State v Kanjip [2014] PGNC 57; N5590 (9 April 2014)

N5590

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. No.689 of 2013

THE STATE

V

KELLY KANJIP
Prisoner

Minj & Mt. Hagen: David, J
2014: 4 & 19 March & 9 April

CRIMINAL LAW – Criminal Code, Section 372(1) and (7)(b), stealing – guilty plea – first offender - a single one-off incident – fourth - no pre-planning - until the offence, the offender had a good character - with caution, the welfare of the prisoner's family – loss of job - the amount taken was substantial - the degree of trust reposed in the prisoner was high - the victim company suffered a substantial loss - the offender personally benefitted from the money stolen - the prisoner acted with another person - the offender regarded as an educated and sophisticated person who should have known between right and wrong - the victim company and customer wasted a lot of time, effort and money arranging police and staff to locate the prisoner on the date of the incident - the victim company contacted the prisoner on the date of the incident to return the money, but he refused - the offender was at large for over 4 years and 8 months avoiding arrest - the prisoner stole from a foreign business house operating in the country which impacted adversely or was a deterrent to possible or future foreign investors or people coming into the country with their foreign currencies to help economy - the offence was prevalent – aggravating factors outweigh those in mitigation - pre-sentence report and means assessment report compiled and filed by the Probation Service - reports not favourable to prisoner - pre-sentence report recommends custodial sentence - not an appropriate case to suspend all or any part of sentence – custodial sentence of 3 years in hard labour imposed for personal and public deterrence – time spent in custody of 1 year and 21 days deducted.

Cases cited:

Public Prosecutor v William Bruce Tardrew (1986) PNGLR 91
Wellington Belawa v The State [1988-89] PNGLR 496
Public Prosecutor v Don Hale (1998) SC564
Doreen Liprin v The State (2001) SC673
The State v John Akoko (2001) N2061
The State v Robert Kawin (2001) N2167
The State v Timothy Sio (2002) N2265
Edmund Gima and Siune Arnold v The State (2003) SC730
The State v Allan Nareti (2004) N2582
The State v Alice Wilmot (2005) N2857
The State v Ian Sevevepa, CR No.2007 of 2005, Unreported & Unnumbered Judgment of Lenalia, J delivered at Popondetta on 10 May 2006
Richard Liri v The State (2007) SC883
The State v Roselyn Waiembi (2008) N3708
The State v Simon Paul Korai (2009) N3820
The State v Cheppy Novaii, CR 1097 of 2009, Unreported & Unnumbered Judgment of Ellis, J delivered at Wabag on 17 May 2010
The State v Siam Serave, CR 303 of 2009, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 16 November 2011
The State v Mathias Lunga, CR 1380 of 2010, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 17 November 2011

Counsel:

Messrs Joe Kesan with Philip Tengdui, for the State
Mr. Vincent Agusave, for the prisoner

9th April, 2014

1. DAVID, J: The prisoner, appearing before me from custody, pleaded guilty to a charge of stealing from his employer, Bintagor Trading Company Limited on or about 30th June 2008 at Banz, Jiwaka Province cash in the sum of K9,900.00, which came into his possession on account of his employer contrary to Section 372(1) and (7)(b) of the Criminal Code. Having been satisfied that the evidence contained in the depositions supported the charge, I convicted the prisoner.

2. For the purposes of arraignment, the State Prosecutor, Mr. Tengdui presented the following short facts to the Court. The prisoner who is from Kol village in the Jimi District of the Jiwaka Province was at Banz on Monday, 30th June 2008 on a cargo delivery trip for his employer, Bingtagor Trading Company Limited from Mt. Hagen to a customer namely, Feng Hua Trading operating in Banz. The cargo was valued at K19,800.00. Upon delivery of the cargo, the proprietor of Feng Hua Trading, Tei Zheng paid a sum of K19,800.00 being payment for the cargo which he gave to the prisoner in a box to be delivered to his employer in Mt Hagen. The prisoner did not deliver the money to his employer. Instead, he took the money and shared it with another person, in equal parts. He applied K9,900.00 to his own use. The money he stole came into his possession because of his employment. He was on the run for four years until apprehended at Banz on Tuesday, 19th March 2013.

3. The prisoner has no prior convictions.

4. In his allocutus, the offender recounted how the plan to steal the money was hatched with the driver of the delivery vehicle after the owner of Feng Hua Trading had delivered to him K19,800.00 in a box as payment for the cargo they had delivered. The money was shared in equal parts near a tea factory at Kujip and the driver undertook to cover for him. He got off there, took a PMV and went to Simbu. The offence was not pre-planned and he fell into Satan's temptation when the driver suggested the plan to him after receiving the box of money. He said he was employed by his former employer as a Dispatch Master and Debt Collector and never at anytime got himself into trouble with his employer despite handling a lot of money which came into his possession in the course of performing his duties. He was concerned about the welfare of his entire family particularly his three young female children, two of whom were attending school at Kol Community School and his parents who were old as there was no one else to pay for the children's school fees or look after all of them. He said sorry to; Bruce Sia, owner of Bintagor Trading Company Limited; God; and the National Court. He pleaded for mercy and requested that he be handed a non-custodial sentence so that he could find employment and repay the money he stole. He said whilst incarcerated, several companies had shown interest in engaging his services. He conceded that he was on the run and working in Lihir (with Assert Protection), but was in Banz whilst on leave when he was apprehended for this offence.

5. After administering the allocutus, the defence applied for a pre-sentence report and a means assessment report to be compiled by the Probation Service here to assist the Court in determining an appropriate sentence for the offender. I granted the request and directed that the reports be filed on or prior to 19th March 2013 at 9:30 am and the matter was adjourned to that date and time for mention and or submissions on sentence giving the Probation Service sufficient time to prepare the reports. The Probation Service filed the reports within the period given and I thank Ms. Theresa Puk, Probation Officer for her efforts in compiling the reports.

6. The pre-sentence report and the means assessment do not speak favourably of the prisoner. The pre-sentence report recommends that a custodial sentence be imposed for several reasons; first, probation supervision including monitoring of rehabilitation programmes would be quite difficult due to the remoteness of the prisoner's village; second, as is reported by the means assessment report, the prisoner's only source of funds was K2,737.81 standing to his credit at NASFUND hence he was financially incapable of meeting any order for restitution or compensation on his own; and third, the victim company preferred that the prisoner be accorded a custodial sentence as it was not interested in any form of restitution from the prisoner.

7. The offender originates from Kol village which is situated in the upper Jimi District of the Jiwaka Province. His family resides at the village. He is now aged about 44 years, married with 3 female children. The first born child is aged 12 years and she is doing Grade 6 at the Kol Community School. The second born child is aged 6 years and she is attending Elementary School at Kol. The last born is aged 1 year and 2 months and obviously is breast fed. He does not have any physical or mental disabilities. He was the sole bread winner for the family. Until the offence, he had been residing at the Mopa Compound at Warakum here in Mt. Hagen. Both parents are alive and reside at Kol. He completed Grade 6 at the Kol Community School and then attended the Minj High School where he completed Grade 10 in 1992. In 1997, he attended the Commercial Training College here in Mt. Hagen and graduated with a certificate in Modern Salesmanship. He was employed as a Dispatch Master, Debt Collector and salesman with the victim company. He has also worked with several security companies in Lihir in the New Ireland Province. He was in the employ of Kopun Investment Holdings Limited as a salesman when he was arrested and detained for this offence on 19th March 2013. He has been in custody for 1 year and 3 weeks. He comes from a family of three boys including himself and they are all married and have children. He was a baptized member of the Evangelical Brotherhood Church.

8. In mitigation, it was submitted by Mr. Kapi of counsel for the prisoner that; the prisoner accepted criminal responsibility by pleading guilty to a serious charge; the prisoner has no prior convictions therefore was a first time offender; the prisoner expressed genuine remorse; the prisoner was willing to fully restitute; this was a single one-off incident of stealing; and there was no pre-planning.

9. Mr. Kapi further submitted that the Court should apply the guidelines suggested by the Supreme Court in Wellington Belawa v The State [1988-89] PNGLR 496 in determining an appropriate sentence for the prisoner and that this case falls under the second category where the tariff recommended is a gaol term of up to two years imprisonment. Counsel conceded however that the tariff is immutable hence outdated having been pronounced more than 10 years ago. He therefore urged the Court to impose a sentence of between 2 to 3 years all or partly suspended on terms further guided by the case of The State v Roselyn Waiembi (2008) N3708.

10. In Roselyn Waiembi, the offender pleaded guilty to a count of stealing the sum of K15,000.00 from her employer, a law firm under section 372 (1) and (7)(a) of the Code. She was employed as an Accounts Clerk. I sentenced her to 3 years imprisonment in hard labour less 1 month for time spent in custody leaving 2 years and 11 months to serve. I suspended the remainder of the term on terms including an order for restitution to be effected by the conversion of bail moneys of K1,000.00 to be paid to the victim law firm and the balance of K14,000.00 to be paid to the victim law firm by 2 equal instalments of 6 months apart.

11. In aggravation, Mr. Tengdui for the State submitted that; the amount stolen was substantial; the degree of trust reposed in the prisoner to deliver goods to customers and bring cash received for the payment of goods back to his employer was high; the prisoner applied the stolen monies to his own use; there was no restitution or attempted restitution although he was given the opportunity by his former employer to return the stolen monies; the prisoner stole from a foreign business house operating in the country which impacted adversely or was a deterrent to possible or future foreign investors or people coming into the country with their foreign currencies to help our economy; the prisoner was at large for over 4 years; and the offence was prevalent.

12. Mr. Tengdui concurred with the defence that guidelines in Wellington Belawa should be applied and this case falls under the second category of the tariff recommended there. Counsel urged the Court to impose a sentence of between 3 to 4 years further guided by the cases of The State v Allan Nareti (2004) N2582 and Roselyn Waiembi.

13. In Allan Nareti, the 2 prisoners pleaded guilty to a charge laid under Section 372 (1) and (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 offenders 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 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 each within 12 months.

14. As to the question whether the sentence should be custodial or not, the prosecution submitted that it was aware of the principle in Doreen Liprin v The State (2001) SC673 where it was suggested that in non-violent offences such as misappropriation, alternatives to imprisonment should be considered first that would achieve the purposes of retribution, restitution and rehabilitation rather than imposing a custodial sentence. Mr. Tengdui submitted that many factors in the present case were against the imposition of a non-custodial sentence so the circumstances of the present case warranted a stiff and deterrent custodial sentence.

15. I find that the factors which mitigate the offence in the present case are; first, the offender has no prior convictions hence a first offender; second, he accepted criminal responsibility by entering a guilty plea to a serious charge in this Court; third, this was a single one-off incident of stealing; fourth, there was no pre-planning; fifth, until the offence, the offender had a good character; sixth, with caution, the welfare of his family; and seventh, he lost a job he was in prior to his arrest and detention.

16. I find that there was no genuine expression of remorse for his actions and the prisoner has made no restitution. The prisoner's willingness to make full restitution now is meaningless in the light of; the statement from Bruce Sia, Director of the victim company that he contacted the prisoner on his mobile phone on the date of the incident immediately after he received word about the incident from the driver of the delivery vehicle namely, Kuman Tul, but the prisoner told him that he had no intention of returning the money; there was no offer to restitute anytime after the incident and before the plea was taken; and the prisoner had been at large for over 4 years. I would consider these as neutral factors.

17. I find that the factors which aggravate the offence in the present case are; first, the amount taken of K9,900.00 was substantial; second, the degree of trust reposed in the prisoner to deliver goods to customers and bring cash received for the payment of goods back to his employer was high; third, the effect upon the victim company was that it has suffered a substantial loss; fourth, the offender personally benefitted from the money stolen; fifth, he acted with another person; sixth, the offender having a Grade 10 qualification and a certificate in Modern Salesmanship can be regarded as an educated and sophisticated person who should have known between right and wrong; seventh, the victim company and customer, Feng Hua Trading wasted a lot of time, effort and money arranging police and staff to locate the prisoner on the date of the incident; eighth, the victim company contacted him on the date of the incident to return the money, but he refused; ninth, the offender was at large for over 4 years and 8 months avoiding arrest; tenth, the prisoner stole from a foreign business house operating in the country which impacted adversely or was a deterrent to possible or future foreign investors or people coming into the country with their foreign currencies to help our economy; and eleventh, the offence was prevalent.

18. The penalty prescribed for stealing simpliciter under section 372 (1) of the Code is imprisonment for a term not exceeding 3 years.

19. For other categories of stealing committed under circumstances of aggravation, the penalties are set out under Section 372 (1A), (1B), (2) to (12) of the Code. They range from 7 years to life imprisonment. Recent amendments made to the Code through Section 5 of the Criminal Code (Amendment) Act, No.6 of 2013 are the enactment of sub-sections (1A) and (1B). Under subsection (1A), if the thing stolen is money exceeding K1 million and does not exceed K10 million an offender is liable to imprisonment for a term of 50 years without remission and without parole. Under sub-section (1B), if the thing stolen is money exceeding K10 million, the penalty shall be life imprisonment. Offences under sub-section (2) (stealing of a testamentary instrument) and sub-section (3) (stealing a thing during transmission by post) attract the maximum penalty of imprisonment for life. The offence under sub-section (4) (stealing of an aircraft) attracts a maximum penalty of imprisonment not exceeding 14 years. For all other offences under sub-sections (5) to (12), the maximum penalty for each of those offences is imprisonment not exceeding 7 years.

20. These penalties are subject to section 19 of the Code which gives the Court a wide discretion to impose such other sentence which is appropriate depending on the facts or circumstances of a particular case.

21. The prisoner in the present case is charged under Section 372(1) and (7)(b) of the Code for stealing the sum of K9,900.00. The maximum penalty prescribed under sub-section (7) is imprisonment for a term not exceeding 7 years.

22. In considering the appropriate sentence in this case, I will be guided by the guidelines suggested in The State v Robert Kawin (2001) N2167 which were discussed and modified in The State v Timothy Sio (2002) N2265 and those recommended by the Supreme Court in Wellington Belawa.

23. In Robert Kawin, His Honour, Kandakasi, J noted that there were no sentencing guidelines for the offence of stealing and therefore he attempted to formulate one in the following terms:

"In line with the accepted principle that, the maximum prescribe sentence in any offence should be reserved for the worse category of the offence under consideration, I am of the view the that the maximum of 3 years should be reserved for the worse category of stealing under s. 372 (1). A worse case of stealing would be one that might have factors like, the total value or the actual amounts of money stolen falls just short of K1, 000.00, thereby escaping an application of the provisions of subsection 10. It would also be a worse case if say an element of a breach of trust whether legal or a defector kind of trust not caught by any of the other subsections in s. 372 exists and the offence is committed in furtherance of an illegal activity or another offence.

At the end of the scale would be simple cases of stealing, such as, pocket pickings, or someone leaving some valuable item mistakenly at a place and another person steals it with full knowledge of its owner. Stealing in such a situation should attract a sentence of a few months say about 3 to 4 months. Then there would be cases in between. These might be cases in which say the amount of money or the value of item stolen is small but the offence is committed in pursuance of an illegal activity or another offence. In this category might be cases where the amount of money or value of item stolen is substantial but not necessarily up to K1, 000.00. In such cases the sentence could range from more than 4 months and closer to the maximum prescribed sentence of 3 years.

Of course a guilty plea by a first time offender, or a young offender could reduce the kind of sentence suggested. The need to do that has been made clear in a large number of cases though in the context of other offences as in the case Gimble v The State [1988—89] PNGLR 271, by the Supreme Court at page 275. The above suggestion is only put forward as a guide in the absence of any other guideline to the contrary. A judge may impose a sentence outside what is suggested, provided there is a good reason to depart from the suggested guideline."

24. Robert Kawin is a case where the prisoner was charged for 2 counts of stealing under section 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.

25. In Timothy Sio, His Honour, Kandakasi, J considered what he said in Robert Kawin as a useful guide for adoption with necessary modifications for an offence under subsection (10) or for any other offence under section 372 generally. His Honour said:

"But these cases do not clearly provide us with any guideline for sentencing for any or all of the offences under s.372 of the Code. In the circumstances, I consider what I said in the Robert Kawin (supra) case as a useful guide, which should be adopted with necessary modifications for an offence under subsection 10. When what I said in that case is considered in the light of the above cases a number of principles emerge.

First, the maximum prescribed penalty should not be readily imposed. Instead it should be reserved for the worse type of the offence under consideration. Secondly, guilty pleas, and the offender being a first time young offender and the existence of such good factors operate in favour of sentences lower than the prescribed maximum. Thirdly, if the properties stolen are recovered it may operate as a factor in mitigation of an offender whilst on the other hand if the properties stolen is substantial and or has not been recovered a higher sentence may be imposed. Fourthly, prevalence and effect of the offence against the victim and the community or society as a whole is an important factor for consideration."

26. Timothy Sio is a case where 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 section 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.

27. Sentencing guidelines for misappropriation cases and commonly held now as applying to other offences involving dishonesty were set out by the Supreme Court in Wellington Belawa. In that case, it was suggested that the following factors are amongst other factors that should be taken into account on sentencing an offender; the amount taken; the quality and degree of trust reposed in the offender including his or her rank; the period over which the fraud or the thefts have been perpetrated; the use to which the money was put; the effect upon the victim; the impact of the offence on the public and public confidence; the effect on fellow-employees or partners; the effect on the offender; the offender's own history; restitution; and matters of mitigation special to the offender.

28. When addressing the question of the quality and degree of trust reposed in an offender, Bredmeyer, J observed:

"The higher the position of trust the greater the culpability. Thus if the offender holds a very senior position in the public service or in a company, the greater the punishment that will be imposed. The principle here is that "from whom much is given, much is expected". The person who enjoys a high position of trust and respect and enjoys high salary and other perquisites should be expected to carry out his duties honestly and to set an example to others."

29. The Supreme Court also generally accepted the general statement of the trial judge when he said:

"I consider the public interest in this case is paramount. The public need to deter people in high positions of trust from abusing and manipulating the system to benefit themselves at the public expense. The need for stern, retributive and punitive sanctions outweighs any personal factors...[T]he higher the office one holds, the greater the responsibility and accountability, and if such a person abuses the position of that office then he can expect to be punished more severely than an ordinary citizen."

30. The passages I have cited above are applicable here given the offender was employed as a Dispatch Master, Debt Collector and Salesman, a responsible position in the victim company which involved the handling of money.

31. The Supreme Court in Wellington Belawa also suggested a scale of sentences to be applied as a base to be then adjusted upwards or downwards according to the various competing factors present in a particular case and these are; first, where the amount misappropriated is between K1 and K1,000, a gaol term should rarely be imposed; second, where the amount misappropriated is between K1,000 and K10,000, a gaol term of up to 2 years is appropriate; third, where the amount misappropriated is between K10,000 and K40,000, 2 to 3 years imprisonment is appropriate; and fourth, where the amount misappropriated is between K40,000 and K150,000, 3 to 5 years imprisonment is appropriate.

32. It is generally accepted now that while the factors set out in Wellington Belawa are still relevant, the tariff recommended is regarded as outdated due to the prevalence of the offence.

33. It must be remembered that the maximum penalty for the offence of misappropriation simpliciter is imprisonment up to 5 years. The maximum penalty for the offence of misappropriation committed under circumstances of aggravation is imprisonment for 10 years.

34. I have also considered the following cases.

35. In The State v John Akoko (2001) N2061, 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 offender stole, K5,528.40 was recovered from the prisoner when he was apprehended. He had already spent K1,477.60 by then. The offender was charged under section 372 (7) of the Code. He pleaded guilty and was convicted and sentenced to 5 years imprisonment in hard labour less time spent in custody. The Court found the degree of trust reposed in the offender 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.

36. In The State v Ian Sevevepa, CR No.2007 of 2005, Unreported & Unnumbered Judgment of Lenalia, J delivered at Popondetta on 10 May 2006, the offender pleaded guilty to a count of stealing the sum of K17,000.00 belonging to a service station proprietor contrary to s.372 (1) and (10) of the Code. The money which was contained in a bag was placed on a table in the office by a female employee in order for her supervisor to check before she started sweeping the office. While the female employee was sweeping the office, the prisoner walked into the office, pushed the female employee away, took the bag of money and ran away with it. Taking into account the prisoner's guilty plea, that he was a first time offender, the crime occurred in broad daylight; and part of the amount stolen was given to another person, the Court imposed a sentence of 3 years to be served in hard labour. The time spent in custody awaiting trial was deducted and the balance was ordered to be served out in custody.

37. In The State v Simon Paul Korai (2009) N3820, the offender was convicted after pleading guilty to stealing K21,460.00 the property of a female victim contrary to Section 372 (1) of the Code. He was a security guard employed by the Bank South Pacific Limited. He assisted the victim who was illiterate at times to do her transactions at the bank. Over time, the offender came to know the victim's PIN number. The PIN number was a name of something. The offender then wrote out 13 withdrawals in different amounts using the victim's PIN number and withdrew a total of K21,460.00 without any authority from the victim. He used the money for his own benefit. The victim was reimbursed by the bank. I was of the view that the offender was liable to imprisonment for up to 7 years under sub-section (10) of section 372 of the Code because the amount stolen exceeded K1,000.00. I sentenced the prisoner to 3 years imprisonment in hard labour and deducted 9 months and 3 weeks to allow for time already spent by the offender in custody leaving a term of 2 years, 2 months and 1 week to be served. I suspended 2 years of the remaining term on terms.

38. In The State v Cheppy Novaii, CR 1097 of 2009, Unreported & Unnumbered Judgment of Ellis, J delivered at Wabag on 17 May 2010, the offender was convicted after pleading guilty to stealing K98,252.00 from his employer brought under section 372 (7) of the Code. An amount of K81,428.00 was repaid by the offender leaving the victim employer with a loss of K16,824.00. His Honour sentenced the prisoner to 3 years imprisonment and deducted 11 months and 1 week to allow for time already spent by the offender in custody leaving a term of 2 years and 3 weeks to be served. His Honour suspended the whole of the remaining term on terms.

39. In The State v Siam Serave, CR 303 of 2009, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 16 November 2011, the prisoner was convicted after pleading guilty to stealing K28,681.85 from her employer brought under section 372(1) and (7)(a) of the Code. She was employed by her Tininga Limited as Senior Accounts Clerk. Her duties included administering the petty cash on a daily basis. Whilst looking after the petty cash, she on several occasions took out some money for her own personal use without the knowledge and approval of her employer. An amount of K2,300.00 was repaid by the offender leaving the victim company with a loss of K26,381.85. I sentenced the prisoner to 3 years and 6 months imprisonment and deducted 1 week to allow for time already spent by the offender in custody leaving 3 years, 5 months and 3 weeks to be served. I suspended the whole of the remaining term on terms including payment of a fine of K700.00 and full restitution to be made within 6 months.

40. In The State v Mathias Lunga, CR 1380 of 2010, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 17 November 2011, the prisoner was convicted after pleading guilty to stealing K34,559.90 from his employer brought under Section 372(1) and (7)(a) of the Code. He was employed by Rainbow Store Limited in Mt. Hagen as a cashier so had access to cash transactions of the shop including handling daily takings and cash floats. He was basically responsible for managing cash. The money was discovered as missing when the company's Finance Controller made a routing spot check of the cash float. The prisoner realizing the discovery of the thievery, escaped with the cash to his home province of Simbu. He was at large for some time and was finally apprehended for the offence. I sentenced the prisoner to 4 years imprisonment and deducted 1 year, 5 months and 1 day to allow for time already spent by the prisoner in custody leaving 2 years, 6 months and 27 days (the remaining term) to be served. I suspended 1 year of the remaining term on terms.

41. The present case falls under category 2 of the sentencing tariff in Wellington Belawa which recommends a term of imprisonment up to 2 years.

42. Notwithstanding that the aggravating factors far outweigh those in mitigation, I am satisfied that this case does not fall within the worst category for this offence.

43. Taking into account all the circumstances of this case, I will sentence the offender to 3 years imprisonment in hard labour. I will deduct 1 year and 21 days to allow for the time already spent by the offender in custody leaving 1 year, 11 months and 7 days (the remaining term) to be served from today.

44. The prisoner will immediately be incarcerated at the Baisu Correctional Institution. I would recommend that he be transferred to Barawagi Correctional Institution to serve his sentence there.

45. I have considered the principles on alternative methods of punishment other than imprisonment in non-violent offences advocated in Doreen Liprin and those applying to suspension of sentences discussed in Public Prosecutor v William Bruce Tardrew (1986) PNGLR 91; Public Prosecutor v Don Hale (1998) SC564; Edmund Gima and Siune Arnold v The State (2003) SC730; Richard Liri v The State (2007) SC883.

46. In William Bruce Tardrew, the Supreme Court held that suspension of part of a sentence may be appropriate in 3 broad categories, but the list was not exhaustive. These are; first, where suspension will promote the personal deterrence, reformation or rehabilitation of the offender; second, where suspension will promote the repayment or restitution of stolen monies or goods; and third, where imprisonment will cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.

47. Don Hale, Edmund Gima and Siune Arnold and Richard Liri are Supreme Court decisions that stand for the proposition that there can be no suspension of sentence without the support of a pre-sentence report.

48. The pre-sentence report and the means assessment report do not speak favourably of the prisoner.

49. The pre-sentence report does not support a non-custodial sentence for reasons I have alluded to earlier.

50. A prisoner must bear the burden of restoring what he or she has stolen which means that he or she must make personal contributions towards restitution in order to be viewed as a personal deterrence and not rely solely on family members and relatives: The State v Alice Wilmot (2005) N2857. The means assessment report reports that the prisoner only has K2,737.81 standing to his credit at NASFUND so he does not have the means to make restitution on his own. The prisoner pleaded for a non-custodial sentence so that he could seek employment and repay the money he had stolen, but he did not produce any evidence to the Court from companies he said were interested in engaging his services after his release from custody. The victim company also prefers that the prisoner be handed a custodial sentence as it was not interested in the prisoner making any form of restitution.

51. There is no evidence before the Court that the prisoner is in bad physical or mental health such that imprisonment will cause an excessive degree of suffering to him.

52. Given that the aggravating factors far outweigh the mitigating factors and guided by the main purposes of sentencing in criminal cases such as deterrence, rehabilitation or reformation and retribution, I do not consider that a suspension of any part of the sentence would be appropriate. However, I accept the recommendation of the Probation Service that a custodial sentence is appropriate in the present case as a measure of personal and public deterrence for his conduct.

53. A warrant to give effect to this sentence shall issue forthwith.

Sentenced accordingly.
_________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender