State v Mamando [2008] PGNC 242; N3709 (22 April 2008)

N3709

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1652 OF 2003

THE STATE

V

RUTH MAMANDO

Mt. Hagen: David, J
2008: 02, 16, 17 & 22 April

CRIMINAL LAW – sentence – misappropriation - monies belonging to employer – offence committed over two (2) consecutive days - guilty plea – nor priors - expression of remorse – breach of trust - four (4) years imprisonment in hard labour – immediate custodial sentence - part of sentence suspended with strict conditions attached – ss. 19 & 383 (1)(a) Criminal Code.

Cases cited:

Wellington Belawa v. The State [1988-89] PNGLR 496
The State v. Rex Lialu [1988-89] PNGLR 449
Doreen Liprin v. The State (2001) SC673
The State v. John Akoko (2001) N2061
The State v. Paroa Kaia (1995) N1401
The State v. Bygonnes Tuse Nae (1996) N1474
The State v. Simon Paul Vurmete (2000) N2008
Tom Amaiu v. The State [1979] PNGLR 576
Joshua Yaip Avini and Plaridel Nony Acosta v. The State (1997) SC523
The State v. Sylvanus Siembo & Ors, CR 1220/2000, CR. 97/1999 & CR 722/1999, Unreported Judgment, 30 May 2002
The State v. Daniel Mapiria, Unreported Judgment, 01 October 2004
The State v. Benson Likius (2004) N2518
The State v. Allan Nareti (2004) N2582
The State v Nerrius Boas (2004) N2608
The State v. Johnson Bale (2004) N2626
The State v. Lukeson Olewale (2004) N2758
The State v. Roselyn Waembi, CR.1049 of 2005, Unreported Judgment, 26 March 2008

Counsel:

J. Waine, for the State
M. Norum, for the Prisoner

22 April, 2008

1. DAVID, J: INTRODUCTION: On 2 April 2008, the State presented an indictment charging Ruth Mamando (the Prisoner) that between 01 and 02 April 2003 whilst employed as a cashier of Coca Cola Amatil (her former employer) she dishonestly applied to her own use an amount of Thirty Four Thousand Three Hundred Twenty Six Kina Seventy Five Toea (K34,326.75) the property of her employer contrary to s. 383A (1)(a) of the Criminal Code (the Code). The Prisoner pleaded guilty. I accepted the plea and recorded a conviction after reading the depositions.

2. During the course of the defense’s submissions, Mr. Norum of counsel for the Prisoner sought the Court’s sanction for a Means Assessment Report and a Pre-Sentence Report to be furnished in respect of the Prisoner pursuant to s. 4 of the Criminal Law (Compensation) Act 1991 and s.13 of the Probation Act Chapter 381 respectively. I granted the request and adjourned to 16 April 2008 for the continuation of submissions and to give the Probation Service here time to prepare the reports. Mr. Ingke of the Probation Service prepared the reports and had them filed in Court within the time required for which I am grateful. Submissions were concluded on 17 April 2008.

FACTS

3. The brief facts presented by the State to which the Prisoner pleaded are these.

4. 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 01 and 02 April 2003, the Prisoner collected moneys from customers who paid for goods. She did the banking on 01 and 02 April 2003. However, she did not bank the whole of the monies. She took a total of Thirty Four Thousand Three Hundred Twenty Six Kina Seventy Five Toea (K34,326.75) moneys belonging to her former employer and used the same for her own benefit.

5. The details of the misappropriation are these.

6. On 01 April 2003, a customer from Wabag paid Fourteen Thousand Three Hundred Eighty Two Kina Fifty Toea (K14,382.50) and was issued with receipts to pick up the goods at the Wabag depot. On that day, she took that money with other proceeds to the bank. Instead of depositing that money into the Wabag account, she kept it to herself.

7. On 02 April 2003, another Wabag customer paid Twelve Thousand Nine Hundred and Forty Four Kina Twenty Five toea (K12,944.25) in cash and was also issued with receipts to collect the goods at the Wabag depot. This money together with other takings from the Mt Hagen depot was taken to the bank for banking. At the bank, she deposited other proceeds, but did not deposit Twelve thousand Nine Hundred and forty four kina twenty five toea (K12,944.25) into the Wabag account, but kept it to herself.

8. On the same day after the banking, she realised that she had an excess of Seven Thousand Kina (K7,000.00). She did not return the money to her employer, but kept the money and used it for her own benefit.

THE RELEVANT LAW

9. Section 383A(1)(a) of the Criminal Code creates the offence and prescribes the penalty. I set out the provision 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; .........."

10. The prescribed maximum sentence that can be imposed for the offence of misappropriation in this case is imprisonment for ten (10) years pursuant to s.383A (2)(b) and (d). The case of Wellington Belawa v. The State [1988-89] PNGLR 496 sets out the sentencing guidelines for misappropriation cases. 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.

11. 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 goal term should rarely be imposed; between K1,000.00 and K10,000.00, a goal term of up to two (2) years; between K10,000.00 and K40,000, a goal term of two (2) to three (3) years; between K40,000.00 to K150,000.00 a goal term of three (3) to five (5) years.

12. 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 a sentence that it considers appropriate under the facts or circumstances of a particular case.

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

14. In The State v Paroa Kaia (1995) N1401 a bank accounts supervisor pleaded guilty to misappropriating approximately K94,000.00. He was convicted and sentenced to four (4) years imprisonment. He had hatched a scheme in collaboration with two (2) associates. He misused his authority to withdraw amounts from innocent customers’ accounts and transfer them to the accounts of his associates.

15. In State v. Bygonnes Tuse Nae (1996) N1474, the prisoner, aged thirty two (32) years and father of three (3) children whose ages ranged from two (2) to seven (7) years pleaded guilty to nineteen (19) counts of misappropriation of K103,587.71, the property of several individuals. The crime was committed over a period of eighteen (18) months. An effective sentence of four (4) years imprisonment was imposed with no part of the sentence suspended.

16. In The State v. Simon Paul Vurmete (2000) N2008, the prisoner pleaded guilty to misappropriating K41,233.24 which was money belonging to his former employer, namely The Water Board. He was the Debtors Clerk for the Water Board in Lae when he committed the offence. The prisoner misappropriated the monies over a period of five (5) months. None of the money was recovered. The prisoner used them for himself. A sentence of three (3) years six (6) months was imposed.

17. In The State v Benson Likius (2004) N2518, the prisoner pleaded guilty to one (1) count of misappropriating a sum of K68,679.06. He was a payroll clerk. There were assets from which substantial restitution could be made immediately. A sentence of five (5) years was imposed, however two (2) years was suspended on probation with conditions for repayment.

18. In Doreen Liprin v. The State (2001) SC673, the Prisoner was convicted by the trial judge on three (3) counts of forging, uttering a bank withdrawal slip and misappropriation of a sum of K6,000.00. She was sentenced to one (1) year each for forgery and uttering and three (3) years for misappropriation all of which were to be served concurrently. The sentences were suspended on the condition that she repaid the money she fraudulently obtained within two (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 eighteen (18) months.

ALLOCUTUS

19. In her allocatus, the Prisoner said sorry to her former employer and to the State; that she was not a good woman and deserved to be punished for the crime she committed which she regretted. However, she asked the Court to have mercy upon her and to take into consideration the fact that she had four (4) children ( three (3) biological and one (1) adopted) whose ages ranged from six (6) months to nine (9) years when considering an appropriate sentence, a sentence which she could handle.

ANTECEDENTS

20. The Prisoner is from Kelope village, Baiyer in the Western Highlands Province, but now resides at Warakum. She was born on 20 October 1974 to parents who are still alive and was baptised into the Baptist Church. She is the eldest out of ten (10) siblings in the family. She is married to a Willie Kasamu and they have four (4) children alluded to above already. She completed primary and secondary schooling at the Hagen United Community School in 1988 and Mt. Hagen Secondary School in 1992 respectively. She attended the Divine Word University to do matriculation studies in 1994 and then went on to obtain a diploma in Business Studies in 1996.

The Prisoner’s first employment was with the Westpac Bank, Mt. Hagen. She was with the bank from 1997 to 2000. From August 2001 until her termination in 2003, she was with her former employer earning a salary of K270.00 per fortnight. She is now unemployed.

21. The Prisoner was arrested and charged on 30 May 2003 and released on bail on 05 June 2003.

22. The Prisoner has no prior convictions.

PRE SENTENCE REPORT

22. It recommended that considering the background of the Prisoner, a sentence of five (5) years be imposed to be served on probation.

23. It further recommended that, whilst the Prisoner had no substantive means to meet any compensation order on her own except with the assistance of her family, relatives and friends, she be allowed to pay K5,000.00, an amount she was willing to pay, as compensation within a period of one (1) year.

MEANS ASSESSMENT REPORT

24. It confirmed that the Prisoner does not have any substantive means to meet any compensation order on her own as alluded to above.

SUBMISSIONS OF THE PRISONER

25. Mr. Norum recounted the Prisoner’s antecedents and invited the Court to consider in his client’s favour factors such as that she pleaded guilty; she was a first time offender with nor priors; she showed compunction which was genuine; she co-operated with police investigations by her admissions in the Record of Interview; she was the sole bread winner in the family and had four (4) children who were in their infancy and she had been in psychological stress over many years since her arrest whilst awaiting her trial.

26. He also said that the aggravating factors present in this case were that; the moneys misappropriated by the Prisoner belonged to her former employer; the amount taken was in excess of K2,000.00 and the crime was committed not on a spur of the moment, but at certain times (two (2) consecutive days to be exact).

27. As to penalty, counsel submitted that the guidelines in Wellington Belawa apply and this case fell under category three (3) subject to the Court exercising its discretion under s.19 of the Code. Counsel urged the Court to consider imposing an alternative sentence rather than imprisonment as was suggested by Amet, CJ (as he then was) in Doreen Liprin. Counsel also suggested that a wholly suspended sentence of three (3) to five (5) years with an order for compensation in the amount of K5,000.00 to be treated as an extra punishment was appropriate in this case in line with the recommendations made in the Pre Sentence Report and Means Assessment Report. Counsel on 02 April 2008 had asked for a sentence between two (2) to three (3) years with an order for restitution in the absence of the above reports.

SUBMISSIONS OF THE STATE

28. Mr. Waine of counsel for the State agreed with the defense that the guidelines in Wellington Belawa applied despite it being outdated and the Courts were imposing sterner sentences with a view to having a deterrent effect generally since their enunciation due to the prevalence of the offence. He cited by way of comparison the cases of The State v. John Akoko (2001) N2061, The State v. Johnson Bale (2004) N2626, The State v. Allan Nareti (2004) N2582, The State v. Roselyn Waembi, CR.1049 of 2005, Unreported Judgment, 26 March 2008 and The State v. Lukeson Olewale (2004) N2758. This was to demonstrate that the crime of stealing in its various forms was taken very seriously by the Courts and which reflected the interest and abhorrence of the community.

29. In John Akoko, a policeman stole K7,000.00 from the sum of K180,000.00 which was recovered after a robbery of K254,000.00 belonging to a bank at the Nadzab Airport. He was the leader of the police unit who gave chase to the robbers. Of the amount the prisoner stole, K5,528.40 was recovered from the prisoner when he was apprehended. He had already spent K1,477.60 by then. The prisoner was charged under s.372 (1) & (7) of the Code. He pleaded guilty and was convicted and sentenced to five (5) years imprisonment in hard labour less time spent in custody. The Court found the degree of trust reposed in the prisoner and the breach of it had the tendency of eroding public confidence in the police force to be compelling considerations and therefore a strong and deterrent sentence was necessary to restore public confidence.

30. In Johnson Bale, the prisoner was convicted after a trial for stealing K78,074.03 from his previous employer. Briefly, the prisoner was directed to do his employer’s banking involving K78,074.03 made up of cash and cheques. He was followed by a car that had earlier parked outside the company premises as soon he left. Instead of driving to the bank, he drove past it and parked at a location behind a tucker box. The car following him arrived and the occupants in it then stole the money from him. It is not clear under which of the aggravated offences set out under s.372 of the Code was the prisoner charged, however the offence attracted a penalty of seven (7) years. I have not been able to locate the decision on verdict. The Court considered in the prisoner’s favour the fact that he was a first offender and his antecedents. Against that was the substantial amount of money involved which was not recovered and that he was in a position of trust which was abused, the prevalence of the offence. A custodial sentence of four (4) years was imposed less time for pre-trial custody.

31. In Allan Nareti, the two (2) prisoners pleaded guilty to a charge laid under Section 372 (1) & (10) of the Code for stealing K10,250.00 in cash from a person who had earlier withdrawn the money from a bank to purchase food rations for a Health Centre. The prisoners met that person during the day and stole the money from his bag in the wee hours of the next morning when he was fast asleep. They were each sentenced to three (3) years, but the sentences were wholly suspended with strict conditions attached including an order to repay the amount stolen in equal shares of K5,125.00 within twelve (12) months.

32. 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.

33. Over a period of about two (2) years and five (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.

34. The prisoner was completely trusted by the principal of the law firm, but she abused that trust to her benefit. The Court had the benefit of a Means Assessment Report which showed that the prisoner 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 three (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.

35. In Lukeson Olewale, the prisoner pleaded guilty to two (2) counts, one for uttering and the other for misappropriation. The first was for uttering a cheque for K40,000.00 against the account of Fly River Provincial Government which was operated at Papua New Guinea Banking Corporation, Port Moresby Branch. The cheque was deposited into the Prisoner’s personal account which was also operated at that bank. An amount of K38,000.00 was withdrawn immediately after the cheque was cleared. From that amount, the Prisoner used K12,000.00 whilst the balance was distributed to his fellow conspirators and others. The prisoner was sentenced to be imprisoned for three (3) years for uttering and four (4) years for misappropriation all of which were to be served concurrently. The sentences were wholly suspended with conditions.

36. Counsel also submitted that the aggravating factors in this case were that; a large amount was taken; there was no attempt to restitute; the Prisoner was in a position of trust and agreed with the defense that the crime in this case was not committed in a spur of the moment, but was done over two (2) consecutive days.

37. Counsel does not disagree with the suggestion by the defense that an order for compensation of K5,000.00 should be made, but he says that that should be taken into account in the overall sentence the Court considers imposing and the manner it is to be executed.

38. Counsel submitted that the circumstances of this case warranted a deterrent custodial sentence. He suggested that a term of five (5) years less time spent in pre-trial confinement was appropriate.

39. Counsel also invited the Court to consider the following cases which showed that the higher the degree of trust, the sterner the sentences have been when deciding the appropriate sentence.

40. In Tom Amaiu v. The State [1979] PNGLR 576, the appellant was a former Member of Parliament for the Kompiam electorate in Enga. He was convicted of stealing K10,120.00 belonging to one Wagop Korowai, which was payment for timber royalties from the government. He was sentenced to five (5) years imprisonment in hard labour. Subsequently, he appealed against conviction and sentence, however the Supreme Court dismissed his appeal and confirmed the conviction and sentence.

41. In Joshua Yaip Avini and Plaridel Nony Acosta v. The State (1997) SC523, the two (2) appellants a parliamentarian and a company director were both charged with two (2) counts, one for misappropriation under s.383A and the other for conspiracy to defraud pursuant to 407(1) (b) of the Code. The amount involved in that case was K100,000.00. It was intended for road projects, but directed to the director’s company. The appellants denied the charges and a trial ensued. At the close of the prosecution case, the defense counsel sought to make a no case to answer submission. The trial judge did not allow counsel to make the submission as he had already formed the view that the Accuseds had a case to answer. When the trial continued, after an unsuccessful application to declare a mistrial based on the trial judge’s refusal to the hear the defense counsel’s no case to answer submission, the two (2) appellants exercised their rights to remain silent when they decided not to adduce any evidence on their behalf. They were both convicted and sentenced to a term of eight (8) years imprisonment for misappropriation, but acquitted of the offence of conspiracy to defraud.

42. The aggravating features there were the breach of trust involving a large amount of money and the electorate suffered by not having their road.

43. On appeal, the Supreme Court by a majority (2-1) found that, the failure to adopt the procedure which resulted in an irregularity in itself could not operate to invalidate the subsequent proceedings. The Court said that the test to apply was whether the irregularity resulted in the miscarriage of justice. The majority held that the examination of the facts led by the prosecution revealed that there was a case to answer in respect of the misappropriation charge therefore there was no miscarriage of justice. The appeal was dismissed and the conviction and sentence were confirmed.

44. In The State v. Sylvanus Siembo & Ors, CR 1220/2000, CR 97/1999 & CR 722/1999, Unreported Judgment dated 30 May 2002, the first prisoner was the Member of Parliament and Governor of Oro. He was convicted with two (2) others and they were sentenced to six (6) years imprisonment over the misappropriation of K100,000.00 with a partial suspension of three (3) years. They appealed to the Supreme Court and it is not known to date what has happened to that appeal.

45. In The State v Nerrius Boas (2004) N2608, the prisoner pleaded guilty to one count of misappropriating K1,373.59. The prisoner was a first offender and that up to the time of the commission of the offence, he had been a loyal public servant, having faithfully served the State and its instrumentalities for forty one (41) years, the last twenty two years (22) were with the Department of New Ireland. He was employed as the Executive Officer to the Deputy Provincial Administrator- Corporate Services. The Court found that the experience and the length of time he had been in the public service would have given him the maturity and the responsibility that went with the office he held, to guard against the kind of conduct that had committed. The Court held that whilst the fact that the prisoner pleaded guilty; was a first offender and that he had effected full restitution of the kind of money he misappropriated weighed in his favour, he was in a position of trust and the breach of that trust which could impact negatively on public servants and the public far outweighed the mitigating factors.

46. The Court imposed a sentence of eighteen (18) months imprisonment with hard labour which was suspended conditional upon the prisoner; paying a fine of K500.00 within two (2) days and entering into his own recognizance to keep the peace and be of good behaviour for two (2) years.

47. In The State v. Daniel Mapiria, Unreported Judgment dated 1 October 2004, the prisoner misappropriated over K3 million, the property of the National Gaming Control Board. As Chairman of the Board, he was a signatory to the Board’s operating account. On a conviction after a trial, he was sentenced to be imprisoned for nine (9) years. The whole sentence was suspended with strict conditions applying including restitution as it was found that there existed special mitigating circumstances relative to a medical condition that would have worsened and become life threatening if the prisoner were sent to jail.

48. The above discussions are summarised below in the context of the factors suggested in Wellington Belawa.

CONSIDERATION OF FACTORS

The amount taken

49. The amount taken is K34,326.75.

The degree of trust

50. The Prisoner was the cashier. Her job required her to collect monies from customers and she did the banking for her former employer. She was in a position of trust. The Prisoner took advantage of the trust placed on her and abused it to her benefit.

The period over which the offence was committed

51. Two (2) consecutive days.

The use to which the money was put

52. The Prisoner was the only person involved in the crime. She personally benefited from the moneys stolen. However, there is evidence from the Prisoner’s Statement dated 27 May 2003 and the Record of Interview conducted on 30 May 2003 that her husband might have also been involved and benefited from the moneys taken when the Prisoner said that she gave him some of the money to pay for the services of a lawyer in a land dispute involving her husband’s people.

The effect on the victim

53. It was a substantial loss.

The effect on the offender

54. The Prisoner is an educated and sophisticated woman. She was previously employed with a bank before joining her former employer. She lost her employment and remains unemployed. After her arrest, she was held in custody for six (6) days before being admitted to bail. Since being admitted to bail and having been committed to stand trial in the National Court on 23 September 2003, she has been waiting to be brought to her trial until now.

The offender’s own history

55. I repeat the antecedents above.

Restitution/recovery of stolen property

56. None. The Pre-Sentence Report and the Means Assessment Report show that the Prisoner is incapable of meeting any compensation order without the assistance of family members, relatives and friends. At the same time, I am mindful of the fact that it is the Prisoner who is being punished and not the relatives or friends 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 her relatives and friends 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. In fact, in all situations, it is the offender who should be at the forefront making his or her personal contributions if personal deterrence is to have any meaning at all. Restitution is not possible.

57. Whilst counsels are in agreement as to the Court making an order for compensation to the maximum allowable under the Criminal Law (Compensation) Act, 1991, I do not think I can accept that proposition in this case. Firstly, compensation should not be a substitute for criminal punishment however it is disguised, but can be used as a mitigating factor: The State v. Rex Lialu (1988-89) PNGLR 449. Secondly, the Prisoner is financially incapable. If the Prisoner were financially capable, the Court would have considered making orders for restitution instead.

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

58. The Prisoner is aged thirty three (33) years, an educated and sophisticated woman.

Gravity of the offence

59. I do not think that this is a case of the worst category despite the amount stolen being substantial and the offence having been committed over two (2) consecutive days.

Other mitigating factors

60. The Prisoner pleaded guilty and does not have any prior convictions. She expressed compunction.

Prevalence of the offence

61. The offence is prevalent.

GENERAL REMARKS AND SENTENCE

62. This case falls under category three (3) of the tariff recommended in Wellington Belawa. It comes a little bit closer to Simon Paul Vurmete in terms of the amounts that were dishonestly taken and breaches of trust involved although the latter case fell under category four (4).

63. Matters such as the welfare of loved ones including children and that the Prisoner was suffering from psychological stress over many years since her arrest laden with the thought of the likelihood of imprisonment whilst awaiting her trial are matters that have arisen consequential upon the commission of the crime. Whilst these are factors that are often raised in mitigation, conversely these are important matters that the Prisoner should have considered when she entangled herself in this crime.

64. I have carefully considered the seriousness of the offence as is indicated by the prescribed maximum penalty of ten (10) years and taking into account all factors going in favour and against the Prisoner including the Prisoner’s guilty plea, that she is a first time offender and has shown compunction, she was in a position of trust, the offence was committed over two (2) consecutive days involving a substantial amount of money, the Prisoner’s antecedents with the State alleging no prior convictions and her address on allocatus, submissions of counsel and prevalence of the offence, I consider a sentence of four (4) years imprisonment in hard labour as appropriate less six (6) days for the time spent in pre-trial confinement. That leaves a balance of three (3) years eleven (11) months and twenty two (22) days (the remaining term) to be served. Incarceration shall be at the Baisu gaol.

65. Having also considered all the circumstances of this case and in the exercise of my discretion under s. 19 of the Code, I make the following orders in relation to the remaining term:-

1. That the Prisoner immediately serve eleven (11) months and twenty two (22) days at the Baisu gaol;

2. Upon completion of the custodial sentence, the Prisoner shall be released to serve the further three (3) years on suspension.

3. The Prisoner shall contact the Mt. Hagen Provincial Probation Officer within seventy two (72) hours of her release from gaol and thereafter as and when required by the Provincial Probation Officer during the period of suspension.

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

5. That the Prisoner shall not change her residential address at Warakum, Mt. Hagen, 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.

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

7. 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 three (3) months until completion of the suspended sentence.

8. During the period of suspension, the Prisoner shall provide free community service of two (2) hours per day every Thursday at a public institution in Mt. Hagen to be determined and supervised by the Mt. Hagen Provincial Probation Officer.

9. The Prisoner will be at liberty to apply for a review of any of these terms including the lifting of any 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 balance of the term which I have suspended.

66. I also order that all bail monies associated with the admission of the Prisoner to bail be refunded to her.

_______________________________

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