State v Mathew (No. 2) [2011] PGNC 349; N4376 (23 August 2011)

N4376

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1221 OF 2009

THE STATE

V

JASON JAY MATHEW
(No 2)

Mount Hagen: Makail, J
2011: 17th & 23rd August

CRIMINAL LAW - Sentence - Stealing - Cash of K80,000.00 - Money in transit in motor vehicle - Substantial sum of money - Money not fully recovered - Money stolen from employer - Breach of trust - Prescribed maximum penalty of 7 years imprisonment - Term of 4 years imprisonment appropriate - 2 years suspended - Order for restitution - Balance of 2 years less time in pre-sentence custody to serve - Criminal Code, Ch 262 - Sections 19 & 372(1)&(5)(c).

Cases cited:

Wellington Belawa -v- The State [1988-89] PNGLR 496
The State -v- Obert Poesan Pokanas (2004) N2702
The State -v- Robert Kawin (2001) N2167
The State -v- Romney Naptelai Simonopa (2001) N2551
The State -v- Johnson Bale (2004) N2626

Counsel:
Mr J Kesan, for State
Mr F Kua, for Prisoner

SENTENCE

23rd August, 2011

1. MAKAIL, J: The prisoner has been convicted of stealing K80,000.00 under section 372(1)&(5)(c) of the Criminal Code, Ch 262. He stole it from One Hill Trading Limited while it was being transported from Wabag to Mt Hagen for banking purposes on 26th June 2009. At that time, he was employed as an escort driver of One Hill Trading Limited. On that day, he obtained leave from his employer and travelled to Mt Hagen by PMV bus to attend to some personal matters. On the way at Waliya, he saw his work colleagues washing the company vehicle on the side of the road. He got off the PMV bus and joined them.

2. He got on with them and travelled to Mt Hagen. On the way, there was a road block and looting of a semi trailer truck at the border of Enga Province and Western Highlands Province. The driver of the company vehicle stopped the vehicle and got out with one of the passengers to find out the cause of the road block and looting.

3. The prisoner took the box of money in the front cabin and hopped on another PMV bus and went to Mt Hagen. When it was discovered the money was missing from the company vehicle, the company management was informed and the prisoner was contacted to return it. After a number of unsuccessful attempts, the police brought in his parents to the Mt Hagen Police Station for questioning. On 29th June 2009, he surrendered to the police and was subsequently arrested and charged.

4. The offence that he has been charged with carries a prescribed maximum penalty of 7 years imprisonment. This Court has discretion to impose a lesser penalty pursuant to its powers under section 19 of the Criminal Code, Ch 262. His lawyer has asked the Court to impose a wholly suspended sentence of 5 years imprisonment because he is a first offender, expressed remorse, did not use violence in the commission of the offence, no-one was injured or killed, no-one else was involved, did not personally benefit from the money and is willing to make restitution. I accept these submissions but I do not know at this stage whether the sentence should be wholly suspended.

5. As the State prosecutor has correctly submitted, the offence of stealing entails an element of dishonesty, thus the sentencing principles in Wellington Belawa -v- The State [1988-89] PNGLR 496 also apply in stealing cases. I adopted them in this case but note that the tariffs may be outdated. In a case where there is in existence a relationship of trust between the offender and the victim, it is very serious. In this case, the prisoner stole the money from his employer. He has breached that trust between him and his employer. The amount of money stolen is substantial. It is K80,000.00. Except for K5,000.00 which, according to his lawyer, was recovered from his second wife, K75,000.00 has not been recovered to date. This is a huge loss to the company.

6. The offence is prevalent and where money is being transported from one location to another by air, land or sea for banking purposes, it is very risky. Robbers take advantage of the remoteness and isolation of the location where help is very difficult to come by and steal money from the victims. In the present case, the offence was committed on the highway where the location presented an ideal opportunity for the prisoner to easily escape with the money without being noticed or caught. While I accept no violence was used by the prisoner to steal the money, I have no doubt he took advantage of the prevailing situation at that time and his inside knowledge of the company to steal the money.

7. As the company's security escort driver, he knew the work colleagues were transporting money to Mt Hagen in the company vehicle and when they stopped at the road block and when no-one was looking, he took the money and escaped. It was a cunning move. It was also a slickly move because his work colleagues had no idea what he was up to when he joined them at Waliya.

8. At trial, he denied stealing the money. He said he did not take the money with him when he left his work colleagues at the road block. When he arrived in Mt Hagen, the manager of the company contacted him by telephone and asked him about the money and he denied taking the money. The Court found him guilty of the offence based on admissions in his record of interview. The Court found he took the money to Mt Hagen and hid it in a banana patch in the back yard of his house.

9. It is true times are hard these days as prices of goods and services have gone up. People have to work hard to make ends meet. There is a saying, "over worked and under paid" which is a popular saying amongst many hard working Papua New Guineans, and I can see why the prisoner stole the money. He said on allocutus, he was unhappy with the pay he was receiving from the company, especially when he had served the company for seven years. I sympathise with him but stealing K80,000.00 is not the solution to his struggle to survive in this harsh world.

10. He could have resigned and obtained another job where the conditions of employment may have been much better than the present one. I have no doubt he had the experience and knowledge and would have easily found an alternative employment. It was an option opened to him but he chose the easy way out. The easy way out has landed him in an extremely unpleasant situation and I can guarantee him it will be a long time before he will find a way out of the mess he is in right now.

11. The Courts have relied on means assessment report and pre-sentence report to assist them to determine the question of suspension of sentence and restitution. The prisoner's lawyer cited the cases of The State -v- Obert Poesan Pokanas (2004) N2702, The State -v- Robert Kawin (2001) N2167 and The State -v- Romney Naptelai Simonopa (2001) N2551 to support his submission for a wholly suspended sentence. I have considered them and must say the facts of each case are different to the present case. I further note, except for the Obert Poesan Pokanas' case (supra), the Court had the benefit of a pre-sentence report in each case to arrive at the decision to suspend the sentences.

12. The facts in Obert Poesan Pokanas (supra) are close to the present case, where in that case, the prisoner pleaded guilty to a charge of stealing under section 372(1)&(5)(c) of the Criminal Code, Ch 262 for stealing an outboard motor that was anchored at a boat shed in Lorengau town in Manus Province. The Court sentenced him to 5 years imprisonment.

13. A case that is closest to the present case in terms of its factual background is The State -v- Johnson Bale (2004) N2626. In that case, the prisoner pleaded not guilty to a charge of stealing K78,074.03 under section 372 of the Criminal Code, Ch 262. The prisoner was employed as an EDP clerk with Pacific Industries Limited in Kimbe. He took the money from the office and drove to the then PNGBC to bank it. He drove past the bank and went to collect unsold soft drinks from a tucker shop. While he was at the tucker shop, robbers came and stole the money and escaped. The Court found him guilty because the Court found that he had conspired with the robbers to steal the money in the vehicle.

14. The Court sentenced him to 4 years imprisonment and did not suspend the sentence either in part or in whole even though the prisoner was a first offender, of good character and had not benefited from the money. The Court reached that decision because it was of the opinion there was a serious breach of trust, the amount of money stolen was substantial, it was not recovered and the offence was prevalent.

15. In the present case, there is no means assessment report presented to the Court to assist the Court to determine whether the prisoner has the financial means and capacity to make restitution if the Court is to accede to his lawyer's submission for a wholly suspended sentence. The pre-sentence report provided by the probation officer does state that the prisoner is willing to compensate the company with five live pigs and the management of the company has accepted the proposal. It also stated after the offence, the company has moved on and is not keen on recovering the money from the prisoner.

16. It also stated he has a clean criminal record until the offence. He comes from a very stable family and had a strict Christian upbringing. He has two supportive wives, parents and relatives who are keen on overseeing his rehabilitation if given a wholly suspended sentence.

17. Weighing the prisoner's clean criminal record, expression of remorse and absence of violence in the commission of the offence against the breach of trust, the unrecovered K75,000.00, the prevalence of the offence and the matter being a contested case, I consider two matters that weigh heavily against him is the breach of trust and the unrecovered K75,000.00. However, as the management of the company have moved on, which I take to mean, they have forgiven him and that they have agreed to accept some compensation from him, these reduces the seriousness of the offence.

18. For these reasons, in my opinion, a partly suspended sentence would be appropriate for the prisoner. As noted earlier, as he has no means to fully repay K75,000.00 but is willing to at least make some compensation, ordering him to make compensation to the company may not be unreasonable and inappropriate in this case. At the same time, serving part of the sentence in prison is important for him because it is part of rehabilitating him and also to teach him a lesson. It will also remind him that what he has done is not something that can be set aside lightly. He must be punished for his unlawful actions and at the same time it will be a reminder to others who think can pull a stunt like him to think twice before attempting one because if they are caught, they may end up in the same boat as him.

19. Following the decision in Johnson Bale's case (supra), I consider a term of 4 years imprisonment appropriate. The prisoner is therefore sentenced to a term of 4 years imprisonment. Two (2) years of that shall be suspended and he shall be placed on good behaviour bond for the duration of the period of suspension. He is also ordered to pay compensation comprising of 5 large live pigs to the victim company within 6 months from today. Of the remaining 2 years, 2 weeks shall be deducted for time spent in pre-sentence custody, leaving a balance of 1 year, 11 months and 2 weeks for him to serve in prison.

Sentence accordingly.

_______________________________
Acting Public Prosecutor: Lawyers for State
Paraka Lawyers: Lawyers for Prisoner