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State v Sari [2012] PGNC 297; N5167 (24 August 2012)

N5167

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 440 OF 2009

BETWEEN

THE STATE

V

BONNIE SARI

Popondetta: Toliken AJ
2012: 08th, 24th August

CRIMINAL LAW – Sentence – Misappropriation – Plea of guilty – one-off offence – existence of high degree of trust – Employer-employee trust – Employee-customer trust - Breach thereof – Full restitution – 12 months imprisonment – Sentence suspended – Criminal Code ss. 383A (1)(a);s 19.

Cases Cited

Goli Golu v. The State [1979] PNGLR 653
Acting Public Prosecutor v Uname Auname [1980] PNGLR 510
Wellington Belawa v The State [1988-89] PNGLR 496
Doreen Liprin v. The State (2001) SC 673
State v. Dobi Ao (No 2) (2002) N2247
The State v. Gibson Haulai (2004) N2555
The State v. Schola Zuvani (2004) N2641
The State v. Seilala Ipai (2006) N3169
The State v. Robert Lorou Sevese (2006) N3453
The State v. Siba Kua (2007) N3230
The State v Elizabeth Teka (2008) N3509
The State v. Ruth Mamando (2008) N3709
The State v. Francisca Iralu (2008) N3710
The State v. Danny Yannam (2008) N3958)

Counsel

M. Ruarri, for the State
A. Ninkama, for the defendant

SENTENCE

24th August, 2012

1. TOLIKEN AJ: On 08th August 2012, you pleaded guilty before me to one count of misappropriation. It was the State's allegation that:
   

"... on the 29th day day of March 2008, at Popondetta ... [you] applied to [your] use a sum of K650.00 in cash, the property belonging to one ELIZABETH TAPIEDI"

This is an offence under Section 383A (1) (a) of the Criminal Code Act Ch. 262.

2. I confirmed your plea after reading the committal file and was satisfied that the evidence sustained the charge.
   

THE BRIEF FACTS

3. The brief facts which you pleaded to and upon which I am about to sentence you are that on the 29th March, 2008, you were working as a Cashier at the HQH Supermarket, Popondetta in the Northern Province when you stole K650.00 from Miss. Elizabeth Tapidie.
   
4. At that time, you were at the check-out counter. Elizabeth Tapidie came in and bought an electric Jug worth K37.90 using her BSP Save Card.
   
5. After you processed the purchase of the jug, you gave a receipt to Ms. Tapidie but then you swiped the card for the second time for a cash amount of K650.00. Ms. Tapidie did not notice this second transaction and therefore did not authorize it. You dishonestly took her money and applied it to you own use.
   
6. Ms. Tapiedi did not notice the theft until after a couple of days when on 31st March 2008 she and her brother attempted to make a withdrawal at the local ATM which was refused for insufficient funds. They enquired with the bank resulting in an internal investigation which cleared the bank and revealed that the transaction in question was done at the shop you had worked.
   
7. As a result you were arrested and charged with misappropriation.
   

ANTECEDENTS

8. You are from Jonita village, Popondetta, Northern Province. You have resided there most of your lifetime with your family.
   
9. You are now 25 years old but the time you committed the offence you were only 21 years old. You come from a family of 6 siblings. Your father died some years ago but your mother is still alive.
   
10. You have a g Grade 10 education. You are now married with a six (6) month old baby.
    
11. You are a first offender.
    

ADDRESSES ON SENTENCE

(i) Your Address on Allocutus

12. You apologised to the court and said that at the time in question you were desperately in need.
    
13. You also filed an affidavit where you deposed that you were on bail after committal to trial and that you appeared at several National Court call - overs but when your case was not called on those occasions you thought that your case was over so you stopped appearing in subsequent call-overs. A bench warrant was issued for your arrest. You were apprehended and remanded in custody awaiting trial. After 5 months in remand you were granted bail by the National Court on 12th May 2012.
    
14. When you were arrested and advised by police that your case was not over yet, you deposed that you fully repaid the amount you took from Ms. Tapidie through a direct bank deposit into an account nominated by her.
    
15. Ms. Tapidie also filed an affidavit confirming the payment you made.
    
16. You therefore asked for a non-custodial or a suspended sentence.
    

(ii) Submission by Your Lawyer

17. Your lawyer Mr. Ninkama, took the Court through his written submission when he addressed the Court on your behalf.
    
18. Essentially counsel directed the court's attention to its sentencing discretion under the s 19 of the Criminal Code, well settled sentencing principles and guidelines and the sentencing trend by the courts for this type of offence.
    
19. Firstly he alluded to the generally accepted purposes for sentencing, these being deterrence, rehabilitation, separation from society and retribution, (Acting Public Prosecutor v Uname Auname [1980] PNGLR 510 where counsel quotes extensively from a passage from Kapi J.'s (as he then was) judgment.
    
20. He reminded the court that the maximum prescribed penalties are reserved for the worst category of offences (Goli Golu v. The State [1979] PNGLR 653). He submitted that your case does not fall within the worst category of cases of misappropriation and therefore should attract a much, much lesser sentence.
    
21. He then drew the court's attention to the sentencing trend over the years for this kind of offence, starting with the leading case of Wellington Belawa v The State [1988-89] PNGLR 496 which sets out factors that may be taken into account and a scale of sentences that may thereafter be imposed in cases involving dishonesty such as misappropriation.
    
22. Counsel referred the Court to other cases of misappropriation which he said are relevant to your case. These cases involved varying amounts of monies ranging from a low K800 (The State v Danny Yannam (2008) N3958) to K37000.00 (The State v Elizabeth Teka (2008) N3509). I will discuss some of these cases further down in this judgment. I am grateful for the summaries which counsel provided for these cases in hard copy and upon my request.
    
23. Counsel submitted that except for The State v Danny Yannam (supra.) where the prisoner was sentenced to a custodial sentence, sentences in all the other cases were suspended despite the larger sums of monies involved. The attitude of the courts has therefore been towards non-custodial sentences where prisoners are ordered to make restitution. This he said stemmed from Doreen Liprin v. The State (2001) SC 673 where the Supreme Court said that custodial sentences were inappropriate for misappropriation cases or other non-violent crimes.
    
24. Counsel then submitted a long list of factors which mitigated your offence. Some of these are that you pleaded guilty to your crime, you are a first offender, you fully repaid the monies in question and your expression of remorse.
    
25. Counsel, however, conceded that there are two aggravating factors against you. These are; you were in a position of trust and abused that position and that you committed the crime in the course of your employment.
26. Taking all these into account and applying the guidelines in Belawa v. The State (supra) counsel argued that yours is not the worst of its kind and ought therefore to attract a wholly suspended sentence of between 6 months to 1 year only. Counsel was of the view therefore that an effective sentence of 5 months should be imposed which should be cancelled out by deduction of the 5 months spent awaiting trial in custody.
    

(iii) Submission by the State

27. Mr. Ruarri for the State acknowledged the guidelines in Belawa and your expression of remorse and left it to the court to exercise its discretion.
    

SENTENCING ISSUES

28. In deciding an appropriate sentence for you your counsel posed the following issues for the court to which the State made no objection.
    
    • (i) What is the appropriate head sentence to be imposed?
      
    • (ii) Should part or whole of the head sentence be suspended?
      
    • (iii) What conditions should be imposed?
      

THE LAW

29. Section 383A(1)(a) of Criminal Code provides for the offence of misappropriation as follows:
    

383A. Misappropriation of property.

(1) A person who dishonestly applies to his own use or to the use of another person—

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:—

(a) where the offender is a director of a company and the property dishonestly applied is company property; or

(b) where the offender is an employee and the property dishonestly applied is the property of his employer; or

(c) where the property dishonestly applied was subject to a trust, direction or condition; or

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

30. As seen from this provision the general penalty for this offence is a term not exceeding five (5) years but there are cases of aggravation which can attract the maximum of ten (10) years imprisonment. Those cases are enumerated under subsection (2) of s 383A.
    
31. When it comes to sentencing though, the courts are given wide discretion by s 19 of the Code. Section 19 (1) provides:
    

19. Construction of provisions of Code as to punishments.

(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided—

(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term; and

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(b) a person liable to imprisonment may be sentenced to pay a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment; and

(c) a person sentenced on conviction on indictment to pay a fine may be sentenced—

(i) to be imprisoned until the fine is paid, in addition to any other punishment to which he is sentenced; and

(ii) instead of being sentenced to be imprisoned until the fine is paid—to be imprisoned for a term (not exceeding the term provided for in Subparagraph (i)) if the fine is not paid within a specified period (which period may be extended as the court thinks fit); and

(d) a person convicted on indictment of an offence not punishable with death may—

(i) instead of, or in addition to, any punishment to which he is liable—be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) comply with such other conditions as the court may, in its discretion, impose; and

(e) ...; and

(f) when a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that—

(i) he shall appear and receive judgement at some future sittings of the court or when called on within a period specified by the court; and

(ii) if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposes.

(2) ...

(3) ...

(4) ...

(5) ...

(6) When a court sentences any person convicted under Subsection (1)(d) to a term of imprisonment, it may further order that –

(a) the offender be imprisoned for such portion of that term as it thinks proper; and

(b) the execution of the sentence for the remaining portion of the sentence be suspended on his entering into a recognizance, with sureties if so directed, in accordance with Subsection (1)(d) but further conditioned that, if called on, he shall appear and receive judgement in respect of his service of the portion of the sentence.

CONSIDERATIONS ON SENTENCE

1. Objective Considerations and Sentencing Trend
   

32. Cases of misappropriation are by far (I should think) the most prevalent of cognate offences of dishonesty, thus attracting a lot more judicial comment and pronouncements. In fact they make up a good number of both reported and unreported judgments of the National Court.
    
33. Wellington Belawa v. The State (supra.) remains the leading case though the scales of sentences provided there may now be out-dated. Regardless of that the guidelines still stand. Basically the Supreme Court held that in offences of dishonesty, involving trust, foremost among which is the crime of misappropriation the following sentencing guidelines should guide the courts.
    
    1. the amount taken;
    2. the quality and degree of trust reposed in the offender including his rank;
    3. the period over which the fraud or the thefts have been perpetrated;
    4. the use to which the money or property dishonestly taken was put;
    5. the effect upon the victim;
    6. the impact of the offences on the public and public confidence;
    7. the effect on fellow-employees or partners;
    8. the effect on the offender himself;
    9. the offender's own history;
    10. restitution; and
    11. those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his professional body or the police and the start of his trial; finally any help given by him to the police.
        
34. The court then provided the following scale of sentences which it said may be adjusted upwards or downwards according to the various factors outlined above:
    
    1. where the amount misappropriated is between K1 and K1, 000, a gaol term should rarely be imposed;
    2. where the amount misappropriated is between K1, 0000 and K10, 000, a gaol term of up to two years is appropriate;
    3. where the amount misappropriated is between K10, 000 and K40, 000, two to three years imprisonment is appropriate;
    4. where the amount misappropriated is between K40, 000 and K150, 000, three to five years imprisonment is appropriate.
       
35. Now what has been the sentencing trend over the years? The following table which I extrapolated from defense counsel's submission and for which I am grateful, provides a bird's eye view of how the courts have treated these offenders for this kind of offence.
    

36. All these cases have been decided after Doreen Lipirin v. The State (supra). In that case the appellant was convicted by the National Court after a trial on one count each of forgery, uttering and misappropriation of a sum of K6, 000.00. The court sentenced the appellant to 1 year each for the first 2 offences and 3 years for the misappropriation but suspended the sentence on condition she repays the money within two months.
    
37. The appellant did not comply with the condition and was sentenced to serve the full term. She appealed against both conviction and sentence. On Appeal the court, however, confirmed the conviction but allowed the appeal on sentence and reduced the sentence to 18 months.
    
38. The late Chief Justice Kapi CJ expressed the view that it was time to seriously consider whether offences of misappropriation of amounts of this kind [K6000] warrant custodial sentences. He believed that alternatives to imprisonment should be seriously considered to achieve restitution, retribution and rehabilitation without having to the resort to imprisonment.
    
39. In The State v. Dobi Ao (No 2) (2002) N2247 Kandakasi J. agreed with the Supreme Court that it was indeed time to consider alternatives to imprisonment for misappropriation cases but had this to say:
    

"But, that with respect, does not necessarily mean head sentences be drastically reduced. Instead, it means, there be sterner head sentences and then either have them wholly suspended or it be made part custodial and part non-custodial. This is to show the seriousness of the offence and to serve both the purposes of deterrence and rehabilitation of an offender. It would also give the offender a consideration to faithfully meet any conditions that might be imposed for suspending either in part or in whole the head sentence. The absence of a sanction for failing to meet such conditions might give no reason to the offender to comply."

40. Then in The State v. Gibson Haulai (2004) N2555, His Honour again said:
    

"...[J]ust ordering restitution without more in the form of a punishment would not serve any deterrence. Rather it would encourage people with criminal minds to misappropriate monies belonging to other persons, apply them to their own use interest free and made to repay only the principle amount under a restitution order. People with means to repay would hence be encouraged and get way with it. Hence, it is necessary that there be additional conditions attached to a restitution order to show the community's abhorrence of the commission of such offences and to help deter other would be offenders."

41. The statement of the Supreme Court in Doreen Lipirin should, in my humble view be understood in the context of that case particularly in regard to the amount involved which was a mere K6000, which, with reasonable and honest effort could have been easily repaid. But when what the Supreme Court said there is seen against the current surge and prevalence of this type offence and the increasing amounts of monies involved the need for deterrence and retribution as alluded to by Kandakasi J. becomes all the more compelling.
    
42. Hence, while there is no question that restitution is a must in cases of misappropriation or other offences of dishonesty for that matter, the courts must not be over indulgent towards seriously culpable offenders who misappropriate large sums of monies and abuse trust nor should it be blind to the alarming escalation of this type of offence both in government and in private enterprise. Where appropriate, high head sentences which can be either wholly or partially suspended ought to be imposed to deter offenders and those who would be similarly inclined. On the other hand cases involving small sums of monies and lesser degree of trust of course ought to be treated differently.
    

(ii) Your Offence – Subjective Considerations

43. Let me now consider the circumstances of your cases.
    
44. As I indicated earlier your lawyer submitted a long list of factors which he said mitigated your offence. However, only the following are in the strict sense can be said to be mitigating factors. These are:
    
    • (1) You pleaded guilty to the charge thus saving time and money for the State
    • (2) You are a first time offender
    • (3) You made full restitution to Ms. Tapiedi
    • (4) You co-operated with the police though rather belatedly
    • (5) You have expressed sincere remorse and have shown that you were genuine by making restitution
      
45. Despite that the other factors that counsel alluded to are also relevant as they relate to one of the factors listed in the Belawa guidelines – your personal history or antecedents. These are:
    
    • (1) You are now 25 years old but at the time of the offence you were only 21 years old.
    • (2) You are now married and have one (1) child who according to your affidavit is 6 months old.
    • (3) You are a member of the Anglican Church Resurrection Parish;
    • (4) You are educated up to Grade 10;
    • (5) Prior to the commission of the offence she has been working as a cashier in different shops for over 2 years but since your offence you have struggled seeking similar employment;
    • (6) You were in pre-trial custody for 5 months;
    • (7) You have been given opportunity to be employed however her prospective employer requires you to be free of this case.
      
46. Against all these I hold aggravating factors against you. You were in a position of trust which you abused and secondly you committed this offence in the course of your employment.
    
47. Now you may think of yourself as a mere cashier and, unfortunately some customers may hold the same view. However, as a cashier you were entrusted with a position that demanded a high degree of trust not only by your employer but by customers as well.
    
48. In the days when sales in shops were transacted with the use of cash and cheques the degree of trust reposed and demanded from cashiers may not have been that high as any untoward behaviour would have been easily detected. However, with the advent of instant electronic modes of paying for goods through facilities such as EFTPOS the trust reposed in cashiers and shop assistants has and must necessarily increase. This is because cashiers and shopkeepers are exposed to situations where they can easily defraud customers and their employers in much the same way as you did here.
    
49. Here you breached the trust reposed in you by your employer and demanded of you by customers such as Ms. Tapiedi. You were not charged with misappropriating your employer's property but your action nonetheless eroded his customers' trust and goodwill in his business.
    
50. I accept that you may have been desperate for money at the time and that yours was a one-off incident. In fact it was a crime of opportunity as your lawyer said. However, you have not told the court what you needed the money for.
    
51. I have considered the guidelines in Belawa and I find the existence of a high degree of trust reposed in you. Your offence would have eroded the mutual though unwritten trust that customers had for your employer.
    
52. Be that as it may, I accept that your mitigating factors outweigh the aggravating circumstances of your case.
    
53. I have also considered the sentences imposed in the cases referred to me. Except for The State v. Danny Yannam, those cases involved much larger sums of monies and higher degrees of trust hence the appropriately stiff sentences. Yours falls in the same category as Danny Yannam and a sentence similar to the one imposed there may be appropriate.
    

So what would be an appropriate head sentence for you?

54. The maximum penalty here is 5 years imprisonment. But as we have seen that is, of course reserved for the worst offence of this kind. Your offence, however, easily does not fall within that category. In fact going by the Belawa sentencing scale it falls in category 1 where incarceration would seldom be imposed.
    
55. This, however, does not mean that you should not be imprisoned. Like Danny Yannam your case involved a sum less than K1000 but there is one common factor – the existence of fairly high degree of trust which you both breached.
    
56. Any sentence that I will impose will serve to punish you personally. It must, however, also deter you personally and those in the same position as you were who may contemplate doing the same thing.
    
57. Finally the sentence will hopefully also reform or rehabilitate you. And it should go without saying that the sentence should be such that it will effectively serve the stated objects.
    
58. So viewing the circumstances of your offence objectively I would like to think that an appropriate head sentence should fall well below the mid-range of 2 ½ years.
    
59. Taking into account all those factors that I found to favour you I think that in the circumstances a head sentence of one (1) year would be appropriate. I therefore impose that sentence less the five (5) months of pre-trial custody. That should leave a balance of 7 months which you must serve.
    

Now the next question is whether to suspend the sentence.

60. Again I am guided by what other courts have decided in cases of this nature. The attitude has been to wholly or partially suspend sentences in keeping with what the Supreme Court said in Doreen Lipirin (supra).
    
61. Your case is one that is ripe for the exercise of discretion under s 19 of the Code. I therefore fully suspend the balance of your sentence on the condition that you will enter into a recognizance with a cash surety of K200.00 to keep the peace and be of good behaviour for a period of 1 year. I understand that you had paid bail. I order that your bail be converted or held over as surety for your good behaviour bond.
    
62. My orders are therefore as follows.
    
    1. You are sentenced to 12 months imprisonment with light labour
       
    2. Five (5) months are deducted for pre-trial custody period
       
    3. The balance of seven (7) months is, however, wholly suspended on the condition that you will enter into your own recognizance with a cash surety of K200, and to be of good behaviour and to keep the peace for a period of 12 months commencing today the 24th day of August 2012.
       
    4. It is further ordered that your bail be converted or held over as surety for your good behaviour bond.
       

The Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Defendant