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State v Yala [2022] PGNC 357; N9767 (17 June 2022)

N9767

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 215 OF 2018

THE STATE

V

REBECCA YALA

Wewak: Miviri J
2022: 08^th & 17^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE –Stealing s.372 (1) CCA –Plea – Guilty – PSR MAR Ordered – No Means to Repay – First Offender – K 7, 600.00 –Property of Employer – No Initiative Taken 4 to 5 years to Repay – No Evidence Other Alternatives to Sentencing – 3 years IHL.

Fact
Accused was Shop assistant & cashier.
She stole money through eftpos machine
transferring from company account to
her account seven times.

Held
Plea.
First Offender.
PSR MAR discretion of Court.
No Evidence means to repay.
3 years IHL
Bail Refunded forthwith.

Cases Cited:
State v Moripi [2017] PGNC 202; N6867
Public Prosecutor v Bruce Tardrew [1986] PNGLR 91
Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC564
State v Thomas Jim Nori [2016] N6467.
State v Eric Emmanuel Vele [2002] PGNC 93; N2252.
State v Zuvani [2004] PGNC 127; N2641
State v Duk [2009] PGNC 247; N3924
Wellington Balewa [1988-89] PNGLR 496.
Lawrence Simbe v The State [1994] PNGLR 38
Kumbamong v The State [2008] PGCS 51; SC1017

Counsel:

F. K. Popeu, for the State
A. Kana, for the Defendant

SENTENCE

17^th June, 2022

1. MIVIRI J: This is the sentence of a shop assistant and cashier of Taur Enter prices Limited Store who used the Eftpos Machine and made seven transfers of money into her account to the total value of K 7, 600.00 the property of her employer.
   
2. Between 15^th of December 2017 and the 05^th day of January 2018 Rebecca Yala of Saragwandu, Wosera Gawi, East Sepik Province was employed as a Shop Assistant and Cashier with Taur Enterprises Limited. She transferred different sums of money using the Eftpos Machine and made seven transfers from the Company Taur Enterprises Limited account, operated at Westpac account number 6004440090 into her own account Rebecca Yala, account number 6006705778, also at that bank to the total of K 7, 600.00 the property of her employer. The Company Manager found the matter out after he could not access moneys from the Account because the balance did not have the money. He referred the matter to police upon investigations the Accused was charged.
   
3. She was indicted with Stealing under the Criminal Code pursuant to section 372 (1) (7) & (10):
   

“A 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 year.” ..................

(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..................

(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........”

4. Upon arraignment she pleaded guilty stating that she was asked by another employee in the Store one Roy Ray Romoh, who used her card to transfer that money to her account and used it. But the transaction records did not show that human distinction. It was her account and it showed the transaction done from the Employers account into her account confirmed by the Bank records. It was an offence against her. She made no admissions in the record of interview which would have made no difference in the light of the records of the bank. The plea was confirmed and she was convicted. Electronic records do not lie nor can they tell lies because it is those who have the know-how who can tamper. That is not the case in the records relied against the Prisoner. Her plea is confirmed she is convicted as laid by the Indictment.
   
5. In allocutus, she recounted that; “I want to say sorry to the Court, God, the father of the Company for the incident. I say very sorry. I am married and have three children in school. My husband is a bus driver. I do marketing to look after my children. Mercy on me put me outside so that I can pay back the money. It was Roy who transferred the money when he took my card.”
   
6. She shifted the blame to another Roy who was also referred to Police for the same matter together with another staff within the company. That explanation was not made to police when she was initially taken in by police on the 13^th June 2018 when a record of interview was conducted. She elected to remain silent her right but then it would have given opportunity for police to verify that fact. On the eve of sentence, it was late and did not sit very well with her request to pay back the money. And time be given for her to effect. Since December 2017 to 2018 up to the present. 17^th June 2022, it was almost four to five years within which she had made no payment of that money back to the Company. It is very good basis to work out a repayment schedule where She has taken the initiative to make the payment back to the Company. Where it has been left out in the cold up to the eve of sentence, it is in my view an attempt to pay out of jail. She has no real means to pay now demonstrated by the MAR and PSR. She has not taken the initiative. It is not a genuine effort to pay back what has been unlawfully taken. The section specifically says it is a jail term of seven years imprisonment where she has stolen as a servant, and the amount is in excess of a K 1000.00. That is her case her both as a servant and that the money is in excess of the K 1000. 00.
   
7. Because it is a very serious abuse of trust where she steals from the hand that feeds her with her family. She has turned around and cut off that hand without any sense of shame given the confidence and trust the employer has placed upon her to be in possession of moneys that are of the company. The eftpos that is of the company generating revenue of the company into its bank and out. She has abused that in her role as the shop assistant and cashier. And it was not once but seven times in various amounts that have culminated to the sum of K 7, 600. 00 in cash. That is a lot of money for the company. She is aged 35 years old having been born on 16^th February 1987. And married with three children in school. Originally from Saragwandu village, Wosera Gawi district, East Sepik Province. She is resident at Kreer Compound with her husband Stanley Ruben Sauba. She has no prior convictions and is a first offender. She was initially arrested by Police on the 15^th February 2018.
   
8. Counsel applied for presentence and means assessment reports in the light of his plea which was granted for both reports to be complied and filed in court. That report dated PSR 09^th June 2022 filed the 15^th June 2022, including MAR also dated same is in her favour without the foundation to pay back that money. She is described as of good character by her Ward 8 Leader Wewak Urban Local Level Government. That maybe so, but there is no evidence of the means from which she is going to source to be able to pay back K7, 600.00, back to the complainant company. She has been marketing since 2017 up to the present, and made not a toea of that money back to the company, the victim in any way or form. She has taken no serious step to amend what she has offended to the company. Presentence means assessment report do not establish any sound basis from where the money can be drawn to make good what she has taken. In fact, the means assessment report states does not cite any source from which the money will come, if there is suspension on condition to repay. I adopt the views set out in State v Moripi [2017] PGNC 202; N6867 (31 July 2017), that there must be real means evidenced for suspension to take place for the recovery of the money stolen. Suspended sentences are not given without the means realistically to recoup loss to the complainant victim. And this is clear, because there is a vacuum without any substance on the basis of which moneys will not be forth coming, hence reverting to the course that has already being seen up to now. It would serve no utility to suspend sentence where there are no real means to recoup what has been lost. Because the principles to suspend sentence set out in Public Prosecutor v Bruce Tardrew [1986] PNGLR 91 are not met here that, "suspension of sentence pursuant to section 19 (6) of the criminal code is, or maybe appropriate in three broad categories. The categories are not exhaustive (1) where suspension will promote the personal deterrence, reformation, or rehabilitation of the offender; (2) Where suspension will promote the repayment or restitution of the Stolen money or goods; (3) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or health." Hence it leaves no option other than a custodial term appropriate given.
   
9. Reformation or rehabilitation is without any basis here upon the prisoner material that has been furnished by the presentence and means assessment report both set out above, do not evidence that there must as in the case of Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC 564 (27 August 1998). Justice is served not on emotions but on the basis of the facts led not otherwise. The facts here do not sway that is appropriate given. Nor on the basis of restitution as that has not been demonstrated here. It would be an error of law to so act without.
   
10. And in my view that is firmed with the stance this court has taken out in similar set of facts circumstances. In State v Thomas Jim Nori [2016] N6467 sentence of 2 years IHL suspended on payment of a fine of K10, 000.00 was imposed. That is not the same here because prisoner does not demonstrate any credibility with substance here for repayment. In the State v Eric Emmanuel Vele [2002] PGNC 93; N2252 Prisoner there took the initiative to make repayment of K11,091.23 even before the formal orders of court and had a balance remaining of K4, 008.77 to settle the money stolen from the Port Moresby Westpac Bank Limited where he was employed as Supervisor international Bank centre. And the presentence report recommended probation with community supervision which the court acceded to in view of that being so in the light of Acting Public Prosecutor v Don Hale (supra) that criminal sentencing is a community responsibility. The Sentence there was 2 and a half years suspended on very strict conditions of Probation. The circumstances here do not fit that and it would not be the same to here to follow suit.
    
11. In State v Zuvani [2004] PGNC 127; N2641 (25 August 2004) prisoner pleaded guilty to transferring paperless K22, 685.43 over a period of time property of her employer Bank of South Pacific Limited into a relatives account where she used the save card withdraw and used the money. She had almost made complete and full restitution of that money back to the bank. The court considered and imposed 4 years wholly suspended on seven conditions on probation attaching. There is no repayment at all here nor any means to so repay here.
    
12. Which was the same in State v Duk [2009] PGNC 247; N3924 (15 July 2009) prisoner was an accountant of Wau Microbank. He dishonestly obtained and used K32, 800 in customer’s deposits that he applied to his own use contrary to section 383A of the Code. He never paid back any amount of that money. The court considered and imposed 4 years IHL none of which was suspended given that he had not repaid nor was there any facts to impose otherwise. He was a graduate from the Divine Word University with a Bachelor of Business Studies. The amount there is lower than the present.
    
13. You have not given any good reason for committing the crime. You continued to take without any sense of guilt or responsibility. You do not disclose any reason at all for why you were doing what you were doing. You used the money and have not opted to pay any toea of that money back to the victim company at all since. I adopt and apply the principles of sentencing in Wellington Balewa [1988-89] PNGLR 496 in determining an appropriate sentence in your case. K7, 600.00 has not been recovered by the victim since December 2017 up to the present. He trusted you and you did not return that trust. It is now four years almost five years without a toea paid back. You personally benefitted to the detriment of the complainant. Victim cannot get that money you do not have the means to repay. There is no tangible means for restitution evident. And K40 000 to K150 000 is 3 to 5 years imprisonment. That is a guide the penalty provision prescribes 7 years imprisonment as maximum. And that is for the worst case of which isn't the case here in view of all the matters considered and the light of which an appropriate sentence would be determined by reference to its own set of facts and circumstances, Lawrence Simbe v The State [1994] PNGLR 38 which views are also set out in Kumbamong v The State [2008] PGCS 51; SC1017 (29 September 2008) a trial Judge's discretion to impose appropriate sentence is not restricted by the guidelines as that would amount to legislating and restriction of it.
    
14. This is a very prevalent offence and, in this circuit, there has been a high number of cases of stealing and misappropriation seen out here. Here also a high number has been by woman and therefore it is no light matter to be brushed aside with a non-custodial term. Especially where there are no real means to recoup that money stolen. It would not be erroneous to give what the circumstances facts of the case call upon for the prisoner here. She has called out her sentence by her own facts and circumstances, tariff and range are guides and do not necessarily weigh down the discretion here. Accordingly, the sentence is warranted and adjudged to be 3 years imprisonment and I so impose that upon you. I make no order for suspension as there are no material to sway other than a custodial term, which is appropriate given all the facts and circumstances here.
    
15. The sentence is therefore 3 years IHL. Any time in custody before grant of bail is deducted forthwith. Bail is refunded forthwith.
    

Ordered Accordingly

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitors: Lawyer for the Defendant