Sewode v Kaminiel [2011] PGDC 8; DC1071 (2 February 2011)

DC1071

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (GRADE FIVE) JURISDICTION]
GFCr 48 of 2010

BETWEEN

MICHAEL SEWODE
Informant

AND

FREDA KAMINIEL
Defendant

Goroka: G.Madu

2010: August 2, 18 September 13
: October 13, 27 November18
: December 9
2011: January 25 February 2

CRIMINAL - Particular offence – Stealing – Plea of guilty entered – Criminal Code Act s.372(7)(a)

CRIMINAL – Sentence – consideration – mitigation factor – first time offender - remorse – admitted in first instance – co-operate with authorities -aggravating factors – accused in position of trust – amount substantial – money stolen put to personal use - suspended sentence with probation appropriate – restitution ordere.

Cases Cited

Wellington Belowa –v-The State [1989 – 1999] PNGLR 459

References
Criminal Code Act Ss 372 (7)(a)

Counsel
Sergant Bonki, for the State
In Person, for the defendant
2 February 2011.

JUDGEMENT ON SENTENCE

G Madu, PM . : The accused pleaded guilty to stealing money in the sum of K5600. 00 belonging to her employer.

2. The accused was charged under Section 372 (7)(a) of the Criminal Code Act Chapter 262. This provision states:

“If the offender is a clerk or servant, and the thing stolen-

(a) is the property of his employer

(b).....

he is liable to imprisonment for a term not exceeding seven years.

3. The facts to which the accused pleaded guilty are between 27th May 2009 and 5th May 2010 she was employed as accounts clerk by Labels Clothing Limited Goroka Branch. Her responsibilities were doing monthly GST returns, draft yearly financial report, do reconciliation of bank statements and writing out the company cheques.

4. During the above mentioned period the accused had access to various company cheques that was signed by the complainant Mrs. Elizabeth Kimisopa to pay certain business houses and individuals for service rendered in which the accused was to take them and do payments at the bank as part of her duties as the account clerk.

5. The accused whist having those cheques in her possession , altered the figures on the cheque to get extra money for her personal use whilst the other cash was paid to business houses and individuals for services rendered.

6. On 18th May 2010 the accused presented a cheque to ANZ bank written by complainant for amount of K220.00 which the accused altered the figure on the cheque to K820.00. The bank referred the query to the complainant Mrs. Kimisopa who then went through the company records for 2009 and 2010. She found that the cheque butts and the figures did not match with the amounts on the bank statement with the copies of cash cheque and deposit books containing details of petty cash reimbursements were missing from the office with the amount of K5600.00 been unaccounted for. The accused was then arrested for stealing. During record of interview she admitted committing the offence of stealing.

7. The accused on allocutus said she was sorry for stealing the money belonging to the company and because she admitted stealing from her employer she asked court to consider putting her on probation.

8. Accused is 23 years and married with one child who is 4 years. She completed grade 10 at Goroka Secondary School and currently is unemployed. She has never been to Court before and this is her first appearance.

9. The court also asked the CBC officer to present pre- sentence and means assessment report for Courts consideration. I am satisfied with the content of the report which portrays that the accused is a young women in her early 20’s and at the time the offence was committed she was not been supervised and was easily tempted to steal. She has admitted and promised not to repeat the offence. The offender is not a danger to others because it is one off incident that has become a lesson as well for the offender to be careful and be more cautious when dealing with money.

10. The report also recommend the offender as a suitable candidate for probation supervision with the condition to perform community work and others additional conditions. The means assessment report indicated that the offender has savings of K3000.00 with NPF which can be arranged easily for refund to the accused in order to repay part of K5600.00 to Labels Clothing Limited.

11. In your favour the following mitigating factors are considered:-

• You pleaded guilty to the charge, your plea is consistent with you free admission to the police investigator. This had the beneficial effect on the State in saving time, effort and expenses in bringing witnesses to Court to prove the case against you
  
• You are first time offender and do not have any criminal record against you.
  
• You co-operated well with the police during the interview.
  
• You express remorse by saying sorry to the company and the State for committing the offence. I accept that you are genuine to say sorry for wrong you have done.
  

12. The aggravating factors are that the amount you stole is substantial in the sum of K5600.00 and could have caused some financial concern for company’s operation. You were employed as accounts clerk entrusted with responsibility to keep records of all financial transactions of the company and therefore was placed in the position of trust. Instead of faithfully and honestly discharging your duty, you broke that trust by stealing from the company who was employing you. You therefore destroyed the trust and confidence placed on you.

13. You employed some tactics to put your intention or motives into action by changing figures on the cheques so you could benefit from extra cash which you knew was wrong thing you were doing and it was over a period of time. Had it not been for the teller with the ANZ to query the cheque for an amount of K820.00, the Label Clothing Limited could have lost a very substantial amount of money not unaccounted for. You benefitted from your criminal conduct. You use the extra amount of cash you received upon presentation of cheques for your personal use.

14. For the purposes of sentence, I wish to state a number of factors stated in the Supreme Court case of Wellington Belowa –v- The State [1988 – 89] PNGLR 496. This case held that the larger the amount is, the greater will be the punishment. It was suggested that for a serious theft or misappropriation by servants involving amounts between K1.00 and K1,000.00 a goal term should rarely be imposed. Then from K1000.00 to K10,000.00 a term of two years should be appropriate and in the event of K10,000.00 to K40,000.00 a term of two to three years imprisonment is appropriate.

16. Stealing and related offences are prevalent and continue to be on a rise especially in Goroka where stealing of coffee is so common in the Highland. The court has the duty to protect the citizens, corporate or individuals from being deprived from their ownership rights and therefore must impose penalties that must reflect public perception on people who used dishonest means and ways to get benefits.

17. In the instant case the defendant stole the sum of K5600.00 over a period of two years and benefitted personally from the stolen money. She was put in a position of trust to be honest in dealing with the company money. In considering the above mentioned case, the instant case falls into second category of two years imprisonment. An order for restitution would also be appropriate for this case.

18. I sentence the defendant to two years in light labour however the whole of two years is suspended and defendant is placed on probation for two years with the following condition:-

(1) The offender shall perform community work at her local Church at East Goroka United Church for 150 hours and be supervised by Pastor In- Charge who then provide progressive report to CBC Community Co-ordinator Rev. Anthony Elemy at the end of each month.

(2) That the offender shall not change her current location which is Komiufa village during the term of her probation period.

(3) That for the purpose of proper and effective management of this case all work plans and records shall be provided to the Court upon completion of the community work in its review report for its endorsement.

(4) That the offender shall repay the Label Clothing Limited Goroka Branch the sum of K5,600.00 within six months from the date of this order.

Defendants K300.00 Court Bail is refunded forthwith.

Orders accordingly.

_____________________________________
Lawyer for the Informant: Police Prosecution
Lawyer for the Defendant: In Person