Public Prosecutor v Simon [2012] VUSC 246; Criminal Case 107-12 (18 December 2012)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

CRIMINAL CASE No.107 OF 2012

PUBLIC PROSECUTOR

- v –

FIONA SIMON

Coram: Chief Justice Lunabek
Counsel: Public Prosecutor Kayleen Tavoa
Mr Francis Tasso for the Defendant

Submissions on sentence: 13 December 2012
Sentence: 18 December 2012

SENTENCE

Fiona Simon, you appear before the Court today for sentence. You are charged with one count of theft and one count of misappropriation, contrary to sections 125(a) and 125(b) of the Penal Code Act [CAP.135] respectively. You initially entered not guilty pleas on 7 September 2012. The matter was listed for 5 days trial. On 22 November 2012, you changed your pleas on the two counts by entering guilty pleas on both counts.

The brief facts are as provided by the prosecution. Your lawyer accepted them on your behalf after you changed your initial not guilty pleas. They show that this offending occurred between 2010 and 2012, while you were employed as the accountant for Carpenter Motors in Port-Vila. Your offending involved the stealing of VT1,285,898 and the misappropriation of VT2,941,667 totalling an amount of VT4,227,565 from your employer (Carpenter Motors Limited).

As the accountant of the Company Carpenter Motors, your daily responsibility was to:

(a) Receive money collected for rental agreements
(b) Record money collected in the computer
(c) Bank any cash or cheques received or collected.

It was part of your responsibilities to fill in rental agreement and receive payments either in cash or cheques. You were then to enter these into your book and transfer them to one Mrs Leingkone, an employee of Budget Car Rental which is a subsidiary Company of Carpenter Motors.

During that same period Mrs Leingkone's responsibility was as follows:

(a) Prepare rental agreements
(b) Receive cash or cheque or payment by efpost from clients
(c) Record them in her receipt book
(d) She would forward the cash and cheques to you (Fiona Simon) for you to enter into the system as payments received.

In 2012 the management of Carpenter Motors Limited hired the services of Chartered Accountants to audit their accounts. It was during this audit that discrepancies were noticed between the years 2010 to 2012 in the following:-

(a) Cash collected

(b) Computer system

(c) Bank account

(d) Confirmations from Mrs. Leingkone registered receipt book

In doing these acts you opened different bank accounts at the Bred Bank. There are four savings accounts in Bred Bank that bear your name:-

(a) Acc No # 21 824 3010011

(b) Acc No # 21 824 3010024

(c) Acc No # 21 824 3010037 (closed)

(d) Acc No # 21 824 3010040 (closed)

In addition to this there are two term deposit in your name:-

(a) Acc No # 21 824 5010020

(b) Acc No # 21 824 5010018 (closed)

You could not account for the missing funds however you realized that they were auditing your accounts you decided to resign for personal reasons.

Fiona Simon, you have offended against the law by committing theft. Theft is taking away a property from its own without permission with the intention to deprive the owner permanently of the enjoyment of the property. The law punishes this offence with a maxim penalty of 12 years imprisonment.

You have also offended against the law by misappropriating money which has been entrusted to you for return, accounting or any particular manner of dealing (not being a loan of money or of monies for consumption). The law punishes the offence of misappropriation for 12 years imprisonment. Both offences are serious offences as reflected by the heavy punishment imposed by law.

In considering your sentencing, I consider the pre-sentence report provided by the Probation Officer, the prosecution submissions and submissions and mitigating factors provided by your lawyer.

In the present case, you were in a position of responsibility and trust, you abused that trust by stealing and misappropriating money from your employer (Carpenter Motors Limited).

There is no prospect of any compensation from you according to the information you provided to the Probation Officer. Your chance of ever being employed again in the same type of company of Motors dealings is significantly diminished because of your dishonesty. You were tempted while dealing with such amount of monies received, collected and banked as a company accountant. You saw it as means to obtain easy money to raise your son and to pay the bills despite the fact you know it is an offence to take or use money that does not belong to you. I do not accept your explanation of your offending. Further, the pre-sentence report revealed that a the time of the offending, you received a salary of VT70,000 per month.

Your offending warrants a term of imprisonment. Imprisonment is necessary to mark the seriousness of your offending and to hold you accountable for the harm you have done. This sentence must also promote in you a sense of responsibility for the loss you have caused on your employer company. It must deter you from similar offending if you are ever again put in a position of trust.

You are now 35 years of age and the mother of a child. Your child is a boy of 9 years of age. Your child is affected as a result of your offending. It is unlikely that you find any work that puts you in a position of trust again. You are a first time offender.

The Court accepts that you are remorseful. The Court accepts your plea of guilty but the Court notes that it was not given at the first opportunity given to you by the Courts.

In the present case, you are sentenced to 18 months and 36 months respectively for the offences in count 1 and count 2 which shall be concurrent. This means you are sentenced to a total term of 36 months imprisonment.
18 months imprisonment are deducted for your mitigating factors. I also consider but decline to make any compensation order because your do not have the financial means and your relation with your husband do not make life easier for you.

You are sentenced to 18 months imprisonment on each count concurrently. I consider for suspending your imprisonment sentence. However, I decline to suspend it because I do not have material justification to suspend your imprisonment term and the seriousness of your offending does not justify a suspension. You could arrange for your son to be with his father or your families during your imprisonment term and arrange to have access to your son through the relevant authorities.

You are sentenced to18 months imprisonment and your sentence starts today 18 December 2012.

You have 14 days to appeal this sentence if you are unsatisfied with it.

DATED at Port-Vila this 18th day of December 2012

BY THE COURT

Vincent LUNABEK
Chief Justice