State v Kep [2017] PGNC 307; N6982 (26 May 2017)

N6982

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 188 OF 2014

THE STATE

V

PATRICK SIMON KEP
Wabag: Auka AJ
2017: 12^th & 26^th May

CRIMINAL LAW – Sentence – Stealing from Employer- Trial – Guilty – Mitigating and Aggravating factors considered – three (3) years imprisonment – Fully suspended and placed on good behaviour bond for 3 years – S.372 (1) (7) (10) & S. 19 Criminal Code.

Case Cited:

Agiru Aieni and 12 others v. Paul T. Tohian [1979] PNGLR 37
Doreen Liprin v. The State (2001) SC 673
Goli Golu v. The State [1979] PNGLR 633
The State v. Lukeson Olewale (2004) N2758
The State v. Louise Paraka (2002) N2317
Ure Hane v. The State [1984] PNGLR 105
Wellington Belawa v. The State [1988-89] PNGLR 496

Counsel:

Ms. Rebecca Koralyo, for the State
Mr Jeffrey Kolowe, for the Accused

DECISION ON SENTENCE

26^th May, 2017

1. AUKA AJ: The accused was charged with one (1) count of stealing of K155, 00. 00 the property of WCH Investment Limited whole sale and Retail store, pursuant to Section 372 (1) (7) (10) of the Criminal Code. The state invoked section 7 of the Code and alleged that the accused aided and abetted another person in the Commission of the offence.

2. Upon arraignment, he pleaded not guilty and a trial was conducted which took up two (2) days. The brief facts of the case were that the accused Patrick Simon Kep at the time of the offence was rostered as a security guard with WCH Investment Limited whole sale and Retail store at Wabag town. It was alleged that on 18^th February, 2014 the accused accompanied the Manager of WCH Investment Limited whole sale and Retail store Mr. JACKY HE to do banking of takings amounting to K155,00.00. Without the knowledge of Mr. Jacky He, accused had arranged with his co-accused Camillus Karape to come over and steal the money bag from him. When at the gate to BSP Wabag, Camillus Karape rushed from behind Jacky He and snatched off the money bag and ran away. The accused gave chase to Camillus Karape but only pretended to do so as he was seen later in the bush sharing the stolen money with the thief Camillus Karape.

Later the same day at Wabag Police Station K3, 830. 00 in cash was found in the accused possession when he was searched by Police. State alleged that by the accused’s actions, he committed the offence of stealing contrary to Section 372 (1) (7) (10) of the Criminal Code Act. As stated prosecution invoked Section 7 of the Code in that the accused and the thief Camillus Karape aided and abetted each other in the commission of the offence. The court was convinced beyond all reasonable doubt that the accused committed the crime of stealing and found the accused as a Principal offender as aider and abettor and found him guilty and convicted him on the charge of stealing, contrary to Section 372 (1) (7) (10) of the Criminal Code.

3. On 12^th May, 2017 Mr Kolowe of Counsel for the Accused, requested for a Pre-Sentence Report. The request was granted and the Probation Officer was directed to prepare and file the probation report by Monday, 22^nd May, 2017. As the Report was not available on the returnable date, both parties agreed to make submissions on Sentence on 26^th May, 2017.

4. In His Statement on Allocatus the Accused said “What I have done the Court has found me guilty and I say sorry to the court. Secondly I say sorry to JACKY HE, the manager of the store. Whatever the punishment the Court imposed on me I would like to spend it outside of jail. I asked the Court to have mercy on me and place me outside of jail. That’s all”.

5. In relation to Accused’s personal particulars, Mr Kolowe submitted that the accused is 29 years old married with one (1) child who is three (3) years old. His wife is expecting their second child. He is the fourth born in the family of 7 children, 6 boys and one (1) girl who are all married. Both of his parents are alive and reside at Apinamanda Village, Wabag District, Enga Province. His father is a village court Magistrate. All his brothers and his sister have achieved formal education except him. He did not attend any schooling. Now he is not employed. He is a dedicated member of the Catholic Church.

6. Mr. Kolowe submitted and urged the Court to consider in accused’s favour on Sentence the following mitigating factors:

1. That Accused expressed remorse for the offence he committed;
2. That he also said sorry to Jacky He the owner of the store;
3. That most of the money was stolen by another person who is still at large;
4. That he only took K3, 830.00 which was recovered by police in his possession at the Police Station;
5. That he did not benefit from the money stolen;
6. That he is a young man 29 years old and is a first time offender;
7. That he surrendered to Police;
8. That No violence was used in the Commission of the offence and;
9. The offence occurred in the spur of moment.
   

7. Mr Kolowe submitted that this case is not a worst type case and submitted that a term of Sentence between 1 to 3 years is appropriate and that the term should be wholly suspended with conditions.

8. Ms Koralyo of Counsel for the State submitted and urged the Court to consider the following aggravating factors against the accused:

1. That there was some pre-planning as a co-accused was involved and Ms Koralyo submitted that without this accused his co-accused would not have stolen the substantial amount of money;
2. That there was a breach of trust and Ms Koralyo submitted that where an accused commits the offence in breach of trust reposed on him, it should result in a higher penalty;
3. That accused have been found guilty after a trial;
4. That the offence is a prevalent offence.
   

Ms Koralyo submitted that the appropriate sentence to be imposed on the Accused would be between 2 to 4 years imprisonment.

9. The maximum penalty for this offence is 7 years imprisonment. However the Court has discretion to impose a lesser sentence under S.19 of the Code.

10. It is established principle that the maximum penalty is reserved for the worst type of case. Goli Golu v. The State [1979] PNGLR.

11. The case of Wellington Belawa [1988-89] PNGLR 496 sets out the relevant guidelines for sentencing in a misappropriation case. The court in that case held that where the amount of money or the value of property involved is less, the sentence should be less too and where the amount of money or value of property involved is high, the sentence should be higher. And where a person commits the offence in breach of some trust reposed on him it should result in a higher penalty.

12. Factors to consider in stealing and misappropriation cases include, the amount involved, the time taken to commit the offence, the position of the offender, the application of the money stolen or misappropriated, its effect on the victim and the public, or fellow employees or partners are also relevant considerations. The court must also consider matters like, the effect of the offence on the offender himself, the offenders own history, restitution, illness, being placed under great strain by excessive responsibility or the like and co-operating with Police are further relevant factors in mitigating of the offender.

13. There are 3 relevant considerations discussed in Belawa’s case that can be considered on the instant case. Such considerations have been discussed in almost all misappropriation and stealing case’s. They include things like the position of trust reposed on the accused by the company he worked for. In the accused case, he held a responsible position as a security guard.

14. As a security guard, the management of the store trusted him to be in such position before engaging him onto responsibility and the company placed so much trust on him to carry out security service on company properties.

15. The second consideration is on the amount involved. The amount involved in this case was K15,500. 00. According to evidence most of that money was stolen by the Co-Accused who is still at large. This accused only took K3, 830. 00 which was fully recovered by the Police. Despite that the amount involved was huge and still not recovered.

16. In the case of The State v. Lukeson Olewale (2004) N2758, a misappropriation case involving an amount of K40, 000. 00. That is less serious than the accused case in relation to amount. In that case the offender uttered the cheque after he conspired with others. He pleaded guilty and was sentenced to a term of 4 years. The term was fully suspended.

17. The case of The State v. Louise Paraka (2002) N2317 is also less serious then this instant case. The prisoner in that case was charged with two counts of forgery and two counts of uttering cheques worth K6, 000. 00 contrary to sections 462 (1) and 463 (2) of the Criminal Code. The accused pleaded guilty and was sentenced to 3 years imprisonment. The sentence was fully suspended with certain conditions.

18. The case against the Accused is aggravated by the fact that he was in position of trust and he breached that trust placed on him by the Management of the Company. There is so much stealing in all forms both in the public and private sectors. The Court has weighed all factors for and against the Accused. I consider that Aggravating factors outweigh those mentioned in mitigation.

19. There is need for deterrent sentences for the kind of offence the Accused committed in particular stealing.

20. I am also required to weigh the consequences of sending offenders to prison for “non violent crimes” and those which have been categorised as “violent crimes”.

In Doreen Liprin v. The State (2001) SC 673, the Supreme Court highlighted the need to give serious consideration to alternatives to prison sentences to non violent offences. This would serve as a punishment and at the same time, reduce the costs to the society in terms of the costs of incarceration and avoid the risk of turning an offender into a hard – core criminal. I consider that Accused’s case is a Non-Violent case.

21. I am also required to consider the principle of law which says that the maximum penalty should be reserved for the worst type cases. Ure Hane v. The State [1984] PNGLR 105 and Agiru Aieni and 12 others v. Paul T. Tohian [ 1987] PNGLR 37.

22. I am of the view that the present case is not the worst type of stealing although the Accused committed the offence in breach of trust and with some pre-planning.

23. Although the Accused case was a trial I still consider it as not a worst type of case.

24. The Court has taken into account all that the accused said on Allocatus and have considered the address by his lawyer on mitigation. I have also considered the prosecution counsels address on sentence. I also consider that this is a Non-Violent case. I consider a sentence of 3 years appropriate. Accordingly I impose 3 years imprisonment in hard labour. I order that the 3 years term be fully suspended on condition that the accused keep the peace and be of good behaviour for 3 years.
____________________________________________________________
Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused