State v Martinez [2020] PGNC 493; N9216 (25 September 2020)

N9216

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 1 OF 2020

THE STATE

V

DORINA ROAN MARTINEZ

Alotau: Toliken, J
2020: 17^th, 25^th August

CRIMINAL LAW – Particular offence – Stealing from employer – Guilty plea – Prisoner steals K22,897.59 from employer – Serious breach of trust – Full restitution – First time offender – Non-citizen – Loss of employment hence non-renewal of employment visa – Favourable pre-sentence report – Appropriate sentence – Pecuniary fine of K2000.00 - Criminal Code Ch. 262, s 372(1)(7); s 30 Employment of Non-Citizens Act 2007.

Cases Cited

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92)
Belawa v The State [1988-89] PNGLR 496
Henry Rakatani v. The State [1979] PNGLR 556
The State v David (2019) N 7825
The State v Mave (2020) N8389
The State v Kissip (2020) N8340
The State v Salle (No.2) (2015) N6148
The State v Luva (2010) N3909

Counsel

A Kupmain, for the State
P Palek, for the Prisoner

SENTENCE

25^th September, 2020

1. TOLIKEN, J: Mrs Dorina Roan Martinez, on 17^th September 2020, you pleaded guilty to an indictment charging you with one count of stealing a total of K22,897.59 from your employer and in so doing you contravened Section 372(1) and (7) of the Criminal Code Ch. 262.
   

THE FACTS

2. The brief supporting facts are that you were employed as the Assistant Manageress of the Alotau Enterprises Distribution Centre located at Bottom Goilanai, Alotau, Milne Bay. As part of your duties, you were responsible for counting the day’s takings and balance off before locking them away in the safe. Masurina Security would then pick up the money for banking the following day.
   
3. Between 19^th December 2019 and 04^th March 2020, before balancing off and locking the money away, you would take between K1000 – K2000 for your own personal use. You would then delay banking for a day or two so that you could find money to replace the money you had taken.
   
4. After continuous delays in banking the daily takings, the company management got suspicious and decided to conduct an audit. It was found that you had stolen a total of K22,897.59. That resulted in your arrest.
   
5. You freely admitted your offence. Hence, I convicted you on your own admission.
   

THE OFFENCE

6. While the penalty for simple stealing or stealing simpliciter is 3 years imprisonment, the Code provides higher penalties for aggravated forms of stealing. Stealing from one’s employer is one such form of aggravated stealing and it attracts a maximum penalty of 7 years imprisonment. The reason why this form of stealing is serious is because of the breach of trust reposed or entrusted in the offender by his/her employer.
   

SENTENCING PRINCIPLES

7. The law generally provides that the maximum penalty must usually be imposed on the worst types of cases. Furthermore, sentences will depend on the facts and circumstances of a particular case. In that way, an offender will receive a sentence that most fits his/her crime. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92).
   
8. For offences of dishonesty, such as misappropriation and stealing, the Supreme Court in Belawa v The State [1988 – 89] PNGLR 496 (Bredmeyer, Woods and Barnett JJ) laid down certain guideline sentencing principles. The court there held that the following considerations ought to be taken into account:
   • the amount taken
   • the quality and degree of trust reposed in the offender
   • the period over which the theft or fraud was perpetrated
   • the use to which the money or property dishonestly taken was put
   • the effect upon the victim
   • the effect of the offence upon the public and public confidence
   • the effect on the offender himself
   • the offender's own history
   • whether restitution has been made
   • the matters of mitigation special to the offender
     
9. The court also suggested the following sentencing scale as shown below:
   

Amount obtained or misappropriated	Appropriate term of imprisonment
K1.00 - K1000.00	Imprisonment should rarely be imposed
K1000 - K10,000	Up to 2 years
K10000 – K40000	2 – 3 years
K40000 – K150000	– 5 years

10. These tariffs were set 31 years ago and have held swayed over that period. In the intervening period offences of dishonesty have, however, not only increased in frequency but the amounts involved have also exponentially increased and the modus operandi has also become technical and complex.
    
11. The penalty for simple stealing remains at 3 years. The penalty for the majority of aggravated forms of stealing such as stealing from an employer have also largely remain unchanged. However, Parliament has recently increased the penalties for stealing amounts between K1m – K10m, and those exceeding K10m. For the former the penalty is 50 years imprisonment without remission and parole and for the latter, life imprisonment. (Section 372(1A) (1B) as amended by Criminal Code (Amendment) Act 2013 (No.6 of 2013) s 5)

COMPARABLE SENTENCES

12. How have the courts dealt with those convicted of this offence? Let me just cite a few cases. Perhaps a good starting point is to refer to the statement of the Supreme Court in Henry Rakatani v. The State [1979] PNGLR 556 (Prentice CJ, Raine DCJ, Andrew J) when confirming a 2 years sentence of the appellant for stealing as servant. He was employed as a public servant and stole K1,263.49 from the State in the course of his employment. The Supreme Court held, among others, that the offence of stealing as a servant calls for severe public deterrence as well as marked deterrent against repetition by the offender. That was of course before the decision in Belawa but it does in retrospect fall within the ambit of the principles enunciated in Belawa.
    
13. The State v David (2019) N7825 (Miviri J): The offender was employed by PNG Power Ltd as a Customer Service Officer, his duties being to collect payments for his employer. Within a period of 4 months the offender collected receipts for electricity bills from customers to the value of K9294.26 which he applied to his own use. His theft was only discovered when a customer protested against paying for a bill which had already paid. The offender voluntarily repaid the sum he stole prior to his conviction thus demonstrating full responsibility for his offence. He was sentenced to 2 years imprisonment which was fully suspended on condition.
    
14. The State v Mave (2020) N8389 (Miviri J): The offender was the Office Manageress of the victim tyre service company. Within a period of 2 months, she received a total K27,361.95 which she applied to her own use. She was sentenced to 3 years imprisonment which was wholly suspended. She was placed on probation with additional conditions, one of which was an order for restitution.
    
15. The State v Kissip (2020) N8340 (Berrigan J): The offender was convicted after trial for 4 counts of stealing from her employer. She was employed as an Automated Telling Machine (ATM) Support Officer with BSP’s Transaction and Channel Support (TCS) Business Unit in Port Moresby. It was her responsibility to rectify dispensing errors at the bank’s ATMs by removing cash from a “divert” or “reject” bin so that the machine could function again. She was then responsible for counting the cash, placing it in a bag and placing the bag back inside a separate part of the vault of the ATM for collection by other bank officers at a later time. On four separate occasions within a period of approximately one month she stole a total of K36,140.00 from four ATMs across Port Moresby in the course of performing her duties. She was sentenced to a total of 4 years imprisonment, which was wholly suspended with conditions including full restitution.
    
16. The State v Salle (No.2) (2015) N6148 (Geita J): The offender there was employed by the Nationwide Microbank in Wewak as its Branch Manager. Over a period of time the offender systematically stole a total of K61, 902.30 from his employer through what the trial judge described as poorly managed petty cash system and replenished cash in transit system from BSP Bank Wewak to the Branch vault. Before his sentence he repaid K9000. He was sentenced to 4 years imprisonment. He was ordered to serve 12 months while the balance was suspended on condition that he repays the balance owing to the bank.
    
17. The State v Luva (2010) N3909 ( Lenalia J): The offender there pleaded guilty to 13 counts of stealing from his employer and was sentenced to an effective term of 4 years and 5 months. He was employed as a meter reader with PNG Power Ltd. He took various sums of monies as service fees from 13 individuals for Service Connections and Supply Kits. He, however, did not deposit these monies into the appropriate company account but instead applied them to his own personal use. He stole a total of K4618.20.
    

ANTECEDENTS

18. You are a citizen of the Republic of Philippines. You are now 33 years old and at the time you committed this offence were employed by Alotau enterprises as Assistant Manager at its Distribution Centre here in Alotau. You are married but have since been separated from your husband who happens to be employed here in Alotau as well by Masurina Properties as Construction Manager. You came to the country in 2012 on Dependent Visa and eventually secured employment yourself.

ALLOCUTUS

19. You apologised to the Court and the complainant for your offence and pleaded for a non-custodial sentence so that you can return to your family in the Philippines. You said that you have fully repaid the amount that you had stolen. This is supported by your Presentence Report and the complainant’s Victim Impact Statement.

SUBMISSIONS

20. Your lawyer Mr. Wallis submitted that because of your significant mitigating factors which included the fact that you have made full restitution, your early guilty plea and lack of prior convictions you ought to be given a pecuniary fine of K3000.00 which sum should be levied against your bail of K3000.00.
    
21. Mr. Bray for the State opposed the idea that you should be given a fine. While acknowledging that full restitution had been made, counsel submitted that an appropriate sentence for you should be 2 – 3 years which can then be wholly suspended.
    
22. So, what then should be an appropriate sentence for you? As I alluded at the outset, you will be sentenced according to the circumstances of your case. The cases which I have cited above, and the sentencing principles set by the Supreme Court in Belawa are only a guide to ensure consistency and fidelity to proper exercise of the court’s sentencing discretion. But at the end of the day you will get a sentencing that is commensurate with the circumstances under which you committed this offence and your personal circumstances when considered against the need for personal as well as general deterrence.

MITGATING & AGGRAVATING FACTORS

23. I accept the following mitigating factors:
    
    • You pleaded very early to your charge.
    • You are a first-time offender.
    • You were of prior good character.
    • You co-operated well with the police by making early admissions.
    • You have expressed genuine remorse.
    • As a result of your offending all your service entitlements were forfeited by your former employer.
    • Your expression of remorse is supported by the fact that you made full restitution to the complainant.
      
24. However, against you are the following:
    
    • You abused the trust reposed in you by the complainant.
    • This offence is very prevalent.

DELIBERATIONS FOR APPROPRIATE SENTENCE

25. When considering the considerations in Belawa against your case, the amount you stole was K22,897.29. This was quite a substantial amount.
    
26. You were placed in a very responsible position which involved handling of the daily cash takings. You were not a mere cashier, but the Assistant Manageress for the complainant’s distribution centre. With the amount of money coming into the operations daily the position you held demanded absolute honesty and personal integrity. The fact that the complainant was able to entrust you with this weighty responsibility demonstrated their trust in you. You were thus reposed with a very high degree of trust which you unfortunately betrayed.
    
27. Your theft was carried out for a period of about three (3) months. So, it is not a one-off incident. It was a well-executed scheme, which, if you were not caught would have continued as long as you had people whom you could borrow from to repay what you took from the company.
    
28. In your Presentence Report you said that you needed the money to send home to the Philippines for hospital bills for your sick father. But you also admitted to using the money for meals in restaurants here in Alotau.
    
29. What was the effect of your offence on the complainant? Given the nature of the business the company had – retailing and wholesaling – your offence would indeed have contributed to a loss which would later translate into loss of profit to it and ultimately to its shareholders. The fact that it is a multi-million Kina company does not detract from the fact that it did suffer loss.
    
30. Your offence, however, had no effect on public confidence and trust in the complainant or its operations generally, but it did affect you personally. You lost your job – a job which you were privileged to have been given to you in the first place considering that you are a non-citizen who entered the country on account of your husband and which job could easily have been given to a citizen. Your relatives back in the Philippines of course lost a source of income as well. As if that were not enough you forfeited whatever entitlements you had with the company. Obviously, you did not think about all these before you started stealing from your employer not to mention the risk of going to jail in a foreign land and the enormous stress and shame that this will bring on you and your loved ones back in the Philippines.
    
31. To your credit you have fully repaid what you have stolen, not without little effort from your estranged husband Mr. Martinez, as evident from your Presentence Report.
    
32. According to the Belawa guidelines you ought to receive a sentence between 2 – 3 years. That would be consistent with what has been imposed in some of the cases which I have mentioned above – cases like The State v David (supra), The State v Mave (supra) and The State v Luva (supra). All offenders there received custodial sentences which were then wholly suspended on conditions such as good behaviour and restitution. Ideally then you should receive a wholly suspended sentence with similar conditions.
    
33. That, however, presents the Court with a challenge. Conditions like good behaviour require some form of supervision to ensure compliance. That will be an impossible task because now that you have lost your job, your visa will be cancelled, and you will have to return to the Philippines. Furthermore, by virtue of Section 30 of the Employment of Non-Citizens Act 2007 your Work Permit became invalid the moment you were terminated from your employment by the complainant. It appears therefore that the only options available to the Court is a non-suspended custodial sentence or a fine.
    
34. A non-suspended custodial sentence will of course crush you, but you will have nobody else to blame but yourself. Not only did you betray the trust the complainant had in you, but you have effectively stopped a very healthy stream of income, both for yourself and your family back in the Philippines.
    
35. I have thought long and hard about what to do in your case. The fact that you have very significant mitigating factors which out-weigh the factors against you, principle among which is the fact that you made full restitution, sways me to decide that I impose a penalty other than imprisonment pursuant to my powers under Section 19(1)(b) of the Criminal Code. This provision gives me discretion to impose a fine not exceeding K2000 instead of or in addition to a term of imprisonment.
    
36. I will therefore impose a pecuniary penalty or a fine instead of sending you to gaol. The interest of the State and the community and those of the complainant is for you to be punished so that you and like-minded persons can be deterred. You have made full restitution, so the complainant has not lost anything in real terms. A fine will of course force you to dig deeper into your pocket to appease the State for breaking the law and which will in these difficult times contribute to its finances.
    

SENTENCE

37. I therefore order that you shall pay a fine of K2000.00. I further order that this will be deducted from your K3000.00 bail with the balance to be refunded to you. Any sureties paid by your guarantors will be refunded to them. Finally, I order that you voluntarily leave the country on the first available fight to Manila as soon as you sort out your court fine and other affairs failing which you will be deported by the appropriate authorities.
    

Ordered accordingly.
_____________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner