State v Lafana [2020] PGNC 526; N8697 (23 December 2020)

N8697

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 03 OF 2017

THE STATE

V

SYLVESTER LAFANA

Lae: Salika CJ
2020: 10^th, 11^th, 12^th & 13^th November, 23^rd December

CRIMINAL LAW — Practice and Procedure — Charge of Stealing Kl,488,260.OO — Bank employee — In a position of trust — Abuse of trust - Maximum penalty prescribed is 7 years imprisonment — Sentence of 7 years imposed.

Cases Cited:

Papua New Guinean cases:
Denden Tom and Others vs. The State (2006) SC767
Goritau Beru v. The State (1997) SC528
The State v Koivi Ipai (2010) N3972
The State v Paulus Pawa [1981] PNGLR 498
The State vs. Tom Morris [1981] PNGLR 493

Overseas Cases:
Martina v Osborne [1936] HCA 23; (1936) 55 CLR 367
Thomas v R [1960] HCA 2; (1960) 102 CLR 584

Counsel:
Ms. H. Roalakona, for the State
Mr. J. Kusip, for the Accused

23^rd December 2020

1. SALIKA CJ: INTRODUCTION: After a trial, Sylvester Lafana was found guilty of one count of stealing Kl,488,260.OO, a charge laid under s. 372 (1) (1A) and (7) of the Criminal Code Act.

The Facts

2. Sylvester Lafana was employed as an Automatic Telling Machine (ATM) custodian of ANZ Bank at the material time as alleged on the indictment. As part of his duty, he was responsible for replenishing 10 ANZ ATMs in the city of Lae. He was based at the Lae Market Branch of the ANZ Bank. It was Sylvester's duty to refill the ATMs with cash and any left over or surplus cash from the last refill was removed from the machine by him to return to the bank for it to be balanced out. The cash was usually held in cassettes or a box which is usually filled and inserted into the ATM on a weekly basis.
   
3. At the material time between 14 January 2016, Sylvester attended to the replenishing of the ATMs, and instead of returning the surplus cash from the ATMs to the bank, he took the cash. When a reconciliation was done with the journal rolls of the ATMs, the following was discovered:
   
   1. ATM Journal Roll for ATM # 60 for 15/01/16 showed a missing cash of K177,130;
   2. ATM Journal Roll for ATM # 22 for 19/01/16 showed a missing cash of K173,550;
   100. ATM Journal Roll for ATM # 61 for 05/02/16 showed a missing cash of K73,550;
   4. ATM Journal Roll for ATM # 62 for 08/02/16 showed a missing cash of K218,820;
   5. ATM Journal Roll for ATM #__ for 16/02/16 showed a missing cash of K43,960;
   6. ATM Journal Roll for ATM # 38 for 17/02/16 showed a missing cash of K157,640;
   7. ATM Journal Roll for ATM # 66 for 01/03/16 showed a missing cash of K7,020;
   8. ATM Journal Roll for ATM # 19 for 03/03/16 showed a missing cash of K240,180;
   9. ATM Journal Roll for ATM # 44 for 04/03/16 showed a missing cash of K177,740;
   10. ATM Journal Roll for ATM # 61 for 17/07/16 showed a missing cash of K166,070;

k. ATM Journal Roll for ATM # 62 for 17/07/16 showed a missing cash of K52,600;

4. The missing cash was reported to the ANZ Investigation Team who conducted their investigation and the matter was reported to the police who subsequently laid the charges.
   
5. Much of what was alleged was not disputed by the prisoner, but in his defence, he said he gave the cash money to Andrew Moana, the Bulk Teller to bank and to enter it into the Bank's computer system. Andrew Moana gave evidence to say the money was not given to him by the prisoner. I accepted Andrew Moana's evidence and convicted Sylvester Lafana.
   

Issue

6. The remaining issue on this case is to consider the appropriate sentence to impose on the prisoner.
   

The Law

7. Section 365 of the Criminal Code defines stealing as:

"SECTION 365 DEFINITION OF STEALING.

(l) In this section—

"owner", in relation to a thing, means—

(a) the owner or a part-owner of the thing; or
(b) any person having possession or control of, or a special property in, the thing;

'special property" includes—

(a) any charge or lien on the thing in question; and
(b) any right arising from or dependent on holding possession of the thing in question, whether by the person entitled to the right or by some other person for his benefit.
(2) Subject to the succeeding provisions of this Code, a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.
(3) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.
(4) A person who takes or converts anything capable of being stolen shall be deemed to do so fraudulently if he does so with intent—
(a) to permanently deprive the owner of the thing of it; or
(b) to permanently deprive any person who has any special property in the thing of that property; or
(c) to use the thing as a pledge or security; or
(d) to part with it on a condition as to its return that the person taking or converting it may be unable to perform; or
(e) to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; or
(f) in the case of money, to use it at the will of the person who takes or converts it, even if he intends to afterwards repay the amount to the owner.
(5) In the case of a conversion, it is immaterial—
(a) whether the thing converted is taken for the purpose of conversion, or is at the time of the conversion in the possession of the person who converts it; and
(b) that the person who converts the property—
(i) is the holder of a power of attorney for the disposition of it; or
(ii) is otherwise authorized to dispose of it.
(6) A taking or conversion may be fraudulent, even if it is effected without secrecy or attempt at concealment.
(7) When a thing converted has been lost by the owner and found by the person who converts it, the conversion shall not be deemed to be fraudulent if at the time of the conversion the person converting the thing—
(a) does not know who is the owner; and
(b) believes, on reasonable grounds, that the owner cannot be discovered. "

8. Sections 372 (1) (IA), and (7) (A) of the Criminal Code Act creates the offence of stealing and impose the penalties. These provisions spell out sentences for stealing simpliciter, and aggravated circumstances of stealing.
   

They provide:

372. STEALING.

(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.

I (A) If the thing stolen is money between K5 million and K9.99 million, imprisonment for a term of 50 years without remission and without parole.

1 (B) If the thing stolen is money more than KIO million, the penalty shall be life imprisonment.

(7) (a) If the accused person is a clerk or servant, and the thing stolen is the property of his employer, he or she is liable to imprisonment for a term not exceeding seven years.

9. The prisoner was charged under s. 372 (1), (IA) and (7) (a) and the maximum sentence for the offence he was charged with is 7 years imprisonment as clearly identified above.
   
10. The Court has a discretion to impose a term of sentence less than the maximum prescribed under s. 19 of the Criminal Code Act. The case authorities of Goli Golu v The State (1979) PNGLR 653 and Ure Hane v The State (1984) PNGLR 105, support the proposition that the maximum penalty should be reserved for the worst type of cases in a given category of offences and I venture to add that it should also be available to those who are repeat offenders of criminal activities to whom incarceration does not appear to work and there is no evidence of reform on a recidivist.
    

Case Precedents

11. Counsel for the State, Ms Hellen Roalakona, cited the case of The State v Louise and others (2017) N6755. In that case, the offenders were charged with charges of conspiracy to commit an offence and for stealing under s. 15 and s. 372 (1) (IA) of the Criminal Code (Amended) Act. In that case, the offenders were security guards employed by G4S Security firm. They were tasked with the responsibility to transport and guard the cash of K5, 960, 000. 00 the property of the May Bank Limited. The cash was not delivered to the Bank of Papua New Guinea and the armored vehicle carrying the cash was diverted to another location and the money stolen by the G4S security guards. Of the stolen money, only Kl,553,OOO was recovered. The main player in the offence, Casper Louis, was sentenced to 25 years, while others were sentenced to 20 years.
    
12. This case can be distinguished from the Louis case because there were a whole lot of men involved in the elaborate, planning and execution of the crime and a lot more money was stolen. Dangerous weapons were also involved in committing the offence. The above cited case is not a true reflection of the case we have at hand. In that case more than K5 million was stolen which attracts a sentence of up to 50 years. The amounts stolen in this case was K1,488,260.00, the maximum penalty is up to 7 years.
    
13. A more case of recent times is the matter of the State v Benedict Gem (2020) N8679. In that case, the prisoner was given K300,OOO by Stanis Talu to find some land in Port Moresby and buy it for Stanis Talu. Benedict Gem found the land and bought it and had the land registered under his name and not Stanis Talu. He was charged with misappropriation. This Court imposed a term of 7 years imprisonment. The prisoner appealed the sentence and is awaiting a hearing and determination of the appeal.
    

The Belawa Principles

14. The Belawa case principles and considerations relating to sentence in my respectful opinion are relevant and helpful to assist the Court to reach a sentence that is fair in the circumstances. The factors relevant are:
    
    • Amount taken;
    • Level of trust reposed on the offender;
    • Period the offence was committed;
    • Use to which the money was put to;
    • Effect on the victim;
    • Impact on public confidence;
    • Effect on the offender;
    • History of offence;
    • Restitution.
      
15. Apply those factors in this case the evidence is that:
    
    • Amount taken — Kl,488,260 was taken.
    • Level of trust reposed on the offender— the offender was the ATM custodian and included being the custodian of the money to take care of the money and not allow it to be stolen or lost.
    • Period the offence was committed — the offence was committed over a period of 7 months.
    • Use to which the money was put to—there is some evidence of the use of part of the money to buy motor vehicles but no further evidence of how he used the money.
    • Effect on the victim — the victim was ANZ Bank which is a large corporate financial institution and the amount taken from them is significant in this Bank's history.
    • Impact on the public confidence — no evidence on this from the public.

Effect on the offender — he has lost his job with the ANZ Bank and this incident will put a dent or a criminal record against his name.

• History of the offender — the offender was employed there for 6 years and the Bank was happy with his performance over those years until this incident.
• Restitution — only the two motor vehicles were taken back, but to date no restitution was offered or made.
  

Personal Particulars

16. The prisoner is an adult from Hagaulo village in Lufa, Eastern Highlands
Province. He is married with children.

Mitigating Factors

17. The only mitigating factor in favour of the prisoner is that he is a first time offender.

Aggravating Factors

18. The following aggravating factors are noted:

A large amount of money was stolen involving Kl,488,260 which has not been recovered.
He abused the trust reposed on him by the bank.

This was not a one-off stealing case or a spur of the moment act or that it was out of necessity that he stole the money.

The offence was committed over a long period of time and on 11 occasions he stole the money.
The offence of stealing is a prevalent offence.

Sentence

19. I take into account your mitigating factors in determining your sentence.

That lone factor is outweighed by the aggravating factors stacked against him.

20. The victim Australia New Zealand Banking (PNG) Ltd’s Managing Director, Mark Baker, wrote to the State Prosecutor, having carriage of this matter, Ms Hellen Roalakona, which was tendered into evidence to assist the Court in considering the sentence. The letter from the victim bank in part reads:
    

"Trust is at the very essence of Banking. The people of PNG trust that when they deposit money at a Bank, it will be there when they need it. As an ATM custodian, Mr Lafana was in a very special position of trust.

This was a substantial theft (one of the largest in the modern history of ANZ)

21. I echo the sentiments from the victim ANZ Bank, Papua New Guinea Managing Director and agree with him that the Banking Industry rely heavily on the trust placed on its employees. This is partly because the Bank employees handle large amounts of cash monies that goes through their hands. That is a heavy trust and responsibility placed on the employees.
    
22. Being mere mortals there will always be temptations to steal and pocket some of that money. The risks taken by the banks are real and the persons they employ to handle cash must be strong willed and strong hearted to withstand the trials and temptations of the face of money right within their reaches.
    
23. I have said it many times in misappropriation case and stealing cases involving elements of dishonesty, that stealing is a serious crime of dishonesty, deceit and fraud. Stealing displays all the attributes of what is commonly referred to as corruption. This was corruption not in the public sector but in the private sector. This sort of conduct eats away at the fabric of our society. Our society must be made up and be based on honesty, decency and fairness. People must work hard with honesty and hard work. Such criminal conduct must be deterred swiftly and the best way to do that is to imprison offenders. This was said by this Court in The State v Yawing (2017) N6836. In that case, the prisoner stole K14,955.00 and was sentenced to two (2) years imprisonment.
    
24. In the State v Benedict Gem (2020) N8679 Salika CJ, the prisoner took K300,000.00 and was sentenced to 7 years imprisonment. That case too was a case of serious dishonesty where the prisoner was given K300,000.00 to buy land for Stanis Talu. Instead, the prisoner bought the land and had it registered under his own name and not in the name of Stanis Talu.
    
25. In the State v Nancy Uviri (2008) N5468 Cannings J, the prisoner, an employee of Kimbe Bay Shipping Agencies Ltd, who stole K536,134.00. Cannings J sentenced her to 7 years imprisonment. Again, this was a serious case of dishonesty, deceit and fraud.
    
26. In the State v Israel Minimbi Unnumbered Decision (2020) CR (FC) 127 of 2018, this Court sentenced the prisoner to 7 years imprisonment. In that case, the prisoner was a pastor, who got involved in gold buying as a gold buyer. He received over K400,000.00 from a man to buy gold. Instead of buying the gold, the prisoner pastor used that money on himself. Again, another serious case of dishonesty, deceit and fraud.
    
27. This case involves stealing of Kl,488,260.00, the property of the ANZ Bank. Parliament in 2013 amended the Criminal Code Section 372.
    
28. Stealing is a serious crime of dishonesty and must be treated swiftly by way of penalties that will serve as a deterrent and as a punitive measure. Considering all the circumstances of this case, while I note the lone mitigating factor, all other factors of trust weigh heavily against him making the offence to be in the worst category of the offence, that is offence is committed over a period of 9 months and a lot of money was involved in the theft. I sentence him to 7 years imprisonment with hard labour.

_________________________________________________________________
Public Prosecutor: Lawyers for the State
Kusip & Associates Lawyers: Lawyers for the Prisoner