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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. 96 OF 2013
THE STATE
–v-
MATHIAS WATT
Wewak: Kirriwom, J.
2014: June 6
(NO.2)
CRIMINAL LAW – Sentence – Convicted of stealing as employee – Abuse and breach of position of trust – Prisoner married to sister of business owner – Prisoner's wife held responsible management position in company's operation – Prisoner took advantage of his marriage to become privy to secret safe combination numbers and stole office keys from his wife's bilum to carry out theft – Prisoner had confidential information of the money in the safe through his wife – Lack of remorse – No restitution – Money stolen was spent on excessive drinking spree over a period of three days - Trial was unwarranted – Sentenced to four years.
Cases cited:
The State v Johnson Maurani (2008) N3560
Wellington Bellawa v The State [1988-89] PNGLR 496
Counsel:
D. Mark, for the State
F. Fingu, for the Accused
DECISION ON SENTENCE
6th June, 2014
1. KIRRIWOM, J.: This accused was convicted after a trial on a charge of stealing under section 372 of the Criminal Code. He stole K11,300 belonging to Waiu Ltd, a nationally owned company belonging to his wife's brother, Kenny Samuel. The accused got married to Rachael Samuel, who was the Depot Supervisor of the company's Maprik Operations. She was involved in the administration of the company in its Bonz premises at Maprik and after marriage to Rachael Samuel, the accused took up employment in the Operations.
2. He and Rachael Samuel lived inside the company premises. In the early hours of the morning of 24th October, 2012 the prisoner sent Rachael to feed their pigs outside the fenced area of the company. While the wife was away he took the keys to the office and the safe and proceeded to the warehouse where he entered the office and opened the safe using the secret code he somehow learnt of it and took out K11,300 in the safe that was delivered only few days ago by one of Rachael's brothers for the company's operations in Maprik. All that money was in K100 note denomination.
3. From 6:00am that day after coming into possession of that money, the accused went on a drinking spree with friends, mostly fellow work mates from Waiu Ltd and police from Maprik. He not only bought drinks but threw away money to friends recklessly as if he had so much that giving some away did not hurt his pocket or wallet. People who saw him spending lavishly said that he was carrying around substantial cash in K100 notes.
4. Maprik did not have a bank or banking facilities at the time of this offence and the accused had no reasonable explanation as to how he came into possession of that money apart from accusing two politicians of paying him varying sums of money by way of bribes for election related favours he did for them during voting and counting in the 2012 National Elections. One of those he named is a current sitting member. I will be recommending to the Police Commissioner for this story to be investigated and if found to be true, the accused and those he implicates be appropriately charged with criminal offences. He also stated that the monies were from his NPF savings which he received every month in the sum of K6000 per month and his brother in Port Moresby was in-charge of that account. However, he produced no evidence to support his claim. In the end the court could not believe a word of what he was saying, jumping from one story to another, being the source of his sudden change of luck when only a day before he was forced to sell his mobile phone because he needed money badly for his drink and rejected his evidence as recent invention and fabrication.
5. For purposes of sentencing, the prisoner is liable to be punished under subsection (5)(f) or even subsections 7 and 10 which create different categories of stealing which carry a maximum penalty of seven (7) years. But it must be noted that since the recent amendment offences under section 372 are capable of attracting maximum determinate term of 50 years without remission and without parole and even mandatory life imprisonment. Section 372 as amended provides:
"372. Stealing.
(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.
(1A) If the thing stolen is money exceeding K1 million and does not exceed K10 million an offender is liable to imprisonment for a term of 50 years without remission and without parole.
(1B) If the thing stolen is money exceeds K10 million, the penalty shall be life imprisonment.
(2) If the thing stolen is a testamentary instrument, (whether the testator is living or dead), the offender is liable, subject to Section 19, to imprisonment for life.
(3) If the thing stolen is anything in course of transmission by post, the offender is liable, subject to Section 19 to imprisonment for life.
(4) If the thing stolen is an aircraft, the offender is liable to imprisonment for a term not exceeding 14 years.
(5) If—
(a) the thing is stolen from the person of another person; or
(b) the thing is stolen in a dwelling-house, and—
(i) its value exceeds K10.00; or
(ii) the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; or
(c) the thing is stolen from a vessel, vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another; or
(d) the thing is stolen from a vessel that is in distress or wrecked or stranded; or
(e) the thing is stolen from a public office in which it is deposited or kept; or
(f) the offender, in order to commit the offence, opens a locked room, box or other receptacle by means of a key or other instrument,
the offender is liable to imprisonment for a term not exceeding seven years.
(6) If the offender is a person employed in the Public Service, and the thing stolen—
(a) is the property of the State; or
(b) came into the possession of the offender by virtue of his employment,
he is liable to imprisonment for a term not exceeding seven 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.
(8) If the offender is a director or officer of a corporation, and the thing stolen is the property of the corporation, he is liable to imprisonment for a term not exceeding seven years.
(9) If the thing stolen is—
(a) property that has been received by the offender with a power of attorney for its disposition; or
(b) money received by the offender with a direction that it should be applied to any purpose or paid to any person specified in the direction; or
(c) the whole or part of the proceeds of a valuable security that was received by the offender with a direction that the proceeds of it should be applied to a purpose or paid to a person specified in the direction; or
(d) the whole or part of the proceeds arising from a disposition of any property that have been received by the offender by virtue of a power of attorney for such disposition, the power of attorney having been received by the offender with a direction that the proceeds be applied to a purpose or paid to a person specified in the direction,
the offender is liable to imprisonment for a term not exceeding seven years.
(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 seven years.
(11) If the thing stolen is a fixture or chattel let to the offender to be used by him with a house or lodging, and its value exceeds K100.00, he is liable to imprisonment for a term not exceeding seven years.
(12) If the offender, before committing the offence—
(a) had been convicted on indictment of an indictable offence against any provision of this Division; or
(b) had been twice previously summarily convicted of an offence against any such provision punishable on summary conviction whether or not each of the convictions was in respect of an offence of the same character,
he is liable to imprisonment for a term not exceeding seven years."
6. The maximum penalty provided by law is usually reserved for the worst case scenario. Whether this is a worst case depends on the circumstances of the offence and that of the offender.
7. Matters that aggravate this offence include serious breach of trust, failure to disclose the truth to his wife once the theft was discovered, making serious allegations implicating others in criminal acts as his source of sudden windfall gain and no restitution made to date.
8. In his favour I bear in mind that this is the prisoner's first offence against the law and he expressed remorse for his actions while undertaking to repay what he stole from the family he was married to. However that undertaking could now be a wishful thinking because without a job and without any prospects of being re-employed by Waiyu Ltd, his chances of repaying what he stole looks almost impossible to nil.
9. The prisoner is 41 years old and comes from Umbukul village, Kavieng New Ireland Province where he went to school and completed Grade 10 at Utu High School in 1990 and went onto Passam High School where he completed Grade 12 in 1992. He completed tertiary education at Shinjiku University in Osaka Japan where he obtained a degree in Management and Occupational Health and Safety and Computing between 1993 and 1997. This qualification enabled him to secure employment with mining companies in Occupational Health and Safety areas and in other jobs as well in Government Department and other public authorities. His last employment was with Lihir Gold Mine when he met his wife through correspondence. He came to Wewak in 2010 on one of his breaks to connect with her. They got married soon thereafter and he never went back to Lihir and has been here since. Sounds like a fairytale marriage and soon got himself a job in the company that his wife was employed in.
10. Counsel for the prisoner referred to The State v Johnson Maurani (2008) N3560 where the prisoner was sentenced to three years and six months for stealing a chainsaw. It was suggested that a term between 3 and 4 years was most appropriate.
11. State counsel submitted that the sentence must not be wholly suspended otherwise agreed with the defence on the range of sentence.
12. I also had recourse to Wellington Bellawa v The State [1988-89] PNGLR 496. Matters pertinent for consideration in dishonesty and stealing offences were discussed at length in Belawa's case. I find it useful to quote the following passage from Bredmeyer, J which incorporates the English position into our judicial decision making on sentencing of offenders:
"There are numerous factors which should be taken into account on sentence in this type of case and I have been assisted by the guidelines given by the English Court of Criminal Appeal in Barrick's case (1985) 81 Cr App R 78 at 82. With some adaptation from that list I set out the major factors as follows:
(1) The amount taken.
(2) The degree of trust placed in the offender including his rank. The higher the position of trust the greater the culpability. Thus if the offender holds a very senior position in the public service or in a company, the greater the punishment that will be imposed. The principle here is that "from whom much is given, much is expected". The person who enjoys a high position of trust and respect and enjoys high salary and other perquisites should be expected to carry out his duties honestly and to set an example to others.
(3) The period over which the fraud or theft was perpetrated. Did the offender take the money on one day or was his guilty intention put into effect over a longer period of time?
(4) The impact of the offence on the public and public confidence.
(5) The use to which the money was put. Was the money put to some worthwhile purpose or was it wasted on luxuries or idle living?
(6) The effect upon the victim. Was the theft covered by insurance, for example, or was the money stolen from a widow and children waiting for their late husband's pension? Was the theft from family members etc?
(7) Restitution of the money whenever paid is always a mitigating factor because it restores the victim to the position he was in before the commission of the offence.
(8) Remorse. This is related to (7) and (9). If restitution is made, it may or may not show remorse. The sooner restitution is made after the commission of the offence, or after the detection of the offence, the more clearly it shows remorse. If it is made on the eve of the trial immediately after conviction, it does not show remorse.
(9) A plea of guilty or not guilty. A discount is usually given for a plea of guilty. In some cases a plea shows remorse especially where the State evidence may have some weakness; in other cases it may not show remorse but purely submission to the overwhelming weight of the State case.
(10) Any prior record. I consider the absence of any record of little relevance in this kind of serious theft. Normally the offender has no prior convictions; if he did have prior convictions, he would be unlikely to be holding the position from which he committed the theft.
(11) The effect on the offender. The principal factors to consider here are: did he lose his job and is he likely to obtain another job?
(12) Matters of mitigation special to the accused such as illness, being placed under a great strain by excessive responsibility, or perhaps a long delay in being confronted with his dishonesty and the start of his trial."
13. From these guidelines, those that are relevant factors to consider on sentence in this case are:
The amount taken
14. The sum of K11,300 is substantial for a local businessman struggling to conduct business in a competitive world and particularly in remote district locations where access to main supply routes is difficult.
How the money was used
15. The prisoner in this case did not need the money. People steal from other people for all kinds of reasons. Courts tend to view the crime with some degree of leniency if the person stole something for survival reasons or for other pressing needs and stealing was the last resort. The prisoner had no reason to steal except that he was 'frustrated' he said with his in-law for laying him off work indefinitely for an earlier issue with the company. He took his revenge by stealing this money from the company.
16. And what did he do with that K11,300? He drank it all away within a space of few days. This is the type of use of the money stolen that does not attract sympathy of the court in sentencing.
The quality and degree of trust reposed in the accused
17. The degree of trust reposed in him was high given his close relations to the owner of the company through marriage to his sister. He was part of the family and family always thrives on the strength and commitment of the family members in good and bad times. He became possessed of information on the safe lock combination numbers and physical possession of the keys to the office and the safe because of that special relationship to a member of the family who was his spouse that gave him the access to the premises to carry out his theft from the family. It is hard to imagine that this man buys his way into this family with his love for their sister in 2010 and two years later he steals from them like the story of the thief who came in the night.
The effect upon the victim of crime
18. The victim was badly hit and took him a long time to recover from the loss. Kenny Samuel, the proprietor of Waiyu Ltd, is a small businessman buying and exporting cocoa in Maprik and Drekikir areas. To lose K11,300.00 can have massive impact on the business. His response is captured in the PSR which shows that the company was behind in rental payments of its warehouses in Bonz and Maprik for months and he wants the prisoner to learn his lesson in prison. Even his wife switched off her mobile and became unreachable. It would not be surprising if the tender and caring love that once burned between them is now extinguished forever by the crime he committed against the family.
The effect on fellow employees
19. Much of the money stolen was drunk up in the huge quantities of beer and spirits that the prisoner bought with the money he stole and many of his drinking companions were fellow Waiyu employees including one of his on in-laws, Ian Samuel, who also drank with him. It was Ian Samuel who blew the whistle on the prisoner when he saw him spending large sums of money on beer that night when they were out together. He knew something was not right.
Restitution
20. Making good the loss occasioned is always an important consideration. The prisoner has not repaid one toea of this money to the business of his in-laws. At the time of his apprehension and subsequent arrest, it is said that about K900 was in his possession which was retrieved by the police. What is retrieved by the police is not the same as received by the owner of the business. There is no evidence that that money found its way to Waiyu Ltd. So the only explanation is that there is no restitution at the time of this trial.
The effect upon the offender
21. The prisoner was sacked upon discovery of the theft when his wife reported to her brother. The attitude from the proprietor of the company is that the prisoner must get his just desserts for his wrongdoing. It is hardly ever likely that he will find another employment with Waiyu Ltd. His loss of employment is his own doing and he deserves the consequences.
22. Wellington Bellawa case prescribed the following sentencing scale that can be adjusted upwards or downwards according to those factors set out earlier. The scale of sentences are as follows:
23. Wellington Bellawa was decided more than two decades ago and has been criticised as being out of date and incidences of white collar crimes have sky-rocketed and gaol sentences were no longer having any deterrence on would be offenders. In answer to this call, the Parliament recently passed amendments to the criminal law where stealing offences can now attract life sentences in certain cases for example sub-sections (1A) and (1B) of section 372 of the Criminal Code have been inserted in the recent amendments which provide the following punishment:
24. The recent amendment to the criminal law increasing sentences for stealing offences is a clear indication on the part of the Parliament that the sentences for white collar crimes must go up.
25. The prisoner in this case is highly educated but used his intelligence in the wrong way. He allowed his greed to take better of him when he did not use his common sense to show respect for his in-law and support him in his success as a local businessman instead of hurting his business by stealing from him.
26. A strong deterrent sentence is necessary to punish the prisoner for his crime as a lesson to him and others with similar inclinations. The sentence must reflect the recent trend of rising scale of punishment as is desired by the people through their highest law making institution, the National Parliament.
27. Aggravating factors far outweigh any considerations that mitigate the severity of the offence particularly when considering the lies that the prisoner told in court as to how he came into possession of the money. First it was money he received for his landscaping work, second it was money he received from his NPF entitlements and then when he gave his evidence, he dropped a big surprise story of receiving kick backs for doing dirty works for two candidates during 2012 National Elections while engaged as electoral officer during polling and counting, one of whom is now a sitting member of Parliament. This story took his lawyer by surprise and the entire courtroom stood still for that moment when he made those revelations. He never explained the nature of those dirty deeds he did for the candidates he named. Whether there is any truth in this story or not, is a matter for speculation. But a good one for police to investigate and ascertain the veracity of the story and appropriate action is taken against those implicated. I am therefore strongly recommending to the Police Commissioner that this serious allegation be investigated and put to rest.
28. This is not an appropriate case for partly or wholly suspended sentence because the prisoner does not deserve it from the way he took the court on a merry go round running a trial which was most unnecessary when, as intelligent as he is, he knew that the court was wasting its time running a trial.
29. I sentence the prisoner to four years imprisonment in hard labour. I deduct six months and 10 days for time already spent in custody awaiting sentence. This now leaves three years five months, two weeks and six days to serve.
30. I order that the prisoner's bail money is paid to Waiyu Ltd as part restitution plus any other monies confiscated by the police from the prisoner at the time of his arrest are also to be paid to Waiyu Ltd.
Sentenced accordingly
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence
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