State v Kisua [2018] PGNC 396; N7513 (24 July 2018)

N7513

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 27 of 2018
&
CR No. 28 of 2018

THE STATE

V

WARAI KISUA

Daru : Koeget, J
2018: 10^th, 17^th, 24^th July

CRIMINAL LAW- Indictable Offence – Misappropriation – section 383A (1) of the Criminal Code Act chapter 262 – conviction on guilty plea – a lenient sentence - substantial amount of monies repaid - balance to be repaid within suspended portion of sentence – sentence wholly suspended on conditions he promise to Keep Peace and be on Good Behaviour Bond for a fixed period of time.

Cases Cited:

The State –v- Hemes Awe

The State –v- Elisah Anato and Nicholas Bunn
Counsel:

D. Mark, for the State
E. Sasingian, for the Accused.

24^th July 2018

1. KOEGET, J: INTRODUCTION: The accused is charged with one count of Misappropriation pursuant to section 383A (1)(a) of the Criminal Code Act chapter 262.
   

FACTS

2. Between 2^nd of January 2015 and 06^th of February 2015, the accused was employed with PNG Microfinance Ltd at Daru Branch as its Officer-In-Charge at its Service Centre.
   
3. There were two tellers employed by PNG Microfinance Ltd at its Service Centre in Daru and on occasions he directed them to lend him monies in varying amounts. The total amount he received was K30, 000.00 and he did not reimburse the amount lent to him.

An audit report on the account shows that the accused did not reimburse PNG Microfinance Ltd the amount of K30, 000.00. So the matter was reported to the police resulting in his arrest and charge.

ISSUE

4. The accused pleaded guilty to the charge so he was convicted accordingly. The issue for the court to determine is, what is the appropriate sentence the court should impose upon him.
   

LAW

5. “Section 383A. Misappropriation of property.
   

(1) A person who dishonestly applies to his own use or to the use of another person –

• (a) Property belonging to another is guilty of the crime of Misappropriation of property.
  

(2) An offender guilty of the crime of misappropriation of property is liable to imprison for five years except in any of the following cases when he is liable to imprisonment for ten years.

• (b) Where the offender is an employee and the property dishonestly applied is the property of his employer.”
  

PERSONAL PARTICULARS

6. The prisoner is 35 years of age and is married with two children and their ages range from one to twelve years. He completed Grade 12 at Passam National High School in the East Sepik Province in 1997.
   
7. He was employed by PNG Microfinance Ltd at its Daru Branch as OIC – Service Centre. He was terminated from employment in 2013 so he is now unemployed.

AGGRAVATING FACTORS

8. There is a breach of employer – employee relationship. The offence was committed over a period of time and the total amount stolen is K30,000.00. Such offence is prevalent in the country.
   

MITIGATING FACTORS

9. The prisoner cooperated well with the police when he made admissions in the record of interview. He pleaded guilty in court and saved valuable time and he is a first time offender.
   
10. He has repaid the sum of K25,000.00 to PNG Microfinance and the payment was accepted. The balance outstanding is K5,000.00.
    

SENTENCE

11. The prisoner’s former colleague, Hemes Awe was sentence by the court in Kiunga for commission of similar offence for 18 months in hard labour and the sentence was wholly suspended upon conditions that he repay the sum within 18 months from the date of sentence.
    
12. In this case substantial amount of money reimbursed and so a lenient sentence is sought to be imposed. A custodial sentence imposed in this case will be inappropriate in my view so I adopt the similar pattern of sentence as in the case of the State –v- Hemes Awe so the prisoner is sentenced to be imprisoned for 18 months in hard labour.
    
13. The sentence is wholly suspended upon his entering into recognisance and he promises to keep peace and be on Good Behaviour Bond for 18 months.
    
14. The sum of K5,000.00 is to be repaid to PNG Microfinance within 18 months.
    
15. The order will be reviewed in the December 2018 sittings of the National Court in Daru.
    

Public Prosecutor: Lawyers for State

Public Solicitor: Lawyers of Accused