State v Auharai [2016] PGNC 435; N7492 (23 November 2016)

N7492

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR(FC) NO.31 OF 2016

THE STATE

-V-

MARLEY AUHARAI

Lae: Pitpit, J
2016: 16, 23^rd November

CRIMINAL LAW - Sentence-Stealing- Criminal Code, section 372-Pleaded guilty-first time offender-expression of regret and remorse

CRIMINAL LAW – Sentence – Stealing as a servant from the employer, over a period of time - stole because of financial needs and family problem - Amount stolen is substantial - No restitution made-sentence to 4 years imprisonment in hard labour-the 4 years is to be suspended shall the prisoner repay the amount stolen in full. Alternatively, a period of 12 months is to be deducted for every K10,000.00 repaid

Case Sited:

Wellington Belawa v The State [1988-89] PNGLR496

Counsel:

Mr E. Thomas, for the State
Mr J Huekwahin, for the Accused

23 November, 2016

1. PITPIT, J: The accused now prisoner has pleaded guilty to a charge of Stealing of a sum of K48,435.46 the property of her employer which came into her possession by virtue of her employment. The charge was brought pursuant to section 372(1),(7) and (10) of the Criminal Code Act.
   
2. The Prisoner was employed by Soltra Builders Limited as Office Manageress. As such she was responsible for banking salary and wages, accounts, taxation and the debtors and creditors of the company.
   
3. In early 2015 the owner of the company Mr Bill Hodges became suspicious of the Prisoner’s handling of the company’s account when he began receiving complaints from employees regarding the non payment of their superannuation funds. Shortly thereafter, Mr Hodges also received a letter from the Internal Revenue Commission advising his company was behind on its taxes and that a law suit was imminent. The Prisoner was then suspended and an investigation was immediately conducted on the company’s account which confirmed that the Prisoner had been infact stealing money from the company. It revealed that between the 16^th day of January and 23^rd April 2015, the Prisoner stole a sum of K48,435.46 the property of Soltra Builders Limited. It was alleged that she had done this through misleading the owner of the company Mr Bill Hodges into signing blank cheques in which she had claimed were for the staff and employees salaries, taxes and superannuation contributions but instead used these to pay herself excessive amounts of money as her salary every payday.
   
4. This offence carries a maximum penalty of a term of imprisonment not exceeding 7 years.
   
5. The pertinent issue now before the Court is to decide on what punishment to be imposed upon for what you have done.
   
6. During the Prisoner’s allocutus, the Prisoner had said the following;
   

“To God and Honourable Judge Pitpit, the State and the audience, I convey my sincere apology and remorse for the commission of this offence. I was facing financial difficulties and family problem that I committed this act.

I cannot imagine the anger that my employer, co-workers and the humiliation that my family felt because of my action and I am truly sorry for that.

During my time in jail from 27 August 2015 to 25 January 2016, I have come to realise the full gravity of my crime.

And since coming out, I have seen my six innocent children have suffered the most for my absence from them daily as their welfare is a priority for them daily, especially mothers.

Yes, I did not think when I did what I have done, but my action had put my children in a situation where I did not protect them and I regret the pain and heartache they had gone through. Everyday of their lives without me.

My children are all under 12 years and the youngest just 2 years old. They are at an age where the love and care of parents are required at all times. They depend on me entirely to care for them.

If sentence to be carried out, how can this money be repaid.

I have restitution plans and now I am at the mercy of this court to grant me non-custodial sentence or, probation or good behaviour bond so I can repay this money in full between the period of 2-3 years per my restitution plan.

Once again, I sincerely apologise and am utterly remorseful for what I have done and I promise not to commit any offences again in future. And to appear in Court again, thank you.”

7. The Prisoner is 42 years old, married and has 6 children. She comes from Moveave in the Gulf Province and is the only child in her family. Her father has passed on and her mother is back in the village in Gulf Province but bedridden.
8. Prisoner and her family lives with her in-laws at section 91 allotment 300 Salamanda here in Lae city.
9. Mr Huekwahin for the Prisoner while acknowledging the aggravating factors in this case of:
   1. Stealing the property of her employer
   2. The existing relationship of trust
   3. The cunning, deceitful and fraudulent method that was employed by the Prisoner to steal by obtaining blank cheques from her employer and fraudulently paying herself large amounts of money in excess of her salary on pay days. Including paying people whom she owed monies to on the pretext that they were employees of the company Soltra Builders Limited.
10. He urged the Court to be lenient with the Prisoner. He submitted and reminded the Court of the sentencing principle in the case of Goli Golu v- The State. That the maximum penalty is to be reserved for the most serious or worst of its kind of offence.
    
11. He further adopted the plea of the Prisoner to be given a non-custodial punishment so that she could be allowed to repay the victim Soltra Builders Limited the property she has stolen.
    
12. He urged the Court to take into account the following mitigating factors;
    1. The fact that the Prisoner had co-operated with the police when she had admitted to the police from the beginning her involvement in this offence.
    2. That she has subsequently admitted at the Committal Court and again before this Court.
    3. The fact that she has expressed genuine remorse to the victim company Soltra Builders Limited.
       
13. He submitted that the Prisoner has four different means of obtaining money necessary for the restitution of the amount of money stolen. These sources are;
    
    • (a) Nasfund Contribution due to the Prisoner for an amount of K2,871.46
    • (b) Family contribution of K17,564.00 from a contract payment from the Provincial Government for work performed.
    • (c) A expected outstanding debt by creditors to the sum of K15,000.00
    • (d) Fundraising activities to begin in January 2017 where the balance of K13,000.00 is expected to be raised.
      
14. It was submitted by the defence that if given the opportunity the Prisoner can be able to make full restitution of the amount stolen.
    
15. Counsel for the defence refers to a number of case authorities for the offence which the Prisoner has been convicted on and given suspended sentences to repay. These were as follows;
    
    1. The State-v-Margaret Donny [2004] PGNC 145. Amount stolen K11,400- she was sentenced to 2 years with partial suspension to repay.
    2. The State-v-Robert Kwain [2008] PGNC 42 – Amount stolen K2,250 – sentenced of 2 years
    3. The State-v-Roselyn Waiembi [2008] PGNC 240- Amount stolen K15,000- sentenced to 3 years all suspended
    4. The State-v-Louise Paraka [2002] PGNC 29 – Amount stolen K6,000-sentenced to 3 years, wholly suspended for her to repay.
16. Counsel has urged the Court to consider a period between 2-3 years and that whatever term is imposed to be wholly suspended on conditions deemed necessary including the condition to repay the amount stolen within 2 to 3 years according to the Prisoner’s restitution plan.
    
17. On the other hand the Counsel for the State Mr E. Thomas of Counsel, had submitted that the case is a serious case of stealing as it:
    
    1. Involves a substantial amount of money K48,435.46
    2. This money was the property of Soltra Builders Limited, the employer of the prisoner
    3. Prisoner as the Office Manageress was occupying a responsible position bestowed with a higher degree of trust.
    4. The method adopted by Prisoner to steal was cunning, fraudulent and deceitful.
18. State adopted the tariff suggested in Wellington Belawa v The State [1988-89] PNGLR 496.
    
19. I have considered everything that have been submitted including the plea of the Prisoner in her allocatus.
    
20. I have also taken into account the mitigating factors that have been submitted by Counsel for the defence.
    
21. I have also adopted those factors stated in the case of Wellington Belawa and considered them.
    

Matters such as:

1. The amount taken,
2. The quality and degree of trust,
3. The period of the theft,
4. The use of the property stolen was put,
5. The effect upon the victim,
6. The impact upon the Public and Public confidence,
7. The effect on fellow employees,
8. The effect on the Prisoner herself,
9. The offenders own history,
10. The willingness to repay and
11. Special mitigating factor (if any) to the Prisoner

20. I have decided in the absence of any recent tariff to accept the tariff suggested in Wellington Belawa case.

22. This then brings this case to category 4. Where the amount taken or misappropriated is between K40,000 and K150,000 three to five years imprisonment is appropriate.
    
23. In this case, the amount stolen is K48,435.46.
    
24. Having considered everything, I have decided that a sentence of 4 year imprisonment is appropriate in the circumstances of the case.
    
25. I have also seriously considered the plea of the Prisoner to be put on suspended sentence and to repay.
    
26. However, the Prisoner has not made any attempts since her arrest and since her release from remand.
    
27. Prisoner is unemployed at the moment and I am not convinced that she would be able to fully repay the amount she stole.
    
28. She had told the Court that the reasons why she committed the offence was because of her financial difficulties. How could she now being unemployed and with growing children with increasing needs it is obvious that it would only add to the pressures she had already been facing.
    
29. While she had been confident in making full restitution within 2 to 3 years, I doubt it very much. I have taken special observation by Mr Bill Hodge in terms of the characteristics of the Prisoner.
    
30. In my view, a short sharp cleaning gate approach is the best and the appropriate principle to adopt and I do so in this case.

31. You are therefore sentenced to 4 years in hard labour.
32. I order that the period of 4 months, 3 weeks and 4 days – 5 months to be deducted from 4 years.
    
33. I will further order that your sentence is to be fully suspended should you repay the full amount stolen.
    
34. If you are not able to repay the full amount immediately, you may repay in instalments.
    
35. Should you repay in instalment, I will order that upon repayment of every K10,000, 12 months of your sentence is to be deducted.

________________________________________________________________
Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the Defendant