State v Yawing [2017] PGNC 166; N6836 (9 August 2017)

N6836

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) FC No. 95 OF 2015

THE STATE

V

GIBING YAWING

Kundiawa: Salika DCJ

2017: 8^th & 09^th August

CRIMINAL LAW – Practice and Procedure – Charge of Stealing – K14, 955.00 stolen from employer – Prisoner was accountant for the company – Belawa considerations applied – Serious breach of trust – Sentenced to 2 years imprisonment –

Case Cited:
Belawa v. The State (1988-89) PNGLR 496

Counsel:

Ms. H Roalakona, for the State
Mr. M Yawip, for the Defence

DECISION

9^th August, 2017

1. SALIKA DCJ, INTRODUCTION: The prisoner pleaded guilty on one count of stealing K14, 955.00. The property of Simbu Farming Marketing Limited (SFML). He was at the time employed by the SFML as their accountant and he reported directly to the company manager. He was given the authority to be a signatory to the company bank account held with the Bank South Pacific in Kundiawa.
   

2. The prisoner on 8 August 2014 went to the Bank South Pacific in Kundiawa with a company cheque to cash the cheque for K14, 955.00. He was paid the cash and left for Lae. In Lae he bought two (2) Toshiba laptops both valued at about K6, 000.00. The matter was reported to police in Kundiawa who monitored a search for him. He was found in Lae and brought back to Kundiawa. The Toshiba laptops and K900.00 cash found on him were returned to SFML.

Allocatus

3. On allocatus the prisoner said:-

“The cheque I withdrew was signed by Benjamin Kimbe and me. It was for a purpose. I would like to reimburse the money.”

The Law

4. Section 372(1) and (7) says:

“(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
three years.

“(7) If the offender is a clerk or servant, and the thing stolen-

(a) is the property of his employer; or
(b) came into the possession of the offender on account of his employer;

he is liable to imprisonment for a term not exceeding seven years.”

The maximum sentence the prisoner can be sentenced is 7 years imprisonment subject to s.19 of the Criminal Code. The maximum sentence is usually given in worst type of stealing cases and both counsel agree that this is not the worst stealing case. This stealing case is an opportunity type stealing case.

5. Under the Belawa v. The State (1988-89) PNGLR 496, guidelines as the prisoner stole K14, 955.00 he would be sentenced to between 3 years and 5 years imprisonment.
   

6. Sentencing considerations are:-

(a) amount of money stolen

K14, 955.00 was stolen;

(b) was Yawing Gibing in a position of trust? yes,

he was the company accountant and a signatory to the company

account. He was in a high position of trust.

(c) did the offender’s actions take place over a short periods? yes

this was a one off withdrawal where the K14, 955.00 was drawn and
stolen.

(d) was the stolen money put to good use? No

The prisoner took two woman and appeared to have entertained them
with alcohol and accommodated at a motel.

(e) did the prisoner’s actions have a small adverse effect on the company?
The company is owned by the Simbu Provincial Government. There is
no evidence of any adverse effects on the company.

(f) did the prisoner’s actions have any adverse effect on the public
confidence and integrity of the public sector, the banks? There is no
evidence of that:

(g) has the prisoner and his family been affected by his actions? The
prisoner has lost his job which will be a heavy blow to his wife and
two very young children.

(h) did the prisoner give himself up?
Police went looking for him in Lae and found him.

(i) did the prisoner cooperate with police?

Yes he did

(j) has the prisoner made any restitutions?
Two (2) Toshiba laptops bought with the money were given back to
the company with K900.00 cash recovered from him in Lae was
given to SFML.

Mitigating Factors

7. The mitigating factors are:-

(a) he pleaded guilty
(b) 2 Toshiba laptops recovered worth about K6, 000.00 and K900.00 cash repaid
(c) First time offender
(d) One off theft

Aggravating Factors

8. The aggravating factors are:-

(a) a large amount of money was stolen
(b) there was a severe breach of trust
(c) money not put to good use
(d) he did not give himself up
(e) an educated man who should have known better

9. This is not the worst stealing case that I have dealt with. In fact this stealing was plain dumb. He was always going to be caught sooner or later. The huge sum of money withdrawn would have been detected quickly and questions asked.

SENTENCE

10. Stealing is a serious crime of dishonesty, deceipt and fraud. It displays all attributes of what is commonly known as corruption. This was corruption not in the public sector but in the private sector. This sort of conduct eats away all the fabric of our society. Our society must be made up and based on honesty, decency and fairness. People must work hard with honesty and hard work. Such criminal conduct must be deterred swiftly and the best way to do that is to imprison offenders. His proposal for restitution is not realistic as he has no way of restitution. A short and sharp imprisonment term is in my opinion with respect a realistic form of deterrence on him personally and deterrence on others as well. He is sentenced to 2 years imprisonment. He has spent 2 months 1 week in custody already. That is taken off from the 2 years. The balance he will serve is 1 year 9 months 3 weeks.

Ordered accordingly.
______________________________________________________________
Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused