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State v Paul [2015] PGNC 251; N6132 (30 November 2015)

N6132


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC). NO. 52 OF 2015


STATE


V


ROSLYN PAUL
Accused


Kainantu/Goroka: Polume-Kiele J
2015: 4, 17 & 30 November


CRIMINAL LAW – Guilty Plea –Criminal Code Act - s 372 (1), Stealing- Penalty of which is imprisonment for a term not exceeding three years.


CRIMINAL LAW- Sentence – Early guilty plea – No prior convictions – Criminal Code, s 19 - Suspension of sentence considered.


CRIMINAL LAW – Sentenced to 3 years imprisonment- less period of 28 days held in custody- s 3(2) Criminal Justice (Sentences) Act – 1 year of Head Sentence suspended, Criminal Code, s 19 – To serve balance of term of 1 year 11 months 2 days with Hard Labour at Bundaira.


Facts


The brief facts are that between the 8th of September 2014 and 9th of October 2014, whilst the prisoner was employed as a shop assistant at a beer outlet operated by New Vision Ltd, at Kainantu, in the Eastern Highlands Province, she stole several cartons of beer and other items valued in the sum of K9, 969.70, the property of New Vision Ltd. The prisoner during her interview with the Police in relation to the offence in the Record of Interview admitted to stealing the cartons of beer and other items alleged to have been stolen and thus was consequently charged for the offence of stealing pursuant to s 372 (1) of the Criminal Code.


The prisoner is 28 years old and comes from Raipinka Village, in Kainantu and married with 2 children. The prisoner is educated up to Grade 6 or 8 (this information is unclear) at Raipinka Primary School. Prior to and at the time of the commission of the offence, the offender was living with her family at Kainantu.


Held:


1. The offence of stealing contrary to s 372 (1) of the Criminal Code Act carries a prescribed penalty of imprisonment for a term not exceeding 3 years


2. Taking into account the previous incidents of having stolen items from her employer, there is a real risk of the offender re-offending. In addition the Community is also of the view that a custodial sentence would serve as a deterrent factor.


3. Sentence of 3 years imprisonment imposed less the period of 28 days held in custody. In the exercise of discretion under s 19 of the Criminal Code, 1 year of the head sentence is suspended on terms.


4. The accused is to serve the balance of 1 year 11 months 2 days imprisonment with hard labour at the CIS, Bundaira.


Cases cited
Wellington Belawa -v- The State [1988-89] PNGLR 496
State v Asi Taba (2010) N3939 (CR No.1443 of 2009
State v Elizabeth Tek (2008) N3509
State v Solien [2012] N4665
State v James Mariko CR (FC) No. 84 of 2015, N6086
Paulus Pawa v The State [1981] PNGLR. 498
The State v Tom Morris [1981] PNGLR.493
State v Henry Eliakim [2007] N3190
Public Prosecutor -v- Don Hale (1998) SC564


Counsel
Barbara Gore, for the State.
Samuel Ifina, for the prisoner


JUDGMENT ON SENTENCE


30th November, 2015


  1. POLUME-KIELE J. The prisoner appeared before me on the 4h of November 2015. She pleaded guilty to one count of stealing contrary to s 372 (1) of the Criminal Code Act (Ch No 262). Subsection (1) states:

“372. Stealing


(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding thrers."ars."


Committal Court Disposition


  1. Ms. Gore for the State tendered ainantu District Court Depo Deposition into evidence by consent which comprised of the following:
  2. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the accused’s guilty plea was accepted. The accused was convicted on the charge of stealing under s 372 (1) of the Criminal Code, Ch 262 This offence carries a penalty subject to this section, imprisonment for a term not exceeding 3 years

Antecedent Report


  1. The prisoner is 28 years old and married with 2 children. She is from Raipinka Village, Kainantu in the Eastern Highlands Province. She had been employed as a shop assistant at New Vision Ltd. At the time of the commission of the offence, she was working at the liquor retail shop as a cashier. The prisoner has no prior convictions.

Pre-Trial Detention


  1. The prisoner was committed to stand trial for the offence on the 26th of January 2015 and had been out on bail. However on the 2nd of November 2015, bail was revoked and the prisoner was remanded. She has been held in custody for a period of 28 days to the date of this ruling on sentence.

Allocutus


  1. When administering the allocutus, the prisoner was asked if she had anything to say on penalty to which she responded that she wish to speak on the issue of penalty. The prisoner was then given the opportunity to speak on the issue of penalty. In her statement on penalty, the prisoner said that it was true that she took the items worth about K9, 969.70 from the shop and stated that she was sorry for what she did. The prisoner said sorry to the court, the Company and the court staff for what she had done. In addition, the prisoner asked for leniency and said she has a family of two children (one in grade 2 and one in elementary school). The prisoner asked that she be placed on probation so that she can go home and take care of her children. She asked again for leniency from the court. Due to the request from that the prisoner to be placed on probation, her lawyer, Mr Ifina requested that this Court direct the Community Based Corrections (CBC) Office to prepare and furnish a Pre-Sentence Report and a Means Assessment Report on the suitability of the prisoner as a candidate for probationary orders and also to determine whether she has the means to pay compensation to the Company and generally to assist this Court determine penalty.
  2. In order to allow for this process to be complied with, I then directed that the Probations Officer, (Kainantu) prepare the Pre-Sentence Report and Means Assessment Report on the prisoner and have it filed at the Registry prior to the 16th of November 2015.

Pre-Sentence Report


  1. These Reports were promptly provided and taken into consideration in the determination of the severity of sentence. Briefly, according to the Pre- Sentence Report, the prisoner lives in the Village, in a bush material house with her family. Her two children (a boy and girl) are aged 9 years and 7 years respectively and they both attend the Salvation Army Elementary School at Kainantu and live with their father. The prisoner has an elder sister who is married and also lives in the Village. The sister is educated up to Grade 9. Both her parents have died. With regard to her capacity to make recompense for the item of goods valued in the sum of K9.969.70 stolen from the Company; the prisoner has indicated that she intends to find new employment and also make gardens for the sustenance of her family’s and that any surplus will be sold and the cash used to repay the amount of K9, 969.70 stolen from the New Vision Trading Ltd, if allowed to by the Court. The prisoner requested that she be given a period of six months to repay the amount of goods and cash valued in the sum of K9.969.70 stolen.
  2. On the other hand, the Community when interviewed were of the view that the prisoner does not have the capacity to repay back the money to the Company. Furthermore the Community is also of the view that the prisoner has been given previous chances by the Company to repay back for the items stolen but she continued to steal from the Company. The Community is of further view that the prisoner has not learnt from her previous lessons and that she has an attitude problem and not a good person. Furthermore, the relatives of the prisoner also interviewed have stated that they do not have capacity to assist in repaying the sum of K9, 969.70 stolen and have stated that this Court exercise its discretion to determine penalty. The relatives also acknowledged that the prisoner has been given second chance and was re-employed by the Company but she did not change her behaviour and attitude, she continued to steal from her employer.
  3. Overall, the Pre-Sentence Report compiled by the Probation Officer, Mr. Bennet Amuino recommended that the prisoner is a not a suitable candidate to be placed on Probation supervision. Her previous record of employment with the Company indicated that she is not a trust worthy person. Significantly even when given another chance by her employer to change her ways, she has not made any change and she has stolen yet again and therefore, the Court in its exercise of discretion impose an appropriate penalty.
  4. This Court is grateful for the preparation of the Pre-Sentence and Means Assessment Reports and promptness in the completion of such. Given the assessment of the demeanour of the prisoner and views gathered from the Community and her relatives, it appears that these assessment do not favour her. The overall demeanor of the prisoner over the period when the crime was discovered and making any attempts to pay for the items stolen has not been good. Similarly, the offender did not turn up for work after her activities were discovered. This behaviour does not indicate any remorsefulness for what she did wrong. Furthermore, whilst the prisoner has requested that she be given 6 months to repay back the value of goods stolen, the community and her relatives do not speak well of the prisoner and nor shown their willingness to assist rehabilitate the prisoner back into the community. The Community and her relatives are of the view that the prisoner is a repeated offender and that she will not change her ways. They fear that her character and attitude won’t change and thus say that the Court exercise its discretion impose an appropriate penalty on the prisoner.

Mitigating Factors


  1. In order to determine the severity of sentence, the court took into consideration factors relevant to this case such as the prisoner’s early guilty plea, which greatly assisted this court in arriving at this early outcome. In addition, the prisoner is a first time offender, her co-operation with the police and explanation as to how she committed the offence in the Record of Interview are factors which favour her.

Aggravating Factors


  1. The aggravating factors against the prisoner are however that she stole goods from her employer, and this time was arrested and charged. A previous incident was not reported to the police and no charges were laid. The case of Wellington Belawa -v- The State [1988-89] PNGLR 496 is relevant as a useful guide in determining the severity of sentence in dishonesty cases such as the offence which the prisoner has committed. Matters that are taken into account in the determination of sentence will involve the amount of money obtained, pre-planning, and degree of trust, use of the money and the effects on the victims.

Submission on Sentence


  1. Mr Ifina in his submission on behalf of the prisoner on sentence submitted that although the prisoner had pleaded guilty upon indictment on the charge of one count of stealing contrary to s 372 (1) of the Criminal Code Act for which the maximum penalty prescribed under s 372 (1) of the Code is imprisonment for a term not exceeding three years; Mr Ifina reiterated that the courts have wide discretion under s 19 of the Criminal Code to impose a lesser penalty.
  2. In these circumstances, the issue before the court is whether or not the prisoner should be sentenced according to the penalties prescribed under s 372 (1) of the Code? Mr Ifina submitted that the maximum sentence for this type of offence is imprisonment for a term not exceeding three years is not applicable in this case because of a number of reasons and he outlined these reasons to be as follows: Firstly, the facts of the case is peculiar and different thus this court should consider imposing sentence case by case and made references to a number of case law on offences involving stealing. However, I will refer to only two of these case and these are the case of the State v Asi Taba (2010) N3939 (CR No.1443 of 2009) which involved a 34 year old man convicted of one count of stealing contrary to s 372 (1) and (10) of the Criminal Code. In this case, the item stolen was a container load of tinned fish valued at K58, 399.00 which was then sold to a third party. The offender was sentenced to 2½ years imprisonment. None of the sentence was suspended. In the State v Elizabeth Tek (2008) N3509, the prisoner pleaded guilty to misappropriating the sum of K37, 000.00 belonging to her relatives. This sum of money was for the purchase of a PMV but the prisoner instead used the money as payment for compensation in relation to a death. The Court in this case imposed a sentence of 5 years but wholly suspended the sentence with strict conditions including restitution of the full amount of money within 4 months. Secondly by operation of s 19 of the Criminal Code, this exercise of powers gives this Court wide discretion in making the maximum sentence discretionary; thirdly, this case does not fall into the worst case scenario and thus does not attract the maximum sentence and lastly, the prisoner did not used force or used other forms of weapons tried to threaten the victims during the commission of the offence. In addition, Mr Ifina also made references to a number of case authorities in support of his submission on sentence and these case authorities are discussed as appropriate.
  3. In reply, Ms Gore for the State submitted that this is a case where the prisoner has stolen items valued in the sum of K9, 969.70; the property of New Vision Ltd. Ms Gore also submitted that up to now, none of the amount of K9, 969.70 has been repaid. Whilst it is also noted that the prisoner has stated in the Pre-Sentence Report that she is willing to repay the sum of money stolen, there is really no genuine attempt or efforts made to pay back the sum of K9969.70 to the victims. With regard to sentence, Ms Gore submitted that this Court has wide discretion under s 19 of the Criminal Code to impose an appropriate penalty and also to impose conditions as to the repayment of the money stolen and in the circumstances submitted that the court exercise discretion to impose a custodial sentence for a period until the full amount of the sum of K9, 969.70 is repaid to the victims accordingly.

Determination of sentencing criteria


  1. In applying the sentencing criteria established in the case of Wellington Belawa v the State (supra). This court noted that although the amount of items stolen is valued at in the sum of K9. 969.70 toea and in comparison to the Belawa case. In that the money obtained by deceitful and dishonest behaviour on the part of the prisoner is small; the similarities here however are that both prisoners are placed in a position of trust. In this present case, the prisoner had over time, stolen items and concealed her activities by stacking empty beers cartons filled with paper boxes and cuttings and placed them at the bottom of the stockpile of beer cartons at the Retail Shop. Whatever happened to the stolen cartons of beers, the details are not known. However, the prisoner’s explanation is that she had sold 14 cartons of beer to a man on a particular day but because he said that he had no car to carry the cartons of beers away, he paid for the beer and went away to look for a car and then to return to collect his cartons of beer. Some hours later on the same day, a different man came into the Retail Shop with a receipt for the 14 cartons of beer. In her explanation, she said that she did not recognise this man but gave him the 14 cartons of beer anyway and he left. Later, that same day, the man who had earlier paid for the 14 cartons of beers came and stated that he had lost his receipt but he was there to collect his 14 cartons of beer and the prisoner then gave him another 14 cartons of beer and he went away. This mistake was never explained to the Manager of New Vision Ltd until it was discovered during a stock take. When the prisoner was informed of this discovery, she did not return to work but took leave of absence and was later arrested and charged for stealing the cartons of beer and other items to the value of K9.969.70 under s 372 (1) of the Criminal Code. Furthermore, the offence is serious in nature, in that the prisoner abused the trust that the victims (the Company) placed in her to take stock of items being sold at the Retail Shop and any cash that is collected from these sales. Significantly, although being aware that the prisoner has previously been discovered to stealing items from the Shop, she has been given another chance to rehabilitate and to stop these dishonest activities but it is now obvious that she has not learnt a lesson and that she has failed and/or breach the trust that the Manager of the New Vision Ltd had placed on her and to do well. She has failed the Management miserably. The prisoner took advantage of the Manager of the Shop and has continued with her manner of stealing and concealing items of value in the sum of K9, 969.70 for her own use and benefit. In addition, the prisoner did not give herself up voluntary after the offence was discovered, she instead ran away and hid until she was caught by the police. Whilst there appears to be some indication that the accused is willing to repay back the value of goods stolen, there is really no firm prospect of her capacity and no guarantee that repayment will be paid if at all. Besides, it would be more convincing if some form of repayment were made prior to the matter being brought before the courts or the conclusion of these proceedings. This case, can be distinguished from the case of the State v Solien [2012] N4665, where his Honour Makail J considered the plight of the offender and her three children associated with the risk of being left homeless following the death of the offender's de facto husband as a strong mitigating factor which had led to the significant reduction of the seriousness of the offender's culpability. The Court in that case considered that this was not a worse case of obtaining goods by false pretence and therefore the maximum penalty of a term of 5 years imprisonment was not appropriate penalty.
  2. In contrast, this present case involved the prisoner who had deliberately pre-planned and abused the degree of trust placed in her by the Company. Similarly this case can be more in line with the case of the State v Mariko CR (FC) No. 84 of 2015, N6086, (although a case involving obtaining goods by false pretence), there is an element of trust placed on the prisoner to exercise her responsibility in an honest and conscientious manner. In addition it is most likely that the prisoner had applied these goods to her own use. Whilst this loss not had greatly affected the operation of the Company, the actions of the prisoners are wrong and deceitful. She has betrayed the trust placed on her by the Company and also the second chance given her to correct her behaviour and attitude towards her employment and responsibility as a cashier and person in charge of beer sales in the Company. As such, this is a crime for which the prisoner must be held accountable.
  3. Therefore the issue before the court is what would be an appropriate penalty to impose. Here the Code prescribes a penalty of imprisonment for a term not exceeding three (3) years, thus in compliance with such requirements, consideration will be given to the relevant mitigating factors discussed above to determine penalty. The prisoner in this case has said she is sorry to the victims. She also asked that she be placed on probation so that she can raise money to repay the amount of money stolen within six months.
  4. In this case, the manner in which the prisoner went about stealing the items and hiding any evidence of these missing items was deceitful and callous as the evidence produced through the statements of the manager of New Vision Ltd revealed. The prisoner had been caught with stealing in earlier incidents but was forgiven and given a second chance to continue working at the shop. In addition, even the prisoner’s own explanation of giving away 14 cartons of beer to two different men by mistake cannot be believed as she did not disclose these mistakes to the Manager of the Company. In fact, these mistakes were never disclosed until a stock take was conducted by the Manager. Furthermore, when the missing cartons of beer and other items were discovered, she did not turn up for work and went into hiding. Thus this Court must infer in terms of cases such as Paulus Pawa v The State [1981] PNGLR.498 and The State v Tom Morris [1981] PNGLR. 493 that the items stolen were used by the accused for her own purposes and these are evidence of a deceitful and dishonest behaviour on the part of the prisoner. The case of the State v Henry Eliakim [2007] N3190 is useful as a guide to determining the severity of sentence. Although this case involved a conspiracy to defraud (s 407) and stealing (s 372 (1) and (7) (a) of the Criminal Code in terms of what considerations should be taken into account based on the sentencing criteria given by the Supreme Court in Wellington Belawa v the State (supra).
  5. This court also noted that the prisoner has by his own admission pleaded guilty to the charge. This has reduced the time and costs of having this matter tried if she had denied it. The prisoner had also apologised and is a first offender which is confirmed by the Antecedent Report presented by the State. These matters are taken into consideration because they support the submission presented for and on behalf of the prisoner by her lawyer with regard to the request for a wholly suspended sentence. The Pre-Sentence Report provided by the Probation Officer does not recommend a suspended sentence (Public Prosecutor -v- Don Hale (1998) SC564). However in light of the matters discussed above, I am satisfied a partly suspended sentence is appropriate.
  6. In the circumstances and upon consideration of the above factors, the prisoner is sentenced to 3 years imprisonment less the period of time of 28 days held in custody pursuant to s 3 (2) of the Criminal Justice (Sentences) Act 1986.
  7. In the exercise of discretion under s 19 of the Criminal Code, 1 year of the head sentence is suspended on the following terms:
  8. The prisoner is to serve the balance of the term of sentence of 1 year 11 months 2 days imprisonment at CIS, Bundaira.

Orders accordingly


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

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