State v Laina [2008] PGNC 63; N3344 (17 April 2008)

N3344

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 581 OF 2006

THE STATE

v

GEO RAYNER LAINA

Lae: Kirriwom, J
2008: 1, 15 & 17 April

CRIMINAL LAW – Sentence – Stealing – Plea of guilty – Property stolen valued over K1, 000.00 – No need to plead circumstance of aggravation of that fact – Secretary of District Council of Women – Breach of trust – Two years imprisonment wholly suspended and placed on probation with stringent conditions including full restitution and community work orders – Criminal code, s.372(1) and (10).

Cases cited:

No cases cited in the judgment.

Counsel

N. Miviri, for the State
S. Daniels, for the Prisoner

DECISION ON SENTENCE

15 April, 2008

1. KIRRIWOM, J: The prisoner, Mrs. Geo Rayner Laina was committed to stand trial in the National Court on one count of dishonestly applying to her own use property namely K16, 000.00 belonging to Finschhafen District Council of Women contrary to section 383A Criminal Code. When the case came before me she was indicted on one count of stealing simpliciter under section 372(1) CCA of the sum of K16, 000.00 belonging to Finschhafen District Council of Women. She pleaded guilty to the charge on arraignment.

2. The facts are that the prisoner who was at all material times an executive member namely Secretary of Finschhafen District Council of Women was the custodian of the Council’s Trust Account Cheque Book. She was also a co-signatory to the account. The Council was a beneficiary of K20, 000.00 paid to them by the National Council of Women several years back and this money was held in the group’s bank account.

3. Between 20th May 2002 and 27th May 2002 the prisoner, on the pretext of paying registration fees for the Council, got the other two signatories to the account to sign a blank cheque. She later filled in the amount of K16, 000.00, counter-signed the cheque and cashed it. She used some of that money to pay for private and personal expenses and deposited part or the rest of it in an IBD Account.

4. At the time of this trial she had repaid most of the money to the Council except K503.95 remaining to be repaid.

5. The prisoner is a widow, aged 54 with five (5) grown-up children, three (3) are married except for the last two (2) sons who live with her. She comes from Nasingalatu village, Finschhafen, Morobe Province. Since the death of her husband, the prisoner got remarried to the current Lord Mayor of Gagidu Station or Township in Finschhafen, Manaseh Laina, hence, the name ‘Laina’ after her name as his second wife. She lives with her two (2) children at Nasingalatu while the husband lives with his first wife and family in their village. According to the prisoner, the husband’s first wife does not approve of the husband’s subsequent marriage to her.

6. She was educated up to Grade 10 at Lae Technical College and after completing Secretarial studies, worked with various employers. Her last employment was with Dregerhafen High School, Finschhafen. She is now a villager where she works in the garden and sells her food crops and vegetables at the local market where she earns K15.00 to K20.00 per day. She is also sustained by her mayor husband.

7. Stealing simpliciter carries a maximum of three (3) years imprisonment under section 372(1) of the Criminal Code. However the maximum penalty increases to seven (7) years or fourteen (14) years where there are aggravating circumstances and this is clearly spelt out in a number of situations described in subsection (2) to subsection (12). In this case the prisoner is liable to go to prison for seven (7) years because the property stolen is of value in excess of K1, 000.00. Subsection (10) states that if the thing stolen is of the value of K1, 000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven (7) years.

8. In my view this fact is not an aggravating factor that needs to be clearly pleaded in the indictment. It is one that follows automatically as a matter of course because if the facts show the property to be valued in excess of K1, 000.00, the offender cannot be punished for anything valued less than K1, 000.00 because he is really pleading guilty to or convicted of stealing property whose value exceeds K1, 000.00 and in this case it is cash valued at K16, 000.00.

9. What further aggravates this offence is that the prisoner was in a position of trust. She was the Secretary of Finschhafen District Council of Women, a member of the Executive of that non-profit community organization responsible for the welfare and advancement of women in Finschhafen. She breached that trust stealing K16, 000.00 from the Group’s bank account in Lae in a very deceitful and dishonest manner when she tricked the other signatories of the account to sign a blank cheque for a good purpose. Acting on good faith they complied, she then cheated them and misapplied their trust to the detriment of the women of Finschhafen for her own benefit. Having done that she spent K6, 000.00 immediately and placed K10, 000.00 into an IBD Account for the future. By her actions she is not a role model for women in Finschhafen and if I heard as submitted correctly that she continues to play some role in the District Council of Women, that is setting a very bad precedent. Community mistrust of and up-rising against their leaders in positions of power often arises in this kind of situations where they abuse their positions to enrich themselves at the expense of their disadvantaged majority, many of them are living well below poverty level but they do not have such advantage as those holding such public office with these community resources at their disposal to manage and apply to their lawful purpose. Prisoner’s actions cannot be condoned lightly.

10. Against these circumstances of aggravation, I also take into account those factors that mitigate the severity of this offence. First, she has repaid a substantial portion of the money stolen but still has K503.95 to repay. Secondly, she pleaded guilty and expressed remorse for what she did. I take into account also that she is a first offender and she fully cooperated with the police leading to the repayment of most of the money she stole.

11. When a person steals such an amount of money from a wealthy and rich corporation, it probably may not mean much and will not cripple the company’s operations. It is going to be replaced in no time. However such an amount disappearing from a community group’s savings which has already been ear-marked for specific community development projects, it can have crippling and far reaching effects on those this loss concerns. The council cannot implement its objectives particularly one that is targeted to be addressed with that money, community is denied the benefit intended to accrue from the application of that money and many lives are left miserable and many supporters or followers of this worthy organization serving the community will be disillusioned and will turn their backs on such worthy community groups.

12. The sentence that this Court imposes must be one that has strong element of deterrence. The prisoner must be thought a lesson that she cannot expect to walk away unpunished after stealing public money under the guise of serving their interests. This kind of dishonesty cannot and must not be tolerated with people who deal with public money irrespective of who they are. The fact that she had repaid a substantial portion of the money stolen does not entitle her any special privileges to be treated with respect and leniency. When upper-class people are dishonest in their dealing with those below their level of existence, that is a worst sin in ordinary community standards.

13. I have considered all these factors that mitigate the severity of the prisoner’s wrong as submitted by her counsel. I have also noted the Pre-Sentence Report submitted to me from the Community Based Correction. Apart from advising the Court on restitution, the report does not assist the Court at all in so far as community sentencing is concerned. There appears to be a general perception that because the prisoner has repaid the money and she is a mature woman of some standing in the community a non-custodial sentence is the only punishment open. I regret that that is a wrong view to hold. Such attitude only perpetuates dishonesty amongst public office holders who misuse the trust the people give them. Therefore without much help from CBC, this is what the prisoner’s punishment will be. She is sentenced to imprisonment for two (2) years. However that sentence is suspended and she is placed on probation for that entire period on conditions:

1. She is to repay K503.95 to the Finschhafen District Council of Women within three (3) months from the date of this order.
   
2. She is to do community work at the Gagidu Station for 4-hours every Monday and Friday for six (6) months commencing Monday, 28th April 2008. (The period of grace in between is to allow CBC to put in place an effective monitoring and management system before this part of the sentence comes into force).
   
3. The prisoner shall not hold any public office for the entire duration of her suspended sentence. (If prisoner is holding any now she must forthwith relinquish it in preparation for serving her sentence).
   
4. She shall keep peace and be of good behaviour for a period of two (2) years.

_____________________________________

Public Prosecutor: Lawyer for the State
Daniels & Associates Lawyers: Lawyer for the Prisoner