State v Bale [2004] PGNC 161; N2626 (23 June 2004)

N2626

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 55 of 2001

THE STATE

v.

JOHNSON BALE

Kimbe: Sevua, J
2004: 17th & 23rd June

CRIMINAL LAW – Sentence – Stealing – Amount of money stolen substantial – Money not recovered – First offender – Mitigating circumstances – Custodial sentence – 4 years imprisonment.

Counsel:
F.Popeu
O.Oiveka

23rd June 2004

SEVUA, J: You were found guilty and convicted of stealing on 17th June 2004 and it is now my task to sentence you. Briefly, the Court found through circumstantial evidence that you stole the sum of K78, 074.03 from your previous employer, Pacific Industries Limited under the following circumstances.

On the 26th June 2000, you were directed to do the company’s banking at PNGBC in Kimbe. You had with you the sum of K78, 074.03 in both cash and cheques. When you left the company premises, you were being followed by a stolen Water Board vehicle which had earlier parked outside the company premises. At the Ela Motors junction in town, you turned into the street which the bank is situated; however you did not go to the bank. Instead, you drove to Section 21 and parked at the rear of a Tucker Box. The Water Board vehicle arrived and the occupants stole the money from you.

In the exercise of your constitutional rights you remained silent therefore did not give evidence, but you were previously interviewed by police in respect of this matter and you gave answers to questions that were asked. In the record of interview, Exhibit "N" and "N1", you explained that you went to the Tucker Box to recover some drinks that were not sold and you wanted to replace them. However, prior to your arrival at that shop, one of your colleagues had already been to that shop to collect money from the shop. The drinks could have been taken by that person who was a salesman. However, you were not a salesman that time. You were employed as an EDP clerk and you have offered no explanation why as an EDP clerk you were doing the job of a salesman.

In any event, the Court found that there must have been a conspiracy between you and the thieves, although you have denied any involvement even up to the time you were convicted you still maintained your innocence. The Court had found that this whole episode was not a coincidence. You had in your possession a huge sum of money, and you should have banked it because you were sent specifically to bank that money. However, although you saw the Water Board vehicle following you, you did not stop at the bank or even drive to the Police Station if you suspected that you were being followed. But then the Court asked how the thieves knew that you were carrying a large sum of money and that you had gone to the Tucker Box at Section 21 and parked at the rear of that shop. Surely, they must have known and that s why the Court found that this was not a coincidence but an inside job.

These are some of the facts that enabled the Court to find you guilty of this offence.

I have listened to you during allocutus and as I said at that stage you still maintained that you did not steal the money and I told you that that was contemptuous of you to say that. You said you did not benefit from that money. You said you were employed at the wharf and asked for a good behaviour bond.

Your counsel has submitted that you are 30 years old from Raluana village, Kokopo, East New Britain Province. You are married with five children. Up to the time you were found guilty, you were employed by East West Shipping Agency in Kimbe and you are a member of the United Church in Kimbe. This is the first time you have been convicted of an offence, and the Court has been urged to consider this on sentence. You did your matriculation studies at UPNG in 1993, then worked for Graybridge until your resignation. You then worked at Pacific Industries Limited from 1998 to 2000 when you were terminated as a result of this offence.

The maximum penalty for the offence of stealing under s. 372 of the Criminal Code is 7 years imprisonment. And counsel asked the Court to take all these matters into account on sentence.

I have considered all these matters and taken them into account, especially your personal antecedents. I acknowledge that you have not offended before, and this is the first time that you have been found guilty of a criminal offence.

However, I consider that this is a prevalent offence. There are many instances where money being taken to the bank for banking have been stolen from those in possession, and that in many cases, this is an inside job. Dishonest employees of companies with criminal intentions have conspired with criminals in such cases and this kind of offence is increasing. Large amounts of moneys are being stolen because there are employees of companies who conspire with criminals and give the necessary information leading to ambush type situations, where those taking the moneys to the banks are ambushed and moneys stolen from them, and these are not coincidences. They are inside jobs. It happens to companies and banks and the Court must punish the perpetrators, especially those who leak out information leading to the thefts of moneys on the way to banks. For without their involvement, the offence will not be committed. They are as guilty as the thieves or robbers.

In the present case, despite your denial even after you were found guilty, I consider that you were involved in this offence as I had found, and therefore are as guilty as the persons who actually took the money from you. Because I have found that under the circumstances you were involved, you must therefore be punished.

The Supreme Court in Wellington Belawa v The State [1988-89] PNGLR 496; established guidelines for sentencing in dishonesty offences. This case falls into the fourth category in which the recommended sentence is 3 to 5 years imprisonment. In this case, the money was not recovered and this represents a big loss to the company. Had you gone to the bank to bank the money first, you would not be here today. There was no good reason for you top go to Section 21, other than that you had conspired with the people who stole the money. As I have alluded to in my judgment on 17th June, how could the thieves follow you to Section 21, and in particular, to the rear of the shop and get the money without knowing that you had a large amount of money with you?

It is this kind of inside job that many business houses including banks have lost substantial sums of money and it seems that this offence is becoming quite prevalent. Without the assistance of the insiders, who would usually be employees like you, the offence would not be committed. The Court must penalise offenders to reflect the concerns of the victims in this type of stealing. The sentences must also demonstrate that employees who are involved in this type of stealing will be punished severely. So in your case, the sentence will act as both a personal deterrence and a public deterrence as well to stop like minded employees from committing the same offence.

The only mitigating factors that weigh in your favour are that you are a first offender; you have a good clean record, and you said you did not benefit from the stolen money. However against those factors, the sum of money stolen is quite substantial. You were entrusted with the money to go and bank it, not to drive around with it. In that regard, I consider that you were in a position of trust. You have done banking on previous occasions so obviously; the company had trust in you. However, I consider that you abused that trust by not going direct to the bank to bank the money. Nothing has been recovered so the theft was a great loss to Pacific Industries Limited.

I have seriously considered your plea for a good behaviour bond. However in my view, this is one case that warrants a custodial sentence to send the message home to like minded persons that the Court will deal with them in the same manner. So the sentence is both a personal and public deterrence.

In all the circumstances, you are sentenced to 4 years imprisonment in hard labour. I order that 4 months be deducted for pre-trial custody period leaving the balance of 3 years 8 months to serve. I further order that cash bail in the sum of K400.00 be refunded.

Orders accordingly.

Lawyer for State : Public Prosecutor
Lawyer for Prisoner : Public Solicitor