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State v Kandoro [2025] PGNC 439; N11581 (10 November 2025)

N11581

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) NO. 113 OF 2024

THE STATE

V

ROCKY KANDORO

WAIGANI: BERRIGAN J
16 OCTOBER, 10 NOVEMBER 2025

CRIMINAL LAW–SENTENCE – S 372 of the Criminal Code – Stealing – By employee - K48,000 – Guilty plea - Sentence of 4 years – One year suspension to reflect restitution of K19,800 prior to arrest and charge.

Cases cited
Wellington Belawa v The State [1988-1989] PNGLR 496
The State v Kelly Kanjip (2014) N5590
The State v Neville Miria (2013) N5102
The State v Joan Kissip (2020) N8340
The State v Vele Genamo No 2 (2022) N9805
The State v Roselyn Waiembi (2008) N3708
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
The State v Benedict Simanjon (2020) N8637
State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252
The State v James Paru (No 3) (2021) N9248
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320

Counsel
J Tugah & S Wak, for the State
J Kolowe, for the accused

DECISION ON SENTENCE

1. BERRIGAN J: Rocky Kandaro, pleaded guilty to one count of stealing property belonging to his employer, Eugene Kemben, contrary to s. 372(1)(7)(a)(10) of the Criminal Code.
   
2. The offender was employed by Eugene Kemben from January to March 2023. Mr Kemben owned a company called Mapusi Investment Limited which operated a number of trade stores within Port Moresby. The offender was responsible for overseeing the daily activities of the trade stores including collecting daily takings and delivering them to the owner’s office in Pari Village, outside Port Moresby.
   
3. On 23 March 2023 the offender collected K48,000 in cash takings from the storekeepers at one of the stores located at Gerehu Stage 4. Instead of delivering the monies to Mr Kemben he went to the airport and boarded a flight at 3pm that day to Goroka. The offender was brought to police by Mr Kemben’s tribesmen following which he was conveyed to Port Moresby. He has reimbursed K19,800.
   

Sentencing Principles and Comparative Cases

4. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:
   
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
       
5. In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount misappropriated is between:
   
   1. K1 and K1000, a gaol term should rarely be imposed;
   2. K1000 and K10,000 a gaol term of up to two years is appropriate;
   100. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
   4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
      
6. That guide is unchanged for our purposes: see David Kaya and Philip Kaman v The State (2020) SC2026. Whilst the scale of tariffs in Wellington Belawa is relevant it is to be noted that the offender in this case has been convicted of stealing, which attracts a maximum for our purposes of 7 rather than 10 years.
   
7. The State submits that a sentence of four years of imprisonment is appropriate having regard to the following cases:
   
   1. The State v Kelly Kanjip (2014) N5590, David J, in which the prisoner pleaded guilty to stealing K9,000 from his employer, Bintagor Trading Company Limited. He received K19,800 from a customer upon delivering cargo and shared the money with another person. He was on the run for four years until apprehended at Banz. He was sentenced to 3 years imprisonment in hard labour;
      
   2. The State v Neville Miria (2013) N5102, Gauli AJ, in which the offender, a data input officer with BSP, pleaded guilty to stealing K100,000 from his employer. He transferred the monies to an account in a single transaction and then flew to Madang the next day where he accessed the money personally and through another person. The theft was discovered promptly by the bank, which limited its losses to K28,183.05. The offender was sentenced to 4 years of imprisonment. One month in custody was deducted and 2 years of the balance of 3 years, 11 months was suspended on conditions including restitution of the monies lost;
      
   1. The State v Joan Kissip (2020) N8340, Berrigan J, in which the offender was found guilty and convicted after trial of stealing amounts of K7,350, K5,290, K11,500 and K12,000, or a total of K36,140 from four different ATMs whilst employed by BSP. An effective sentence of four years was imposed, wholly suspended on strict conditions of restitution and community service.
      
8. The Defence seeks a sentence of two to three years, wholly suspended. In support of his submission, he referred to the following cases:
   
   1. The State v Vele Genamo No 2 (2022) N9805, Wawun-Kuvi AJ (as she then was) in which the prisoner was a former employee of BSP Bank who stole K31,033.37 from his employer, whilst working as a Foreign Exchange Teller at the BSP International Exchange section at Jackson’s International Airport. A custodial sentenced of three years was imposed after the prisoner was found guilty following a trial;
      
   2. The State v Roselyn Waiembi (2008) N3708, David J, in which the prisoner whilst employed as Accounts Clerk with Kunai & Co Lawyers stole K15,000 from her employer. She pleaded guilty to the charge of stealing and was sentenced to three years in hard labour which was wholly suspended on condition of restitution.
      

Sentence

9. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. Applying the principles outlined in Wellington Belawa, the following matters have been taken into account in determining an appropriate sentence. This is not a case warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653 applied.
   
10. This offence concerns a significant amount of K48,000 placing it in the fourth category of Wellington Belawa attracting a starting range of three to five years.
    
11. The offence involved a serious breach of trust by an employee for personal gain.
    
12. The offence was one-off. There was no great degree of planning. The State says that the offender had already purchased his ticket to Goroka before he collected the monies but that was not alleged on arraignment and appears to be a contentious issue to the extent it is not admitted by the offender in his interview and there are no documentary records in the depositions to show the ticket was purchased beforehand.
    
13. The offender does say in his record of interview that he was angry with Mr Kemben for putting him in danger by refusing to provide a car or pay for cabs, leaving him vulnerable in PMVs, including on one occasion not long before the offence when some rascals had followed him on to a bus, put a staple gun to his neck and tried to take the cash he was holding but whom he managed to escape by running away. In fairness to the offender I will proceed on the basis that against that background he decided on receipt of the monies to take them and go to Goroka.
    
14. The offender subsequently restituted K19,800. The balance of the monies was used to purchase his ticket to Goroka and otherwise for his own benefit.
    
15. The impact on Mr Kemben has been significant. He lost a lot of money which has inevitably impacted his business. He also claims that he spent significant monies supporting police to locate and then bring the offender to Port Moresby. There does not appear to be any real dispute about that although the offender says that he ultimately surrendered himself to police in Goroka for his own safety.
    
16. The offender is from Rakapos Village, Kompiam Ambum District, Enga Province. He came to Port Moresby in 2023. He is single and has no children or dependents.
    
17. The offender is well educated. He graduated with a Bachelor in Diesel & Heavy Equipment Fitting in 2022 from the Northern Luzon University in Philippines. He was employed by Mr Emben at the time of offence. He has no other work experience.
    
18. In mitigation this is the offender’s first offence. His father, Church Pastor and the Village Court Magistrate from Rakapos village all speak to his prior good character. I will accept in his favour that he surrendered to police in Goroka upon hearing that the complainant was pursuing him. He made full admissions to police during interview. He pleaded guilty. I take these matters into account as indicative of his remorse, which he expressed on allocatus. I also take them into account on the basis that it has saved both this Court and the State and its witnesses the cost and inconvenience of a trial.
    
19. There has been some delay in concluding this matter. The offender absconded whilst on bail from Port Moresby to Western Highlands Province and had to be returned by police. I note the principles applying: The State v Benedict Simanjon (2020) N8637 at [40]; State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252 at [58]; The State v James Paru (No 3) (2021) N9248 at [37]. I make it clear that his absconding is not a factor in aggravation but none of the delay which he has caused until his apprehension on bench warrant is a factor in mitigation.
    
20. The offender expressed remorse on allocutus to God, the Court, his family and the complainant. He says that he repaid a large amount of the monies and that Mr Emben agreed that he could repay the balance but instead went ahead and had him arrested.
    
21. The impact of the offence on the offender has been and will continue to be great. He lost the only employment he has ever had and an opportunity to live and work in Port Moresby. He has lost standing and brought shame to his family back in Enga.
    
22. There are no matters of mitigation special to the offender.
    
23. I have taken into account the offender’s personal circumstances, cooperation with police, early guilty plea, lack of previous conviction, prior good character, sincere remorse, and prior partial restitution (which is a significant matter but which I will return to below to avoid giving it too much weight). Those matters must be balanced against the quantum of the offences, the planning involved, albeit limited, the breach of trust, and the impact on the victim. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.
    
24. Having considered all of the above matters I sentence the offender to four years of imprisonment.
    
25. I exercise my discretion to deduct the time spent in custody, namely two months in 2023 before he was released on bail and a further five months, 7 days since he was apprehended on a bench warrant issued on 2 June 2025 following his failure to appear before the National Court.
    
26. Probation Services does not recommend suspension for the purposes of restitution. It is clear that neither he nor his family has the capacity to restitute. Given the relationship between the offender’s family and Mr Emben it appears that there is some desire for this to happen but they do not have the actual ability to do so. It is also clear given his limited employment and current conviction that the offender has no realistic prospect of repaying the money himself if released for that purpose.
    
27. The family suggests that the offender has a chronic heart condition but there is nothing before me in terms of a medical report to confirm that.
    
28. I do, however, intend to partially suspend the sentence. I intend to suspend one year for two reasons. Firstly, the offender has shown real progress towards rehabilitation. This finding might seem odd given that he absconded. Whilst I have not taken into account his failure to appear as a factor in aggravation it is nevertheless a factor to be considered when determining whether the offender has shown any particular grounds for suspension on the basis of rehabilitation and in normal circumstances failure to appear would militate against that. That must be balanced in this case, however, against the early repayment of almost K20,000 prior to arrest, his early admissions to police, his ultimate guilty plea, and his progress within Bomana as a member of the SDA community since his apprehension (which whilst not of particular significance of its own is still relevant here). In addition, it will also bring the sentence in line with the comparative sentences above when the monies initially repaid are taken into account. At the same time the head sentence will reflect the full amount which he did steal and the suspension will require him to be of good behaviour during the final period of his sentence. This is not an exercise in leniency but an order made in the community interest: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.
    

Orders

29. I make the following orders:
    
    • (1) The offender is sentenced to four years of imprisonment.
    • (2) Time spent in custody, seven months, seven days is deducted from time to be served leaving a balance of three years, four months, 23 days.
    • (3) One year of the balance to be served is suspended upon the offender entering into his own recognisance to keep the peace and be of good behaviour.
      

Lawyer for the State Public Prosecutor
Lawyer for the offender: Public Solicitor