State v Luva [2010] PGNC 19; N3909 (2 March 2010)

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CRIMINAL LAW – Particular offences – Stealing – Plea – Sentence – Criminal Code Section 372, Ch. No.262

CRIMINAL LAW – Stealing – Thirteen counts of stealing by a servant – Factors for consideration – Sentence.

Public Prosecutor v Terrence Kaveku [1977] PNGLR 110
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
The State v Hure Hane [1984] PNGLR 105
Wellington Belawa v The State [1988-89] PNGLR 496
Mase v The State [1991] PNGLR 88
The State v Bygoness Tuse Nae (2001) N1474
Doreen Lipirin v The State (2001) SC673
The State v Robert Kawin (2001) N2167
The State v Benson Likius (2001) N2618
The State v Timothy Tio (2002) N2265
The State v Lukeson Olewale (2004) N2758

1. LENALIA, J. The prisoner pleaded guilty to thirteen (13) counts of stealing offences contrary to section 372 of the Criminal Code.

2. The prisoner in this case, Steven Luva was working with PNG Power Limited in Kokopo as a Meter-Reader at the time he committed these offences. The State’s case is that between December 2008 and June 2009 whilst in his employment, he collected various sums of monies from the thirteen complainants for Normal Service Connection and Minimum Supply Kit Services fees but in doing so, he failed to have the monies deposited into PNG Power Ltd working Account.

Count No.	Complainant.	Amount
1.	Paul Wartovo	K548.90
2.	Lawrence Julius	K185.90
3.	Philip Dusty	K185.90
4.	Ezekiel Sam	K550.00
5.	Robin Tenaliu	K548.90
6.	Hosea Liperet	K548.90
7.	Benson Papua	K650.00
8.	Simon Tarutia	K550.00
9.	Thomas Nakui	K400.00
10.	Hosea Kaur	K185.90
11.	Solomon Tamit	K185.90
12.	Steven Beno	K185.90
13.	Benson Tamean	K185.90,
	Total =	K4, 618.20

4. The facts of each case are similar in that the prisoner while in the employ of PNG. Power Ltd collected monies from the thirteen complainants for various services to be rendered by PNG Power but when the prisoner received the money he never paid it into PNG Power Account. When the matter came to light, the prisoner was investigated and charged with thirteen different counts. He readily admitted to the arresting officer and interviewing officer that when he received monies from those thirteen complainants, he kept all the money and applied it to his own use.

5. On his allocutus, the prisoner said, he is sorry for what he did and asked the Court to take into account on sentence, he had effected restitution to each of the victims through his final entitlements from PNG Power Ltd. Papua New Guinea Power Ltd Branch Manager, Mr. Chris Wakuku confirmed that, the prisoner had fully restituted all monies stolen to PNG Power Ltd.

6. Ms. Ainui of counsel for the prisoner asked the court to consider factors such as the prisoner’s forthrightness in admitting the offences when he was questioned by the interviewing team and his eventual guilty plea to each of the charges. Counsel also revealed that, the prisoner had made full restitution to the victims and PNG Power Ltd. This is confirmed by the pre-sentence and means assessment reports.

7. For the prosecution, Mr. Rangan made a valid argument on the issue of breach of trust reposed on the prisoner by first, the PNG Power Ltd then, the various complainants who fell victims to the scheme played by the prisoner. He asked the court to consider the amount stolen and the time taken for the prisoner to commit the offences he has now been charged with.

8. I have read both the pre-sentence and means assessment reports. I note comments by the three victims who were interviewed by the Community Correction Officer. The three contacted were Steven Beno, Benson Taupa and Simon Tarutia. When contacted, the first two victims commented that the prisoner had been terminated and that his termination should be sufficient punishment for him. In case of Simon Tarutia, he said, the prisoner should be ordered to effect a double payment for the amounts he stole.

9. Mr. Chris Wakuku, the PNG Power Ltd Branch Manager at Kokopo was contacted for his comments. He admitted what the accused did is very serious but apart from that, he commented that the prisoner was a hard working person. The same confirmed that, when the prisoner’s final entitlements was processed, most of it, if not all where diverted toward payment of such amount to PNG Power Ltd working Accounts with the result that, services had been effected to the homes of the victims.

10. Both the pre-sentence and means assessment reports say that the prisoner is a suitable candidate for probation if the court was minded to place him on a set of probation orders.

11. The offence of stealing is punishable by various terms of imprisonments. In case of the prisoner, because he was a clerk or servant and because the monies that came to his possession on account of his employment, he could be sentenced to the maximum term of 7 years imprisonment. I quote the appropriate subsections of s.372 of the Criminal Code which are subsections (6) and (7) in these terms:

"(6) If the offender is a person employed in the Public Service, and the thing stolen—

12. The Supreme Court in Wellington Belawa v The State [1988-89] PNGLR 496 set down sentencing guidelines to be considered on sentence when sentencing offenders in cases of misappropriation or similar cases such as stealing simplicita. The instant case involved an amount of K4, 618.20 and concerns the degree of trust placed on the offender when he was entrusted with the responsibility of collecting monies from the customers for and on behalf of PNG Power Limited.

13. Under the principles of sentencing and guidelines set by the Supreme Court in the above case, a custodial sentence should rarely be imposed if the amount involved was less than K1, 000.00. Obviously, the prisoner’s case involved more than one thousand kina and so at the end of the day, he would expect to be sentenced to a term of more than 2 years according to Belawa’s case. The court has discretion to impose a term either less or more than 2 years depending on the circumstances of each case. There is also discretion in the court to penalize an offender either by imposition of custodial or non-custodial sentence. Such discretion derives from to s.19 of the Criminal Code.

14. What is serious about the prisoner’s case is that it involved a serious breach of trust. The Supreme Court in Wellington Belawa v The State (supra) set out certain considerations to be considered by judges in the National Court in misappropriation and offences of similar nature involving breach of trust. They include the following:

15. From the State’s perspective, the prisoner’s case fall into the first, second, third, fifth and the sixth categories set out above and it involved an amount of more than K4, 000.00. On the part of the prisoner’s considerations appropriate to his benefit is what did he use the money for, the effect of the offence and the issue of restitution. The foremost consideration against the prisoner is the fact that, he was entrusted with accountable duties and he breached the trust reposed on him by the customers and PNG Power.

16. The offence of stealing is serious particularly when committed by servants of any organizations since persons holding positions of trust and management of money breach the trust reposed on them by their employers. I cite a number of stealing or misappropriations cases to illustrate the type of penalty imposed by other Judges on offenders who have stolen monies, fixtures or chattels to the value of the money stolen by the prisoner.

17. In Wellington Belawa (supra) the Supreme Court set out sentencing guidelines in dishonest cases. The case before me is not similar to the one above which was a misappropriation case. The current case is a stealing case simplicita. There are a number of considerations mentioned in the above case that are appropriate to the case of the prisoner.

18. There has been an increase in sentences for both misappropriation and stealing cases. In State v Bygonnes Tuse Nae (1996) N1474 where there were 19 counts of sums totaling or involving over K103, 000 Sawong J imposed an effective sentence of 4 years in hard labour. In that case, the court commented that, by then there was increase in the number of stealing and misappropriation cases. Up until end of last year, offences of stealing have increased dramatically. In The State v Vurmete (2000) N2008, K41, 000 was taken. No restitution was made. Gavara-Nanu J imposed a sentence of 3 years 6 months. The comments in the earlier case, are reflected in many stealing cases today.

19. In The State v Benson Likius (2004) N2518 a sum of K68, 679 were misappropriated by the prisoner. There were assets from which substantial restitution could be made immediately. However no restitution was effected. This court sentenced the prisoner to 5 years imprisonment in hard labour. Two years were suspended on probation with conditions of restitution. (See also The State v Lukeson Olewale (2004) N2758).

20. In The State v Robert Kawin (2001) N2167, it was a case of stealing brought under s.372 (1) instead of (10) of the Criminal Code for two counts of stealing by forgery in a breach of trust situation. Kandakasi J sentenced the prisoner to a cumulative total sentence of 2 years in jail on his guilty plea to both counts.

21. In another case of stealing in The State -v- Timothy Tio (2002) N2265, the prisoner was a security guard. He pleaded guilty to stealing a portable chain saw valued at K8,000.00 from Steamships Hardware in Wewak where he was providing security and sold it to a third party for K1,000.00 contrary to s.372(1) & (10) of the Criminal Code. His Honour Kandakasi J, sentenced the prisoner to 5 years imprisonment because it was almost a worst type case when taking into account there was breach of trust on the part of the accused, the prevalence of the offence and the substantial value of the property which was subsequently sold to a third party for a lousy K1, 000.00.

22. The instant case is aggravated by the fact that you were in a position of trust and you breached the trust placed on you by first, the thirteen customers and secondly your employer PNG Power. There is so much stealing in all forms both in the public and private sectors. Weighing the factors for and against you, I note that the factors in aggravation far outweigh those mentioned in your mitigation. There is need for deterrent sentences for the kind of offence you committed in particular stealing, misappropriation or false pretences. These crimes are like the one you committed high on the agenda. Another aggravating factor against you is that, it took you 7 months to commit those offences. The period of time you took to steal confirmed your guilty mind to continue to steal money from PNG Power clients.

23. The court must also weigh the consequences of sending offenders to prison for ‘non violent crimes’ and those which have been categorized as ‘violent crimes’. In Doreen Liprin v The State (2001) SC 673, the Supreme Court highlighted the need to give serious consideration to alternatives to prison sentences to non violent offences. This would serve as a punishment and at the same time, reduce the costs to the society in terms of the costs of incarceration and avoid the risk of turning an offender into a hard-core criminal.

24. But I have however considered the ruling in Doreen’s case and the present one. The instant case presents itself in very serious aggravating circumstances of breaching the trust placed on the prisoner to collect money from customers. This case was a broad day light stealing conducted in the guise of paying such money to his employer PNG Power Limited. It does not make sense for employed servants like you to steal from ordinary persons like the ones you stole from who sweat their guts out for the little money they earn in the hard way and they want to try and improve their conditions of living in the village or villages. They expect services rendered to them by authorities like PNG Power and what happens if services paid for is not rendered? It creates problems between suppliers and customers.

25. It is an accepted principle of law in criminal practice that, the maximum prescribed sentence in any offence should be reserved for the worse type category of the offence under consideration: Hure Hane v The State [1984] PNGLR 105. (In context of stealing cases see: The State v Robert Kawin (2001) N2167 or The State v Obert Poesan Pokanas (2004) N2702).

26. I have considered all mitigating factors in your favour and those aggravations against you and I have considered the terms of the pre-sentence report which has a community input. One of the victims contacted said the offence you committed is serious and you should receive double punishment. Meaning to say, you should be ordered to pay extra. That sentiment carries the message. Persons abuse their positions of trust must face the consequences of facing long terms of imprisonment.

27. The prisoner is charged with a string of similar offences. On the prisoner’s mitigation, the court will take into account your guilty pleas to the thirteen charges. I take into account the fact that, compensation has been paid. You have also shown remorse in your allocutus. According to the prisoner he said, he has been terminated from his employment.

28. Before the prisoner is sentenced, I remind myself about the totality principle which requires that when a decision is made to make two or more sentences consecutive, I must consider the totality principle. I must see that a total is just and appropriate: Public Prosecutor v Terrance Kaveku [1977] PNGLR.110, Acting Public Prosecutor v Konis Haha [1981] PNGLR 205.see also Mase v The State [1991] PNGLR.88

29. I come to the conclusion that since the prisoner had fully restituted the amount stolen prior to his appearance in court, he be given a custodial sentence but should be partially suspended. The prisoner is sentence in the following terms:

Count 4: Sentenced to 8 months (consecutive on above 8 months) (total, 1 year 4 months).

Count 5: Sentenced to 8 months (consecutive on 1 year 4 months) (total, 2 years).

Count 6: Sentenced to 8 months (consecutive on 2 years) (total 2 years 8 months).

Count 7: Sentenced to 9 months (consecutive on 2 years 8 months) (total 3 years 5 months).

Count 8: Sentenced to 8 months (consecutive on 3 years 5 months) (total 4 years 1 month).

Count 9: Sentenced to 3 months (consecutive on 4 years 1 month) (total 4 years 4 months).

Count 10: Sentenced to 1 month (concurrent on 4 years 4 months) (total 4 years 4 months).

Count 11: Sentenced to 1 month (consecutive on 4 years 4 months) (total 4 years 5 months).

30. The total effective sentence to be served is 4 years 5 months imprisonment. The court suspends 3 years 5 months from that sentence. He shall serve the balance of 12 months in custody. His bail money shall be refunded.

________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused

National Court of Papua New Guinea

State v Luva [2010] PGNC 19; N3909 (2 March 2010)