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Public Prosecutor v Morris. [2012] VUSC 180; CR 150 of 2011, 23 of 2012 (15 May 2012)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
Held at Morua, Tongoa
(Criminal Jurisdiction)

CRIMINAL CASE No.150 OF 2011
CRIMINAL CASE NO.23 OF 2012

PUBLIC PROSECUTOR

- v –

LUCY MORRIS

Coram: Chief Justice V. Lunabek
Counsel: Mr Simcha Blessing for the public prosecutor
Mr Brian Livo for the Defendant

SENTENCE

Lucy Morris you appear before the Court today for sentence. You are charged on two (2) separate informations in respect to Criminal Case No.150 of 2011 and Criminal Case No.23 of 2012. You entered guilty pleas to 2 counts of forgery, contrary to section 140 of the Penal Code Act and 2 counts of misappropriation contrary to section 125(b) of the Penal Act [CAP.135].

During your sentence submissions, there is an impression that the charge of misappropriation could not stand alone as the circumstance of the particular case at hand is heavily relied on the fact that the property (money) which was alleged to have been taken, were not entrusted for your custody but the Bank's. Upon further reflection on the definition of the offence of misappropriation under section 123 of the Penal Code Act [CAP.135] and the particular circumstance of your offending in this case, the charge of misappropriation can stand alone. Therefore, despite the application for amendment and the consequential refusal, there is no change to the charge of misappropriation in the two (2) counts of the informations. You will be then sentenced on the two counts of forgery and 2 counts of misappropriation.

This offending occurred in February 2011, while you were working for the National Bank of Vanuatu (NBV) at Tongoa as a teller. Your offending involved the misappropriation by you of VT26,000 from a customer's Bank account and the misappropriation by you of VT100,000 from another customer's bank account.

In both cases, investigations commenced after each complainant lodged complaints to the police alleging that you have misappropriated monies to their respective accounts at the NBV. Suspicion augmented after officers of the NBV spotted irregularities in transactions and amount of monies in both of the complainants' accounts. Bank officers observed that the complainants' passbooks were not updated on the 2nd February 2011 but on each account a withdrawal slip showed that each bank customer withdrew respectively VT26,000 and VT100,000 on that date. You were the teller who facilitated the transactions as your initials were on the withdrawals slip.

Upon enquiries each of the complainants confirmed that none of them had ever wrote up a withdrawal slip on the amounts of Vatu 26,000 and Vatu 100,000 on the 2nd February 2011 nor did each of them obtain the respective said amount from the bank on that date.

One of your duties as a Bank teller is to update a customer's passbook as soon as funds are deposited or withdrawn in the customer's bank account. The amounts deposited or withdrawn must correspond to the amount in each of the complainants' passbook. You were interviewed by the police on 12 September 2011. You admitted your offending to the police. You stated that you filled up the withdrawal slip in the name of each of the complainants and you withdrew respectively VT26,000 and VT100,000 on the 2nd February 2011. You said you used the money to cover up the shortage you had caused from other dishonest transactions you did as you also admitted that you had been defrauding the National Bank of Vanuatu's customers since 2009.

Mrs Lucy Morris, you have offended against the law by committing forgery. Forgery is making a false document, knowing it to be false, with the intent that it shall in any way be used or acted upon as genuine. That was what you did with the Bank's withdrawal slip when you filled them up in the names of the complainants. The law punishes this offence with a maximum penalty of 10 years imprisonment. You have also offended against the law by misappropriating money which has been entrusted to the Bank for custody, to you for return, accounting or any particular manner of dealing (not being a loan of money or of monies for consumption). The law punishes the offence of misappropriation or 12 years imprisonment. Offences of forgery and misappropriation are each serious offences as reflected by the heavy punishment imposed by law.

In considering your sentencing, I consider the same day report provided by the Probation Officer, the prosecution submissions and the submissions and mitigating features provided by your lawyer.

In the present case, you were in a position of responsibility and trust. You abused that trust by stealing money not just from your employer (NBV) but also from other members of your community on Tongoa Island. It will be difficult for these customers to save that much again as the amount of money amounted to their respective life's savings. There is no prospect of any compensation from you according to the information you provided to the probation officer. Your husband is unemployed. You were the sole breadwinner for the family through your work at the National Bank of Vanuatu on Tongoa.

Your chance of ever being employed again in the banking industry is significantly diminished because of your dishonesty.

As a result of your offending, your family is left without an income. But, more importantly and significantly, your offending leaves the two (2) complainants out of pocket for their life savings of respectively VT26,000 and VT100,000 — a total of VT126,000.

You were tempted while dealing with such amount of Vatu at your work as a bank teller. You saw it as means to obtain easy money. I do not accept the financial pressure of life as an explanation of your offending.

Your offending warrants a term of imprisonment. Imprisonment is necessary to mark the seriousness of your offending and to hold you accountable for the harm you have done. This sentence must also promote in you a sense of responsibility for the loss you have caused on other people of your community. It must deter you from similar offending if you are even again put in a position of trust.

You are now 29 years of age and the mother of a young child. Your child is affected as result of your offending. It is unlikely that you find any work that puts you in a position of trust again.

The Court accepts that you are remorseful and the Court also accept that you admitted that you had misappropriated the money when you were interviewed by the police and on entering guilty pleas at the first opportunity given to you by the Court. I consider compensation. However, you have no means to compensate the victims. You were also convicted and sentence for a short term of imprisonment of 23 days by the Supreme Court on May 2011 in PP v. Lucy Morris, in Criminal Case No.31 of 2011. Your sentence in the two (2) present case must be consistent with the previous sentence as they are part of the same transactions occurring on the 2nd February 2011.

In the present cases, you are sentenced to 10 months imprisonment on each counts concurrently. Three (3) months are deducted for your mitigating factors.

You are sentenced to 7 months imprisonment on each count of the two (2) infomations. I consider if there is basis to suspend your imprisonment sentence. There is no justification for a suspension of your imprisonment sentence.

You are sentenced to 7 months imprisonment concurrently on each count of both information.

Your sentence starts on Friday 18 May 2012. You have 14 days to appeal this sentence if you are unsatisfied with it.

DATED at Morua, Tongoa this 15th day of May 2012

BY THE COURT

Vincent LUNABEK
Chief Justice