State v Benjamin [2017] PGDC 61; DC4083 (20 September 2017)

DC4083

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (GRADE 5 COURT) JURISDICTION]

GFC: 24 of 2009

BETWEEN

State

Informant

AND

Tera Benjamin

Defendant

KOKOPO: SLavutul

2009: 03^rd, 19^th, 31^st March, 14^th, 28^th April, 12^th, 26^th May, 09^th, 23^rd, 30^th June, 08^th, 27^th July, 02^nd, 23^rd September, 30^th October. 2010: 19^th February, 04^th June, 2011: 15^th, 31^st March, 06^th May, 12^th August, 07^th November, and 07th December, 2012: 02^nd, 03rd July, 2013: 15^th April, 15^th, 30^th July, 30^th August, 22^nd October, 2015: 12^th March, 23^rd April, 19^th May, 10^th, 11^th June, 02^nd, 27^th July, 25^th August, 22^nd, 29^th September, 27^th October, 24^th November, 2016: 28^th January, 26^th May, 05^th July, 05^th August, 28^th October, 25^th November, 01^st December, 2017: 12^th, 19^th January, 21^st, 09^th, 21^st February, 16^th March, 20^th April, 11^th May, 13^th, 15^th June, 27^th July.

CRIMINAL PRACTICE AND PROCEEDURE – Two Counts of Stealing – Section 372 (7) (b) Criminal Code Act – Plea of Guilty – Submissions on Sentence.

Cases Cited

Wellington Belawa v State [1988 – 89] PNGLR 496
The State –v- Sabarina Yakal [1988-89] PNGLR 129

Goli Golu v The State [1979] PNGLR 653.

References

Criminal Code Act

Counsel

Sgt Elizabeth Munap for Prosecution.

Ms. J Ainui, Public Solicitor for the Defendant.

Sentencing

20^th September 2017

Samuel Lavutul, Principal Magistrate, The defendant Tera Benjamin age 22 years old of Navunaram village, Gazelle District, East New Britain Province, was charge under Section 372 (7)(b) of the Criminal Code for two (2) counts of stealing from his employer NIGP AGMARK.

2. On the first count it was alleged the defendant did on the 02^nd of February 2009 at the Agmark, Warangoi Branch whilst being employed as a Cashier by NGIP AGMARK stole money in cash valued at K21, 000.00 the property of NGIP AGMARK which came into his possession on account of his employer.

3. On the second count it was alleged the defendant did on the 04^th of February 2009 at the Agmark, Warangoi Branch whilst being employed as a Cashier by NGIP AGMARK stole money in cash valued at K22, 200.00 the property of NGIP AGMARK which came into his possession on account of his employer.

Facts

4. Firstly in relation to the first count the defendant was at the NGIP AGMARK Buying Point at Warangoi on the 02^nd of February 2009 on duty as the Cashier for the day. The defendant whilst at work a workmate of his by the name Levi Maita who also works at the Warangoi Branch approached the defendant and informed him that another person by the name of Saki who is also employed by Agmark based in Rabaul main cocoa depot wants him to fill in a weight note for 60 bags of cocoa.

5. The defendant was told that there was surplus of 60 bags at Rabaul and that they will have to raise the weight note at Warangoi. The defendant did so and raised a weight note for the 60 surplus bags of cocoa that do not really exist and also a delivery docket for shipment. The defendant actually tore off the original copies before filling them out in thus leaving the book copy blank and even cancelling them so that their supervisor will not out.

6. The defendant used an innocent farmer’s fermentry name and number to raise that bogus claim of 60 bags of cocoa to the value of K21, 420. The defendant then cashed the weight note and paid himself from the branches cash float. The defendant gave half of the K21, 420.00, that is K10, 710 to Saki at Rabaul the same afternoon and from his half of K10, 710, he gave Levi Maita K1, 600 and also the same afternoon at Warangoi.

7. In relation to the second count the defendant did on the 04^th of February 2009 was on duty as a Cashier at the NGIP AGMARK’S Buying Point at Warangoi Branch. It was alleged the defendant whilst working his co-worker namely Levi Maita approached him and informed him that Saki who was also employed by AGMARK at its Rabaul main cocoa depot wanted the defendant to fill in a weight note for 60 bags of cocoa.

8. The defendant was told that there was a surplus of 60 bags of cocoa at Rabaul and they will have to raise the weight note at Warangoi. The defendant did raise a weight note with a delivery docket for the 60 surplus bags of cocoa which really did not exist. The defendant tore off the original copies prior to filling them thus leaving the book copies blank and cancelled them so that their supervisor would not find out.

9. The defendant then used an innocent farmer’s fermentry name and number to raise the bogus claim of 60 bags of cocoa against it to the value of K22, 200.00. He then cashed the weight note and later obtained cash from the branch’s cash float. The defendant then gave half of the K22, 200.00, that is K11, 100 to Saki at Kokopo on Saturday 07^th day of March 2009 and from his share of K11, 100.00 he gave K2, 000.00 to Levi Maita at Warangoi on that Wednesday afternoon.

10. Thus it was alleged the defendant stole a total of K43, 620.00 from NGIP AGMARK respectively on the 02^nd and 04^th of February 2009 at Warangoi Agmark Branch.

Plea

11. Upon re-arraignment on the 28^th of March 2017 the defendant pleaded guilty to both counts of stealing confirming his earlier admission on his record of interview.

Verdict

12. Upon the confirmation of his pleas of guilty the defendant was found to be guilty as charged for both counts.

Antecedent

13. The defendant is 28 years old and comes from Navunaram village and married with one child. He is the youngest out of a family of six (6) children his mother is deceased his father is still alive and remarried. He was educated to grade 8 but could not continue on to high school as he had poor grades. He commenced employment with Agmark as cashier in 2009 until the day of the offence where he was terminated.

Defence’s address on sentence

14. Defence in its address on sentence reminds the court that the maximum penalty for stealing pursuant to section 372 (7)(b) of the Criminal Code Act is 7 years, however this is subject to section 19 of the Criminal Code Act for this court not to impose the maximum but reserve it for the worst type of case.

15. Defence submits that this is not the worse type of case and support it submission with the following mitigating factors;

Mitigating Factors:

1. First time offender, he has never been in trouble with the police before he was charged for this offence.
2. He pleaded guilty and saved the Court’s time and police money in calling in witness
3. He has repaid the amount of K22, 000.
4. The amount stolen was too big an amount for him to have used by himself, there were others as well but was the one only charged
5. He has expressed remorse

16. Counsel for defendant added the pre –sentence report shows that the defendant is of good character. His father, Ben Irima, the Ward Committee Ivan Joshua, the Pastor Ben Wartir all confirm his good character and helpfulness in the community and the church. His wife, Julie Irima was also interviewed and she confirms that her husband, the defendant is a good and supportive husband

17. They all request for the court to give the defendant a lighter sentence and for him to serve a non- custodial sentence. Counsel added, An Agmark employee, Joylyn Aldan who was contacted to confirm the repayment of these monies however, she confirms that they have no records of this case as they were all new employees and the Director was out of the province.

18. Counsel, in concluding her submission reiterated the author of the pre- sentence report recommends that the defendant is a suitable candidate for probation with strict conditions and they wish to adopt these recommendations by the Probation Officer;
1. Not to commit a similar offence
2. Attend to church services every Sunday
3. Do free community work
4. Attend spiritual counseling.

19. Counsel added, the Agmark employee that was contacted did not have records for this case. They have forgotten about this case. Even they cannot confirm that the defendant actually repaid the monies.

20. Counsel stated, considering all the facts before the court she submits that a custodial sentence is not appropriate in this matter. Therefore counsel submitted that a sentence of 4 years is appropriate and for it to be fully suspended with strict conditions.

Prosecution’s Reply

21. In its rely prosecution submits to the court the penalty provision under Section 372 (7) (b) carries a maximum penalty of an imprisonment term not exceeding seven (7) years. Prosecution added the crimes of this nature which involves circumstances of dishonesty and substantial amounts of money by people placed in positions of trust and authority is prevalent.

22. In mitigation they take into account the fact the defendant pleaded guilty on arraignment which has saved everyone’s time in running a trail and that the defendant is a first offender who is married and currently unemployed.

23. Prosecution further stressed that the penalty provision indicates that the crimes for which the defendant is charged with are serious in nature in that;

(a) the crimes were committed within a space of three days
(b) involved circumstances of dishonesty
(c) involved a substantial amount of money
(d) money stolen was not put into good use but shared amongst his fellow employees
(e) did breach a position of trust

24. Prosecution refers the court to consider the principles set out in the case of Wellington Belawa v State [1988 -89] PNGLR 496; where the prisoner appealed his sentence of two (2) years to the Supreme Court claiming severity of sentence after he was found guilty stealing of stealing the sum of K1, 979.00 from the state.

25. Barnett J stated in the above case;

“The following factors are among those which should be taken into account on sentencing an offender for an offence involving dishonesty where the offender is in a position of trust”:

(1) the amount taken;

(2) the quality and degree of trust reposed in the offender including his rank;

(3) the period over which the fraud or the thefts have been perpetrated;

(4) the use to which the money or property dishonestly taken was put;

(5) the effect upon the victim;

(6) the impact of the offences on the public and public confidence;

(7) the effect on fellow-employees or partners;

(8) the effect on the offender himself;

(9) the offender’s own history;

(10) restitution; and

(11) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.
26. It further submits that the manner in which the present crimes were committed involves circumstances of dishonesty as an employee of Agmark Limited; he was placed in a position of trust but had seen fit to betray that trust that was bestowed upon him. The crime which involved a substantial amount of money was committed in a professional manner that he concealed his unlawful act but it eventually surfaced. The defendant’s action caused a great loss to his former employer that was paying him his wages in order to support his family.

27. Prosecution also submitted and led the court to consider the following scale of sentencing set out by His Honor in the matter of Wellington Belawa v State whilst considering the appropriate sentence in the two offences the defendant is charged with;

“The following scale of sentences may usefully be accepted as a base to be then adjusted

upwards or downwards according to the various factors above:

(1) where the amount misappropriated is between K1 and K1, 000, a gaol term should rarely be imposed;

(2) where the amount misappropriated is between K1, 000 and K10,000, a gaol term of up to two years is appropriate;

(3) where the amount misappropriated is between K10, 000 and K40,000, two to three years imprisonment is appropriate;

(4) where the amount misappropriated is between K40, 000 and K150,000, three to five years imprisonment is appropriate.”
28. In conclusion Prosecution stated for the purposes of the present case the total amount of money stolen falls under the fourth category and it therefore submit that the appropriate sentence the court should consider would be a custodial sentence between three (3) years and five (5) years imprisonment. It also added in addition to the appropriate sentence it further submit that restitution of the total sum be ordered and thus to deter not only this defendant but others as well.

Sentencing

29. I have given careful consideration to both submissions, the pre- sentence report and the facts laid before me. Having read and considered both submissions I am left with the question, “What is the appropriate sentence to be given to the defendant?” So from the outset there is authority for the use of depositions to extract the relevant facts for sentencing purposes as per the view in The State –v- Sabarina Yakal [1988-89] PNGLR 129

30. In the present case the defendant was an employee of NGIP AGMARK and was based at the company’s Warangoi Branch when the alleged offences were committed. The two (2) offences were alleged to have been committed in a space of two (2) days that is the first count was committed on the 02^nd of February 2009 and the second count was committed on the 04^th of February 2009.

31. The defendant pleaded guilty to both counts of stealing and guilty verdicts were pronounced by the court on the 27^th of July 2009 before Principal Magistrate Dessie Magaru; however he was never sentenced due to the inconsistent appearance by counsel and the non- filing of submissions by both counsel and prosecution, the non- appearance by the defendant on dates set by the court and also inconsistencies of magistrates have contributed to the delay in the disposal of the two matters. It has taken almost eight (8) years for these cases to be concluded.

32. I agree with counsel’s submission and reminder to the court to give consideration to section 19 of the Criminal Code Act not to impose the maximum penalty but reserve it for the worst type of cases as affirmed by the view in Goli Golu v The State [1979] PNGLR 653.

33. In mitigation, counsel submitted that the defendant was a first offender, he pleaded guilty to both charges and had not wasted the court’s time, and he repaid to Agmark Limited the sum of K22, 200.00 on the 06^th of February 2009 and he has expressed remorse. He is currently unemployed and now an ordinary villager.

34. The defendant was well recommended in his pre –sentence report by His father, Ben Irima, the Ward Committee Ivan Joshua, his Pastor Ben Wartir all confirm his good character and helpfulness in the community and the church. His wife, Julie Irima was also interviewed and she confirms that her husband, the defendant is a good and supportive husband.

35. The offences which the defendant committed were aggravated by the fact he was an employee of NGIP Agmark Limited, he stole from the very hand that had fed him and his family from his wages over the duration of his employment. He did not appreciate the fact that despite his grade 8 level of education he was entrusted as a Cashier by his employer NGIP Agmark Limited to handle and deal with large amounts of monies up to K50, 000.00 at his place of work on a daily basis.

36. The facts before the court shows the defendant intentionally and deliberately tore off the original copy of the weight note and filled it in by recording 60 bags of cocoa which did not exist in Rabaul Depot, leaving the other copies blank. He also lied by raising the bogus claim of 60 bags to the value of K22, 200.00 against the fermentry name (Barok) and number (P348) of an unsuspecting farmer namely, Elias Ngatia on the 04^th of February 2009. And similarly he used an unsuspecting farmer’s name namely Michael Gobolina who owns fermentry number (P348) under the name Morongi earlier on the 02^nd of February 2009 to the sum of K21, 420.00.The facts also revealed that the defendant did share the proceeds of the two counts of stealing with his two workmates namely Saki and Levi Maita. However, it is not clearer to this court if Saki and Levi Maita were also charged with similar offences.

37. The defendant must understand that he was placed in a position of trust with the task to handling large sums of monies on a daily basis purposely for the purchase of cocoa from farmers on behalf of his employer. The defendant was tasked with a huge responsibility by his employer with the requirement to employ due diligence, honesty and safe keeping of the monies he was entrusted to pay out to those farmers who would sell their cocoa at the Warangoi Buying Point. The defendant must realize what he did was outright dishonesty.

38. Despite the defendant’s counsel plea for a non – custodial or suspended sentence I am of the view a custodial sentence would suit the crimes the defendant has committed. I consider and take into account factors set out by Barnet J, in Wellington Belawa v The State [1988-89] PNGLR 25.

39. I noted the defendant stole a total of K43, 620.00 from his employer. The quality and degree of trust reposed on the defendant including his position as cashier is higher in light of the large amounts cash he was entrusted to deal with daily in the course of his duty. The period over which the thefts have been perpetrated was in a space of two (2) days between the first and second count of stealing. The proceeds of the two (2) counts of theft was shared between the defendant and his two (2) workmates namely Saki and Levi Maita in which I am certain they used it for their own personal use. Despite the defendant’s father repaying the sum of K22, 200. 00 for the second count of stealing Agmark Limited lost K21, 420.00 through the defendant’s second count of stealing.

40. The impact of the offences also affected two (2) innocent members of the public who are farmers and were regular seller of cocoa to Agmark Limited Warangoi Buying Point and were wrongly implicated in the evidence through their fermentry names and registration numbers without their knowledge until they were required to give their respective statements in support of the respective charges against the defendant. The actions of the defendant I believe will and have had a negative impact in the manner the company will view its employees. And it may amount to any possible act of contempt by the company management towards its current employees in light of the defendant’s acts of stealing. Conversely, the defendant’s actions then led to his termination from his employment.

41. I consider the scale of sentences set out in Wellington Belawa v State; and the defendant’s two counts of stealing falls between category no.3 which stipulates where the amount misappropriated is between K10, 000 and K40, 000, two to three years imprisonment is appropriate.

42. The provision under which the defendant is charged with carries an imprisonment term not exceeding seven years pursuant to section 372 (7) (a) (b) of the Criminal Code Act. An imprisonment imposed by this court will stand as a deterrent not only the defendant but to others as well.

Court Orders.

1. 01^st Count Defendant is convicted and sentenced to 2 years in hard labour. One year would be suspended should the defendant repay the sum of K21, 420.00 to Agmark Limited by the end of December 2017.
2. 02^nd Count Defendant is convicted and sentenced to 2 years in hard labour. 18 months be suspended and the defendant to serve 6 months IHL.
3. Defendant’s bail is refunded forthwith.