State v Apisah [2019] PGNC 205; N7890 (16 May 2019)

N7890

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 75 OF 2019
CR (FC) No. 77 OF 2019

THE STATE

V

RENNIE APISAH

Kiunga: Koeget, J
2019: 9^th, 16^th May.

CRIMINAL LAW- Indictable offence of Stealing – section 372 (1)(7)(a) of the Criminal Code – sentenced on guilty plea – concurrent sentences imposed – First time offender – company interested in restitution of monies stolen – prisoner has plan to generate income to repay monies stolen – Exercise of court’s discretionary powers pursuant to section 19 of the Criminal Code

Cases Cited:

The State –v- Warai Kisua (N7513)

Counsel:

Mr. D. Mark, for the State
Mr. E. Sasingan, for the Accused

16^th May, 2019

1. KOEGET J: INTRODUCTION: The accused is charged with two counts of Stealing pursuant to section 372 (1), (7)(a) of the Criminal Code Act chapter 262.

FACT

2. The accused was employed by Tabubil Engineering Limited at Kiunga as an Accountant. Her duties include preparing salaries for employees of the company and its subsidiary company named Fubilan Security Services through Kundupei Payroll System.

3. It is alleged in count 1 that between 15^th August 2017 and 16^th January 2018 the accused debited Tabubil Engineering Ltd Account No. 1000 583760 various amounts totalling K17,500.00 which she posted to her personal bank account No. 6005755278 with Westpac bank. The monies were purportedly deposited into the bank account as her salaries.

4. Further in relation to count 2, the accused between 4^th October 2017 and 25^th July 2018 debited account of subsidiary company, Fubilan Security Services Ltd BPS Account No. 1001 873502 amounts totalling K18,800.00. She credited the amount to her bank account No. 6005755278 with Westpac bank. The monies were paid into her bank account purportedly as her salaries. She applied the monies to her use and to the use of others.

ISSUE

5. The prisoner pleaded guilty to both counts of Stealing and so she was convicted accordingly. The issue for determination by the court is what are the appropriate sentences the court should impose upon her.

LAW

“Section 372 – Stealing.

(1) A person who steals anything capable of being stolen is guilty of a crime.

Penalty: subject to section, imprisonment for a term not exceeding three years.

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

(b) came into the possession of the offender on account of his employer, he is liable to imprisonment for term not exceeding seven years.”

PERSONAL PARTICULARS

6. The prisoner is 38 years of age and is a divorcee. She has six children of the marriage and all reside with her in Kiunga.

7. She has a degree in Business Studies from the University of Technology. She was employed by Tabubil Engineering Ltd from 2004 – 2018 when terminated from employment as a result of the commission of the offences.

AGGRAVATING FACTORS

8. The actions of the prisoner breached the trust the employer had placed on her. The offences were well planned and executed over a period of 10 months and substantial amounts were stolen within that short period. Such offence is prevalent in the country.

MITIGATING FACTORS

9. She is a first time offender. She cooperated well with the police and pleaded guilty to both charges so saved time of the court.

10. She was in custody for 10 weeks before released on cash bail of K1,000.00. She has repaid the sum of K20,000.00 to the former employer which was accepted.

11. She has a plan to repay the balance with assistance from family members. She proposes to repay the balance in full within two years. Such plan is viable and I am of the view that she will repay the sum within the nominated time frame.

SENTENCE

12. The prisoner, a well educated person committed the offences within 10 months and substantial amount of money was stolen from the employer.

13. The prisoner commenced repayment of the amount stolen before appearing in court before me. A sum of K20,000.00 was paid which the company accepted. The company is interested in recouping the balance of the stolen monies from the prisoner and expressed through the lawyer that she be given a non custodial sentence so she can repay the balance as anticipated.

14. In view of the strong mitigating factors an imposition of a suspended sentence would be fair in the circumstances of the case.

15. So the prisoner is sentenced to be imprisoned for 3 years in hard labour on Count 1. The pre-trial custodial period of ten weeks are deducted and balance of 2 years 2 weeks.

16. She is sentenced to be imprisoned for 3 years in hard labour on Count 2 less 10 weeks.

17. The sentence of one year in Count 2 is to be served concurrently with the sentence on Count 1.

18. Both sentences are ordered to be wholly suspended on the following conditions:

(1) The prisoner enters into recognisance and promises to Keep Peace and be on good behaviour bond for 2 years, 9 months 2 weeks.

(2) The prisoner shall repay the sum in full within the suspended period.

(3) The prisoner is to remain in Kiunga until the amount stolen is fully repaid to the company.

(4) These conditions are to be reviewed by the court each time there is National Court Sittings in Kiunga or Tabubil.

ORDER

(1) The prisoner’s bail money is ordered to be refunded to her.

Accordingly ordered.
_____________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused