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Public Prosecutor v Kwani [2012] VUSC 242; Criminal Case 01 of 2012 (6 December 2012)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 01 of 2012

PUBLIC PROSECUTOR

v.

SIMEON KWANI
LOUIS WILBUR
SYLVIE WARSAL

Coram: Justice D. V. Fatiaki
Counsels: Mr. S. Blessings for the State
Ms. J. Tari for the defendants

Date of Decision: 6 December 2012.

SENTENCE

1. In February 2012 the defendants were originally charged jointly with an Offence Resembling Theft (Count 1) and with individual counts of Theft against each defendant (Counts 3, 4 & 5) alleging the theft of varying sums of money from their employer ANZ Bank, Luganville. There was a further joint charge of Aiding Theft (Count 2) against the second and third defendant alleging that they aided the first defendant by giving him cash on several occasions, to enable him "to balance off shortages which arose due to his thefts".
   
2. At their first arraignment on 15 March 2012 the defendants all admitted Count 1 ('yes') and pleaded not guilty ('not true') to the remaining four (4) counts on the information. Owing to difficulties with the Court's calendar, the defendants' trial on the not guilty counts was eventually fixed to take place over a week in early December 2012.
   
3. On 4th December 2012 the prosecutor filed an amended information which retained Count 1 and withdrew the earlier charges of Theft and Aiding Theft namely, Counts 2, 3, 4 & 5, and replaced them with three (3) new counts of Offence Resembling Theft alleging separate sums against each defendant.
   
4. The defendants were re-arraigned on the amended information and all pleaded guilty ('yes') to the amended Information as follows:
   

Count 1 – all three defendants admitted a joint charge of Offence Resembling Theft in the mishandling of VT1,5 million cash "in order to balance each other's differences in their respective cash tills during a surprise cash count conducted by Manoah Toa, Roy Esika and Manatu Iatipu";

Count 2 – Simeon Kwani admitted mishandling VT500,000 cash in order to balance the cash shortage he had caused in his cash till between 1 July 2011 and 25 October 2011;

Count 3 – Wilbur Louis admitted mishandling VT380,000 cash in balancing the cash shortage he had caused in his cash till between 1st and 31 July 2011; and

Count 4 – Sylvie Warsal admitted mishandling VT178,000 cash in order to balance the cash shortage she had caused in her cash till between 1 and 31 August 2011.

5. The offence which the defendants have been convicted of, is an unusual one not found in many neighbouring jurisdictions. It is contained in Section 126 of the Penal Code [CAP. 135] which relevantly provides in paragraph (b):
   

"No person shall without lawful authority use any property of another not withstanding that he does not have the intention permanently to deprive the owner of it".

6. Although the offence occurs within the category of "Offences against Property", it is to be distinguished from the more commonly occurring offences of Theft, Misappropriation and False Pretences which entails an actual loss or detriment to the victim of the offence. Furthermore unlike Theft, the offender has no intention of permanently depriving the victim of his property.
   
7. In defence counsel's words:
   

"The offending did not involve any intention to permanently deprive the bank of money. The offending did not involve any personal profit or enrichment. The nature of the offending is very different to theft or misappropriation. The degree of criminality involved is substantially less than for theft or misappropriation. The moral culpability of each offender is drastically reduced by reason of the nature and context of the offending.

The gravamen of the offending is the misuse of the bank's money. The money was used in an unauthorized manner. The offenders had full knowledge that they were breaking the rules of the bank. The offending occurred more than once and the sums of money involved were not small. Unfortunately for both the bank and the offenders, the bank's systems of check and balances failed to prevent these unorthodox practices."

8. Having noted those differences an Offence Resembling Theft nevertheless carries a maximum penalty of "imprisonment for 8 years" and must therefore, be considered a serious offence, more serious than an offence of Obtaining Credit Fraudulently (1 year imprisonment), Fraud by a Trustee (7 years imprisonment) and Passing a Valueless Cheque (2 years imprisonment).
   
9. The facts of the case which are admitted by the defendants may be briefly summarized. All three defendants were employed as general tellers with ANZ Bank, Luganville at all material times during 2011.
   
10. Their principal duty was handling cash, paying out and receiving deposits from customers of the bank and, at the end of each days trading, balancing their respective tills according to the days transactions. It is then, that shortages or imbalances are detected and, as a matter of banking policy, such shortages must be reported to the supervisor. At no time however, during the months of July, August and October 2011 did any of the defendants report any cash shortages to their supervisor even though significant shortages had occurred in their respective tills.
    
11. Cash shortages can occur due to overpayment to a customer or inaccurate recording of deposits or as a result of incorrect calculations owing to "careless work" on a teller's part. In defence counsel's words: ".. these shortages were inadvertant, not intentional ... (and) .. not the result of any dishonest or criminal activity" (whatever that may mean). Equally, cash shortages can occur as a result of theft and misappropriation by the teller concerned. If I may say so, shortages of a couple of hundreds or even a thousand vatu may be excused as "careless work", but, a shortage in the millions, is not so easily explained.
    
12. Be that as it may matters finally came to a head on 25 October 2011 when the bank conducted a surprise cash count of each tellers cash till. The tills of Louis Wilbur and Sylvie Warsal were successfully balanced with no cash shortages but Simeon Kwani's till had a VT3 million shortage which he successfully "covered up" by borrowing VT1,5 million each from Louis Wilbur and Sylvie Warsal before his till was checked.
    
13. The banks CCTV footage clearly reveals how the cash was transferred from Louis and Sylvie to Simeon by use of a calico bag placed on a chair beneath the teller's counter and manoevered so as to enable Simeon to remove the bag containing the money without arousing any suspicions. Although his cash till balanced during the surprise cash count, Simeon Kwani tendered his resignation on 25 October 2011.
    
14. The next day 26 October 2011 Louis Wilbur and Sylvie Warsal returned to work. By then, their tills were short of VT1,5 million which was the amount that each had lent to Simeon to cover up his VT3 million shortfall on 25 October 2011. In order to cover up their respective shortfalls, Sylvie Warsal improperly accessed Simeon's till in the bank vault and removed VT1,5 million which they both then used, twice, to balance their respective tills on 26 October 2011. Unsurprisingly, reconciliation of Simeon's till on 27 October 2011 by his supervisor disclosed a cash shortage of VT1,5 million which remains unexplained and unaccounted for.
    
15. On 28 October 2011 all three defendants were interviewed by senior ANZ Bank managers and each admitted being involved in covering-up or concealing cash shortages that arose in their respective tills by improperly transferring cash between themselves.
    
16. I accept that this illegal unauthorized practice could have been detected earlier with greater vigilance on the part of the defendants' supervisors but such laxity does not excuse the defendants' behavior as trusted employees charged with the daily duty of handling cash for and on behalf of their employer.
    
17. From the foregoing it is clear that the unauthorized covering up or concealment of cash shortages in the defendants' respective tills had been on-going for a period of over 3 months between July and October 2011. The practice was unlawful to the knowledge of each of the defendants who willfully ignored established Bank policy and procedures in the daily balancing of their respective cash tills. These are serious aggravating factors in the defendants' offending for which a starting point of 3 years imprisonment is entirely appropriate.
    
18. Before considering matters of mitigation, I set out some relevant personal details of each defendant which I have extracted from the Probation Officer's reports and defence counsel's submissions which I found most helpful:
    

Simeon Kwani

• Was born on 19 November 1988 and is from Navuti village, Ambae;
  
• Although unmarried he has a girlfriend and a year old child which he is supporting;
  
• He commenced employment as a part-time and then full time general teller with the ANZ Bank, Luganville on 6 February 2009 and resigned on 25 October 2011;
  
• He admitted his offending when first confronted by his employer and then later to the police during his caution interview;
  
• He is a first offender and pleaded guilty at the first opportunity in court;
  
• He presently supports his family working as a barman at Aore resort;
  

Louis Wilbur

• Was born on 13 May 1987 and is from Nduindui village, Ambae;
  
• He completed year 13 at Ranwadi Secondary School and was enrolled at USP;
  
• He is married to the first defendant's sister and they have a child;
  
• He commenced employment with ANZ Bank on 11 February 2008 and has worked at both Port Vila and Luganville branches as a commercial and general teller;
  
• He too frankly admitted his offending when confronted by ANZ management staff on 28 October 2011 and cooperated fully with the police in their investigations;
  
• He is a first offender and also pleaded guilty to the offences at the earlierst opportunity;
  
• He admits to mishandling an amount of VT380,000 cash to cover up a shortage he had caused in his till;
  
• He is presently employed as an unqualified teacher and is President of Vunamele youth members of his church;
  

Sylvie Warsal

• She was born on 30 March 1984 and is also a native of Ambae hailing from Wahala village;
  
• She completed year 13 at Collège de Luganville;
  
• She is married and has 3 young children;
  
• She commenced employment with ANZ Bank, Luganville as a part-time general teller on 26 November 2007;
  
• She frankly admitted her part in the offending when confronted by her employer and later to the police during her caution interview;
  
• She too is a first-time offender and pleaded guilty at the earliest opportunity in court;
  
• She admits mishandling a specific amount of VT178,000 to cover up a cash shortage that she had caused in her till;
  
• She claims to have made some unverified payments towards reducing her accumulated cash shortage;
  
• Her husband is presently in New Zealand working under the RSE Scheme;
  

19. On the basis of the admitted facts and circumstances surrounding the commission of Count 1, I am satisfied that Simeon Kwani bears a greater responsibility for the commission of the offence, which arose as a direct result of a cash shortage of VT3 million in his personal till and which he covered up with the willing assistance and participation of his co-defendants.
    
20. Defence counsel submits that: "the offending involved an interdependent relationship between the 3 offenders (where) each felt pressured to assist the others to cover cash shortages". In other words, "... they were reliant on each other, not out of a motive of greed or profit, but out of a motive of needing to keep their job". I cannot agree with the submission which completely ignores an employee's primary loyalty which is owed to his/her employer. As prosecuting counsel correctly observed of a general teller's position: "A high degree of honesty and intergrity was required ... (which) ... he clearly and intentionally betrayed not only the bank's trust in him but the trust of bank customers."
    
21. I turn then to consider mitigating factors of which two (2) are common to the defendants, namely, each is a first offender and each pleaded guilty at the earliest opportunity. I am also mindful of the relative youth of the offenders who are in their mid to late twenties and of the provisions of Section 36 of the Penal Code.
    
22. I also accept the Probation Officer's report that each of the defendants regrets his/her actions and is genuinely remorseful. They have also each offered to perform a custom reconciliation ceremony but the Bank, not surprisingly, prefers the Court to deal with the matter. I also accept defence counsel's submission that the defendants do not present a danger to society and are unlikely to re-offend. Furthermore their future employment and career prospects are likely to be adversely affected by their convictions. They have also been punished already by their summary terminations and consequent loss of employment benefits.
    
23. For these mitigating factors and acknowledging that there has been some delay in bringing this case to trial and recognizing that a sentence of imprisonment is likely to bear more severely on a young first offender, I allow a reduction of 1 year from the starting sentence of 3 years imprisonment. From the resulting balance of 2 years imprisonment, I allow a further reduction of ⅓ (i.e. 8 months) in recognition of each defendant's guilty plea making a final sentence of 16 months imprisonment.
    
24. On defence counsel's submission, I have considered whether this is an appropriate case for the exercise of the Court's powers under Section 57 of the Penal Code to suspend the sentence of imprisonment imposed on the defendants but, after careful consideration I have determined that in view of the circumstances and the nature of the crime, a suspension would be inappropriate.
    
25. This was not a case of a newly appointed employee succumbing to temptation and committing the offence on a single occasion involving hundreds of vatu, no, this was a case of experienced trusted employees jointly and knowingly committing offences over a period of time covering up cash shortages of hundreds of thousands even millions of vatu and brazenly, if somewhat naively, executed under the glare of CCTV cameras.
    
26. Accordingly I impose the following sentences:
    

Simeon Kwani you are sentenced on Counts 1 & 2 to a sentence of 16 months imprisonment on each count to be served concurrently.

And, recognizing their lower levels of culpability, I impose the following:

Louis Wilbur you are sentenced on Counts 1 & 3 to a sentence of 12 months imprisonment on each count to be served concurrently; and

Sylvie Warsal you are sentenced on Counts 1 & 4 to 9 months imprisonment on each count also to be served concurrently.

27. It is never an easy task to sentence young first offenders to imprisonment especially where young children are involved, but I would be failing in my duty if I did not impose a sentence that adequately reflects the seriousness of your offending and will deter others from committing similar offences. My task is also made more difficult by the absence of any sentencing precedents.
    
28. You each have a right to appeal to the Court of Appeal against your sentences if you do not agree with them by filing a Notice of Appeal in the Supreme Court within 14 days.
    

DATED at Luganville, Santo, this 6th day of December, 2012.

BY THE COURT

D. V. FATIAKI
Judge.