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State v Morgan [2004] PGNC 69; N2704 (17 August 2004)

N2704

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO: 736 OF 2003

THE STATE

-v-

JANET MORGAN

Mendi: Lenalia, J.
2004: 11, 17 August

CRIMINAL LAW – Stealing – Guilty plea – Matters for consideration – Sentence – Criminal Code s. 372 (1)(7), Ch. No. 262.

Cases cited:

Wellington Belawa -v- The State [1988-89] PNGLR 496.

Counsels:

S.Kesno, for the State
P. Kapi, for the Accused

17th August 2004

LENALIA, J. The accused is charged that between 29th of October and 1st day of November 2000 at Mendi, she being a servant of MSS. TRADING Ltd. stole a sum of K8,772.01 being the monies of her employer. The charge is laid pursuant to s. 372 (1)(7) of the Criminal Code.

On arraignment, the accused pleaded guilty.

The agreed facts are that at the relevant time and period, the accused was employed as an Accounts Clerk by the M.S.S. Trading Limited. Her duty statement included receiving monies, maintaining expenditure records, compilation of staff wages and doing banking for the company. The State says that whilst in the course of her employment between 29th of October and 1st November 2000, the accused failed to do banking for three (3) days takings.

The manager of M.S.S. Trading Ltd based in Mendi said, he invited another company employee Mr. Mark Sackman to investigate some discrepancies in the company’s accounting records. After their investigation, Mr. Kerowa suggested to the manager that, they needed a current bank statement to determine the cash position of the company so they both obtained an online bank statement. When Mr. Kerowa did a reconciliation he found that three days takings totaling K8,772.01 was missing. The details of the missing accounts were as follows:

1. 28.10.00 for Saturday K2,738.65
2. 29.10.00 for Sunday K2,670.75
3. 31.10.00 for Monday K3,362.75

The sum total of the above amount was K8,772.01 which amount is contained in the charge on the indictment.

Following such discoveries about the theft, the manager asked the accused about the missing sums. She told him, she already did the banking for the aforementioned amount. To prove what the accused said, the manager proceeded to the bank. Mr. Paul Kali, the Assistant Manager of BSP Branch in Mendi confirmed that their bank officers could not find in the banks records any transactions being done for the victim company on the dates earlier mentioned.

Following the above, the accused made a statement admitting that she accepted full responsibility for the missing amount. She further said, she was willing to make restitution. A statement (Ann. T1) submitted by MSS. Trading Ltd – Mendi, Mr. Mark Echenfille said soon after the matter was reported to the police, the accused had restituted some money to the company. According to their letter of 6th February 2001, the accused had paid a sum of K2,171.40 to the victim’s accounts by way of restitution leaving the balance of K6,600.61.

On the accused favour, the Court take into account her guilty plea. As in the case of The State -v- John Nena Menjonaik CR. No. 445 of 2004, whose sentence of two years was wholly suspended, the accused case falls into the second category discussed in Wellington Belawa -v- The State [1988-89] PNGLR 496. The Supreme Court in that case said that where an amount stolen or misappropriated is between K1,000.00 and K10,000.00, a sentence of 2 years should be appropriate.

However, latter discussions of misappropriation cases say that, the sentencing range and tariff set in Belawa’s case (supra) ought to be raised due to the rise in the volume of misappropriation cases and secondly, with the increase knowledge of theft through computer technology and other modern means of money laundering, sentences for such offences ought to increase.

The amount taken by the accused was a large sum of money. In spite of the suggestion made by the prisoner in her statement to the company Accountant, Mr. Mark Sackman dated 10th November 2000, on which the accused made an undertaking to fully restitute, the facts on the file shows, she has only restituted K2,171.40. The Court notes that payment towards restitution was made soon after the discovery of the discrepancies created by the accused. Since then, no other payments have been made.

The second fact addressed by the Supreme Court in Belawa’s case (supra) is that, what was the degree of trust reposed on the prisoner at the time of her employment. Quite obviously, here was the situation where the degree of trust placed on the accused was high. That was the reason why the company entrusted it’s financial dealings upon the hands of the accused. Nobody else in that company could have been trusted to handle it’s money, taking into account the fact that, at times, large sums of money came into the company and the accused was responsible for the handling such monies.

Had the discrepancies not been discovered in time, the accused would have carried out more illegal transactions. I take into account the amount charged on the indictment involved three separate consecutive days. One would have thought that with the first discrepancy of K2,738.65 for 28th day of October 2000, should be sufficient debit from the company’s accounts so that when it came to the question of restitution would be a manageable sum to be restituted. But somehow the accused determined to effect two other illegal transactions. Just the following day, she stole another sum involving K2,670.61 and yet another involving K3,362.57.

The above circumstances reveal to this Court that the accused determinately committed this offence and she did it fearlessly. No evidence has been put to show how the money was spent. The accused has since ceased her employment with the victim company. Stealing in both the public and private sectors are increasing. Some methods of stealing and misappropriation are becoming sophisticated with the use of modern technology. To ensure that the companies and government agencies carry out their business in a safe environment, the Courts have a responsibility to play in the discharge of their duties in sentencing accused such as the accused to make sure that penalties imposed must reflect the seriousness of the offence of stealing or misappropriation for that matter.

Not only that an accused should be deterred but it will also acts as a general deterrence to others who might or who are offending in the manner the accused did. The amount involved in this case is more than the case of The State -v- Johnson Nena Mejonaik CR. No. 445 of 2004 where the accused there misappropriated K4,180.00. The sentence in the instant case should be higher since the accused stole a sum of K8,772.01.

Taking into the accused guilty plea, and the fact that she has partly restituted, but as well, she has not continued to restitute, the sentence of this Court is two and a half (2 ½ ) years imprisonment in light labour. The accused shall only serve twelve (12) months from the head sentence and the balance of one (1) year, six (6) months is suspended on condition that after release from serving the 12 months she shall:

1. Enter into a recognizance to keep the peace and be of good behaviour for 2 years.
2. Have the amount fully restituted within 12 months from the date of her release.
3. In the event that no restitution or only part restitution has been effected within the first twelve (12) months shall stand immediately lapsed and the suspended portion of the sentence shall be fully reactivated.
4. The bail monies shall be converted into partial restitution.
   

Sentence accordingly.
_____________________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : The Public Solicitor