State v Kua [2007] PGNC 103; N3230 (14 November 2007)

N3230

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 753 of 2007

THE STATE

V

SIBA KUA
-Prisoner-

Goroka: Davani. J
2007: 6, 13, 14 November

CRIMINAL LAW - sentence - misappropriation - guilty plea - K9,829.60 misappropriated.

CRIMINAL LAW - sentence - prisoner an employee - monies stolen property of employer - misappropriation occurred over a 4 months period - s. 383A(a)(a)(2)(b)(d) of Criminal Code Act.

Prisoner was a senior travel consultant with a Goroka based company. He sold 15 airline tickets worth K9,829.60. Instead of depositing the monies to his employers account, he applied the monies to his own use. This he did over 4 month period.

Held

(1) When sentencing, the Court will exercise its sentencing discretion, considering all the factors before it.

(2) Prisoner is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, allocatus or matters raised by Defence Counsel which are not contested by the prosecution. Saperias Yalikabut v The State SCRA 52 of 2005 dated 27 April, 2006.

(3) A family’s welfare after conviction of one parent is the responsibility of the Government of the day. State v John Peril (2005) N2883

Cases Cited
Wellington Bellawa v The State [1988-89] PNGLR 496
The State v Fano Kuromo (1999) N553
The State v Scholar Zuvani (2004) N2641
Tom Longman Yaul v The State (2005) SC803
Saperias Yalibakut v The State SCRA 52 of 2005 dated 27/4/06

Counsel
C. Sambua, for the State
R. Yombon, for the Accused

SENTENCE

14 November, 2007

1. DAVANI. J: Siba Kua (‘the prisoner’) pleaded guilty to one (1) count of misappropriation, charge laid under s. 383A(1) (a) (2) (b) (d) of the Criminal Code Act (‘CCA’). This provision reads;

"383A. Misappropriation of property

(1) A person who dishonestly applies to his own use or to the use of another person -

(a) property belonging to another; or

...

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for five years except in any of the following cases when he is liable to imprisonment for ten years

-

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

...

(d) where the property dishonestly applied is of a value of K2,000 or upwards"

Evidence

2. The evidence and facts that the prisoner pleaded guilty to are that between 1 December, 2006 and 11 April, 2007, whilst an employee of the Goroka Travel Centre, the prisoner applied to his own personal use, the sum of K9,829.60, the property of the Goroka Travel Centre. These monies were proceeds from 15 airline tickets which the prisoner sold and which he used over that period of time, instead of depositing into his employers account, as he was supposed to.

3. This theft was discovered when the Travel Centres management conducted an audit.

Allocatus

4. On allocatus, the prisoner told the court that he was forced to steal because his employer was not paying him well, considering he was a qualified travel consultant, having worked with several major airline companies, prior to being employed by the Goroka Travel Centre. He told the court that his career as a travel consultant began in 1986 when he was employed by Air Niugini as a Commercial Cadet. He underwent intensive training in all commercial departments of Air Niugini. He became an International Travel Adviser and worked in that position for 3 to 4 years. He said he enjoyed a very good package like his good annual salary, Nasfund membership, a member of the Air Niugini Savings and Loans Society and other benefits.

5. In 1990, he joined Qantas as an International Travel Consultant based in Lae. He enjoyed a good pay packet with other benefits like Nasfund. He also attended courses in Australia during the 5 years he was with Qantas.

6. In 1996, he joined Bird of Paradise Travel based in Goroka. As an International Travel Adviser, he had a good package which included other benefits like medicare and Nasfund, for 3 years.

7. From 1999 to 2000, he worked with Teamstar Travel Services, a small company based in Mount Hagen. He did not have any benefits but was on an annual salary package of K20,000.00.

8. I will discuss the other facts raised by the prisoner in my analysis on the evidence and the law. But in defence, the prisoner stated that he had to steal because his employer did not pay him on his contracted rate of K480.00 net per fortnight or K12,480.00 per annum with 5 to 10 percent annual performance bonus, after tax. It was out of frustration that he began taking monies from his employer. He told the court that this is his first offence and that he is sorry for what he did.

Analysis of Evidence and the Law

9. The offence was committed over a period of approximately 4 months. The theft was discovered after an audit conducted by the company. Balanced against this is the prisoner’s guilty plea, his remorse and the fact that this is his first offence.

10. Should the court also consider as mitigating factors, what the prisoner claims is unfairness by his former employer. The prisoner’s submissions are that he would not have stolen from his employer if they had paid him on the agreed rates. He said for the 5 years he worked, the first salary he received was K50.00 which increased slowly over the years. For 5 years, he also did not take his annual leave. The company then started to pay his K225.00 per fortnight on a regular basis but with no other benefits.

11. What the prisoner presented to the court is evidence from the bar table. I ordered the presentation of a Means Assessment Report (‘MAR’) and a Pre-Sentence Report (‘PSR’), upon the prisoner’s request. But the representatives of the prisoner’s former employer were not interviewed because none of them were available. They may have left town because the company no longer operates in Goroka. Therefore, I am unable to give any weight to the evidentiary material presented by the prisoner from the bar table except for the prisoners contentions that he stole because he was not properly paid. But I note also that because the prisoner has pleaded guilty, that he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocatus or matters raised by his Defence Counsel that are not contested by the prosecution (see Saperias Yalibakut v the State SCRA 52 of 2005 dated 27/4/06)

12. I have taken into account the authorities referred to me by Mr. Yombon for the prisoner, cases being State v Fano Kuromo (1999) N553 and State v Scholar Zuvani (2004) N2641. In these cases and other cases on misappropriation, when exercising its sentencing discretion, the court takes into account the factors presented in the MAR and PSR but is not bound to follow them. The MAR states that the prisoner does not have the means and the ability to repay the stolen monies. In any event, if the court were to order restitution, where would the prisoner pay to? Mr. Yombon has not presented any evidence to show to whom the repayments will be made.

13. Sentencing guidelines as held in Wellington Bellawa v The State [1988-89] PNGLR 496, will assist in reaching a just sentence. If the amount taken is between K1000.00 to K10,000.00, a term of 2 years will be imposed to be adjusted upward or downward. The other factors to be considered are;

(i) The amount taken;
(ii) The degree of trust held by the offender;
(iii) The period over which the offence was committed. A planned scheme will carry a higher sentence;
(iv) The use to which the money was put;
(v) The effect on the victims;
(vi) The effect on the offender himself, and
(vii) Whether restitution was made to the victims.

14. In this case an amount over K9,000.00 but below K10,000.00 was taken. The offence was committed over a period of 4 months. The prisoner applied the monies to his own use and no restitution has ever been made.

15. The prisoner states he was unhappy with the manner in which he was remunerated by his employer. But I am surprised he continued to work for them for over a period of 5 years. Why did he not resign after the first year? Why did he not seek other avenues to be paid his dues? We will never know.

16. Additionally, the prisoner asked that the court consider that his family will be left destitute if he was given a custodial sentence. But the courts have always held that this should not be taken into account as a mitigating factor because an accused person should have thought of the consequences for his family before committing the offence. I share the same views and have held that in cases where this was raised. I also add that I am aware of the reality that his wife is now faced with which is who will assist her make ends meet for her family? It is a fact of life which must be faced head on.

17. It is the Governments responsibility to ensure that its Department of Social and Community Affairs has a budget to cater for destitute families, in this case, the families of prisoners. Since Independence in 1975, no Governments have given this area any priority, of course which ultimately results in this country’s citizens being left to fend for themselves resulting in many social problems. The reality is that the courts are here to execute the law and it will do so. There is a lot the Department of Social Welfare can do together with the courts administration in terms of protecting this country’s citizens but I have yet to see a bureaucrat take this up and work with it as an urgent issue facing this country. The children still have their mother and the responsibility now falls upon her to care for her children.

18. In this case, the prisoner’s wife has indicated her intention of returning to Fiji to her family, where she is originally from. That option is open to her.

19. In terms of sentencing, the court considers a sentence of 3 years to be appropriate under the circumstances. The prisoner shall serve 2 years and 1 year will be suspended upon him entering into his own recognizance, without sureties, on the following conditions;

1. That he shall be of good behaviour for the year of the suspended sentence;
   
2. that he shall not leave the Eastern Highlands Province during the period of the suspended sentence;
   
3. That in the event any of the conditions are breached, that he will be immediately arrested to show cause why he should not serve the full suspended term of 1 year.
   

20. In relation to condition no. 3, anybody who becomes aware that the prisoner is breaching his conditions shall report the matter to the police. On appearance before a Judge, the accused must show cause why he should not be sent to jail to serve the suspended sentence. (see Tom Longman Yaul v The State (2005) SC 803).

_____________________________

Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused