulse would carry a lesser sentence than a planned scheme over a period of time) (iv) the use to which the money was put to, (v) the effect on the victim, (vi) the effect on the offender himself and (vii) whether restitution was made to the victims. Wellington Belawa's case was one of misappropriation but the considerations set out can be applied in stealing cases such as the instant case.

10.	Applying those considerations to this case, the value of the materials taken by Yambo without lawful authority amounted to Eleven Thousand Three Hundred and Thirty Five Kina and Ninety Toea (K11,335.90). This is a substantial amount. Yambo held a position of trust in the company being the employee authorised to make decisions and collect materials from suppliers for use by the company in its operations. The offence was committed over a two month period. It was not a spur of the moment act. The materials obtained from the hardware were used by Yambo.

11.	Yambo lost his job with the company as a result of his actions. There was no restitution made to the company to date. In State v Morgan [2004] PGNC N2704 the offender pleaded guilty to stealing K8,772.01 from her employer MSS Trading. She was employed as an Accounts Clerk. She failed to do banking for three consecutive days. Soon after the matter was reported to Police she made some restitution (K2,171.40) to the company's account. She was sentenced to 2½ years in light labour. Twelve months was to be served in custody. The balance of 1 year and 6 months was suspended on conditions including making restitution within 12 months from the date of release.

12.	In State v Eliakim [2007] PGNC 76, N3190 the offender was charged with conspiracy to defraud (s.407 Code) and stealing from employer (s.372 (1)(7)(a) Code). He pleaded guilty to both counts. The offender was a field supervisor in a company. He planned with two others to submit false attendance sheets for ghost employees and obtain pay cheques. He put the plan into action over a three month period until caught. The amount involved was K3,369.01. He was sentenced to 18 months imprisonment for each count. The sentence was to be served concurrently as offences were part of the same set of transactions. He was ordered to serve 3 months in custody. The balance of the sentence was suspended subject to various conditions including that he make restitution, in kind to his employer within 6 months after the date of release. The offender had made admissions and full confessional statement to the police. He left the company by choice. He was not sacked. A pre-sentence report was compiled recommending him as a suitable candidate for probation. The only factors in favour of the prisoner in the present case are his guilty plea and being a first time offender.

13.	I accept the submissions of the State that Yambo used his position in the company to obtain the materials under the company's account. Even though the modus operandi is not sophisticated, Yambo succeeded in getting materials to a substantial value. These were deliberate acts by Yambo. He is now in gainful employment but has not made any attempt at restitution. It is now three years since the commission of the offence. I also agree Yambo's expression of remorse to the company was not genuine.

14.	Yambo is forty eight years old, married with four wives and 6 biological children with ages ranging from 3-22 years. He is currently employed by Oceanic Construction, who specializes in civil construction and road works here in Mendi. Yambo is currently employed as Site Supervisor and earns a net income of K842.00. He also has a couple of debts with BSP for an amount of K2,500.00 and with a money lender for an amount of K1,300.00 so that is a total of K3,800.00.

15.	I also accept the submissions in mitigation presented by Yambo's lawyer. Yambo pleaded guilty saving the court and the prosecution and witness their time and expense in running a full trial. This is his first offence.

16.	There must be some sanction from the court. This court is tasked with the authority and responsibility to impose punishment where wrongful conduct is found to have occurred without lawful excuse. The punishment must be fitting of the wrongful action and all relevant circumstances and should also serve as a warning or deterrence to any member of the public that they must at all times act lawfully and with respect for all. Where such persons hold positions of trust like Yambo in this case, they must exercise caution and restraint as all members of the community expect them to lead by example by their actions. Yambo certainly let his own people down and brought shame to his family.

17.	The sentence should reflect the seriousness of the offence and provide a deterrent against similar acts of dishonesty by company employees. The State submitted a custodial sentence of three years to be imposed. The sentence should reflect the seriousness of the offence and provide a deterrent against similar acts of dishonesty by company employees. The State submitted a custodial sentence of three years be imposed.

18.	Considering this is Yambo's first offence, it is appropriate that Yambo serve a non-custodial sentence with conditions. Yambo is placed on good behaviour bond for one year and he must repay to the company the amount he stole less his final entitlements which were forfeited after his employment was terminated. Those final entitlements included two or three fortnights of pay and long service leave. No detailed figures were presented by Yambo or the State. From the rough details submitted in court, I assess Yambo's final entitlements amount to be about Three Thousand (K3,000.00). In the absence of finer details, I will order that Yambo repay to Civil Pacific Limited the sum of Eight Thousand (K8,000.00) within twelve months from the date of this order.
 
19.	The orders of the Court are:

a.	A sentence of two years imprisonment is imposed.

b.	The sentence of two years is wholly suspended with conditions that:

i.	Yambo will be of good behaviour for one year from the date of this order; and 

ii.	Yambo shall pay to Civil Pacific Limited the sum of K8, 000.00 within twelve months from the date of this order.

iii.	On or before 18 September 2015, Yambo shall present to this Court:

1.	A formal receipt from Civil Pacific Limited for the sum of Eight Thousand Kina (K8,000.00).

2.	An affidavit sworn by the manager of Civil Pacific Limited confirming the receipt from Yambo of the sum of Eight Thousand Kina (K8, 000.00).

3.	An affidavit sworn by Yambo confirming the payment to Civil Pacific Limited the sum of Eight Thousand Kina (K8,000.00).

c.	Yambo's bail money of Six Hundred Kina (K600.00) shall be refunded to Yambo who shall immediately pay that amount to Civil Pacific Limited as first deposit on the sum of Eight Thousand Kina (K8, 000.00) ordered to be repaid by Yambo.

d.	If Yambo breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained to serve the rest of his sentence in custody.

Judgment accordingly:
___________________________________________________________
Office of the Public Prosecutor: Lawyer for the Applicant 
Office of the Public Solicitor: Lawyer for the Accused