State v Iralu [2008] PGNC 241; N3710 (10 July 2008)

N3710

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 269 OF 2007

THE STATE

V

FRANCISCA IRALU
Prisoner

Mt. Hagen: David, J
2008: 08 & 10 July

CRIMINAL LAW – sentence – misappropriation of K9,000.00 - monies belonging to employer – offence committed over a period of 5 months - guilty plea – no priors - expression of remorse – breach of trust - 3 years imprisonment in hard labour less period for pre-trial confinement – remaining term wholly suspended with strict conditions applying – ss. 19 & 383A (1)(a) and (2) (b) Criminal Code.

Cases cited:

Wellington Belawa v. The State [1988-89] PNGLR 496
The State v. Bluey Hanua (1997) N1625
Public Prosecutor v. Don Hale (1998) SC564
Doreen Liprin v. The State (2001) SC673
The State v. Micky John Lausi (2001) N2073
The State v. Robert Kawin (2001) N2167
The State v. Timothy Tio (2002) N2265
The State v. Dobi Ao (No.2) (2002) N2247
The State v. Margaret Donny (2004) N2609
The State v. Roselyn Waembi, CR.1049 of 2005, Unreported Judgment delivered by David, J on 26 March 2008
The State v. Ruth Mamando, CR.1652 of 2003, Unreported Judgment delivered by David J on 22 April 2008

Counsel:

J. Waine, for the State
P. Kapi, for the Prisoner

JUDGMENT

10 July, 2008

1. DAVID, J: INTRODUCTION: The Prisoner pleaded guilty to a charge upon an indictment that between 26 July 2006 and 21 December 2006 at Mt Hagen in Papua New Guinea, whilst employed by Niugini Oil Company (her former employer), she misappropriated the sum of K9,000.00, the property of her former employer contrary to s.383A (1)(a) and (2) (b) of the Criminal Code.

BRIEF FACTS

2. The Prisoner pleaded to these brief facts presented by the State.

3. The Prisoner was employed for a total period of 9 years by her former employer which is based at Kagamuga, Mt Hagen. She was the Office Manageress from 2003 to 2006 whose duties and responsibilities included keeping records of her former employer’s accounts, banking of takings and was also involved in the sale of fuel.

4. Between 26 July 2006 and 21 December 2006 the Prisoner dishonestly applied to her own use a total sum of K9,000.00, the property of her former employer. She did this by altering the cash sales figures on the yellow copies of the invoices in respect of 36 transactions to amounts less than what were actually stated. She would then go to the bank, do the deposits, but kept the difference of each of those transactions and used the moneys for her own benefit.

5. The amount of moneys which the Prisoner took on each occasion ranged from the first transaction of K552.57 to the last transaction of K481.56.

6. The Prisoner was suspended and consequently terminated sometime in January of 2007 because of the allegation.

THE RELEVANT LAW

7. Section 383A (1)(a) of the Code creates the offence and sub-section (2)(b) prescribes the penalty. I set out s.383A below.

"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

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

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 a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:—

(a) where the offender is a director of a company and the property dishonestly applied is company property;

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

(c) where the property dishonestly applied was subject to a trust, direction or condition;

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

(3) For the purposes of this section—

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; .........."

8. The prescribed maximum sentence that can be imposed for the offence of misappropriation in this case is imprisonment for 10 years.

9. The case of Wellington Belawa v. The State [1988-89] PNGLR 496 is the leading authority in this jurisdiction for the offence of misappropriation and it sets out the sentencing guidelines for the offence. That case recommends that the following factors should be taken into account when determining what penalty to impose on an offender and these are; the amount taken; the degree of trust reposed in the offender; the period over which the offence was perpetrated; the use to which the money was put to; the effect upon the victim; the effect upon the offender himself; restitution; the offender’s own history; and matters of mitigation special to himself, such as ill health, young or old age, effect of excessive nervous strain, co-operation with the police.

10. Wellington Belawa also recommended a scale of sentences to be adjusted upward or downward depending on the various factors mentioned above and these are, where the amount misappropriated is between K1.00 and K1,000.00, a gaol term should rarely be imposed; between K1,000.00 and K10,000.00, a gaol term of up to 2 years; between K10,000.00 and K40,000, a gaol term of 2 to 3 years; between K40,000.00 to K150,000.00 a gaol term of 3 to 5 years.

11. It is generally accepted now that while the factors set out in Wellington Belawa are still relevant, the tariff recommended is outdated and therefore the need to impose stiffer sentences due to the prevalence of the offence. However, the Court still has a discretion under s.19 of the Code to impose an appropriate sentence depending on the facts or circumstances of a particular case.

12. I will refer to some other cases as well that have been decided in relation to the offence under discussion to assist the Court in determining the appropriate sentence for the Prisoner.

13. In Doreen Liprin v. The State (2001) SC673, the Prisoner was convicted by the trial judge on 3 counts of forging, uttering a bank withdrawal slip and misappropriation of a sum of K6,000.00. She was sentenced to 1 year each for forgery and uttering and 3 years for misappropriation all of which were to be served concurrently. The sentences were suspended on the condition that she repaid the money misappropriated within 2 months of sentence and in default she would be taken into custody to serve the sentences. She defaulted and was subsequently ordered to be taken into custody to serve the sentences. She lodged an appeal herself whilst she was in prison against conviction and sentence, but later engaged counsel to prosecute the appeal. Although her appeal was lodged out of time, the Supreme Court granted leave to review the matter in the exercise of its powers under s. 155 (2)(b) of the Constitution. The Supreme Court unanimously dismissed the appeal against conviction, but by a majority of 2-1 upheld her appeal against sentence which was reduced to 18 months.

14. In that case, Amet, CJ, as he then was, proposed that the prisoner be accorded more time to look for an alternative employment to repay the amount misappropriated and the Court consider making orders for free community work under the supervision of the Probation Service, Church Pastors community based organisations such as the Red Cross, etc. His Honour said:-

"I believe it is time to consider seriously whether offences of misappropriation of amounts of this kind warrants custodial sentences. I do not believe so. I believe the Court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment..............................................................

For instance, if the Appellant were still employed, then a combination of alternatives that would enable her to continue working and to repay the full amount over an appropriate period of time in instalments. In that way the intention to impose a restitutionary order would be meaningful of attainment as well as a meaningful penalty upon the offender. Other social consequences are then accomplished in the process, that is that the offender would continue to be employed but pay her due to victims of the misappropriation and she could be further placed on additional supervised community work over a period of time as well. She would continue to be able to provide for and maintain her family and their need but be ordered to provide appropriately designed community work under supervision of Probation Officers, Church Pastors or other community based organisations such as the City Authority, the Red Cross, Saint Johns Ambulance Services and so on.

The offender is not a violent offender and not a threat to the community or society.

The converse implications of a sentence of imprisonment is, whilst the immediate effect is that of declaration of liberty and does a punishment, the cost to the State and community will exceed considerably the amount of money misappropriated. It would be of no benefit to society. The purpose of punishment can as easily be obtained in alternative orders to imprisonment. The offender is now threat to society." (sic)

15. This approach was adopted by Los, J who was in the majority.

16. In The State v. Bluey Hanua (1997) N1625, the prisoner was employed as an Appointment Teller with the PNGBC Branch at Waigani. His duties and responsibilities included the handling and control of bulk coins in the branch for corporate clients. As a bag of coins passed through his Teller Counter, he would record a lesser amount than the actual amount in the bag and the balance was entered in the computer as deposits into his brother's account. Withdrawals were then made from the account for the prisoner’s own use. Over a period of nearly 2 months, K5,850.00 was lost to the bank through that scheme.

17. The prisoner pleaded guilty and was sentenced to 2 years imprisonment in hard labour; 18 months of the term was suspended and he was placed on a 2 year good behaviour bond after serving 6 months in prison.

18. Mitigating factors considered in his favour were that; his own conscientious guilt caused him to inform his supervisor about what he did; at the time of his arrest, he had repaid about half of the amount taken and by the time of sentence, the amount taken had been fully restituted; restitution was demonstrative of genuine remorse; he co-operated with the police investigations by making full admissions which he maintained through to him pleading guilty; he had no prior convictions; he was married with 4 young children and he was re-employed elsewhere, but the prospect of retaining his job was in jeopardy because of his conviction.

19. The aggravating factors were that it was a breach of trust in misappropriating K5,850.00, an amount which was neither small or substantial, in his position as a teller; the prevalence of the offence coupled with a degree of scheming involved to commit the offence.

20. In The State v. Margaret Donny (2004) N2609, the prisoner was employed by a company involved in the business of buying vanilla in Kavieng as a Pay Clerk and Supervisor. Between 30 April 2003 and 4 June 2003, she devised a fraudulent scheme by which she started to swindle money from her employer. She was responsible for writing receipts for customers who went to the company to sell their vanilla beans. She would send these receipts with the details of the customers’ sales, ie. the names, quantity, weight and amount per kilogram to another employee who processed the payment in cash and handed them back to the prisoner to pay the customers. During the same period, the prisoner began to write false receipts with falsified details which she submitted to the other employee to process payment. When she received the cash, she paid the customers, but retained the cash paid in respect of the falsified receipts, which she later deposited into her bank account. The total amount of money she misappropriated through the fraudulent scheme was K11, 400.00. The prisoner was dismissed from her employment because of the allegation.

21. Mitigating factors considered in the prisoner’s favour were that; the prisoner was a first offender; she was married with 7 children; she pleaded guilty; and cooperated with police investigations with her admissions to them. The prevalence of the offence was held against her.

22. The prisoner was sentenced to 2 years imprisonment with light labour. The Court ordered that; the prisoner serve 6 months in prison; 18 months was suspended as the prisoner was deemed to have repaid the money misappropriated and on condition that she entered into a recognizance to keep the peace and be of good behaviour for 2 years. The Court considered that the withholding of the prisoner’s termination entitlements by her former employer amounting to K9,471.71 and the recovery by her former employer of a keyboard that the prisoner purchased with the stolen money valued at K5,999.90 the aggregate of which totalled K15,471.61 was more than sufficient restitution

ALLOCATUS

23. The Prisoner said sorry to the Court, the State, the lawyers and family members for the offence she committed. She also said that she was under extreme financial constraints to support her two (2) children who were studying at the Divine Word University and University of PNG respectively with total annual tertiary school fees of between K7,000.00 to K8,000.00. Her daughter was doing her final year at Divine Word University and expects her to graduate in March 2009 she said.

24. Subject to the Court’s discretion to consider making an order for restitution, the prisoner proposed to pay back to her former employer half of the money misappropriated considering that it was withholding her termination entitlements.

ANTECEDENTS

25. The Prisoner has no prior convictions.

PRE SENTENCE REPORT

26. It recommends that, considering the background of the Prisoner, a sentence of 5 years be imposed to be served on probation.

27. It further recommends that, whilst the Prisoner is not financially capable of meeting any order for compensation or restitution, she be allowed to pay K5,000.00, an amount she was willing to pay, over a period of 2 years with the assistance of her relatives and from monies she expects to receive from her employer by way of her outstanding entitlements.

MEANS ASSESSMENT REPORT

28. Similar recommendations as those in the Pre Sentence Report are made.

SUBMISSIONS OF THE DEFENCE

Pre Sentence and Means Assessment Reports – Consideration of alternative punishment

29. In anticipation of this case turning into a plea, a Pre-Sentence Report and a Means Assessment Report were furnished by the Probation Service here on the request of the Prisoner. Mr. Kapi of counsel for the Prisoner submitted that these reports were necessary for the Court to consider an alternative punishment to imprisonment such as a non-custodial sentence in line with case authorities like Public Prosecutor v. Don Hale (1998) SC564 and The State v. Dobi Ao (No.2) (2002) N2247.

30. In Don Hale, the Supreme Court stated:-

"If a judge is to consider some leniency on sentence because of age, it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. Age considerations may of course be more obvious to a judge if an offender is under the age of 16 years. Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

31. In Dobi Ao (No.2), His Honour Kandakasi, J found the prisoner guilty after a trial of 8 counts of misappropriation totaling K37,526.58 and 1 count of attempted misappropriation of K5,980.70. His Honour sentenced the prisoner to 3 years imprisonment, but the whole of the sentence was suspended with conditions. His Honour said:-

"I agree it is time now to seriously consider alternatives to sentencing in this type of cases. But, that with respect, does not necessarily mean head sentences be drastically reduced. Instead it means in my view that, there be sterner head sentences and then either have them wholly suspended or it be made part custodial and part non-custodial. This is to show the seriousness of the offence and to serve both the purposes of deterrence and rehabilitate an offender. It would also give the offender a consideration to faithfully meet any conditions that might be imposed for suspending either in part or in whole the head sentence. The absence of a sanction for failing to meet such conditions might give no reason to the offender to comply.

As I observed in the case of The State v. Micky John Lausi (27/03/01) N2073 and cited in The State v. Jimmy Solomon (6/7/01) N2100:

"It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such order is made in the community interest and is generally designed to prevent re-offending which a prison sentence, standing alone, seldom does. A person so released as an obvious incentive not to re-offend. Therefore, there should be no misconceptions as to what will occur if he does. From time to time, persons charged with more serious offences may be dealt with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that a particular offender will be positively damaged by immediate incarceration."

With respect therefore, a non-custodial sentence does not grant the offender immediate liberty. He is simply allowed to serve his penalty out of the prison system for reasons such as those noted in the above passage. Hence, the need to impose a head sentence and conditions for a suspended sentence that will make that clear to an offender."

32. His Honour went on to say:-

"Only an effective sentence can bring about a real achievement of the aims or purposes of criminal sentencing. It is now well accepted that an offender may be better reformed through community participation. Indeed, I have been told in the course of hearing submissions in this case, that two of my previous community-based sentences are doing well and a formal report is forthcoming. When placed with such information, it is far better to get community involved than not, if to do so will keep reform offenders whilst at the same time make them pay for their wrongs by rendering free service to the community rather than become a strain in the public purse. The onus is on the sentencing judge to device a sentence that will meet the interests of society in punishing offenders and at the same time the interest of the offender be treated fairly and to be given a chance to reform and become a better law abiding citizen."

The Prisoner’s antecedents

33. Counsel recounted the Prisoner’s antecedents as follows:-

- She is aged 40 years and is from Togoba in the Western Highlands Province;

- She was previously married out of which marriage she has 2 children, but she has been divorced since 2000;

- She has received formal high school education;

- Since her termination as a result of the allegation in this case, she has been unemployed;

- She spent 4 months in custody after her arrest and before her admission to cash bail of K1,000.00.

Factors in mitigation

34. In mitigation, counsel submitted that; the Prisoner cooperated with the police by making admissions in the Record of Interview; this materialised in the Prisoner entering a guilty plea; she has no prior convictions and expressed remorse.

Penalty

35. As to penalty, counsel submitted that the Court consider an appropriate sentence under category 2 of Wellington Belawa, but subject to the Court exercising its discretion under s.19 of the Code. Counsel suggested a head sentence of 2 years less the pre-trial confinement period of 4 months leaving 1 year and 8 months to be served.

36. Counsel also submitted that the balance of the term suggested should be wholly suspended with conditions including; part restitution of K6,000.00 to be offset by the application of bail moneys of K1,000.00 for that purpose immediately and K5,000.00 to be paid over a period of 3 years and the Prisoner providing free community service at least once a week to schools, hospitals, etc. based on the recommendations in the Pre Sentence Report and the Means Assessment Report and the case precedents of Don Hale, Dobi Ao (No.2) and The State v. Micky John Lausi (2001) N2073.

37. Counsel further submitted that a suspended sentence would be appropriate because; this would give the Prisoner an opportunity to find employment to enable her to restitute which was in line with the principle enunciated in Doreen Liprin; she was not a risk to society; she was unlikely to re-offend; and she has already suffered enough as a result of the crime.

38. Counsel also requested the Court to take judicial notice of her former employer withholding her entitlements, the amount for which he said was unknown at this stage. He also said that correspondence initiated by and on behalf of the Prisoner has attracted no response confirming the reluctance of her former employer to cooperate.

SUBMISSIONS OF THE STATE

Penalty

39. Mr. Waine of counsel for the State agreed with the defence that this case falls under category 2 of Wellington Belawa. However, counsel referred to the cases of The State v. Robert Kawin (2001) N2167, The State v. Timothy Tio (2002) N2265, The State v. Roselyn Waembi, CR.1049 of 2005, Unreported Judgment delivered by David, J on 26 March 2008 and The State v. Ruth Mamando, CR.1652 of 2003, Unreported Judgment delivered by David, J on 22 April 2008 when suggesting that the prevalence of the offence called for a sentence of 3 years instead of the maximum of 2 years recommended for the category.

40. Mr. Waine suggested that if the Court were minded to order restitution, then it should adopt the approach taken in Roselyn Waembi based on the Prisoner’s ability to pay now. If that were not possible, then he suggested in the alternative that the approach taken in Ruth Mamando should be adopted or a fine could be imposed instead.

41. In Robert Kawin, the prisoner was charged for 2 counts of stealing under s.372 (1) of the Code. The prisoner and the victim worked for a company that had decided to retrench them. On the day they were retrenched, their employer did not pay them their respective retrenchment pay out. That was to be done sometime later. Both of them therefore had to wait for their finish pay. The prisoner was then entrusted with a PNGBC transaction account book belonging to the victim who was travelling out from his locality to visit his sick child. The prisoner was instructed by the victim to collect his retrenchment pay from their employer and deposit it into his account. During the victim’s absence, the prisoner completed a withdrawal form, forged the victim’s signature and withdrew from the account K50.00 and K2,200.00 on 2 separate occasions. On a guilty plea with the prisoner being a first time offender and in a breach of a position of trust, the prisoner was sentenced to 6 months and 18 months respectively to be served cumulatively.

42. In Timothy Tio, a security guard stole a brand new chainsaw valued at about K8,000.00 from a hardware he was guarding and sold it to a third party for K3,000.00. The third party paid K1,000.00 and the balance of K2,000.00 was to be paid later. Before the third party could pay the balance, the prisoner was arrested and charged for stealing under s.372 (1) & (10) of the Code. The chainsaw was recovered from the third party. On a guilty plea, the prisoner was sentenced to 5 years imprisonment in hard labour less time spent in custody.

43. In Roselyn Waembi, the prisoner was employed as an Accounts Clerk with a law firm here in Mt Hagen solely charged with the running of their Accounts Section. She was an educated and sophisticated person being a holder of a Diploma in Accounting from the University of Technology, Lae. She was employed there because she was from the same tribe as the principal of the law firm. Her duties involved; receiving and banking monies paid by clients on account of costs into the law firm’s trust account; doing monthly bank reconciliations and trial balances for the law firm’s trust account; maintaining clients’ trust ledgers and cash books; maintaining debtors and creditors list; arranging payments for overheads including staff wages and debt collection.

44. Over a period of about 2 years and 5 months, the prisoner stole a total of K15,000.00 from the law firm. She did this by including extra monies on Cheque Requisition Forms every payday Friday when she would take them to the principal of the law firm for his verification and endorsement. Fridays being a busy day, he, without checking or verifying the details of wages that were being paid, would sign the wages cheques. The extra monies the prisoner took using this method on a single occasion ranged from K50.00 up to K700.00.

45. The Court had the benefit of a Means Assessment Report which showed that the prisoner who had since found employment elsewhere had a regular income by way of her fortnightly wages and from gate takings she received from conducting nightly television shows from her house. She was sentenced to 3 years imprisonment in hard labour less time for pre-trial confinement. The remaining term was suspended with strict conditions applying including an order for full restitution.

46. In Ruth Mamando, the prisoner was employed as a cashier by her former employer at their Mt. Hagen depot in the Western Highlands Province. One of her duties involved the banking of daily takings. On 1 and 2 April 2003, the prisoner collected moneys from 2 customers who paid for goods which were to be collected from their Wabag depot inclusive of an excess of K7,000.00 which she held on the second day. She did the banking on 1 and 2 April 2003. However, she did not bank the whole of the monies she collected from those customers nor did she return the excess moneys to her employer. She took a total of K34,326.75.

47. I had the benefit of a Pre Sentence Report and a Means Assessment Report. The reports showed that the prisoner did not have any substantive means to meet any orders for compensation or restitution.

48. I imposed a sentence of 4 years imprisonment in hard labour less 6 days for the time spent in pre-trial confinement. That left a balance of 3 years, 11 months and 22 days to be served. I ordered the prisoner to immediately serve 11 months and 22 days at the Baisu gaol. The balance of the remaining term was suspended with strict conditions applying including a community service order.

Factors in Wellington Belawa

49. Counsel’s submissions in relation to the factors suggested in Wellington Belawa have been considered and are subsumed in the Court’s discussion below.

CONSIDERATION OF FACTORS AND SENTENCING GUIDELINES

50. In applying the sentencing guidelines alluded to above, I consider each of the factors as follows:-

The amount taken

51. There is evidence showing that K18,938.33 was actually stolen. However, the Prisoner has been indicted for a lesser amount of K9,000.00 which is still substantial and is consistent with the brief facts put to her. The amount taken is therefore K9,000.00.

The degree of trust

52. The Prisoner was the Office Manageress of her former employer’s Mt. Hagen Branch in whom her former employer held her in high regard and trust. Her specific duties and responsibilities included taking financial control of the branch, banking of takings and she was also involved in the sale of fuel. She took advantage of the trust reposed in her and abused it by fraudulently devising a scheme to steal from her former employer.

The period over which the offence was committed

53. About 5 months involving 36 transactions. This indicates that the Prisoner intentionally, knowingly and persistently stole from her former employer. The fraud would have been perpetuated had Perenais Yagi, Accounts Receivable Supervisor based at the Head Office in Lae not discovered the fraud late in December 2006 while inputting data for the Mt. Hagen invoices into their system.

The use to which the money was put

54. The Prisoner was the only person involved in the crime. She personally benefited from the moneys stolen which she used, amongst other things, to support her children, including paying their fees for tertiary studies.

The effect on the victim

55. It was K9,000.00 poorer. However, counsel for the Prisoner submitted that her former employer is a multi million kina business enterprise with the unlikelihood of going bankrupt because of this crime.

The effect on the offender

56. The Prisoner lost her employment as a result of a scheme she had calculatedly executed. She brought suffering and shame upon herself and her family. She remains unemployed.

57. After the Prisoner’s arrest, she was held in custody for 4 months before being admitted to bail. Since being admitted to bail and having been committed to stand trial in the National Court on 7 March 2007, she has been waiting to be brought to her trial until now.

The offender’s own history

58. She has had an unblemished record with no prior convictions until now. She has received formal high school education and also has had secretarial training at the St. Paul’s Secretarial School in Mt. Hagen. Prior to the Prisoner’s employment with her former employer, she was with Kimininga Lodge from 1994 to 1997. She is a divorcee and solely supports her children who are currently studying in 2 recognised universities in the country.

Restitution/recovery of stolen property

59. None. The Pre Sentence Report and Means Assessment Report show that the Prisoner is incapable of restituting without the assistance of relatives and moneys she expects to receive from her former employer on account of outstanding entitlements irrespective of the length of the period that may be given for payment. The Prisoner suggests a period between 2 to 3 years to pay the amount she proposes, but Mr. Waine contends that 3 years is too long.

60. At the same time, I am mindful of the fact that it is the Prisoner who is being punished and not the relatives and therefore any assistance that may be forthcoming from them should not operate to reduce the sentence that I intend to impose. How that favour is returned to the family members and relatives rests entirely upon the Prisoner although there are cases where the Court has treated the assistance given by family members and relatives as loans and specific orders have been made to return that favour.

Matters of mitigation special to himself, such as ill health, young or old age, effect of excessive nervous strain, co-operation with the police

61. According to the Antecedent Report, the Prisoner was aged 40 years when it was compiled and that was when the matter was in the committal stage. She is probably about aged 42 years. She cooperated with the police investigations by her admissions contained in the Record of Interview conducted on 30 January 2007. She also admitted the crime before the Record of Interview was conducted in a hand written letter she wrote to her former employer dated 16 January 2007: see Item 208 of the List of Exhibits and Exhibit 37 of the depositions.

Gravity of the offence

62. I do not think that this is a case of the worst category, but it has definitely taken its toll on the Prisoner.

Other mitigating factors

63. The Prisoner pleaded guilty, expressed remorse and does not have any prior convictions.

Prevalence of the offence

64. The offence is prevalent.

GENERAL REMARKS AND SENTENCE

65. I agree with counsel that this case falls under category 2 of the tariff recommended in Wellington Belawa.

66. The scheme employed by the Prisoner is similar, but not exactly the same as in Bluey Hanua and Margaret Donny. The latter appears to be a bit closer to this case although that case falls under category 3 of Wellington Belawa because of the monetary factor. Bluey Hanua, Margaret Donny and this case all involve breaches of trust to varying degrees and arise from multiple incidents occurring over a period of time.

67. I consider following in this case the proposition advanced in Doreen Liprin because of; the amount involved; the trend leaning towards non custodial sentences in non violent crimes as I have adverted to earlier; the Prisoner is in her early 40s; there is a possibility of her receiving her entitlements from her employer; she is not a threat to the community and she is most unlikely to re-offend having already had the experience of being remanded in custody for 4 months.

68. Taking into account all factors going in favour and against the Prisoner including her antecedents, her address on allocatus, submissions of counsel and prevalence of the offence, I consider imposing a sentence of 3 years imprisonment in hard labour less 4 months for the time spent in custody as appropriate. That leaves a balance of 2 years and 8 months (the remaining term) to be served.

69. In the exercise of my discretion under s.19 of the Code, I will suspend the remaining term in its entirety subject to the following conditions:-

1. That the Prisoner shall fully restitute her former employer, Niugini Oil Company in the sum of K9,000.00 on or before 10 July 2009 and be effected as follows:-

(a) The sum of K1,000.00 from bail monies shall be converted and applied towards part payment of restitution and disbursed to Niugini Oil Company when ready;

(b) The balance of K8,000.00 shall be paid to the National Court Trust Account for disbursement to Niugini Oil Company as follows:-

(i) K4,000.00 to be paid by 10 January 2009;

(ii) K4,000.00 to be paid by 10 July 2009.

2. That the Prisoner shall enter into her own recognizance to keep the peace and be of good behaviour during the period of suspension.

3. That the Prisoner shall contact the Mt. Hagen Provincial Probation Officer within 24 hours after the passing of this sentence and thereafter as and when required by him or her.

4. That the Prisoner shall not change her residential address at Eplga village, Togoba in the Western Highlands Province unless she has given the Mt. Hagen Provincial Probation Officer reasonable notice of her intention to do so and the reason for the proposed change.

5. That the Prisoner shall not leave the Western Highlands Province without the leave of this Court during the period of suspension.

6. That the Prisoner shall, for the purpose of the Probation Act, allow a Probation Officer to enter her home during reasonable hours to monitor her compliance of these terms and to make such recommendations as the Probation Officer considers appropriate either for a variation or an implementation of these terms. The Probation Service shall produce and furnish to the Court a report every 3 months until completion of the suspended sentence.

7. During the period of suspension, the Prisoner shall provide free community service of one (1) hour per day every Thursday at a public institution in Mt. Hagen to be determined and supervised by the Mt. Hagen Provincial Probation Officer.

8. That the Prisoner make every effort to find employment during the period of suspension and once one is secured she is to apply to the Court for a review of these terms.

9. Notwithstanding the penultimate term above, the Prisoner will be at liberty to apply for a review of any of the other terms including the lifting of them provided that there has been substantial compliance.

In the event that any one of the conditions is not complied with, then the Prisoner’s probation will be breached and she will be arrested and sent to gaol at Baisu to serve the remaining term which I have suspended.

70. I order accordingly.

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