State v Salle (No.2) [2015] PGNC 236; N6148 (23 September 2015)

N6148

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC). 310 of 2013

THE STATE

-v-

IVAN SALLE
(NO.2)

Wewak: Geita J
2015: 20, 21 May & 23rd September

CRIMINAL LAW – Sentence – Stealing K61, 902.30 from employer Nationwide Micro Bank Wewak Branch –Wholly suspended non- custodial sentence considered inappropriate-Deterrence and restitution preferred – Immediate recovery of amounts stolen not guaranteed - Stealing over a 2 months period.

CRIMINAL LAW –Sentence – Four years (4) sentence imposed.Twelve months to be served less pre-sentence period – Remaining sentence to be wholly suspended upon full restitution. - Section 372 (7) (a) Criminal Code Act.

Cases cited:

The State v Aisi Eki & Ors [2005] N3387
The State v Daniel Maparia unreported, 7 September 2004, CR 1118/2000
The State v Doreen SC 675.
The State v Simon Paul Korai [2009] N3820
The State v Steven Luva (2010) N3909.
The Statev Wellington Balewa v [1988-89] PNGLR 496

Counsel:
Ms. Sabine Dusava & Paul Tusais, for the State.
Mr. Johnson Malambaul, for the Prisoner

JUDGMENT ON SENTENCE

23rd September, 2015

1. GEITA J: The prisoner has been found guilty of stealing cash monies totalling K61,902.30, the property of Nationwide Microbank Ltd, contrary to section 372 (7) (a) of the Criminal Code.The offence attracts a maximum penalty of seven years.

Brief Facts

2. The facts as found by the court on the conviction following the trial on 18 May 2015are these. Between 1st April 2012 and 12th June 2012, the prisoner whilst being employed as Officer in Charge of Nation Wide Microbank Limited branch in Wewak stole cash monies totalling K61, 902.30 which came into his possession as an employed servant. The monies were systematically stolen through a poorly managed petty cash system including a poorly managed replenished cash in transit system from BSP Bank Wewak to the Branch vault.

Antecedents

3. The prisoner recorded no prior convictions

Allocutus

4. In his allocutus the prisoner said he was sorry for what he had done. He said he is married with three young children and is the only breadwinner. He asked for leniency and indicated his willingness to repay all stolen monies within 18 months. This was his first time in court. He showed remorse and apologised to the contributors and court.

Mitigating factors

5. No mitigating factors were considered special to the prisoner.

Pre - sentence report and Means assessment report

6. I have thoroughly read though both reports and find them to be very favourable to you. For this I must thank the Probation Officer Ms Kutan Poniou for going to great lengths in collecting all the information contained therein to assist this court in its decision making process on sentencing. Your family members and close friends stand ready to assist you repay the stolen monies which is a welcome sign. Your willingness to forego your savings with Nasfund is a matter for you to decide and not for the court to make. Your dilemma with your young family is also noted however you must admit the fact that you brought your families misery into their lives by your actions. Your standing in your community likewise is favourable and you have their support however you have let them down. Your means assessment report does not look very healthy despite your willingness and undertaking to make full restitution with 18 months. In my view that is a huge ask and the task of restitution insurmountable. Despite having you successfully prosecuted the management of Nationwide Microbank still feel for you and your family however they have a much bigger family to worry about i.e.the simple village people and their savings". Their main concern is for the full recovery of contributor's savings and their"good will'' in society restored.

Submissions by the prisoner

7. Mr. Malambaulfor the prisoner conceded that the lead authority in these types of cases was that of Wellington Balewa v The State [1988-89] PNGLR 496. Due to the frequency of such crimes courts have varied and included sentences greater than originally recommended. The cases of The State v Simon Paul Korai [2009] N3820 and State v Aisi Eki & Ors [2005] N3387 were also referred to me. They all deal with like cases with sentencing ranging between 2-3 years with suspended sentences. In the same vein Mr. Malambaul submitted that a head sentence of four years be considered with suspensions and full restitution.

Submissions by The State

8. The State's submission is based largely on the lead case of Balewa in these types of crimes. All the attributes of Balewa principles were present which warranted calls by The State for the prisoner to be sentenced to a head sentence of five years. Any reductions of sentence on condition that the prisoner serve some time in prison as a deterrence to others. The State submitted that this case was one of serious breach of trust. The high breach of trust and the position occupied at the time the crime was committed was cause for heavier punishment imposed as a deterrent, the State submitted.The case of The State v Daniel Maparia unreported, 7 September 2004, CR 1118/2000 was cited as a case in point. On the question of part suspended sentence and restitution State cited the case of The State v Steven Luva (2010) N3909.

Remarks

9. Your case is decided on its own facts and circumstances alone. Other cases referred to this court either support or disagree with your pleas for leniency or otherwise. Based solely on the facts before me I consider the amount stolen substantial warranting a custodial sentence as a form of deterrence to would-be perpetrators in future. The amount of monies stolen is substantial and immediate recovery long time coming. To your credit you have so far paid back K9, 000.00. In your case you were found guilty after trial which resulted in witnesses being called from Port Moresby and the cost of this trial for the State. Together with other consideration in your trial I consider a head sentence of 4 years to be appropriate under the circumstances. A lesser head sentence would have been considered had a guilty plea recorded in your favour.

10. The sentencing trend these days for non-violent crimes of this nature often attract non-custodial prison terms with strict conditions for either release on probation or good behaviour with orders for restitution. (The State v Doreen SC 675). On the question of whether all or any of your sentence should be suspended I am satisfied that in your case that such orders will be considered in part.

11. The ultimate sentence that I propose to impose therefore is firstly based on the principles of deterrence and restitution. In view of all the information available to me in your address and reports, a non-custodial wholly suspended sentence for you is considered inappropriate. Rather you must serve some time in custody and upon full restitution you will be freed.

Sentence

12. Having considered all the information before me, I consider a head sentence of four (4) years to be appropriate under the circumstances. You will serve 12 months in prison, less the 5 months spent in pre-sentence custody after which the whole of the remaining sentence will be suspended on the following conditions:

a) That the whole of the remaining amounts stolen is repaid to Nationwide Micro Bank Wewak Branch.

Ordered accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner