State v Gabriel [2019] PGNC 268; N8024 (23 August 2019)

N8024

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 102 of 2019 and 126 of 2019

THE STATE

V

SYLVIA GABRIEL & SARUFA AKIA

Waigani: Berrigan, J
2019: 19 June; 10 July and 23 August

CRIMINAL LAW –Sentence –Misappropriation –383A(1)(a)(2)(d) of the Criminal Code.

Cases Cited:
Papua New Guinea Cases

Doreen Liprin v The State (2001) SC673
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Sanawi v The State (2010) SC1076
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
The State v Janet Morgan (2004) N2704
The State v Wilmot (2005) N2857
The State v Niso (No 2) (2005) N2930
The State v Philip Wiamai (2007) N5492
The State v Yannam (2008) N3958
The State v Sari (2012) N5167
The State v Kelly Kanjip (2014) N5590
The State v Tiensten (2014) N5563
The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, 23 June 2017
The State v Gibing Yawing (2017) N6836
Wellington Belawa v The State [1988-1989] PNGLR 496

Overseas Cases

Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Counsel

Ms O. Mandui, for the State
Mr E. Sasingian, for Sylvia Gabriel &Sarufa Akia

DECISION ON SENTENCE

23^rd August, 2019

1. BERRIGAN J: Both accused persons pleaded guilty to one count of misappropriation, that they between 1January 2018 and 30 January 2018 dishonestly applied to their own use monies to the sum of K4,200 belonging to Joslyn Kinfu Fuvule.
   

Facts

2. At the material time, Sylvia Gabriel and Sarufa Akia were employed with Paradise Private Hospital as a receptionist and cleaner, respectively. The complainant was also a cleaner at the hospital. Sometime during late December 2017, the complainant asked Sylvia Gabriel to show her how to use her bank card to withdraw monies from her (the complainant’s) Westpac Bank account using the automated teller machine (ATM) at the hospital. Sylvia Gabriel assisted her and in the course of doing so learnt the complainant’s bank card PIN number.
   
3. Not long after, on at least three occasions during the material period, Sarufa Akia took the complainant’s bank card from her (the complainant’s) bag without permission and passed it to Sylvia Gabriel. Sylvia Gabriel then used the card to withdraw monies from the complainant’s account via ATM as follows:
   
   • Four withdrawals of K500 (a total of K2000) on 2 January 2018
   • One withdrawal of K400 on 5 January 2018
   • Two withdrawals, one of K300 and one of K500 on 8 January 2018
   • Two withdrawals of K500 (a total of K1000) on 16 January 2018
     
4. On each occasion Sylvia Gabriel gave Sarufa Akia a portion of the monies withdrawn from the complainant’s account. Of the total amount of K4,200, Sylvia Gabriel gave Sarufa Akia K700.
   
5. The offence was only discovered when the complainant checked her bank account and found that most of the K4,726.17 previously held in the account was missing.
   
6. The offenders acted with common purpose, pursuant to s. 7 of the Criminal Code.
   
7. It now remains to sentence each of them.
   

Sentencing Considerations

8. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:
   
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
       
9. In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:
   
   1. K1 and K1000, a gaol term should rarely be imposed;
   2. K1000 and K10,000 a gaol term of up to two years is appropriate;
   100. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
   4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
      
10. This case falls within the second category of Wellington Belawa. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; and The State v Tiensten(2014) N5563.
    
11. The State referred me to the following cases in support of their submissions:
    
    1. The State v Sari (2012) N5167, Toliken AJ (as he then was), in which the prisoner pleaded guilty to misappropriating K650 in cash. He was sentenced to 1 years’ imprisonment in light labour. 5 months was deducted for the period spent in pre-trial custody and the balance of 7 months was wholly suspended on condition that he entered into a recognisance of K200 to be of good behaviour; and
    2. The State v Yannam (2008) N3958, Cannings J in which the prisoner pleaded guilty to misappropriating K800 from his family on the pretext that he would buy them a television and other items. A sentence of 12 months’ imprisonment was imposed, from which time already served awaiting trial was deducted, with the balance to be served in custody.
       
12. It must be noted that sentence in these cases was imposed having regard to a maximum of 5 years’ imprisonment. In this case the amount misappropriated is K4,200 and thus the maximum applicable is 10 years pursuant to s. 383A(1)(a)(2)(d) of the Criminal Code.
    
13. I have also had regard to the following:
    
    1. The State v Janet Morgan (2004) N2704, Lenalia J, in which the prisoner pleaded guilty to 1 count of stealing an amount of K8,772.01 from her employer whilst an accounts clerk. She was sentenced to 2 ½ years’ imprisonment in hard labour, 1 and 1½ years of which was suspended on conditions including restitution;
       
    2. The State v Kelly Kanjip, (2014) N5590, David J, in which the prisoner pleaded guilty to a charge of stealing K9,900 from his employer. He was sentenced to 3 years in hard labour, less time spent in custody, leaving the balance of 1 year, 11 months and 7 days to be served.
       
    100. The State v Doreen Liprin (2001) SC673, in which a bank teller was found guilty of forging and uttering a bank withdrawal slip and misappropriating K6000 from her employer. The National Court sentenced her to 1 year each for forging and uttering and 3 years’ for misappropriation, to be served concurrently, wholly suspended on condition of restitution within 2 months. On appeal the sentence for misappropriation was varied to the 9 months’ already served, with further orders for restitution over 2 years with community service.
         
14. The sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    

Nature and Circumstances of the Offence, including Matters of Aggravation

15. Applying the considerations set out in Wellington Belawa, the following matters of aggravation have been established.
    
16. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. K4200 is a substantial amount of money. The offence was committed over a period of about two weeks and involved a number of transactions. Given the respective roles of the offenders, the offence clearly involved planning and ongoing dishonesty during the period.
    
17. If not strictly, the offence also involved a breach of trust in the sense that the offenders were the complainant’s colleagues and they took advantage of the trust the complainant placed in Sylvia Gabriel when she sought her assistance to use the ATM.
    
18. It is not in dispute that the offenders were motivated by financial gain. The monies were applied for their own use. Sarufa Akia has already restituted the K700 she personally received from the offence. Sylvia Gabriel has committed to restituting the balance.
    
19. The impact on the victim in this case has also been severe. The monies belonged to Joslyn Kinfu Fuvule, a cleaner at the Paradise Private Hospital. She lost almost all of the money held in her bank account. This was a huge amount of money from her perspective. According to her victim impact statement it represented the monies she had earned at the informal market to pay for her elder son’s school fees. As a result of the misappropriation she has since taken out a loan at a high rate of interest. As a result of the salary deductions from her fortnightly pay she is now struggling to provide as sole breadwinner for her husband, who has a medical condition, and six children.
    

Personal Circumstances and Matters in Mitigation

20. Sylvia Gabriel is from the Abau District of Central Province. She has lived in Hanuabada for almost 17 years with her husband, three children, mother and two brothers. She completed her substantive education to Grade 10. She is currently unemployed but had worked at the hospital for the last 13 years, the last three of which as a receptionist.
    
21. Sarufa Akia is 43 years old from Maipaiyo Village in the Baimuru District in Gulf Province. She has lived in Sabama Settlement for almost 30 years with her husband’s family. The offender completed her formal education to Grade 4 in 1994 and prior to the offence had been a cleaner at the hospital for 8 years.
    
22. In mitigation this is the offender’s first offence in each case. The Sister in Charge of the Labour Ward at the hospital and the offender’s Community Leader at Hanuabada confirmed that Sylvia Gabriel is previously of good character. The latter has known the offender for the last 16 years and regards her as a good person in the community.
    
23. Janet Sios, the Director Administration/Finance at the hospital was surprised to learn of Sarufa Akia’s offending. She reported that she was usually a very good worker who gets along with everyone. The Sister in Charge of the Labour Ward confirmed that the offender was very hardworking.
    
24. In addition, both offenders expressed remorse on allocutus, which I accept as genuine. They apologised to the Court and the complainant and asked for probation.
    
25. Sarufa Akia cooperated with police and pleaded guilty at the earliest opportunity before the National Court. I take her plea into account both as indicative of her remorse and on the ground that it has saved the State and this Court the time and cost associated with a trial. I also take into account the repayment of the K700 she personally benefited from as indicative of her remorse.
    
26. Similarly, Sylvia Gabriel cooperated with police, albeit after being shown the footage of her making withdrawals at the ATMs. She too pleaded guilty at the earliest opportunity before the National Court.
    
27. I also accept that the impact of the crime on both of the offenders has been significant. They have suffered humiliation among their family and in each of their communities. Both have lost long-term positions and are now unemployed as a result of the offence. Both of them will struggle to find employment in the future and are dependent on others for financial support. Any term of imprisonment will of course further the impact of the offence on the offenders’ families, especially Sylvia Gabriel’s children who are 14, 9 and 5 years of age.
    
28. There are no matters of mitigation special to either of the offenders. Both of them appear to have been struggling financially at the time of the offence but that is no excuse, particularly when the victim herself was in a very similar position as they would have well known given her position at the hospital.
    

Sentence

29. Both offenders have been convicted of one count of misappropriation, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code, the maximum penalty for which is 10 years of imprisonment. S. 19 of the Criminal Code provides the Court with broad discretion on sentence and it is well established that the maximum penalty is normally reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653.Whilst this case does not fall within that category, the offence nevertheless is serious and the aggravating factors clearly outweigh the mitigating ones. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.
    
30. The State seeks a sentence in the “range” of about 12 months of imprisonment for each offender. Defence counsel submits that a sentence in the range of 2 to 3 years in the case of Sylvia Gabriel is appropriate. With respect to Sarufa Akia, he asks the Court to sentence her to the rising of the court because she personally benefitted much less than Sylvia Gabriel and has already restituted.
    
31. I don’t agree with the proposed sentence for Sarufa Akia. Whilst those are matters in her favour, the offence was very much a shared purpose. The two offenders worked together on a number of occasions to misappropriate the monies, and neither could have acted without the other. As above, the aggravating factors are multiple. The monies involved were significant, the offence took place over two weeks, involved several transactions and a limited breach of trust. It had a severe impact on the victim.
    
32. I have considered the issue of parity having regard to the principles set out in Sanawi v The State (2010) SC1076 applying Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295:
    

"Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. ..

Discrepancy or disparity is not simply a question of imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their degrees of criminality..."

33. In their records of interview both offenders blame each other for the offence. Sarufa Akia took the bank card from the complainant’s bag on several occasions and gave it to Sylvia Gabriel, receiving monies in return each time. The offence could not have taken place without both of them. As I have said, having regard to the respective roles they played, it is clear to me that they very much acted with a common purpose. However, it is also clear that Sylvia Gabriel’s culpability is greater than Sarufa Akia’s. It was Sylvia Gabriel who withdrew the monies from the ATM. It was she who used the PIN number shared with her by the complainant. It was she who personally benefitted to a much greater extent.
    
34. It is also relevant to consider that the circumstances of the offenders are also closely shared as are the matters in mitigation. They are both first offenders, cooperated with police, pleaded guilty at the first opportunity, and have expressed remorse. The offence will have a significant impact on both of them. Nevertheless, Sarufa Akia’s early restitution is a strong mitigating factor in her favour. In the circumstances I am of the view that according to the principles of parity there should not be a marked disparity between their sentences but some difference to reflect the above.
    
35. Taking into account all of the matters outlined above, Sylvia Gabriel is sentenced to 18 months of imprisonment in hard labour. Sarufa Akia is sentenced to 12 months of imprisonment in hard labour.
    
36. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
    
37. I have had regard to the views of the complainant in the pre-sentence reports and her own victim impact statement. Despite her loss and the financial and emotional burden she faces as a result of the offence, she does not call for either of the offenders to be imprisoned. Instead she begs the Court to order restitution.
    
38. Whilst the monies involved in this case are not as large as some that come before the Court, the offence still concerns a significant amount of money, particularly from the perspective of the victim. I agree very much with the comments of Sevua J in The State v Wilmot (2005) that wealthy people should not be able to avoid prison terms through restitution but neither of these offenders can be described in those terms. I am also cognizant of the views expressed by the Supreme Court in The State v Doreen Liprin(supra) which suggest that punishment can readily be obtained through alternatives to imprisonment in some misappropriation cases involving smaller amounts of money. In my view whilst a head sentence of imprisonment is called for in this case, it is also an appropriate case for suspension. It is clear to me that the restitution already paid by Sarufa Akia, and any further restitution ordered against both offenders, will involve sacrifice given their personal and financial circumstances.
    
39. I have considered whether, despite the fact that Sarufa Akia has already repaid the monies she personally received she should be required to restitute some or all of the balance remaining. In my view it would not be appropriate in this case, and it does not appear that she has the means to do so.
    
40. Her early restitution has demonstrated her strong likelihood of rehabilitation, however, and in my view suspension on conditions would best promote this in the longer term. Probation Services confirms she is a suitable candidate for probation.
    
41. Sylvia Gabriel has committed to restituting the balance. In my view that is proportionate in this case as it is the money she personally benefited from.
    
42. Sylvia Gabriel is not a person of great financial means and whilst she is being assisted by her family, the payment will not be without difficulty on her part, particularly given that her husband is also unemployed. She will repay some of the money from earnings at the market, together with contributions from her small brother, who is the sole breadwinner now, and her uncle who holds a senior position with the PNG Teachers Association. Her brother and uncle were both surprised to learn of her offending even at this late stage and I’m sure that their involvement will be an ongoing reminder to her of the serious nature of her conduct. Probation Services confirms she is a suitable candidate for probation.
    
43. In the circumstances I suspend each of the offender’s sentences on the conditions set out below. This is not an act in leniency. The Courts in this jurisdiction have made it clear that suspension is a form of punishment to be served outside the prison system in the community interest: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.
    

Orders

44. Sylvia Gabriel is sentenced to 1 and ½ years of imprisonment, wholly suspended on the following terms:
    
    1. the sum of K3,700 is to be restituted to the victim, Joslyn Kinfu, within 12 months from today;
       
    2. the offender shall perform appropriately designed community work under the supervision of the Probation Service;
       
    100. the work and supervision regime is to be undertaken for the balance of her sentence on weekends;
         
    4. the offender shall immediately enter into her own recognisance to keep the peace and be of good behaviour for the period of her sentence; and
       
    5. the Probation Service is to supervise the payment of restitution and provide 3 monthly reports.
       
45. Sarufa Akia is sentenced to 1 year imprisonment, wholly suspended on the following terms:
    
    1. the offender shall perform appropriately designed community work under the supervision of the Probation Service;
       
    2. the work and supervision regime is to be undertaken for the balance of her sentence on weekends;
       
    100. the offender shall immediately enter into her own recognisance to keep the peace and be of good behaviour for the period of her sentence; and
         

4. the Probation Service is to provide 3 monthly reports.
   

46. Each of the offenders’ bail monies are to be immediately refunded.
    

The Court orders accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoners