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State v Mave [2020] PGNC 169; N8389 (13 March 2020)

N8389


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) 223 of 2014


THE STATE


V


CLAIRE KILLIE MAVE


Kimbe: Miviri J
2019: 17th June
2020: 10th 12th March


CRIMINAL LAW – PRACTICE AND PROCEDURE – Plea – Stealing S372 (1) (7) (a) CCA – Office Manageress – K 27, 361.95 – Stealing as a servant – Serious breach of trust – First offender good antecedents – prevalent offence – deterrent sentence.

Facts
Prisoner was the office Manageress of a company. She receipted and deposited the moneys for the services provided by the company. She used the moneys receipted of K 27, 361.95 belonging to the company.


Held
Guilty plea.
First offender
Serious breaches of trust
Deterrent Sentence.


Cases:
Wellington Balewa v The State [1988-89] PNGLR 496
Aihi v The State (No 3) [1982] PNGLR 92
Tardrew, Public Prosecutor [1986] PNGLR 91
State v Vagi [2014] PGNC 254; N5697
State v David [2019] PGNC 110; N7825
State v Rachael Tony [2018] PGNC 155; N7268


Counsel:


A. Bray, for the State

D. Kari, for the Defendant

SENTENCE

13th March, 2020

  1. MIVIRI J: This is the sentence after a guilty plea of an office Manageress who receipted moneys of her employer but used it personally.
  2. Claire Killie Mave was employed as an office Manageress by Bridgestone Tyres between the 13th of August 2013 and the 30th October 2013 in Kimbe. She stole amounts of money that came into her possession on account of the company which eventually went up to a total sum of K27,361. 95 belonging to the company.
  3. She was charged with section 372 (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. And subsection (7) (a), If the offender is a clerk or servant, and the thing stolen, (a) is the property of his employer; ...” the penalty would be not exceeding 7 years imprisonment. But by criminal code amendment Act No.6 of 2013 because of the prevalence of this offence and the large sums of moneys that are being stolen parliament amended and inserted a new section 1A to the principle Act of section 372 that if the stolen money exceeds K1million but does not exceed K10 million the offender is liable to imprisonment without remission and parole for 50 years. And if the money exceeds K10 million then the maximum penalty is life imprisonment. It is not a light matter any more as the tendency prevalence of the offence has attracted parliament to legislate to reflect. Here the consideration is of K 27, 361. 95 and so the new amendment does not come into play. The maximum is therefore 7 years imprisonment for stealing as a servant.


  1. Here sentence was adjourned as the material in the pre-sentence with the means assessment reports did not address her current earnings due substantially to her reluctance to cooperate. She expressed willingness to repay from a loan it was not clear as to how this loan would be repaid if indeed, she was serious to repay. And from where this loan would come from to secure the repayment sourced. Restitution was real not a fantasy.
  2. This has now been laid to rest as an affidavit dated 13th March 2020 deposed to by the prisoner has been filed. Basically, it confirms her employment with the West New Britain Provincial Health Authority as Executive Assistant to the Chief Executive Officer there. And annexure “A” letter by the Alesco Government Payroll officer Evelyn Pakawa of the West New Britain Provincial Health Authority confirms her employee number as 11727905 with the position as set out above. Her base salary is K33, 338.00 and she is a permanent employee at grade 11 and has now served for 6 years in that position. She also has annexure “B” which is her marriage certificate dated the 11th December 2017 confirming her marriage to Francis Raikot a substantial change in status from her previous. Annexure “C” is her payslip 18th February 2016 confirming fortnightly net pay then of K1, 465.22 including payslip of the 27th February 2020 at K 1, 150.74 her net fortnightly pay annexure “D” of her affidavit. The employment is confirmed together with history. It would be proper material to consider in the alternative to imprisonment in custody.
  3. Effectively she could be sentenced to a maximum sentence of 7 years imprisonment for the offence. Which is discretionary after due consideration of all aggravating, mitigating and extenuating circumstances before arriving at a proportionate sentence. The maximum being reserved for the worst case. Here given its facts, it is not the worst case and therefore the maximum is not warranted. But that a determinate term is in order.
  4. In this regard it is worth noting Wellington Balewa v The State [1988-89] PNGLR 496, which spells out helpful guidelines to effectively weigh out the discretion of the court. Amongst all these include:
  5. The amount that was taken is K27, 361. 95 belonging to her employer then Bridgestone Tyres. And she was employed as its office manageress and the money came on account of her employer in the line of her duty to her employer. It belonged to her employer and was a substantial sum which she took over a period of almost three months. It was a very serious breach of trust with her employer and no doubt she had time to think to be able to commit the offence. Because it was sustained over that period and would not have been uncovered had it not being for the audit. It stopped her in her tracks and the result of her action is the present conviction now to her account.
  6. No doubt she now has realized that it was worthless both for the time and the effort and the result is her duties and life have been destroyed by that fact. Not only has she lost her job, her livelihood to sustain her family and their wellbeing was seriously affected. With her three children to support, it bore down on her. Now she has nine with the inclusion of her step children from her current marriage. But it was a bold move a decisive turn of a new leaf at that for her to come forward and admit the matter. In my view that must come out in the overall sentence that is passed at the end of all. It is the only way to take the effect of her wrongs and to pay the price for the wrong and move to a better life. Allowing its dominance would have had long lasting effects on her trust worthiness as an employee including that other persons would not trust her with their valuables or put her in a position where as, here money was involved.
  7. Her life as a working woman will be seriously affected and her reputation tarnished. So much so that it would affect her prospects of employment. Because She is now convicted as a servant stealing from her master. It is now part of her life and would follow her. But she is prepared to owe up the wrong and go on life with a new look to it. The consequences of the guilty plea no doubt envisaged time in jail. Including repayment of that money to its rightful owner Bridgestone Tyres. Her preparedness to take this on will be a significant factor in the determination of this sentence upon her.
  8. It is not clear as to what use the money stolen was put to. But presentence report dated the 17th June 2019 ordered by the court showed that she was not settled in her marriage and life. Her husband had left her with her three children, and she was looking after them. The report also showed that she was playing pokies and drinking alcohol. It may have had a bearing on the way to the crime. That has now changed as she has got married to her current husband with a stable home provided, who is prepared to support her now with his own natural children - six in all that he has brought to her three. It is a large family that she has now lived with for five years steadily. She is employed currently as the administrative officer of the Chief Executive Officer of the Kimbe Health Authority now for six years. She has sought to make life’s ends meet. What is here is serious, but it must be balanced with her initiative to better herself. It would not be justice nor right to derail that fact of her settlement in life.
  9. Her husband now Francis Raikot from East New Britain to whom she has married as a result of mass marriage ceremony that was carried out by the West New Britain Provincial administration sees her indeed and in law settled in this regard. He has 6 children of his and she has three children of hers. All are living together as a family. She has become a mother to them and her own children. The husband speaks well of her as a mother and wife. Her own daughter is prepared to find work to assist the mother pay off what is outstanding against Bridgestone.
  10. She is a graduate of the Rabaul Secretarial College in 1989. She has employment history with Telikom in 1990 to 2001. And then with Agmark Company from 2002 to 2006. Then with Rabaul Shipping from 2007 to 2009. She came here to Kimbe with her former husband who left her. She joined Bridgestone Tyres in 2013 until this offence when she was terminated in 2014. She is a member of the Healing Waters Ministry. She has a family cocoa and coconut block plus a fermentary, from which she is able to make K500 for a 63 kilogram of cocoa. She is a first offender aged 48 years old from Indavu, Wosara Gawi, East Sepik Province but has spent all her life in Rabaul because her parents bought a block at Mandress and settled there.
  11. Obviously, this is not the worst case of its kind therefore the maximum of 7 years is not in view, but a determinate term of years is in order: Aihi v The State (No 3) [1982] PNGLR 92, the facts warrant the application of section 19 (6) of the Code where three broad categories could be summarized upon which suspension can be considered in sentence, (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example because of his bad health: Tardrew, Public Prosecutor [1986] PNGLR 91 (2 April 1986). Here restitution is envisaged given the plea in the pre-sentence and means assessment reports. And it would be real basis as opposed to fantasy and an attempt to avoid jail term.
  12. This view was of this court in State v Vagi [2014] PGNC 254; N5697 (25 July 2014) that there must be real basis upon which an order for restitution is to be made. It will not be the case that other innocent persons within and without the family are unnecessarily drawn into the crime committed by the prisoner. The court considered 3 years imprisonment as the plea for restitution was unreal given that the amount was K 65, 924.90. It was stated there that the higher the amount stolen the higher the sentence. That is applicable here. And this view, was followed in State v David [2019] PGNC 110; N7825 (25 April 2019) where K 9, 294. 26 belonging to PNG Power Limited were stolen by the prisoner employed there as a customer services officer. He was sentenced to 2 years imprisonment on condition that the money be repaid to PNG Power Limited his employer. He had paid off even before the matter came to court. His sentence reflected. He was convicted under the same provision as the prisoner now.
  13. The converse was State v Rachael Tony [2018] PGNC 155; N7268 (18 May 2018) where in similar terms granted adjournment to the prisoner after her guilty plea to get material to evidence real prospects of repayment. No material came through after the adjournment. There was no alternative except imprisonment of 4 years upon the conviction of misappropriation under section 383A of the Code. That was a serious case than the present. And here the conviction is under section 372 (1) (7) (a) of the Code stealing as a servant, the maximum sentence due is 7 years imprisonment.
  14. In all the circumstances the proportionate sentence given all above for the crime of stealing as a servant contrary to section 372 (1) and (7)(a) of the Code you Clair Killie Mave of Indavu, Wosara Gawi, East Sepik Province is sentenced to 3 years imprisonment in hard labour. In the exercise of my discretion pursuant to section 19 (6) of the Code that 3 years is wholly suspended on 3 years Probation. I make no order as to work whilst on probation because you are employed and effectively that will satisfy to pay off that money owing. I take account that 3 years is sufficient time to pay off this money. The following conditions apply and take effect in the 3 years whilst you are on probation:

Ordered Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitors: Lawyer for the Defendant

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