State v Benson [2020] PGNC 329; N8593 (15 October 2020)

N8593

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR(FC) NO.196 OF 2017

THE STATE

V

IVAN BENSON

Kokopo: Batari J
2020: 15^th October

CRIMINAL LAW – sentence – stealing – s. 372(1)(7)(b) Criminal Code – accused stole from employer property value of K6,429.15 – plea – advantage of – mitigating factors – suspension of sentence – rehabilitation – promotion of – 3 years imprisonment fully suspended on terms appropriate

Cases Cited

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
The State v Frank Kangai [1987] PNGLR 320

Counsel

Mr R. A. Bray &Ms J. Batil, for the State
Mr P. Yange, for the Offender

SENTENCE

15^th October, 2020

1. BATARI J: Ivan Benson, I convicted you this morning of one count of stealing property on account of your employment following your plea of guilty. You stole from your employer, Anitua Protective Services Ltd, property of the value of K6,429.15. This is your sentence.

2. I heard from the State Prosecutors Mr Bray and Ms Batil, that between 1/10/2016 and 31/10/2016, you were employed by Anitua Protective Services Ltd as Senior Technician and Electronics Superintendent with 3 technicians under your supervision. Your duties and responsibilities included procurement and purchase of security electronic stock items, maintenance of stock control and provision of data for accountability.

3. During the period in question you took possession of 9 infrared cameras on account of your employment and diverted the instalment of those CCTV cameras to Monsieur Henry café premises in a private arrangement with the café owner. In that scheme, the café owner paid you in cash in exchange for your evil enterprise. The case also involved possible conspiracy to defraud your employer then. You are however not charged for that.

4. What you did is a more serious form of stealing than the offence of stealing simplicitor with the maximum penalty of three years under s. 372 (1) of the Criminal Code. For your type of stealing where the property came into the possession of the offender on account of his employer under s. 372 (7)(b),the offender is liable to imprisonment for a term not exceeding seven years.The intention of Parliament is clearly to encourage and protect the lawful transaction of commerce and give business houses some sense of security. It is intended that, ungrateful, dishonest and conniving employees who breach the privilege of being employed and the trust of the employer, meet with severe penalty.

5. You held a high managerial position with your employer’s trust. The property you stole was in your possession on account of your employment. Anitua Protective Services Ltd was trading in CCTV equipment. You “’sold” the CCTV cameras for cash. The company also incurred loss of time and labour to install the security equipment at your accomplice’s premises. You breached your employment trust of relationship. It was a serious breach of trust of position. A good relationship of trust between employer and employee is essential for reliable and quality outcomes of the business. When employment is guaranteed in a strong business relationship of trust, growth in the local and national economy prospers, more people are employed, food is put on the table, school fees are paid etc.

6. Furthermore, business houses create employment for the ordinary Papua New Guineans. Your crime is against the very basis of people’s right to employment and their source of income. Your action threatened the lawful transaction of commerce. When business houses closed doors due to dishonest employees syphoning off company assets as seen in your conduct, workers are put at risk of losing employment. In many instances, ordinary law-abiding citizens are devastated and become miserable because that is the only source of their livelihood.

7. In your favour, your offence did not involve substantial amount of property loss to the victim. It is still a very serious matter because it involved a breach of your position of trust.

8. I have also taken into account what your lawyer, Mr Yange has submitted from your personal and family backgrounds. Your plea of guilty, expression of remorse and offer to pay restitution to your previous employer are matters your lawyer has asked the Court to take into account.

9. Mr Yange also submitted, that upon your termination, the company retained your finish pay as partial restitution of the value of the CCTV cameras leaving the balance of K4,842.50. You have also offered to convert your cash bail money as part restitute. The amount is K2,000.00 leaving the balance to repay at K2,842.50.

10. Your plea of guilty is in your favour. It is belated, but it has saved the Court and the State time and expenses to run what appears on the face of the records as a hopeless trial. It is a settled sentencing policy that a plea of guilty ought to result in some discount in practical terms. The outcome in the sentence ought to reflect the advantage in pleading guilty. That advantage can be an incentive itself to plead guilty. I will take into account your plea of guilty in an apparent fashion so that you must know that your guilty plea has been well appreciated and taken into account by the Court. This would also encourage other accused persons who genuinely want to plead guilty must do so knowing it will help them in their punishment.

11. Your plea of guilty is supported by your good background and expression of remorse. When you said you are sorry, I accept that as genuine because it is supported by your guilty plea.

12. You no doubt suffered shame and humiliation from your dishonourable discharge and were unfairly dealt with when your employer arbitrarily retained your finish pay entitlement.

13. Following termination of employment, you have not lazed around. You have started up your own IT business while waiting for your case. From your earnings, you are supporting your family and fund your children’s education. That supports a very good prospect of rehabilitation.

14. You have complained of waiting far too long for your case to be processed and completed. It is now three years from committal date, and you have pleaded guilty. The Court records show that you answered bail and attended Court call-overs on most occasions. There is no explanation why your case was not reached earlier. The anxiety and stress you may have experienced in the long wait for your case is a matter this Court will take into account.

15. In all the circumstances of your case, the seriousness of your conduct and your guilty plea, the appropriate sentence in my view, is 3 years imprisonment.

16. I have also considered whether to suspend the whole or part of the sentence. In Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91 the Supreme Court has provided three broad but inexhaustive categories that is;(i) to promote restitution, or (ii) where incarceration would cause excessive degree of suffering because of ill mental or physical health, or (iii) where suspension would promote personal deterrence or rehabilitation, i.e. not an exercise in leniency but an order made in the community interest: See, The State v Frank Kangai [1987] PNGLR 320.

17. With respect, in some cases in this Court, judges have suspended, or partially suspended sentences for similar amounts even without restitution where the Court was satisfied that suspension would promote the offender’s rehabilitation, based on some positive conduct as for example, when the offender has already demonstrated strong prospects for rehabilitation by early cooperation and early plea, or where they have actually taken some concrete steps to demonstrate remorse, or where their community is very supportive, or where the Court was ultimately satisfied that partial suspension would promote their rehabilitation by enabling the offenders to return to work and resume supporting themselves and their family sooner than otherwise.

18. I accept with respect, the view that, the offender's behaviour can sometimes be more persuasive in justifying suspension than their ability to call on family and others to help them repay the money.

19. In this case, you have set up your own business enterprise as a way forward in turning away from your evil past. That is a positive step and direction towards rehabilitation. You have also offered restitution. A non-custody sentence will serve the aspect of promoting rehabilitation.

20. The Orders of the Court are as follows:

(1) You are sentenced to 3 years imprisonment IHL.

(2) The whole sentence is suspended on the conditionsas follows:

• (a) within one week of today’s date or by 22/10/20 you restitute the victim Company, Anitua Protective Services Ltd the property value of K6,429.15 as follows:
  
  • (i) the amount retained by Anitua Protective Services Ltd from your finish pay entitlement shall be the restitution in part;
  • (ii) the Cash Bail Condition of K2,000.00 shall be refunded and converted as part restitution;
  • (iii) the balance of K2,842.50 shall be paid direct to Anitua Protective Services Ltd and evidenced by a company receipt;
  • (iv) you shall appear in Court on 23/10/20at 9:30 am for review of your compliance with the restitution orders;
    

(b) you shall enter into a recognizance in the sum of K1,000.00 to keep the peace and be of good behaviour for 3 years, in default, 6 months imprisonment;

(c) in breach of the good behaviour conditions, you shall be summoned to appear in Court to show cause why you should not pay up the recognizance amount of K1,000 or in default, 6 months imprisonment in addition to the suspended sentence of 3 years.

Sentenced Accordingly
________________________________________________________________
Public Prosecutor: Lawyers for the State
Islands Legal Services: Lawyers for the Offender