State v Hanua [1997] PGNC 114; N1625 (24 September 1997)

Unreported National Court Decisions

N1625

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 1024 OF 1997
THE STATE
v
BLUEY HANUA

Waigani

Batari AJ
22 September 1997
24 September 1997

CRIMINAL LAW - Sentence - Misappropriation - Banker - K5,850.00 misappropriated - Full restitution - Early plea of guilty - No prior conviction - Good background - Sentence - Increase of - Sentence of two years with eighteen months suspended on entering into two years good behaviour bond.

Cases Cited:

State v Win Thomas (unreported National Court Judgment) - CRNo. 837 of 1994

R v Welford [1986] PNGLR 531

Wellington Belawa v The State [1988-89] PNGLR 496

The accused stole K5,800.00 from his employer, the Papua New Guinea Banking Corporation (PNGBC). He pd guilty. The fahe facts and see appe appear on the following judgment.

Counsel:

P Kaluwin for the State

P Tusais for the Accused

SENTENCE

24 Sepr 1997

BATARI AJ:I AJ: You have pleaded guilty to a charge upon indictment that between 27 March and 5 May, 1997 you committed the offence of misappropriation. The charge was lnder s. 38s. 383A of the Criminal Code.

The brief fapon which I shall proceed oeed on your sentence are that, during the period in question, you were employed as the Appointment Teller the PNGBC Branch at Waiganiigani. Your duties and responsibilities included handling and control of bulk coins in the Branch for corporate clients. As the bagoins passed thro through your Teller Counter, you would record a lesser amount than the actmount in the bag and the bahe balance was entered in the computer as deposits into your brother’s account. Withdrawals were thde from from the account for your own use. Over a period of neawo mont months, Five Thousand, Eight Hundred and Fifty Kina850.00) was lost to the bank through that scheme.

From the Court depositions tenderendered upon your plea, I noted that this oe came to light when your oour own conscientious guilt caused you to inform your supervisor. Attime of your arrest, you, you had repaid about half of the amount taken. You made full admissio theo the police and following your committal to this court month, you have now pleaded guilty.

Your conduct frct from the time of the offence to your early plea of guilty is a relevantideration. In the cire circumst, I ac I accept that your plea is a genuine and honest one and deserves substantial consideration. I adopt and apply to your case, what His Honour Justice Los stated in the case of The State v Win Picinon Thomas (un-numbered National Court Judgment) CR No. 837 of 1994:

“I consider that an honest plea of guilty must be taken into account in an apparent fashion so that the prisoner must know that his guilty plea has been well appreciated and take into account by the Courts. This would also enco otherother people who genuinely want to plead guilty must do so knowing that it will help them in their punishment.”

It has been considered important with the increasing length, complexity and costly criminal trials at public expenses that guilty persons when charged with offences be encouraged to enter honest pleas of guilty at the earliest possible time. (See R v Pt (1986) 2 QR 44QR 441). The engement must of courscourse come from what is apparent on the final sentences of the Court.

There are other factors that I have taken into account from Counsel’s submissions. s sufto say, you have have have no prior convictions and are married with four (4) young children. Yve since been re-emplobutlobut your new employers, the National Provident Fund (NPF) have indicated through your lawyelawyer the prospect of keeping your employmay not be guaranteed upon this conviction. It is liks likely tespite pite your efforts to lead a useful working life, the prospects is now in jeopardy.

You committed the offence under some financial constraints. Yother in-law had taken men mortgage on the house that that you are also residing with your own family. Because he had ceased wg, ing, you felt obliged tost in the repayment of the mortgage in order to keep the hohe house. You may have also felt obliged to assist because of your f/son in-law relationship. There is hr no evidencidencidence of customary impositions directly connected with such relationship ur society. I cannot therefore ventuyo beyond the acce accepted norm. Be it as it may, your salary of One Hundred and Fifty Kina (K150.00) to Two Hundred Kina (K200.00) per fortnight was submitted to be inadequate and this put pressure on you to commit this oe.

A factor which I consider has relevance in your oour offence is restitution which you began to make prior to your arrest. The amount taken is now fully repaid and the Bank has formally acknowledged that it is restored to the position it was in before the commission of the offence. In the case of The State v Welford [1986] PNGLR, 531, Justice Wilson commented at p. 256 where full restitution was made:

“in my view in a case such as this, the fact that restitution has been made is a sicant fact in mitigation.&#1n. Is a long way to addressinessing the harm and is indicative of genuine remorse and unqualified recognition of wrong doing.”

In the judgment of Justice Barnett, in the Supreme Court case of Wellington Belawa v The State [1988-89] PNGLR, 496, at p. 507 a similar view was expressed on the effect of restitution. Justice Barnett however stated:

“...depending on the circumstances of the restitution, (it) may demonstrate remorse and that the prisoner is unl to repeat the offence.”

The circumstances which His Honour may have in mind iind included cases where the prisoner takes the first step to admit his offence and proceeds to make restitution prior to his arrest and committal and pleads guilty at the earliest possible opportunity. This case falls into thatgcategory.

Having considered those factors in the accused’s favour, I bear in mind this offence involved some degree of trust. You were a Bank Teln whom whom the public and Management held in high regh regard and trust. The amount taken, Fivusandusand, Eight Hundred and Fifty Kina (K5,850.00) is neismall nor substantial and the loss may be easily sustained ined by the Bank. Nevertheless, you abuse tund turned that trust youinto your own gain. T60; There was aome degreeegree of scheming involved to commit the offence.

Your conduct will inevitsubsume a custodial sentence.

I consider that the puhe purpose of sentence will be met by imposing a sentence that will have a personal deterrent effect. I bn mind that your experixperiences to date and the sentence I impose will bring home to you at personal level that stealing from others does not pay. It only brabout disgrace, ace, shame and misery to you and your loved ones.

I am hopeful that this episode in your life is now completed and that your commitment to your church activities marks achapter in your life. #160; I cor it unlikely thay that you will offend again.

The sentence I impose will also have a general deterrent component. The edetection of your offr offence, the publicity received and the punishment should sufficiently warn off others who might be like-minded.

The case of Wellington Belawa, which I have referred suggested a term base of imprisonment of two (2) years to be adjusted upward or downward where the amount taken is between One Thousand Kina (K1,000.00) and Ten Thousand Kina (K10,000.00). Belawa’s case was decided eight (8) years ago. Since thhe offence of misa misappropriation has been one of the most prevalent offences coming before the Courts. I think the starting sugg suggested in Bel8217;e for this categoategory of misappropriation should increascrease to three (3) years where the accused pleads guilty. Because or plee appropriatpriate sentence in my view is two (2) year years imprisonment. There are in my viewumstanmstances which compelcise of the discretionary power to order suspended sentence. Paramou the considensideraideration that you are not a violent off and that a part-suspended sentence may assist your reformaformation.

You are sentenced to two (2) years imprisonment with harour. I order that eigt eighteen (18) months be suspended and that you be placed on a two (2) year good behaviour bond after you have served six (6) months imprisonment with hard labour. In m these orders, no cust custody period is taken into account as you served none.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor