State v Romoh [2022] PGNC 442; N9846 (31 August 2022)

N9846

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. (FC) NO. 216 OF 2018

THE STATE

V

ROY RAY ROMOH
Wewak: Ganaii, Aj
2022: 23^rd, 30^th & 31^st August

CRIMINAL LAW – Sentence – Stealing – Section 347 (1) (7) of the Criminal Code – Guilty Plea – Employer Employee relationship – Amount stolen is K35, 250 – Three years imprisonment – Full suspension – Probation - Restitution
Cases Cited:

Papua New Guinean Cases
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Peremai Naroi v The State [1987] PNGLR 293

State v Kissip [2020] PGNC 151; N8340
State v Lavai [2020] PGNC 363; N8660

State v Mave [2020] PGNC 169; N8389

State v Miria [2013] PGNC 37; N5102

State v Niso (No 2) (2005) N2930

State v Paul [2019] PGNC 270; N8026
Public Prosecutor v Tardew [1986] PNGLR 91

State v Rebecca Yala, Cr 215 of 2018, Decision by Miviri, J (17 June 2022, unreported)
State v Sam [2014] PGNC 255; N5766
State v Tiensten (2014) N5563
State v Timothy Pinda (2017) N6960)

State v Waiembi [2008] PGNC 240; N3708
State v Wilma Wauga Cr (FC) 69 of 2021, (2021: 19th November)
Wellington Belawa v The State [1988-89] PNGLR 496

Overseas cases cited
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Counsel
Ms Deborah Ambuk, for the State
Mr Alex Kana, for the Accused

SENTENCE

31^st August, 2022

1. GANAII, AJ : This s a ruling on sentence where the offender pleaded guilty to one count of Stealing, contrary to s372 (1) (7) of the Criminal Code. The maximum punishment for the offence subject to section 19 of the Criminal Code, in an employer/employee relationship is seven years imprisonment.

Statement of Facts

2. The facts the offender pleaded guilty to are that the offender was employed as a shop assistant with Taur Enterprise Limited. Whilst in that employ, he unlawfully gained access to the personal identification number (PIN) that was assigned to his employer by Westpac Bank Ltd on an agreement that employer had extra operating functions which enabled deposits and or withdrawals of monies by clients.

3. In a space of three months, the offender had done 23 different transactions through the Eftpos machine and unlawfully transferred monies from his employer’s account by debits and into his personal bank accounts by credits. The total value of the monies stolen in this manner was Thirty-five Thousand, Two Hundred and Fifty Kina (K35, 250 .00).

Allocutus

4. The offender said these in allocutus:

“ I say sorry to God and to the court, to State lawyers and Public Solicitors lawyers and everyone for what I have done. It is my first time to stand before the court. I go to school at DWU. This is my last year and in November I will be graduating. I have a Digicel tower at my home and I am being paid rentals of K2, 500 every four months or three times a year, which is K7, 500 per year. I can repay the amount of money I have taken over time. I seek the Court’s mercy and ask that I be put on probation to allow me to pay back the complainant’s monies. That is all”.

The offender’s antecedent and particulars

5. The offender is 30 years years old and comes from Neimu village, Yangoru-Saussia District of the East Sepik Province. Prior to his arrest, he resided at 4 Corner settlement, Kreer Freeway, Wewak, ESP. He had gone to reside there when he had gotten enrolled at Kaindi Divine Word University (DWU) Campus in 2020.

6. The offender is the only child in the family. His mother had passed on when he was a child and he was raised by his father. He and his father live in the village to look after their land. The offender is single and has no children. He was educated up to Grade 12 at Brandi Secondary School. He was enrolled at the DWU in 2020.

7. Through the Pre-Sentence Report (PSR), the interview with the offender revealed that he had completed his studies and his name had been submitted to the Education Department Head Office in Port Moresby to graduate and be issued a Professional Certificate in Primary Teaching at the end of the year. He will then go into the field of teaching.

8. The only formal employment the offender was engaged in was with Taur Enterprises Ltd. He worked as a casual shop assistant. His duties involved packing cargos and doing other manual work. On his financial situation, the offender said he has two cocoa gardens which earns him K200 a fortnight depending on season and the price of wet beans. His earnings fluctuate.

The offenders means assessment

9. The offender and his father also earn from the rental payments paid for the use of their land by Digicel who had set up a Digicel Tower thereon the land. They are paid K5, 000 a year. They are both willing to commit these monies as restitution towards the payment of the monies he had stolen if the court is mindful to make orders for restitution. The offender’s father has K1, 000 now to make an upfront payment.

10. The writer of the PSR was not able to confirm with Digicel Ltd about this arrangement. Whilst I do note that there is no evidence of a lease agreement, State has not disputed this fact. I also do note that the PSR does not confirm that the offender is going to graduate as a teacher and will be employed by Education Department. Again, where the State has not disputed that and I give the benefit of the doubt to the offender. (See Peremai Naroi v The State [1987] PNGLR 293 and The State v Timothy Pinda (2017) N6960).

11. The offender said in his plans for repayment of the sum of money he had stolen, his family and friends are willing to assist him make restitution. He also stated that when he is employed as a teacher, he will be able to have monies through his fortnightly salaries to make restitution.

12. The offender’s father Mr. Moses Roko has agreed to assist with restitution by stating in a statutory declaration that he will support the offender with the payment of the rental monies from Digicel Ltd. He also said he will pay K1, 000 as upfront payment. On his ability to pay, the offender said he is willing to pay K5, 000 a year until all the monies are paid in full.

Other matters in the Pre-Sentence Report

13. The offender is well and healthy. He does not consume alcohol, cigarettes or take drugs. He does not chew betelnut.

14. For his future plans the offender is confident that he will commence work in 2023 and that he plans to be employed as a teacher for the rest of his life. He does not have plans for any further education as yet. He will decide whilst teaching. He is currently residing at 4 Corner, Kreer Freeway, Wewak and will return there to complete his schooling. He plans to return home and teach in the village.

15. On his plans to reconcile with the victim, the offender is willing to repay all the monies within five years if given the time to do so. He said he only benefited from K13 000. He also said his accomplice Rebecca Yala was sentenced to 3 years and another accomplice had gone into hiding and has never been dealt with.

16. If given probation orders, the offender undertakes to comply with any conditions attached to the orders. He said he is a first-time offender and is sorry for his actions. He wants to complete his education and be employed so that he can meaningfully contribute to society. The offender is a member of the Seventh Day Adventist faith.

17. On the circumstances surrounding the commission of the offence, the offender agreed with the Statement of Facts he had pleaded guilty to. He is sorry for his actions and is willing to repay the monies. The offender is not a threat to the community.

Victim Impact Statement in the Pre-Sentence Report

18. The victim wants the offender to pay K5, 000 upfront, and be placed on probation so that he can repay the balance of the monies he had stolen. Their business needed the funds to survive, and he is happy with the arrangement for the offender to make full restitution over time.

Suitability for probation supervision

19. The writer says the offender is suitable for probation. Under the Probation Act, a person can be placed on probation for not less that 6 months and not more than 5 years.

20. The PSR contains attachments which I have taken note of namely the official academic transcript from the Divine Word University for the offender, a statutory declaration form and a letter from offender’s father Mr. Moses Roko, and a letter of character reference from Pastor Lucas Kaks of the Church of Christ in Wewak.

Submissions

21. Mr. Kisi for the offender submitted on the law, the penalty under s 372 (1) (7) of the Criminal Code; mitigations and aggravations; the sentencing tariffs in Wellington Belawa v The State [1988-89] PNGLR 496 and comparable cases of State v Waiembi [2008] PGNC 240; N3708 (26 March 2008); State v Miria [2013] PGNC 37; N5102 (21 March 2013) and State v Lavai [2020] PGNC 363; N8660 (22 October 2020).

22. Defence counsel submitted that this case falls in category 3 of the Bellawa (supra) case, warranting a head sentence of between 2 – 3 years. Given the peculiar circumstances of this case, a sentence of 3 years is appropriate.

23. Counsel also submitted that this case is suitable for suspension considering the principle for suspension in Public Prosecutor v Tardew [1986] PGSC 10; [1986] PNGLR 91 (2 April 1986).

24. Defence submitted that 3 months and 3 weeks in pre-trial custody be deducted from the head sentence. The Court can exercise discretion to suspend wholly or part of the head sentence. If the Court is mindful to impose probation orders, 4 years and 7 months be given to complete K35 250 at quarterly installments.

25. State Prosecutor Ms Ambuk submitted on the mitigations and aggravations present in the case. The actions of the offender were calculated to enable facilitation of commission of offence. For instance, the opening of personal bank account enabled him to transfer the stolen monies which were then put to his personal use. The length of time, ie the three months, allowed him to make small transactions over time so that the scheme could not be detected. If the victim had not checked his reserve account to purchase much needed items, he would not have detected the scheme. A further aggravation is the possession of information and knowledge regarding the victim’s reserve account with Westpac Bank which was then abused by the offender. The calculated scheme and an abuse of privy information and this aggravates the offence.

26. The degree of dishonest act is high when the PIN was entrusted to one person, and either stolen or obtained through conspiracy by the offender. The offender not only stole the monies, but in order to do that, he also stole the PIN for the Eftpos machine. Evidence does not demonstrate that the offender was the main master mind but his actions would have encouraged the other accomplices to do likewise, and he was responsible for stealing a bigger amount of monies than the others. This offence involves a serious breach of trust. The offender has not paid back a single toea to date and the offence is prevalent in society.

27. State urged the Court to consider that the aggravations far outweigh the mitigations, and a deterrence punishment is appropriate both as specific to the offender and general to other like-minded persons who may be similarly inclined.

28. On a guilty plea, State submitted that a starting point is 3 and a half years imprisonment as head sentence is appropriate punishment. But where aggravations outweigh mitigations, a sentence of 5 years is appropriate.

29. Through the PSR State submitted that the Digicel tower rentals are paid at a rate of K7, 500 per year and so it will take four years and 7 months to repay the full amount. The Court will be mindful that the only means of income for the offender for repayment is through the rentals from Digicel. State seeks that a term of 5 years imprisonment be imposed. The court has the discretion to decide on whether or not to suspend wholly or partly the head sentence. State asked that the Court partly suspend the head sentence so that the offender can serve part of the sentence in prison for deterrence purposes.

Defence reply submission

30. In response to several questions posed by the court, Mr. Kisi for the offender submitted that although the offender said he benefitted only with K13, 000, he was indicted on and pleaded guilty to the total sum off K35, 250, which he is willing to restitute. The Court will accept that to be the total amount the offender had stolen.

31. On the question of whether the offender’s plea can be regarded as an early guilty plea, defence counsel conceded that where the offender pleaded guilty to the charge 4 years after his initial arrest and after he had absconded from bail and rearrested on a bench warrant, and where no payments has yet been made, his plea now is not treated as an early guilty plea.

32. Defence counsel further urged the Court to consider that if the offender is placed on probation, allowed to graduate, and work as teacher, he will be able to pay restitution.

Application

Law

33. The offence provision for stealing in the Criminal Code says:

“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.

(2) ...

(7) If the offender is a clerk or servant, and the thing stolen–

(a) is the property of his employer; or
(b) came into the possession of the offender on account of his employer,

he is liable to imprisonment for a term not exceeding seven years.

....

(10) If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.

34. The offence of stealing from an employer under s 372 (1) and in an employer/employee relationship under ss (7) of the Criminal Code, attracts the maximum penalty of 7 years imprisonment.

35. It is settled law in this jurisdiction that the maximum penalty for any offence is reserved for the worst kind of case. The principle in the case of Goli Golu v The State [1979] PNGLR 653 is applied. Section 19 of the Criminal Code vests the sentencing authority the discretion to impose a sentence less than the maximum prescribed sentence, where the circumstances of the case warrants, applying the principle in the case of Lawrence Simbe v The State [1994] PNGLR 38.

The purpose for sentencing

36. In imposing an appropriate penalty, the court is mindful of the purpose for sentencing which include the imposition of an adequate punishment relative to the seriousness of the offence, for deterrence, rehabilitation, accountability, denouncement, protection and recognition of the harm done to the victim. Sentencing principle in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465.

Comparable case

37. Apart from considering the comparable cases cited to me by counsels, I have also researched a number of cases which I cite here.

a) Wellington Bellawa v The State [1988-89] PNGLR 496
This case sets out certain considerations to be considered by judges of the National Court in isappropriation cases involving breach of trust. They include the following: the amount of money involved; the quality and degree of trust placed on the offender and his or her position; the period of time it took to commit the offence, the use to which the money taken was applied for, the effect on the victim, the impact of the offence on the public, the effect on the offender, the offender's background history; - whether restitution had been effected, and any special mitigations.

38. In addition, the Supreme Court in Belawa (supra) 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:

(a) K1 and K1000, a gaol term should rarely be imposed;
(b) K1000 and K10,000 a gaol term of up to two years is appropriate;
(c) K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
(d) K40,000 and K150,000, three to five years’ imprisonment is appropriate.

39. In general terms, 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.

b) State v Sam [2014] PGNC 255; N5766 (30 July 2014)
The offender pleaded guilty to one count of Stealing under s 372 (1) of the Criminal Code. Th offender worked with Agmark Group of Companies as a Wet Bean Buyer. He stole the money from his employer when the money came into his possession for purposes of buying wet cocoa beans. The amount charged on the indictment is K4, 000.00. A sentence of 2 years imprisonment was imposed. The court ordered that, 1 year of the head sentence be suspended on condition that, after serving one (1) year, the prisoner shall enter into a recognition to keep the peace and be of good behavior for a period of two (2) years.

c) State v Paul [2019] PGNC 270; N8026 (20 September 2019)
Both offenders pleaded guilty to one count of stealing, from their employer four hundred and thirty-four metres of electrical cable valued at K37, 633.18, contrary to section 372 (1) (10) of the Criminal Code. The aggravating factors clearly outweigh those in mitigation. The value of the property stolen, which has not been recovered, was significant. The offence was committed in company, on a number of occasions, over a period of three weeks, and involved planning. The Court sentenced the offenders to 3 years. Time spent in pre-trial detention was deducted. The offenders serveed the balance of the term.

d) State v Wilma Wauga Cr (FC) 69 of 2021, (2021: 19^th November)
The offender pleaded guilty to one count of stealing K30,415.00, the property of Weltege Trading breaching s. 372(1) of the Criminal Code. The brief facts of the case were that offender is an employee of BSP as as the branch training officer. During the course of her duties she came across an SME bank card the property of Weltega Trading which was owned by a Mrs Robin Sine. The subject bank card was with its pin number as it was a new card which Mrs Sine had applied for as part of SME business package offered by BSP bank. The accused checked Weltega Trading’s bank account and noticed that there was a substantial sum of money in the account, so she took the card and kept it in her possession. She made several withdrawals at various ATMs over a period of time and committed the offence of stealing. She was sentence you to 2 years imprisonment. This was suspended on the condition that she made restitutions to the bank within 6 months.

f) State v Kissip [2020] PGNC 151; N8340 (5 June 2020)
The offender was a bank employee and was convicted of four counts of stealing a total of K36,140 following trial, contrary to s. 372(1)(7)(a)(10) of the Criminal Code. She was sentenced to 4 years, wholly suspended on strict conditions including restitution. The property belonging to her employer, Bank of South Pacific (BSP),

The offender stole the monies in each case whilst employed as an Automated Telling Machine (ATM) Support Officer with BSP’s Transaction and Channel Support (TCS) Business Unit. 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 she stole the following monies from four ATMs across Port Moresby in the course of performing her duties. The sentence of four yeas was wholly suspended on the among others the condition that the sum of K29,140 is to be restituted to BSP, within two years.

g) State v Mave [2020] PGNC 169; N8389 (13 March 2020)
On a guilty plea, to a charge of Stealing under s 372 (1) (7) (a) Criminal Code, the offender who was office Manageress stole K 27, 361.95, which were monies paid for items belonging to the company. She was sentenced to 3 years wholly suspended on conditions among others that she make restitution payments.

Sentencing Trend

40. These cited cases show this to be the trend. Where the offenders have stolen amounts of or items valued at between K29 000 – K37 000 from their employers in their capacity as bank officers, office manageress, or servants they were sentenced to terms of imprisonment of between 2 to 4 years. Their sentences were fully or partially suspended on among other conditions to pay full restitution over a period of time.
Circumstances of the stealing

41. On the circumstance of aggravation of a serious breach of trust, only one staff was entrusted to have access to the PIN for the Eftpos machine. It is unclear as to how the offender had access to the PIN in order to make the unlawful transactions and steal the monies. The defence conceded that the PIN was held by one person only. It is concluded that the offender either stole the PIN or collaborated with that entrusted person who knew and held the PIN to then use it to do the unlawful transactions. Among the other accomplices, the offender stole the largest amount. However, that is not to say because of that, the offender is the main master mind. Regardless, this is an offence that involves a series of dishonest acts and a serious breach of trust on the part of the offender which he must be punished for.

42. This case cannot be treated as an early guilty plea. Offenders who plead guilty and express remorse or are regretful for their actions would usually demonstrate these by posting an early guilty plea and also by making an attempt to or actually pay restitution at the earliest time. That is not the case here. It had had taken the offender 4 years since the commission of this offence and since the offender’s arrest and charge to plead guilty and show his willingness to restitute. I note that the reason for delay in the prosecution of this matter is due to the offender’s abscondment. He was on the run until a bench warrant was issued and executed which resulted in his incarceration three months ago. The offender had effectively avoided prosecution for some time. His plea is therefore not treated as an early guilty plea and his remorse may not be genuine.

43. I agree with the State that this is a case that involved a certain degree of pre-planning whereby the offender opened an account to facilitate the stealing. The offence is prevalent and a deterrent sentence is appropriate.
Other considerations

44. The land rental payment from Digicel Ltd also belongs to the offender’s father, and the monies are not the offender’s alone. There is also still the question of whether the other family members of the offender and his father are beneficiaries to the monies as land is often communally owned.

45. On the effect of the crime on the victim, I take note that through the offender’s actions, the victim’s small business (SME) has suffered great financial loss of K35, 250. This is a lot of money and especially when considering the impact Covid19 has had on SMEs and the economy. Another consequence of this crime is the loss of trust and confidence by employers on their staff due to this serious breach of trust.
Response to counsel’s submission on the head sentence

46. Through the PSR, the offender said he needed 4 years and 7 months to make full restitution according to his repayment plans. Due to that, State submitted that the head sentence must therefore be 5 years so that if suspended, the offender can be placed on probation and will be able to pay over that period of time. This was apart from submitting for part a suspension.

47. On the other hand, Counsel for the offender submitted that the court should impose 3 years but give the offender more time ie 4 years and 7 months to make full restitution according to the offender’s repayment schedule.

48. With due respect to both counsels’ submissions I say this. When deciding on an appropriate head sentence, the Courts do not start with the offender’s means and ability to pay. This should not dictate what head sentence and other consequential orders the Court should imposed. Rather, the Courts must be guided by the law, the appropriate sentencing principles from case precedents, comparable cases, circumstances surrounding the commission of the offence, including the degree of financial harm done to the victim, to arrive at an appropriate head sentence and consequential orders. It should not be the way counsels’ submissions seem to suggest which is that the offender’s ability and means to pay should dictated to Court the imposition of an appropriate head sentence.

Co-offender’s sentence

49. I take judicial notice of the reasons for sentence in State v Rebecca Yala, Cr 215 of 2018, Decision by Miviri, J on the 17^th of June 2022, being the co-offender to this offender. A sentence of 3 years was imposed. Due to a lack of means and ability to restitute, the Court did not make orders for suspension. In the present case, due to the large amount stolen, an appropriate head sentence would be higher than 3 years. I am mindful also that the PSR in the present case shows the offender’s ability to restitute.

Head Sentence

50. In consideration of all of the above, an appropriate head sentence is one of 4 years imprisonment in hard labour.

51. In the exercise of this court’s discretion, I will not suspend the three months spent in pre-trial custody as the offender had escaped and was rearrested on a bench warrant three months ago.
Suspension

52. On the consideration of suspension of the head sentence, in The State v Tardew (supra), the Supreme Court set out three broad, but not exhaustive categories where it would 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. The first two considerations being applicable to the present case.

53. I am satisfied that the victim seeks repayment of the monies stolen from their business. The offender has the ability to make restitution and the evidence is in support the offenders’ plea for suspension and probation orders. There is prospect for restitution. The head sentence of fours years is hereby fully suspended with conditions, which includes among others, orders for restitution.

Court Order

54. These are the final orders on sentence.

1. The offender is sentenced to a head sentence of 4 years imprisonment in hard labour;
2. The head sentence of 4 years imprisonment in hard labour is wholly suspended;
3. The offender shall be placed on probation for 4 years with these conditions:

a) The offender shall, within 48 hours from the time of granting of these orders, report to a Probation Officer, of the Probation Office in Wewak;

b) The offender shall perform 600 hours of community work at a worksite to be approved and supervised by the Probation Office; which may include free service to support his local Seventh Day Adventist church;

c) The offender shall receive spiritual counselling appropriate for the circumstance of his case from a local church pastor or associate elder of his church, based on a program to be approved by the spiritual counsellor;

d) The offender shall keep the peace and be of good behaviour. He shall not to commit any offence including any summary offences whilst on probation;

e) The offender shall, within 3 years from today i.e., by the 31^st August 2025, make full restitution in the amount of K35, 250 to the victim, Taur Enterprises Limited through the National Court Trust Account;

f) The offender shall pay K11, 750 per year. The first instalment payment of K11, 750 is due on the 31^st August 2023; the second instalment payment of K11, 750 is due on the 31^st August 2024; and the final instalment of payment of K11, 750 is due on the 31^st August 2025.

g) In default of the restitution payment as per the schedule ordered, the offender will be brought to court to say why he should not be imprisoned for the balance of the term;

h) During the term of his probation, the offender shall not leave his approved and known place of abode or residential address, namely 4 Corner, Kreer Freeway, Wewak, East Sepik Province without approval of the National Court;

i) If the offender wishes to change his residential addresses, he shall give due notice to the Probation Officer of his new address at least 48 hours before changing addresses;

j) The Probation Services is to supervise the payment of restitution and probation orders and provide 6 monthly reports; on completion of restitution and on the progressive responses to the probation orders until discharged;

k) The report must show any spiritual counselling received from appropriate church pastor and elders;

l) In the event of a breach of any of these conditions, the offender shall be brought before the National Court to show cause why he should not be imprisoned for the remaining of his term.

Orders accordingly.
________________________________________________________________
Public Prosecutors: Lawyers for the State
Public Solicitors: Lawyers for the Offender