State v Tova [1997] PGNC 27; N1522 (17 March 1997)

Unreported National Court Decisions

N1522

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 845 OF 1996
THE STATE
v
SUKOPE TOVA

Waigani

Batari AJ
12 March 1997
17 March 1997

CRIMINAL LAW - Sentence - Misappropriation - Casual employee - Plea of guilty - K22,100.00 - No restitution - Mitigation factors - Considerations of.

CRIMINAL LAW - Sentence - General principles - Considration of.

CRIMINAL LAW - Sentence - Amount taken between K10,000.00 and K40,000.00 appropriate range - Two to five years considered - Sentence of three years part suspended if repaid.

Cases Cited:

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

Webb v O’Sullivan [1952] SASR 65

Counsel:

P Kaluwin for the State

D Sakumai for the Accused

SENTENCE

17 March 1997

BATARI AJ: Sukope Tova, you have pleaded guilty that between 12 January and 2 February, 1996 you dishonestly applied to your own use, money in the sum of K22,100.00 the property of Allens Arthur Robinson Lawyers. You are now presented before me for sentence.

FACTS

Between 12 January and 2 February, 1996 you were employed in the office of Allens ArRobinson Law Firm located on the 11th Floor, Pacific Place, Port Moresby as a casual employmployee. Your duties involved largely office cleaning, but at times you performed such other duties as banking for the firm. In these of your employmenoyment,gained access to the firm’s cheque book and uplifted blank cheque forms which you filu filled out and forged the signatures of e Manageress, Jenny Pilloti and Principal Lawyer, Benjamin amin Passingan. You did this on eighferenterent occasions and cashe cheques at Westpac Bpac Bank for your own use.

That is a brief summary of what was an example of a serious crime ofppropon which involved fraudulent stealing of a substaubstantial amount of money by an employee.oyee. Under s.383A(1) and (2) of the Criminal Code Act Ch. 262 you are liable to be imprisoned for a term of 10 years and that shows how serious your offence is.

MITIGATION

Your lawyer Mr Sakumai has presented a well considered plea in mitigation. His preparation and pretiotation has been of assistance when I consider your punishment.

(i) & ACrnd dy

When When you became aware that your fraudulent conduct was discovered, you abou absconded from work and seemingly went hidin60; Yre ard somee weater and detaidetained.&ned. #160; You were were allowallowallowed bail but again detained on 8 February, 1997 on an unrelated matter. I do not consider your subsequent time of detention is relevant. For this offence, you spent three weeks in custody which I will deduct from the sentence I impose.

(ii) ـ҈< P60; Plea of guiltyIt h>It has held case such as this, a plea of guilty is a substanbstantial tial factor in mitigation. You also admitted the of fnce from the beng mapolicestigattigations ions and your subsequent conviction much euch easier.

(iii) ـ Parsonrc Circnces

Y

You are aged 31 years married with dependant chnt children. You were edd to Grade 6 an 6 and went on to do a Weldinrse aocatiSchoo60; In the latter part of youf your lifr life, yoe, you woru worked briefly as a Security man before Allens Arthur Robinson Law Firm ed you casual employment.

You commenced work with the law firm in October, 1994 and lived at 3 Mile with your family at the time of the offence. Yo four children and besidbesides you supported your parents and your wife’s relatives on your fortnightly wages of K100.00. You have lost your job and with this conviction your future prospects of employment may now be in jeopardy.

Your concern is that your family members will face difficulties if you are sent to prison. Indeed it unacble that faat family mily members and in particular young children will suffer as a result of the wrongs committed by their pare#160; That is however, the unfortunate consequence of your conduct which you should have cove considered when you set out on your criminal enterprise.

(iv) Motive

There is however, some indication that the money you stole were not on spent on basic necessities of life as one would have expected in your situation. Within a shpace of five weve weeks to your time of arrest, it seemed you used up the whole of K22,100.00 as none has been recovered. Thereome indication you spou spent extravagantly at high places.the fact suggests a considensiderable amount of money were spent on alcohol. It is common knowledge alct alcohol abuse has beenof the root causes of evilsevils in our society today. Its destructifects are foue found in personal tragedies, broken lives, b homes and crimes. The use to which oney take taken wken was put, suggest it was not used to maintained “desperately unpohed family or for some othe other worthwhile purpose which can be treated as a mitigating factor” (See Wellington Belawa v. The State [1988-89] PNGLR, 496 per Barnett, J At p.506.

(v) Restitution

There s no offer of restitution and this leaves the company the uncertainty of ever recouping anything from the prisoner.

AGGING CSTANC>

he coion os offence occu occurred rred over over a pera period oiod of lesf less than four weeks and a substantial amount was taken. The frequof negotiating fong forged cheques within a short space of time suggest determination and intensity in the prisoner’s cond#160; Obviously, a consideration amount of money would have been lost to the company if thef the prisoner’s fraudulent scheme was not detected early.

The crime did not involve breach of trust to any greater degree then his accessibility to office records, files and account books by virtue of his employment as office cleaner. There is ho some degree ofee of planning which involved removal of the cheque leaves, falsification of signatures and uttering of the false bank documents.

These ar factors that operate against the prisoner.

DETERDETERRENCE

I consider both personal and public deterrence are relevant matters in assessing the prisoner’s punishment. It is an unfortunate observation against the prisoner that stealing offences of similar features to his are quite prevalent. I consider that the general deterrence component of punis will be served by imposing a sentence that would serve as e as a warning to others who might be like-minded.

The experiences risoner has gone through up to now together with the sentenentence I am about to impose, I think will bring home to him at personal level that there is no adva to be gaie gained in stealing from others.

FURTHER CONSIDERATIONS IN SENTENCING

In the exercise of my discretion to sentence the prisoner, I bear in mind the importance of reflecting on the objectives of the Criminal Justice System, which is to bring wrongdoers to justice for the protection of the community. A sentencing judge first arst and foremost bear in mind, the protection of the community. (RV Cuthbert (1976) 86 WN (Pt.1) NSW 272, per Herron, CJ 4). In some cases this protection can be extended by severe punishment and in other sher situations a judge would reach the view that probation or suspension of sentence is appropriate. In aching the prisonerRr’s sentence in this case, I adopt and follow the position in law as stated by Napier CJ in Webb v O’Sullivan [1952] SASR 65 at p.66:

“The Courtsld endeavour to make the puhe punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first cn is the protecrotection of the public, but subject to that, the Court should lean towards mercy. We ought not to award thimum, but rather the minimum which is consistent with a due regard for the public interest.rest.”

RANGE

I have regarded to the range of sentences applicable in circumstances pertinent to this case case as an aid to the proper exercise of my sentencing discretion. Tarting point is the case case of Wellington Belawa v. The State [1988-89] PNGLR, 496 which suggests imprisonment term of two to three years where the amount misappropriated is between K10,000.00 and K40,000.00. With respectwa’s cass case was decided six years ago and in the meantime, the Courts have sounded warnings that the sentence will go uline with the increasing number of missappropriation cases since that Supreme Court decisiocision. I think it would be fair to say a range in the vicinity of two years to five years has been set by the sentencing tendency of this court in similar cases whnvolved substantial amounts of money. The sentence may be adjusped upwards or downwarwnwards according to the individual factors of the offender and the seriousness of the crime as suggested in Belawa’s case.

SENTENCE

I have setthe factors which I considensider as appropriate in assessing your punishment. I accept that yo sorry fory for what you did.

I consider your remorse also as an expression of personal shame and acceptance of the disgrace you have brought your family

You are sentenced to three years imprisonment IHL.&#160 Taknto account your pre-trre-trial custodial period you will serve a term of two years and eleven months imprisonment. Two years ipended if you ryou repay the sum of K22,100.00 and enter inrecognition to be of Good Bood Behaviour Bond for a period of two years.

Lawyer for the State: P Mogish - Public Prosecutor