State v Kig [2001] PGNC 31; N2177 (21 June 2001)

N2177

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

CR 1027 OF 1999

THE STATE

-V-

MAKEU KIG

MADANG : SAWONG J.
2001 : 9th April, 21st June

CRIMINAL LAW - Sentence - Misappropriation of funds belonging to employer - Person in position of Trust - Criminal Law - Sentence - Misappropriation - Non violent offence - term of imprisonment inappropriate - Suspended sentence - Order for restitution -

CASES CITED:
Wellington Belawa v The State [1988-89] PNGLR 496
Griffiths v The Queen [1977] 13 C.L.R. 293

Counsel:
J. WALA, for the State
D. KARI & D. KOEGET, for the Accused

SENTENCE

21st June, 2001

SAWONG J: The accused was indicted and pleaded guilty to one count of misappropriation, an offence contrary to S. 383 A(1) (a) and (2) (b) of the Criminal Code Act (Ch. No. 262).

The facts show that the accused was employed as a sales Manageress by FRG Clothing Pty Ltd in Madang. During the course of her employment between the period 8th November, 1996 and 28th April, 1997 various customers of the employer placed orders for various uniforms and clothes. These customers either paid cash at the time of placing the orders or made payments subsequently. The evidence also shows that she received monies through the post office by the Salim Kwik transaction system or the clients also paid money into her bank account. Essentially, she used three methods to receive these monies. These payments were collected by the accused. She then systematically applied or used the money for her own use. The total amount she misappropriated in the relevant period was K28,189.53. This money was the property of FRG Clothing Pty Ltd, her then employer. She used the system for approximately five (5) months when the fraud was discovered and she was dismissed from her employment.

The crime of misappropriation pursuant to S. 383 (A) (2) (b) of the Criminal Code attracts a maximum sentence of ten (10) years imprisonment. Your lawyer has referred me to the Supreme Court decision in Wellington Belawa v The State [1988-89] PNGLR 496. In that case the Supreme Court set out various factors that ought to be taken into account when considering sentencing an offender for an offence involving dishonesty. These include the amount taken, the quality and degree of trust reposed in the offender including his rank, the period over which the fraud or theft had been perpetrated, the use to which the money dishonestly taken was put to, the effect upon the victim, the impact of the offence on the public and public confidence, the effect on fellow employees, the effect on the offender himself or herself, the offender’s own story, restitution and other mitigating factors particular to the offender. The Court there suggested that in a case where the amount misappropriated is between K10,000.00 and K40,000.00 a term of imprisonment of two (2) to three (3) years imprisonment would be appropriate.

The Supreme Court in the above case set out the sentencing guidelines and suggested range of tariffs for sentences to be imposed by the National Court on offenders who commit crimes of dishonesty. Your lawyer has submitted that, even though the Supreme Court has said that offenders who are convicted of stealing large amounts of money, as in your case, ought to be sent to jail, nevertheless, in your case the court should not send you to jail. He submitted that looking at all your personal antecedents, the mitigating factors in your favour and your willingness to repay the money, a non custodial sentence would be appropriate.

I wish to make a few remarks about setting down range of tariffs for various offences. In setting down a range of tariffs of sentences it creates difficulties for the trial judge. Whilst I accept that a Supreme Court in attempting to set down a range of tariffs, has an important value, I consider that in doing so, it crates some difficulties.

The principle difficulty, in my view is that, such a system creates pressure on the trial judge to impose a sentence within the suggested range or tariff. It would also put pressure on the trial judge to impose a severe sentence than a sentence one would consider appropriate. It could also put pressure on the primary judge not to explore other sentencing alternatives.

The difficulty with setting down in principle tariffs for various offences is that, a trial judge feels somewhat compelled to follow such a guideline or tariff. This difficulty was succinctly expressed by Murphy J, in Griffiths v The Queen [1977] 137 C.L.R. 293 at 330:

"Emphasis on and adherence more or less to a scale of penalties for various offences ( the Tariff System) exerts pressure on the primary judges to impose more severe sentences thatn they would sometimes wish and in practise inhibits desirable experimentation and exploration of alternative causes contemplated by legislature."

This is more particularly so in my view in crimes involving non-violent crimes such as dishonesty offences. In my view in such crimes the primary judge ought to explore and experiment with alternative sentencing methods such as, suspension of a sentence, imposing appropriate community work orders, ordering restitution and the like.

Moreover, the suspension of a sentence of imprisonment is not to be taken as merely an exercise in leniency. Such an order is made in the community interest and is designed to prevent re-offending which a prison sentence standing alone seldom does. A person so released has an obvious incentive not to re-offend and should have no misconceptions as to what will occur if he or she does.

Because of the submissions made by your lawyer and the matters you had raised in your allocatus, I had ordered that a pre-sentence report, be compiled and filed with the court.

I now have the report before me and I am thankful to Mr Miway for his comprehensive report and sensible recommendations. I had given much thought to the recommendation by Mr Miway. His recommendation was that you were suitable candidate for a suspended sentence involving probationary orders. However in his report Mr Miway did not provide whether you should do community work and the particulars of the types of community service work and the organisations where such community service work ought t be performed. Therefore on the 4th May, I took the initiative and rang Mr Miway and asked him to provide the court a supplementary report. At the time I asked him specifically to speak to the chief executive officer and the management team of the Modilon General Hospital and other organisations like the Red Cross in Madang and provide a supplementary pre-sentence report to the court. The supplementary report has been filed. I have also provided that report to your lawyer and to the lawyer for the State and I have asked them to make submissions. They have made submissions. I am once again thankful to Mr Miway for the effort and time he spent on preparing and submitting to this court this supplementary report. The supplementary report has greatly assisted me in coming to the conclusions in this matter.

I am convinced that you are not a danger to society. The crime you committed is a serous crime, is never-the-less a non violent crime. It did not involve violence at all.

I am well aware that the prisons are overcrowded. The CIS have limited or no resources to effectively cater for and look after prisoners. Consequently it is my view in general that, the courts have a duty in the interest of the community to consider alternative forms of punishment other than sending offenders to imprisonment particularly with offence involving non violent crimes. Naturally, this will very much depend on many factors, such as whether the crime involved violence or not, the facts and circumstances of the particular case and so forth.

I consider that suspension of a sentence does not necessarily mean or show leniency. On the contrary such a sentence coupled with appropriate orders such as an order to perform unpaid community work will be equally an effective sentence. Such a view in my view is not and ought not to be viewed as an exercise of leniency.

But before making any final decision, I must look at other relevant matters before sentencing you. These matters include the following:

1. You have no prior convictions. It indicates that up until now you have been a good, law abiding citizen. At your age, (40 years) it could be said that it was of character to commit such a crime, however, the fact that it occurred over a five months period is not in your favour. The crime you committed was not something that occurred on the spur of the moment.
   
2. You pleaded guilty. That to a certain extent shows to me that you are sorry for what has happened and because of your plea you have not caused any unnecessary waste of time for this Court and for the State to mount and conduct a trial.
   
3. You are a married woman with a large family. You have seven children whose ages range between 13 months to 19 years. I have no doubt that they will suffer considerably if you were sent to jail, in particular, the younger ones. Unfortunately, it is the children who so often suffer for the crimes committed by the parents. You have not explained what you did with the money although you have made a general statement that you had used that money.
   
4. Restitution. You have told the Court that you have not made any repayments. You have however stated that if the Court were to ive you an opportunity you would ensure that you repaid the monies. You also gave a vague statement that you are doing something to put some money together to repay what you had misappropriated. The nature and character of "something" you are doing was not revealed to the Court.
   

As a result of what you said, I asked Mr Koeget to make further and detailed inquiry as to your means and ability to repay the money you stole. Mr Koeget has made detailed submissions on how you and your family will be able to pay off this money. It is not necessary to set out these details but I am satisfied as the submissions demonstrate that you would be able to make restitution within two to two and a half years.

In this case I am of the view that I should not send you to gaol. As I have said earlier I do not consider you to be a dangerous or violent person who is a threat to other members of the community who wish to live in peace and obey the law. On the other hand, You committed a serious crime involving some planning on your part and which you carried on for several months. You stole money belonging to your employer. Therefore you would be expected to be usefully punished. You have indicated your willingness to repay the money. You must therefore repay the money. Moreover, you must repay the community for your wrongdoing and your anti-social behaviour. I am of the view that you can contribute meaningfully to the community by unpaid work which will also punish you. Such a course in my view, is useful to yourself and also useful to the community and the community benefits from your efforts. In that way you would not be languishing in jail and the State will not have to cater for you through provisions of clothing, food, shelter and so forth. You must realise that if you do not carry out the orders of the court, then there will be no other alternatives but to revoke the orders and send you to jail.

For these reasons you are convicted and sentenced to two (2) years and six (6) months imprisonment IHL. However, this is to be suspended and you are to be released forthwith on probation for a period of two (2) years. The following conditions apply:

1. You are to have contact with your probation officer, Mr J Miway, today before you leave the court.
2. You are to report to a probation officer as and when required by the probation officer to do so.
3. You are to keep the peace and be of good behaviour.
4. You are not to change your residential address unless you have given the probation officer reasonable notice of your intention to do so and the reason for a proposed change.
   5. You shall for the purposes of the Probation Act, allow a probation officer to enter your home during reasonable hours.
   6. From 21st June, 2001 to 30the June, 2003 you are to work two full working days namely on Tuesdays and Thursdays each week with the Madang General Hospital free of charge. In other words, you are to work eight (8) hours per day on each of these two (2) days and for which you will not get paid. You are to obey all the instructions of your employer and to assist in every possible way.
   7. You are to repay FRG Clothing Pty Ltd, the sum of K28,189.53 on or before 31st December,, 2003. This money is to be paid to the Assistant Registrar of the National Court in Madang, who shall then cause the monies to be paid to FRG Clothing Pty Ltd.
      

In the event that the conditions are not complied with, then your probation will be breached and you will be sent to gaol for two (2) years and six (6) months.

Finally, I recommend that a quarterly report be forwarded to me by probation officer in regard to your progress.
_______________________________________________________________________
LAWYER FOR THE STATE : PUBLIC PROSECUTOR
LAWYER FOR THE ACCUSED : PUBLIC SOLICITOR