State v Balim [2015] PGNC 223; N6028 (22 July 2015)

N6028

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NOS 127 & 128 OF 2015

THE STATE

V

REUBEN BALIM

Madang: Cannings J
2015: 24th June, 10th, 22th, July

CRIMINAL LAW – sentencing – Section 383A (misappropriation of property) – plea of guilty – schoolteacher misappropriated K11, 680.00 from school at which he was employed – sentence of 3 years.

A school teacher pleaded guilty to misappropriation of K11, 680.00 from the school at which he was employed. On four occasions over a six-week period he gained access to the cheque book for the school's bank account, forged the signature of the head teacher and cashed the cheques at the bank. He cooperated fully with the Police when the matter was investigated.

Held:

(1) The maximum penalty for the amount misappropriated is ten years imprisonment; the starting point is four years imprisonment.

(2) Mitigating factors are: guilty plea; no prior conviction; cooperated fully with the Police; genuine remorse; has already commenced repaying the amount misappropriated. Aggravating factors are: multiple transactions (not a spontaneous action); large amount misappropriated; serious breach of trust.

(3) A sentence of three years imprisonment was imposed, all of which was suspended due to the attitude of the victim (if he is sent to prison, the school will not get its money back) on condition that he not only repay the money but compensate the victim for the stress and inconvenience he caused.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Cynthia Feria (2013) N5386
The State v Graham Duk (2009) N3924
The State v Middleton Philip (2013) N5386
The State v Philip Wiamai (2007) N5492
The State v Philip Wiamai (2013) N5390
The State v Steven Lasin (2007) N5052
Wellington Belawa v The State [1988-89] PNGLR 496

This was a judgment on sentence for misappropriation.

Counsel

M Pil, for the State
J Morog, for the offender

SENTENCE

20th July, 2015

1. CANNINGS J: Reuben Balim, a teacher at Jomba Primary School, Madang, pleaded guilty to misappropriation of K11, 680.00 from that school at which he was employed. He has been convicted of an offence under Section 383A (1) (a) of the Criminal Code (dishonestly applying to his own use property belonging to another) in circumstances of aggravation under Section 383A (2) (b) and (d) of the Criminal Code in that the property he dishonestly applied was the property of his employer and was of a value upwards of K2, 000.00.

2. On four occasions over a six-week period in 2013 he gained access to the cheque book for the school's bank account, forged the signature of the head teacher and cashed the cheques at the bank. He cooperated fully with the Police when the matter was investigated.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court. He said:

I apologise for what I did. I did it because it was easy to do. The cheque-book was there and I gave in to temptation. As soon as I was caught I admitted everything. I tried to pay back the money but the head teacher stopped me. He just wanted me to be charged and imprisoned. There is now a new head teacher and he wants me to pay back the money. I am ready to do whatever he and the court wants me to do. I am a youth leader and a church leader. I am very sorry for what I have done.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). It is evident that he cooperated fully with the Police and made early admissions.

PRE-SENTENCE REPORT

6. Reuben Balim is aged 36. He is from Yabob village, Madang. He is married with three children. The marriage is stable. His wife is also a teacher at Jomba Primary. She does not want him imprisoned. She finds it difficult to believe that he committed this offence. She will assist him repay the money if given the chance. He is the first-born in a family of three children. His mother is deceased. His father lives in the village. His family is willing to support him if he is given a suspended sentence. He has a grade 10 education and graduated from Amon College with a certificate in elementary education. He has been a teacher at Jomba Primary all his professional life. He lives in an institutional house on the school campus. His health is sound. According to senior teacher, Mrs Maturau, he is a highly regarded member of the teaching staff. The present head teacher, Albert Kiwar, wants him given time to pay back the money; the school needs the money badly and if the offender is imprisoned it will never get its money back. The previous head teacher, Bob Sakol, thinks the offender has had enough time to compensate the school and he should now be punished for what he did. The pre-sentence report concludes that he is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Morog highlighted that the offender has no prior convictions and he pleaded guilty. He cooperated fully with the Police. He has paid the school K3, 000.00 already. A sentence of no more than three years imprisonment, fully suspended, would be sufficient.

SUBMISSIONS BY THE STATE

8. Mr Pil stressed that the offence involved four separate transactions conducted over a six-week period. However, the State would agree to a fully suspended sentence if the offender was given a limited time to return the money.

DECISION MAKING PROCESS

9. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. As the amount of money misappropriated is more than K2, 000.00 the maximum penalty under Section 383A (2) (d) is ten years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. The Supreme Court set out starting point ranges in Wellington Belawa v The State [1988-89] PNGLR 496, depending on the amount of money misappropriated. 12. I have stated in previous cases that these should be increased and regarded as follows:

• K1.00 to K1,000.00 – suspended sentence usually appropriate;
• K1,000.00 to K10,000.00 – four years imprisonment;
• K10,000.00 to K40,000.00 – four to six years imprisonment;
• K40, 000.00 to K150, 000.00 and beyond – six to ten years.
  

13. The present case falls into the second category, which means the starting point range is four to six years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

14. It is useful to consider sentences imposed in cases involving similar amounts of money.

SENTENCES FOR MISAPPROPRIATION: AMOUNTS K10, 000.00 – K40, 000.00

No	Case	Details	Sentence
1	The State v Steven Lasin (2007) N5052	Guilty plea – offender given custody of two cheques worth K10, 888.00 intended for 28 individual electoral officers as allowances – cashed the cheques and applied the proceeds to his own use.	4 years (30 months suspended)
2	The State v Philip Wiamai (2007) N5492	Guilty plea – offender helped a friend, a retired schoolteacher, get his finish pay of K16, 848.79, then put all the money into his own bank account and applied it to his own use – serious breach of trust.	4 years (suspended sentence later revoked: The State v Philip Wiamai (2013) N5390)
3	The State v Graham Duk (2009) N3924	Guilty plea – offender was an accountant with a bank – dishonestly obtained K32, 800.00 in customers' deposits and applied it to his own use – recent university graduate – multiple transactions.	4 years (no suspension)
4	The State v Middleton Philip (2013) N5386	Guilty plea – PNG Post employee collaborated with another employee to engage in four fraudulent transactions over a 15-day period – K15, 900.00 misappropriated – full cooperation with Police.	2 years (no suspension)
5	The State v Cynthia Feria (2013) N5386	Guilty plea – long-serving employee of large corporation misappropriated K10, 716.00 from employer – single transaction – early admissions to employer – full cooperation with Police.	2 years (21 months suspended)

STEP 4: WHAT IS THE HEAD SENTENCE?

15. The head sentence will reflect the following mitigating and aggravating factors.

16. Mitigating factors:

• the offender had an unblemished employment record for many years;
• he cooperated fully with the Police;
• he made early admissions;
• he has no prior convictions;
• he pleaded guilty;
• he has expressed remorse;
• he has cooperated with the Court by complying with bail conditions and attending court punctually;
• he has paid some compensation already;
• the attitude of the victim, expressed through the present head teacher, is favourable to the offender.
  

17. Aggravating factors are:

• multiple transactions committed over a short period;
• serious breach of trust;
• considerable impact on the school and its students and teachers.
  

18. After weighing all these factors, noting that there are more mitigating factors than aggravating factors and comparing this case with other misappropriation sentences, the head sentence should be below the starting point range of four to six years. I place great weight on the high level of cooperation with the Police and the Court and the early admissions made to the Police and of course the guilty plea. Because of these strong mitigating factors the sentence imposed is three years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. There is nothing to deduct as the Court has not been informed of any time the offender has been in custody in connection with this matter.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20. This was a non-violent crime. The offender has already paid a heavy price for what he did. He has received a good pre-sentence report. He appears to have learned his lesson. He wants the chance to make good the victim's loss. The proposal for a non-custodial sentence is not opposed by the State. This is a good case for a suspended sentence.

21. As to the amount of the payment, the offender should pay to the victim not only the amount of K11, 680.00 that he misappropriated, but an extra amount, of K320.00, which will be a moderate component of compensation, to compensate the victim for the stress and inconvenience and loss of funds. The total amount payable will be K12, 000.00 less the amount already paid. A limited period will be given. The balance of the sentence will be suspended on the following conditions:

1. must by 30 November 2015 have paid K12,000.00 compensation to the victim, the payment to be arranged through and supervised by the Madang Probation Office;
2. must appear before the National Court at Madang on 3 December 2015 at 9.00 pm to prove compliance with condition (1);
3. must reside at a specific address notified to the Probation Office and nowhere else except with the written approval of the National Court;
4. must perform at least three hours unpaid community work each week, to be arranged through the Probation Office;
5. must attend his Church every weekend for service and worship and assist the church in its community activities;
6. must report to the Probation Office at Madang on the first Monday of each month;
7. must not consume alcohol or drugs;
8. must keep the peace and be of good behaviour;
9. must have a satisfactory probation report submitted to the National Court Registry at Madang and appear before the Court for probation review as and when required;
10. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show the court, why he should not be detained in custody to serve the rest of the sentence.
    
11. SENTENCE
    

22. Reuben Balim, having been convicted of one count of misappropriation, contrary to Section 383A (1) (a) of the Criminal Code in circumstances of aggravation under Section 383A (2) (b) and (d) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	3 years
Pre-sentence period to be deducted	Nil
Resultant length of sentence to be served	3 years
Amount of sentence suspended	3 years, subject to conditions
Time to be served in custody	Nil, subject to compliance with conditions of suspended sentence

Sentenced accordingly
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender