N5697
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 350 OF 2013

BETWEEN:

STATE

AND:

FLORA VAGI

Waigani: Salika, DCJ
2014: 25 July

PRACTICE AND PROCEDURE – Criminal law – sentence – dishonesty offence – misappropriation – Section 383A of Criminal Code – position of trust
PRACTICE AND PROCEDURE – Criminal law – sentence – Accounts Clerk – dishonestly applying money to her own use and use of others – amount taken K65,924.90

Cases cited:

Belawa v the State [1988-89] PNGLR 496
State v Eliakim N3190
State v Johnson Bale N2626
State v Neville Miria N5102 
State v Timothy Tio N2265 
State v Pongowen Popei and Mark Regione, CR 659 and 660 of 2012 Unreported and Unnumbered 

Counsel:

Mr W Paka, for the State
Mr J Mesa, for the Defense

25th July, 2014 

1.	SALIKA DCJ: Introduction: The prisoner pleaded guilty to one count of misappropriation of K65,924.90 the property of PNG Gardeners

2.	In her employment as an accounts clerk with PNG Gardner the prisoner banked monies received from flower sales at the flower shop in Waigani and at the Adventure Park, 14 Mile. Altogether between June 2012 and September 2012 she pocketed cash of K65,824.90 while she banked the cheque payment.

3.	After an audit the discrepancy was discovered and she owned up to her crime.

ISSUE

4.	The court is now faced with the appropriate type of punishment to impose on the prisoner.

5.	The maximum penalty for misappropriation in these type of cases is 5 years imprisonment but in this case because she misappropriated money which came into her possession by virtue of her employment and with the money stolen exceeding the maximum sentence is 10 years imprisonment, subject to s.19 of the Criminal Code.

6.	Misappropriation is a serious criminal offence. It involves dishonesty in a mind of a person who is committing an offence. The thing or money is physically in that persons hands but that money or thing is not his or hers. In a lot of cases that person may have a need for that kind of money and he or she sees the money. All the feelings of the mind and the body are set in motion as to what to do with the thing or money in his hand. Get it or bank it. The mind gets the better of the situation. Get it. It's done. There is this feeling of guilt but there is this other voice saying its okay, get it over it. You will be okay. No one raises anything and the person feels good, the incident is forgotten and the next few days here is the money again in your hands. Bingo, I'll do it again. This scenes are repeated over and over again and the person is in a "no return zone". It becomes a habbit and then that habbit develops into your character. It becomes part of you and your life. This in my respectful opinion is the cycle of how dishonesty offences are committed.

Case Precedents

7.	The Supreme Court in Belawa v the State [1988-89] PNGLR 496 confirmed a sentence of 2 years imprisonment for misappropriation. In that case the prisoner misappropriated K1,979.00 and had the money fully reimbursed but the court said the 2 years imprisonment was not excessive.

8.	In Doreen Liprin v The State, the National Court sentenced the prisoner to 3 years imprisonment for misappropriation of K6,000.00. The Supreme Court on appeal reduced the sentence to 18 months imprisonment.

9.	In The State v Eliakim N3190 the prisoner pleaded guilty to one count of conspiracy to defraud and one count of stealing K3,360.01. He was sentenced to 18 months imprisonment for submitting ghost names as employees and obtained cheques for those ghost employees. He did this for 3 months before he was caught.

10.	In The State v Johnson Bale N2626 the prisoner was sentenced to 4 years imprisonment for stealing K78,074.03 from his employer. The prisoner was in a position of trust and he abused that trust.

11.	In The State v Neville Miria N5102 the prisoner was sentenced to 4 years imprisonment for stealing K100,000 from his employer the Bank South Pacific. He had premeditated the crime before executing it.

12.	In The State v Timothy Tio N2265 the prisoner there was sentenced to 5 years imprisonment for stealing a chain saw valued at K8,000 from his employer and then sold it to a third party for K3,000.00

13.	In the recent cases of The State v Pongowen Popei and Mark Regione, CR 659 and 660 of 2012 Unreported and Unnumbered judgement given on 14 April 2014 the court sentenced the two men to 3 years to conspiracy to defraud and 4 years for stealing with both sentences to be served concurrently.

14.	By the foregoing and other numerous unmentioned case precedents the National Court is consistently imposing stern punishments to offenders with no sign of those sentences having any deterrent effect on prospective offenders. It is also evident from the number of stealing and misappropriation cases listed in our Crimes Track cases. There are 3 crime courts in Waigani. One of those crime tracks is this track which is the Fraud Cases Track. This track is the heaviest of the 3 courts. The track is even heavier that the other 2 crimes track put together. This trend shows that more and more fraud and dishonesty cases are committed than the other crimes. What lessons can we draw from this trend. I think I will leave that to each and every one of us to seriously ponder over. It is food for thought for the moment.

Sentencing Guide

15.	The Belawa case precedent lists down factors and consideration that are relevant and which assists the sentencing tribunals in coming to a sentencing decision. Those factors are:

-	Amount taken
-	Degree of trust held by the offender
-	Period offence was committed
-	Use to which the stolen money was put
-	Effect on the victims
-	Impact of offence as public and public confidence
-	Offenders history
-	Effect on the offender himself
-	Restitution

Amount taken

16.	 The prisoner stole K65,824.90 which is a lot of money by PNG standards.

Degree of trust held by the offender

17.	The prisoner was an accounts clerk and was responsible for handling monies for banking, she was therefore in a position of trust. Her employer entrusted her with that duty but she abused that trust by stealing that money and using it for herself.

Period offence was committed

18.	The offence was committed between June and September of 2012, a period of 4 months.

Use to which the stolen money was put to

19.	She applied the money herself and for the benefit of her relatives. She deposited K700 for her brother and K950 for her father.

Effect on the victims

20.	The victim is the PNG Gardner Limited her employer which is now K65,824.90 poorer.

Impact of offence as public and public confidence

21.	 There is no evidence on this factor.

Effect on the offender himself

22.	The immediate inevitable effect on the offender is that she lost her job with this employer. It is my hope that a wider impact will be realised and felt by her that whatever false hallucinations she might have had of living in a higher plane has brought her crashing down to ground zero and that she will be able to pinch herself and say that was just a bad dream or that, that was just a figment of my imagination – but now I am back to base, back to reality and not on cloud 9.

Restitution

23.	The K65,825.90 remans outstanding; offers of restitution is now made and how it might be restituted. The suggestion or proposals put forward are rather too ambitious and may be unrealistic and furthermore not guaranteed. The prisoner is currently employed with another company and she suggested payment of K400 per fortnight to repay the amount stolen. On my calculations it will take over 6 years to restitute the entire K65,824.00 with that amount of deduction, and that in itself is not guaranteed as we do not know if she will remain employed for the 6 or more years.

Sentence

24.	The Prisoner was in a position of trust. She was handling large sums of money for and on behalf of her employer. The feeling and the sight of a lot of money in her hands must have been too tempting for her.

25.	The general trend in sentencing for these types of offences is that the higher the amount stolen, the higher the sentence. It is also generally the trend that the higher degree of trust, the higher the sentence. It is also true to say that the higher your position is the higher your responsibility the higher the sentence.

26.	Although she was an accounts clerk she had that duty to be loyal to her employer and be honest. She allowed herself to fall from her position of trust.

27.	I take into account her plea of guilty and her remorse for what she did. She is a first time offender. I take into account her family situation. I have considered her offer of restitution but in all fairness to her I do not think that will work out for her. I think she will put other innocent people under a lot of undue pressure.

28.	In the circumstances I sentence her to 3 years imprisonment with hard labour.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner