State v Aua [1997] PGDC 11; DC20 (25 September 1997)

Unreported District Court Decisions

[1997] PNGDC 19 - STATE V DILAI AUA

[1997] PNGDC 19

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO. 14 OF 1997

THE STATE

V

DILAI AUA

Waigani

Abisai SPM

25 September 1997

CRIMINAL LAW - Sentencing - Stealing from employer whilst employed by Civil Aviation as a linesman - No prior conviction - Showed remorse.

Cases Cited

The State v Wilfred Timon Bai [1980] PNGLR. 77

The State v Willington Belawa [1988-1989] PNGLR 271 P496

The State v Frank Kagai [1987] PNGLR P. 298

The State v John Aubuku [1987] 267 at page 269

Counsel

Constable John Piamu, for the State.

Mr Casper, for the Prisoner.

JUDGMENT ON SENTENCE

25 September 1997

ABISAI SPM:  The Prisoner is charged with one count of stealing 8 solar panels valued at k1,600 each at the total cost of K12,000.00 the property of Department of Civil Aviation whilst in their employee.

The state laid an information charging the prisoner for stealing whilst being employed by Papua New Guinea Government as a Public Servant under section 372(6)(a) of CCA PNG.

N2>Section 372   Stealing

SS(6)  If the offender is a person employed in the Public Service and the things stolen:

(a)      is the properly of state he is liable to imprisonment for a term not exceeding seven years.

BRIEF FACTS

The defendant now before this Court namely Mr Diali Aua, he is 31 years old from Mapayo village in the Baimuru District, Gulf Province. He is employed with the Department of Civil Aviation during the time of the offence.

The defendant is employed as a linesman with the Department of Civil Aviation at Seven mile airport in Port Moresby. He is the husband of two wives. First wife resides at the Department house with her three children at Konedobu, DCA compound. The second wife resides at Waterfront settlement at Konedobu with one child. The defendant resides with his second wife.

That on the 2nd of November, 1995 between the hours of 1200 - 1300 hours the defendant namely Dilai Aua went into the Department of Civil Aviation Warehouse at Seven mile in Port Moresby with a false store requisition form No: 6784. On the requisition form he stated that he wants ten (10) Solar Panels.

During the time in which the defendant arrived at the warehouse, everybody in the warehouse were out for lunch. He did not ask for the storeman. He climbed straight on to the top of the shelves where the Solar Panels were and started pulling them down.  There were only eight in the stock so he pulled all of them down. The defendant was having difficulty so one of the employee by the name of David Kairi helped the defendant to pull the Solar Panels down from the Shelves. Mr David Kairi did not know that he was stealing.

The defendant gave the stores requisition form to Mr David Kairi and advice him to give it to one of the employee namely Mr Kapena Lohia. He is the Assistant Superintendent to Supply and Transport. At the same time Mr Lohia walked in so the requisition form was given to him. The defendant loaded the eight (8) Solar Panels on to the stores big truck which was parked outside the warehouse. Than the driver was ordered by the Assistant Superintendent of Supply and Transport Mr Lohia Kapena to drop off the defendant Mr Dilai at his resident at Konedobu. The driver never knew that he was transporting the stolen item.

When arriving at the defendant second wife resident at waterfront, Konedobu, the defendant off loaded six of the eight stolen Solar Panels. The defendant then asked the driver to proceed to his first wife house at the DCA compound at Konedobu, at the back of Aviate club. He off loaded the remaining two stolen Solar Panels. Finally the defendant was dropped off at four mile.

The defendant sold two of the eight stolen Solar Panels to somebody by the name of Wagaru who works with the Department of Police. He received K100.00 as a payment. One was given to somebody from Madang two resides in National Capital District.

Three of the eight stolen Solar Panels were removed from the defendant first wife’s resident at DCA compound at Konedobu. One was recovered from his second wife’s house at waterfront settlement at Konedobu. Two were recovered from a resident at 8 mile settlement and one was returned by the defendant. Total number of Solar Panels recovered is seven. One is still missing. The defendant stated that he has no idea about the one that was still missing.

When questioned by the police the defendant admitted stealing the eight Solar Panels. He state that he returned seven of them. The one solar panel which was still missing he said he has no idea. The defendant was caution, inform of his constitutional rights under section 42(2), formally charged for the offence of stealing and locked up at Boroko Police Cells.

In his allocatus the prisoner said that he is very sorry for what he has done in committing this offence.

The Defence Council Mr Casper submitted that the prisoner is:

N2>1)       Diali Aua is 33 years old.

N2>2)       Married with 5 children.

N2>3)       The eldest child is female 12 years old.

N2>4)       The second child is female 9 years old both attending Kaugere Community School.

N2>5)       The third born is male 7 years not schooling.

N2>6)       The fourth child is Male 5 years old not schooling.

N2>7)       The fifth child is male 2 years old not schooling.

The prisoner comes from the family of 10 comprising of 5 male and 5 females the prisoner is the third born in the family. The prisoner comes from Mapoio village Baimuru District Gulf Province, now resides at waterfront Konedobu, National Capital District.

The prisoner is a United Church member, educated at Mapoio community school from grade 1 to grade 6 and in 1977 he went to Kerema High School and completed his grade 10 in 1980. In 1981 he enrolled at Madang teachers college stayed for 6 months and returned home, and as from 9th March 1982 he was employed as an inventory clerk in the office of Civil Aviation, and in 1992 he was transferred to linesman. He was there until the day that he was charged, since then he was suspended without pay.  This position as linesman earns him K235.00 net per forth night. We also ask the Court to take into consideration the following factors.

N2>(a)      Prisoner has pleaded guilty on a very serious charge.

N2>(b)      His co-operation was very good during course of investigation.

N2>(c)      All the 8 solar Panels have been recovered and return in good conditions.

N2>(d)      Prisoner has no prior convictions recorded against him.

We submit the reason for prisoner stealing from his employer was that since transferring to that section as linesman in 1992, the 8 Solar Panels sitting at warehouse shelves collecting dust. The prisoner decided that he could steal from his employer and have the solar panel transferred to his village where he intends to assist his people with electricity, we also submit according to instructions Uritai village is one of the poorest and remote areas in the Gulf Province, which lacks many basic services can be found in other places of Papua New Guinea. Prisoners intention was simply to steal and help his village people.

On the question of penalty, we respectfully submit that apart from consideration sections 18, 19 of the Criminal Code act, we also submit that Court takes into consideration S.601 SS (8) for any of the provisions. Section 132 of District Court Act chapter 40. Basically we submit to the Court to consider non Custodial sentence to be imposed on the prisoner either of suspended sentence or enter into good behaviour bond.

Finally we ask that the prisoners Bail money be refunded also. Court has to take into consideration that  the prisoner was remanded  in custody for 2 days and later released on Bail.

Prosecutions reply on Defence Councils submission. That on the 2nd day of November 1995 at 7 mile DCA warehouse here in Port Moresby National Capital District. the prisoner now before this Court Mr Dilai Aua comes from Mapiio village Uritai, Baimure District Gulf Province, been employed by Public Service with the Department of Civil Aviation, he did steal Solar Panels valued at K1,600.00 each total of 8 Solar Panels at the cost of K12,800.00 the property of the state Papua New Guinea, thereby contravening Section 372 SS (6)(a) of Papua New Guinea CCA chapter 262.

The penalty is not exceeding seven years. The offence committed by the defendant  is a serious offence in nature as in the cast State -v- Wilfred Timong Baio [1980] PNGLR p 77 States “ it is necessary ingredient in offence under Section 372 SS 6 to prove apart from stealing that the defendant is employed by the Public Service and the things stolen is property of state this therefore no dispute at all stated about”.

Stealing as a Public Servant and property of state while being under the care of prisoner Diali Aua is a serious offence. The prisoner therefore must be punished and punishment must be such so as to deter public committing such crimes, by making it clear to the offender. That such acts would be met by severe punishment.

This does not mean that the good character and good conduct would effect on this punishment, but given a good and careful consideration on sentence, as the case of this prisoner a Public Servant, there is a breach of trust which is entrusted to the offender.

IN ALLOCATUS

N1>(1)      Prisoner is married with four (4) children.

N1>(2)      No prior convictions recorded against him.

For all the above we submit an appropriate sentence be imposed upon the prisoner, to deter him from community the same or other offences in near future.

SENTENCE

In considering submissions, submitted by Defence and prosecution. This Court has taken into consideration the seriousness of the offence, and determine what the prisoner said in his allocatus, what the lawyer and the prosecutor told the court and other factors of this case.

This particular case, the prisoner pleaded guilty, has no prior convictions recorded against him. His council has informed this court that all the stolen properties has been returned to the state in good conditions, prisoner also apologized to this court and to operated with he Police shows or demonstrate how remorseful he is. The prisoner is therefore entitle to a reduction on any sentence that the Court might impose upon him.

In John Aubuku -v- The State [1987] PNGLR. 267 at page 269 the Supreme Court said. “that a plea of guilty, perhaps more or so then in other cases, would normally result in some reduction from what would other case be appropriate sentence”.

Although the prisoner is entitled to reduction from any sentence that the court may impose upon him, however the paramount consideration in this case is to consider the prisoners action in committing such a crime while he was employed as Public Servant.

The prisoner at that time placed in place of trust to safeguard the state property to make sure that the property is properly accounted for, yet the prisoner has abused that privilege by using stores requisitions form in order to obtain the said properties. By doing so he loaded all the Solar Panels and dropped them at his home Konedobu water front.

The prisoners intention was to use the Solar Panels to install electricity to his village Mapoio Uritai, to benefit his people, he (prisoner) did this, on the grounds that Uritai area is one of the undeveloped area within Gulf Province. Even though the prisoner had good intention yet he has breached the Laws of this land by obtaining goods by way of stealing.

I consider that such action is wrong, to obtain goods without the owners consent. The prisoner is very fortunate to be employed as Public Servant; and paid by Public purse and has privilege in getting paid every fortnight while other people do not receive such benefit, by this token the prisoner should realize how privilege he is to be employed and have source of income coming to him every fortnight, and as a Public Servant he should be more wiser in dealing with matters such as this as stated in the case of state -v- Wilfred Timong   State “it is necessary ingredient in offence under Section 372 SS 6 to prove apart from stealing that the defendant is employed by the public Service and the things stolen is property of state.” Therefore the Court should consider imposing stiff penalties for such crimes committed by Public Servants, Court not only to impose harsher penalties but should also consider the Public Servants credibility’s,  do the Public have trust on Public Servants to care for public properties, instead of using their office or positions to benefit themselves.

It is the duly of individual Public Servants to uphold his self credibility in maintaining honesty in dealing with Public money or properties.

You are very fortunate to plea guilty and save lot of Courts time, money and other factors surrounding your case. This however does not mean that the Court will be lenient on its sentence towards you, but court will take into court consideration your case on its own merits.

Stealing somebody’s property is a very serious offence you have abuse the trust entrusted upon you by your employer, yet you have seen fit to commit such an offence  not only that but you have placed yourself as an untrusted person and will be suspected of your movements and actions in what area of responsible entrusted upon you.

In Wellington Belawa -v- The State [1988] PNGLR 496 applied as guideline.

In deciding what is appropriate sentence in the prisoners case I take count of the matter that are in prisoners favour and against prisoner. The prisoner upon committing this offence was suspended without pay and all the properties have been received in good conditions.

The Court also has taken into consideration the fact that the prisoner is the first offender. Although value of property exceed the limitation guidelines set by the Judge in Wellington Belawa -v- The State supra. I believe Wellington Belawa was acting on his own interest by using ILPOC to buy dinghy for his inlaws to fulfil his customary obligations by doing so he has diverted the necessary funds for some important projects and the Public suffers from his actions.

In the present case, the prisoner used stores requisition form to obtain goods, which were lying idle collecting dust inside the ware house by taking those Solar Penal no pubic person suffered, however not forgetting the state was deprived of the ownership of the said goods. In my view the prisoner has already sufficiently punished by suspending him without pay, unlike Wellington without any serious loses, he was also retrenched with full benefits.

The prisoner also shown remorse, by returning all the goods that has been stolen. This shows how remorseful he is, he was also very co-operative with the police. In my view the appropriate sentence should be suspended sentence with conditions. I draw your attention to the case of Frank Kagai -v- The State [1987] PNGLR P298. His Honour Judge Hinchliffe held that “suspension of sentence of an imprisonment is not an exercising leniency but an order made in communities interest, and designed to prevent offending which a person sentence standing alone seldom does a person so released has an obvious incentive not to offend and should have no mix conception as to what will occur if he does.

I therefore sentence the prisoner to 24 months in hard labour CIS Bomana.  I order that 2 months be deducted for pleading guilty 5 days be deducted for being in custody.  The whole of 21 months 26 days be suspended upon prisoner entering into his own recognizance with surety on the following conditions:

N2>1.       Defendant to enter into his own recognizance with surety sum of K200.00 to be paid forthwith.

N2>2.       Promise to keep peace and good behaviour for a period of 12 months as from 25/9/97 - 25/9/98.

N2>3.       To report to the Police Station at Port Moresby on every Friday at the end of every month between the hours of 8 am to 12 noon.

N2>4.       To attend church services at Port Moresby town Ela Church, unless he is excused if he is on duty call, and to report to the Ela United Church pastor every Sunday morning record must be kept for his attendance.

N2>5.       If any of the above recognizance are not complied with the prisoner is to be brought back to this Court to be dealt accordingly.

N2>6.       The Court further orders that his bail sum of K200 be converted to his surety.

Lawyer for the State: Police Prosecution

Lawyer for the Prisoner: Public Solicitor