State v Pohien [2016] PGNC 360; N6564 (28 November 2016)

N6564

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No.1049 OF 2013

BETWEEN

THE STATE

AND

KAIS POHIEN

Kundiawa: Liosi, AJ
2016: 07^th June, 13^th June, 28^th November

CRIMINAL LAW–Practice &Procedure–Dishonesty offence–Sentence – Misappropriation of Hardware goods –Prisoner Supervisor hardware section of Supermarket – Prisoner found guilty after trial–Position of trust –no amount restituted– Deterrent Sentence imposed.

Cases cited:
Avia Aihi -v- The State (1982) PNGLR 92
Goli Golu -v- The State (1979) PNGLR 653
Tom Amaiau -v- The State (1979) PNGLR 576

State -v- Yaip Joshua Avini SC 523
State -v- Iori Veraga [2005] N2849
State -v- Wellington Belawa (1988-89) PNGLR 496
State -v- Niso (No.2) [2005] N2930
State -v- Paroa Kaia [1995] N1401
State -v-Jimmy Kendi (2007) N3131
State -v-Stanley Haru (2012) Un-numbered National Court Judgement
State -v- Peter Tokunai (2015) N6039
State -v- Moko Essi Rom (2009) Cr 114/08
State -v- Paul Tiensten (2015) N5563

Ure Hane -v- The State (1984) PNGLR 105

Counsel:
Mr. P Tengdui, for the State
Mr. M Yawip, for the Prisoner

RULING

28^th November, 2016

1. LIOSI AJ: On 13^th June 2016. I convicted Kais Pohien on the charge of 1 count of misappropriation of hardware materials valued at K462,864.00 the property of his employer Sika Limited, thereby, contravening Section 383A(1)(a)&(2)(b)(d) of the Criminal Code.

Facts

2. The prisoner whilst been employed by the victim company in its hardware section as the supervisor, misappropriated hardware materials worth K462, 864.00. The offending took place between 3^rd January 2012 and 6^th November 2012.

Issue

3. The issue now is for the Court to determine the appropriate penalty to impose on the prisoner.

The Law

4. The offence under Section 383A (1) (a) carries a maximum of five (5) years imprisonment. Where considerations under Section 383A (2) (a –d) are present, the maximum penalty is 10 years imprisonment in hard labour. In the current case, considerations under Section 383A (2) (a–d) are present and therefore the maximum penalty of 10 years is applicable.
   
5. The Law provides a maximum of 10 years for the offence. The courts have however on many occasions stated that the maximum penalties should be reserved for the worst type of offences in each category depending on the circumstances of each case. See cases of Goli Golu v. The State (1979) PNGLR 653, Ure Hane v. The State (1984) PNGLR 105 and Avia Aihi v. The State (1982) PNGLR 92.
   
6. The Court is also empowered under Section 19 of the Criminal Code to impose a lesser penalty other than the maximum prescribed.
   
7. Apart from statutory provisions the Court can also have recourse to similar decided cases for guidance on what to impose. Counsels have cited cases which may assist the Court to determine the appropriate sentence.
   

Case	Offence	Sentence	Particulars
State -v-Paroa Kaia , Unreported, 6 September 1995;CR 340/1995, N1401	Misappropriation	4 Yrs IHL	Guilty plea
State -v-Niso (No.2) [2005] PGNC 26; N2930	Misappropriation	7 Yrs 6 moths	Not guilty plea
State -v-Iori Veraga, Unreported 17 June 2005 CR 389/2004, N2849	Conspiracy x 2/ Misappropriation (x4)	6 Yrs	Not guilty plea
State -v-Jimmy Kendi (No.2) (2007) N3131	Misappropriation	9 Yrs	Not guilty plea
State -v- Moko Essi Kom (2009), CR No.114 of 2008	Misappropriation	8 Years	Guilty
State -v- Stanley Haru [2014] PGNC 314; N5660 (20 February 2014)	Misappropriation	8 Yrs IHL	Not guilty
State -v-Paul Tiensten, [2014] PGNC 224; N5563	Misappropriation	9 Years	Guilty plea
Peter Tokunai (2015) PGNC133; N6039 (18 June 2015)	Misappropriation	6 Yrs IHL	Not guilty
Zebedee Jabri Kalup [2015] PGNC 132; N6038 (18 June 2015)	False Pretence Misappropriation (x4)	8 Yrs IHL	Guilty plea

8. I use the above cases as guides to assist me determine an appropriate sentence.

Personal Particulars

9. The prisoner is 36 years old and is married with two children. He is from Manus but grew up in Chimbu.

Sentencing Consideration

10. In misappropriation cases, the Courts have imposed sentences ranging from as low as a suspended sentence to 9 years imprisonment in hard labour as can be seen from the above comparable sentences tabled.
    
11. The Supreme Court in Wellington Belawa v. The State (1988-89) PNGLR 496, recommended certain factors to be taken into account when determining what penalty to impose on an offender. The Belawa case adopted the sentencing considerations set out in the English case of Rv. Banni CIC (1985) 81 Cr App R78. They include:-
    
    • The quality and degree of trust reposed in the offender
    • The period over which the fraud was perpetrated
    • The use to which the money was put
    • The effect on 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 himself
    • His own history matters of mitigation
    • Amount taken
    • Restitution
      
12. Wellington Belawa also recommended a tariff of sentence to be adjusted upward/downwards depending on the various factors mentioned above. It sets out the amount misappropriated as equated to the possible term of imprisonment as follows:-
    
    • K1.00 and K1, 000.00, a goal term should rarely be imposed;
    • K1,000.00 and K10,000.00, a goal term of p to 2 years;
    • K10,000.00 and K40,000.00, a goal term of 2 to 3 years; and
    • K40, 000.00 and K150, 000.00 a goal term of 3 to 5 years.
      
13. I agree and adopt the factors set out in the Belawa case as well as the tariff of sentences to be imposed depending on the various factors and the amount misappropriated.
    
14. I now discuss the above mentioned relevant factors in the context of this case.
    
    • Amount taken
      

The total amount misappropriated was K462, 864.00.
The scheme of the offence was removing and selling the goods at a lower price. As to how much altogether the total amount of goods was sold for and how much exactly the prisoner benefited from is unknown. Nevertheless the total amount misappropriated is as set out above.

• The quality and degree of trust reposed in the offender.
  

The prisoner was the supervisor of the hardware section of a big supermarket. He reported directly to the general manager who then reported to the managing director. He was responsible for the stock in the hardware section. He was responsible for making the entries of all sales done in the section. Obviously, he abused the trust and the confidence that the management had in him. He instead stole from the company using his position.

• Period over which the offence was committed.
  
  The offence started on 3^rd January 2012 to 6^th November 2012 a period of eleven (11) months. This obviously was not a spur of the moment offence. There was preplanning and once the scheme was in operation, it went for almost a year.
  
• The use to which the money was put.
  
  There was no evidence as to what the money was used for.
  
• The effect on the victim
  
  The corporate victim in the matter was the company Sika Limited. The company lost its properties which were never recovered and no restitution was made.
  
• Effect on the offender
  
  The prisoner in his allocatus said, he was sorry to God, the National Court and to the victim company Sika Limited. He also said thank you to the Court for hearing his case. A statement the Court is still trying to make out the significance of.
  

Mitigating factors

15. The prisoner is a first time offender. He has no prior convictions. Other than that nothing was submitted in mitigation on his behalf other than the fact that others were not charged.

Aggravating factors

16. The property stolen is substantial totalling K462, 864.00.
    • The prisoner was the supervisor in charge of the hardware section and so the quality and degree of trust was high.
    • The offence was committed over period of time (almost 1 year).
    • The property was sold and the proceeds were used by the prisoner.
    • The victim company never recovered its properties.
    • No restitution was made or attempted.
      
17. The aggravating factors far outweigh the mitigating factors. I have had recourse to a number of leading cases which I will use as a guide. They are the cases of Wellington Belawa v. The State (supra) The State v. Paul Tiensten (supra) The State v. Stanley Haru (supra)
    
18. In the case of the State v. Stanley Haru [2014] PNGC 31; N5660, the prisoner pleaded not guilty to a charge of false pretence and misappropriation. He was found guilty after a trial of misappropriating K2, 628.826.18. The prisoner was sent to 8 years imprisonment in hard labour for misappropriation of which 4 years was suspended on the condition that the full amount is restituted. Failing this he will serve the full 8 years.
    
19. In the case of The State v. Paul Teinsten, the prisoner was convicted of dishonestly applying to the use of another namely Travel Air K10 million kina the property of the State. The prisoner then a Minister for National Planning & Monitoring issued a directive to his Departmental Secretary to facilitate the release of K10 million kina. It was approved and made payable to Travel Air and collected by Eremas Wartoto.
    
20. In the Belawa case Barnett J 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....... the 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.”

21. He further went on to say;
    

“ ...... where senior employees are guilty of breach of trust or dishonesty they will normally be people with an impressive employment record and previous good character, otherwise they would not hold the position in the first place. For such people the mere fact of conviction will bring about disgrace, dismissal, shame and the loss of future employment opportunities. The crime involved taking advantage of the position obtained as a result of the record of previous good character and faithful determining the appropriate sentence in cases such as this.”

22. In considering the kind of penalty to impose. I consider a number of significant differences in the above two (2) cases as compared to the current case. This significant difference relate to the amounts taken, the kind of position of trust the prisoners were placed in, the educational background of the prisoners and the impressive background record of the prisoners.
    
23. Looking at the number of decided cases the trend appears to be that, the Courts have been consistently imposing stern imprisonment terms particularly where high positions of trust were abused.
    
24. In this case the prisoner misappropriated K462, 864.00 to his own use. In his allocatus, the prisoner said sorry. In my view saying sorry after been found guilty is very insignificant. Irrespective of where you work the same degree of trust and honesty is expected particularly when you are placed in a position of trust.
    
25. Accordingly, having considered all the facts. I impose a sentence of 5 years. I take into account and deduct the pre-trial custody period of 3 years 11 months, the prisoner shall effectively serve 1 year 1 month.

Sentenced accordingly, ______________________________________________________________
Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyers for the Prisoner