State v Gaumior (No.2) [2015] PGNC 254; N6141 (7 December 2015)

N6141

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC). 615 of 2012

THE STATE

v-

ADEL GAUMIOR
(NO.2)

Wewak: Geita J
2015: 10, 17, 23, 25 September, 7 December

CRIMINAL LAW – Sentence – Stealing K31, 680.00 from employer Sepik Savings & Loans Society in Wewak through fraudulent accounting – Aggravating factors outweigh mitigating factors – High level of planning and breach of trust - Stealing over a 9 months period – Integrity and good will of (SS&LS) tarnished - Immediate recovery of amounts stolen not guaranteed - Wholly suspended sentence considered inappropriate - Deterrence and restitution preferred.

CRIMINAL LAW –Sentence – General and specific deterrence - Concurrent sentence of four years imposed – 4 years on count 1 for stealing and 4 years on count 2 for fraudulent accounting –Prisoner to serve 2 years and the remaining sentence to be wholly suspended upon full restitution - Section 372 (7) (a) & Section 418 (b) Criminal Code Act.

Cases cited:

Konis Haha v The State [1991] PNGLR 205.
Lawrence Simbe v The State [1994] PNGLR 38
Mase v The State [1991] PNGLR 88
The State v Doreen (2001) SC 673
The State v Frank Kagai [1987] PNGLR 320
The State v Ivan Salle No. 2 CR (FC) 310 of 2013
The State v Louise Paraka (2002) N2317
The State v Niso (2) (2005) N2930
The State v Simon Paul Korai (2009) N3820
State v Taulaola Pakai (2010) N4215:
The State v Waiembi (2008) N3708
The State v Wellington Balewa [1988-89] PNGLR 496

Counsel:

Ms. Sabine Dusava & Paul Tusais, for the State
Mr. Darrel Sakumai, for the Prisoner

JUDGMENT ON SENTENCE

7 December, 2015

1. GEITA J: The prisoner was found guilty after trial for stealing and fraudulent accounting, contrary to Sections 372 (7) (a) and 418 (b) 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 13 August 2015 are these. Between 1stJanuary 2011 and 1st September 2011, the prisoner whilst being employed as Customer Service and Data Operating Officer with Sepik Savings and Loans Society (SS&LS) made fraudulent entries from a deceased's contributors account and later stole K31,680.00 from that same account, over a period of 9 months unbeknown to the beneficiary of the account Jacklyn Mainguma.

Antecedents

3. The prisoner recorded no prior convictions.

Allocutus

4. During allocutus the prisoner said this was her first time in court. She said she is married with three young children and she was the only working member in her family as her husband is unemployed. She asked for leniency with suspension orders on probation. The prisoner said the four years since her suspension from employment her family has suffered greatly. She is now greatly concerned about the welfare of her young children aged between 2 years to 6 years old.

Mitigating factors

5. No prior convictions.

Extenuating circumstances

6. Family related financial problems said to be the cause of the stealing.

Aggravating factors

7. Prisoner stole from her employer over a period of 9 months involving breach of trust relationship.

Pre - sentence report and Means assessment report

8. Your pre-sentence report covers in great detail your family and marital background including your work history, financial situation, your future plans and community views. 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 means assessment report does not look very healthy despite your willingness and undertaking to make full restitution within 18 months. In my view that is a huge ask and the task of restitution insurmountable. Despite having you successfully prosecuted the management of Sepik Savings and Loans Society still feel for you and your family. Their main concern is for the full recovery of contributor's savings and their "good will'' in society restored as reports of members closing their accounts and joining other savings and loans societies is now coming through.

Submissions by the prisoner

9. Your lawyer Mr. Sakumai concedes with State submissions that the lead authority in these types of cases was that of Wellington Balewa v The State [1988-89] PNGLR 496. The amount of monies stolen, using Balewa case as a guide will attract a prison term of three years. Mr Sakumai has correctly pointed out that Section 19 of the Criminal Code was available to you and that your case must be decided on its own facts and circumstances: (Lawrence Simbe v The State [1994] PNGLR 38.). The case of The State v Frank Kagai [1987] PNGLR 320 was also referred to me. The Kagai case emphasis the point that suspensions of sentences of imprisonment should not be seen as an exercise of leniency but an order made in the community interest and designed to prevent re-offending, more so for persons with good character. A recommendation for a suspended sentence was mooted.

Submissions by the State

10. The State's submission is based largely on the lead case of Balewa in this 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 six 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 State has correctly pointed out a steady trend of offences of stealing from employer by offenders opting for early guilty pleas hence attracting the sentencing guideline and ranges in The State v Balewa case. (The State v Louise Paraka (2002) N2317 and The State v Waiembi (2008).

11. Notwithstanding the Balewa case Courts have constantly made pronouncements on the inadequacies in the sentencing range due to the frequency and prevalence of such crimes. (The State v Niso (2) (2005). The State referred the court to a series of cases involving stealing by persons in position of authority from their employers. I have taken judicial notice of all cases referred to me. The State submitted that in almost all situations the crimes were committed by persons in position of trust with higher penalties given. They submitted that given the degree of trust, the level of planning, and the amount stolen by the prisoner over a period of 9 months, a custodial sentence of six years was warranted.

12. 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. (Doreen Liprin v The State (2001) SC675). As I stated earlier in your case all the attributes usually contributing to the consideration of degree of the type of punishment described in the Belawa case are present here. It follows that I will use that case as a guide in deciding your sentence. I must reiterate here that 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.

13. In another stealing related case I deliberated upon this month a young man was sentenced to 4 years for stealing more than K62, 000.00 from a banking institution over a period of 2 months. He was ordered to serve 12 months in prison with the remaining sentence to be suspended with conditions should he repay all the monies he had stolen and returned to the owners. (The State v Ivan Salle No. 2 CR (FC) 310 of 2013.) That case is distinguished from your case in seriousness, gravity and multiplicity of charges. Furthermore the crime you committed was two pronged: stealing and fraudulent accounting. It goes without saying that the crime that you have committed has long lasting effects on the "good-will" of that banking institution. Contributors have lost confidence in that banking institution. Barnette J had this to say in the case of Balewa and I quote:

"... At a time when scandal and corruption by public officers are being frequently exposed, the disclosure of this breach of trust by the "top man", the Secretary himself, must have had a most serious effect upon public confidence in the whole system of government administration. It is a serious circumstance of aggravation...)

I too share those remarks and adopt those sentiments in this case.

Application

14. The exercise of sentencing wrongdoers is not a science nor is it formulated after extensive mathematical formulae. It is discretionary and usually guided by all factors and considerations put before a tribunal or a court for that matter. In your case you were found guilty after trial which resulted in witnesses being called and the cost of this trial for the State. You committed the crime over a 9 months period. You were in a position of trust. 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.

15. Now moving on to the question of whether all or any of your sentences should be suspended I am satisfied that in your case that such orders will be considered in part. I have taken judicial notice of your family predicaments and the forces that led you to commit this crime contained in your pre- sentence report and means assessment report. I have also taken note that you are a first time offender with a favourable recommendation from the Probation Officers. Equally I take judicial of your very young family and your concerns for their welfare. During allocutus I did not detect or sense any genuine remorse offered to the victim or the Institution you stole from. Instead you were more concerned about the pain and suffering your family went through. The very Institution that you stole from instead showed more compassion than you. Together with other considerations I am however of the view that the crime that you committed, its seriousness and prevalence must be weighed against your remaining mitigating and extenuating circumstances.

16. For reasons of public policy and the preservation of ordinary village peoples' life savings in user friendly and readily accessible savings institutions like the Sepik Savings and Loans Society, they must be protected and remain robust in order to restore confidence in such institutions. You must be made accountable for this crime. Although you knew what you were doing was wrong, you continued to steal from your employer until the theft was detected some 9 months later. It goes without saying that a very high level of planning was employed. Had your covert scheme gone undetected other contributors would have fallen prey to your dubious scheming. It follows that perpetrators must be dealt with sternness in my view. To your credit you have so far paid back K7, 497.06. I take judicial notice of some additional payments recovered through administrative processes by the Management of Sepik Savings and Loans Society amounting to K6, 320.00. They remain content that the amounts recovered may be used to offset the total monies stolen by you. This will now mean that the remaining outstanding monies owing and recoverable is K17, 863.00.

17. Now moving onto your pleas for leniency solely on your family predicaments, this is what some Courts have said and I quote the sentiments expressed by Hartshorn J in the case of the State v Taulaola Pakai (2010) N4215:

"An offender should consider his family obligations and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered."

18. I too share the same views expressed above and will adopt and apply the sentiments in this case as they bear a resemblance in your pleas for leniency.

19. I now move on to consider whether your sentence should be made cumulative or concurrent. This process entails the exercise of discretion by Courts however Courts must be guided by the applicable principles: where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be made concurrent; where the offences are so differently in character or in relation to different victims, cumulative sentences would be appropriate. In your case you have been convicted on 2 counts of stealing and fraudulent accounting over a period of 9 months. The crimes committed rose out of the one criminal enterprise, hence a consideration of the totality principles is in order to guard against the eventual sentence being too harsh and oppressive and or crushing on the prisoner: (Mase v The State [1991] PNGLR 88 and Konis Haha v The State [1991] PNGLR 205. Applying these principles to your case, a consideration for a concurrent sentence is considered appropriate under the circumstances. In my view I am satisfied that the end sentence to be just and appropriate.

20. The ultimate sentence that I propose to impose therefore is firstly based on the principles of general and specific deterrence. This sentencing principle is opted for so that the community must know that offending will incur some punishment. Having considered 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.

Sentence

21. Due to the foregoing reasons I consider a head sentence of four (4) years to be appropriate under the circumstances.

1. You are therefore convicted and sentenced to 4 years on Count 1 for Stealing.
   
2. On Count 2 of fraudulent accounting, you are convicted and sentenced to 4 years.
   
3. Count 2 is made concurrent to Count 1.
   
4. You are ordered to serve sentence of two years after which you will be eligible for Probation with the following conditions:
   
   1. The remaining two years sentence will be suspended immediately upon recovery of all outstanding monies stolen in full and returned to Sepik Savings and Loans Society.
      
   2. Your bail of K1000 will be returned to you.
      
   3. A Warrant of Commitment will be issued forthwith.
      

Orders accordingly,

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