Baul v Pikinie [2010] PGDC 45; DC1051 (8 December 2010)

DC1051

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (GRADE FIVE) JURISDICTION]
GFCr 60 Of 2010

BETWEEN

TOM BAUL
Informant

AND

Richard Makis Pikinie
Defendant

LIHIR: B.Tasikul, a/PM
2010: December, 8th

CRIMINAL: Sentence- Stealing - first time offender – pleaded guilty to charge under s372 (1) Criminal Code

CASES CITED:
Wellington Belawa V The State [1988-89] PNGLR496
The State V Gibson Hualai (2004) N2555

REFRENCES:
Section 372 (1) Criminal Code Act

COUNSEL:
Name of Lawyer, for the Informant: Senior Constable Elsie Tenenga
Name of Lawyer, for the Defendant: In person

DECISION ON SENTENCE

1. B: TASIKUL: The defendant pleaded guilty to one count of stealing K1800.00 the property of six villages Court official of Ward 3.
   
2. It was alleged that on Thursday 21st of October 2010 the defendant went the Lihir Sustainable Development Programme Office and collected K1800.00 cash from the office Secretary. The money was allowances for the six Villages Court official. The accused was at that time employed as a village Court Clerk.
   
3. After putting the statement of facts to the defendant, in respond he told the Court that the reason why he took the money is basically because he was upset for not being paid for the whole of last year (2009).However, I am satisfied and accepted his plea of guilty. I find him guilty as charged.
   
4. I am now required to determine the type of penalty to be imposed on the accused.
   
5. The defendant, according to records is single, 19 years old and lives in the village. He has no previous conviction. In his allocutus he told the Court that he was sorry for what he did. He mentions to Court that he was upset about not being paid for the whole year after engaged to do work for the Village Court. That is why he took the money. He further told the Court that he is willing to repay the money. He has already re- paid K300.00.
   
6. Section 372(1) of the Criminal Code provides;( 1) any 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 years.

7) If the offender is a clerk or servant, and the thing stolen–

(a) is the property of his employer; or

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.

7. The maximum term of imprisonment for this offence is three years. However, in your case you are an employee of the State and the money you stole belongs to the state, which was meant for the Village Court official allowances.
   
8. According to the statement of fact you lied to the secretary and convincingly force her to give you the money. You even went further to say that the Law and Order Coordinator was aware of the matter, which was a fat liar.
   
9. People who steal from their employer must be punished, especially those who are in position of trust. There have been numerous decisions by both the higher Court and the District Court on sentence for people stealing from their employer.
   
10. In one of those case the Supreme Court decision of Wellington Belawa V The State [1988-89] PNGLR 496 it was held that where the amount of money is less the sentence should be lesser and where the amount of money is more, the sentence shall be higher. Higher sentence should be imposed where the offender was in breach of trust reposed in him.
    
11. I noted that the money you stole was never been recovered. You only paid back K300.00 and K1500.00 still outstanding. You promise to pay back the money. While restitution is good as a form of punishment, it sometime would not serve any deterrence.
    
12. I totally agreed with his honor Justice Kandakasi comment in the case of The State V Gibson Haulai Unreported Judgement (2004) N2555 which he states;
    

just ordering restitution without more in the form of a punishment would not serve any deterrence. Rather, it would encourage people with criminal minds to misappropriate monies belonging to other persons, apply them to their own use interest free and made to repay only the principle amount under a restitution order. People with means to repay would hence be encouraged to get way lightly and easily. That would encourage rather than deter offender from reoffending and others from offending. Hence, it is necessary that there be additional conditions attached to a restitution order to show the community's abhorrence of the commission of such offences and to help deter other would be offenders.

13. I have considered what you have told me. To determine what would be the appropriate sentence I will have to weigh the mitigating and the aggravating factors. The mitigating factors are as follows; you are willing to repay the money to those people who you stole their money, you have no previous conviction, you pleaded guilty, which have save Courts time, expressed remorse, you are 19 years of age and you have a long way to go. You intend to go back to school to complete your IT course. If I imposed a custodial sentence it will affect your future education plan.
    
14. On the other hand your action has brought loss to the victims. You committed the offence when you were employed as Village Court Clerk. You are now unemployed and you will find it difficult to find money to repay it back.
    
15. Having considered all of the above factors I hereby sentence you to 12 months imprisonment. However, the whole of this sentence would be suspended and defer until if you repay the amount in full (K1800.00) by February 23rd 2011. Bail of K200.00 is extended to 23rd of February2011.