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State v Aitowa [2013] PGNC 260; N5637 (9 October 2013)

N5637

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 188 OF 2013

THE STATE

V

DEPHANY AITOWA
Accused

Lae: Murray J
2013: 9 October

CRIMINAL LAW – sentencing – misappropriation – offence committed while been secretary of the victim school – offence committed contrary to s383A of Criminal Code Act – offender sentenced to rising of the court – offenders bail money of K500 forfeited to repayment of stolen money

Cases Cited

Belawa v The State [1988-89] PNGLR 496

Counsel

Ms. C. Sopa, for the State
Mr. J. Unido, for the Accused

DECISION ON SENTENCE

9 October, 2013

1. MURRAY, J: Dephany Aitowa, this is a Ruling on your sentence. On 16 April 2013, I convicted you on One (1) Count of Misappropriation of money belonging to Lanokapi Lutheran Primary School, after you pleaded guilty. The total amount you took from the school was K990.00.

2. The facts as stated by the State Lawyer and put to you and which you admitted to are these: On two different dates in August 2011 and one date in October 2011, whilst you were an employee of Lanokapi Primary School, holding the position of a Secretary, and having access to the school's BSP cheque account cheque book, you wrote out three different cheques for cash payments with three different amounts totalling to K990.00. Each of those cheques were then signed by yourself forging the signatories of the authorised signatures to that account and with the help of another person working in the bank, the cheques were presented, cashed and paid to you, which you used for your own purposes.

3. In your record of interview, when asked what you spent the money on, you said, you had rentals and water bills to pay and with a salary of K200.00 per fortnight you were not able to meet your everyday needs and so you took the money from the school to settle the bills.

4. Irrespective of the purpose of taking the money, what you did is a crime under s 383A of the Criminal Code Act. The penalty imposed under this section to which you have been convicted on is five years imprisonment. However, it is not mandatory that I impose that. I have a discretion under s 19 of the Criminal Code Act. This means I can impose a sentence up to the maximum or less or even a non-custodial sentence. Whatever I decide to be appropriate must be decided on proper consideration of applicable case precedents and the circumstances surrounding your case.

5. A Supreme Court decision in the case of Belawa v The State [1988-89] PNGLR 496 was cited by both your lawyer and the lawyer for the State, as the authority I should consider in determining the appropriate sentence for you.

6. You lawyer submitted that I should consider the sentencing guideline in that Supreme Court judgment and taking into account your mitigating factors and your reason for committing the offence, I should impose a non-custodial sentence by placing you on good behaviour bond with the condition that the bail money of K500.00 be forfeited as restitution for the school.

7. Alternatively, your lawyer submits that you have suffered enough and so I should let you off with a warning. Mr. Waine of Counsel for the State in response essentially agreed that you have suffered enough and submitted that I should not impose a sentence with a aim to punish you but rather it should be one to rehabilitate you. He then proposed I impose a sentence, the term of which should run until you repay the school K500.00 which is the balance owing.

8. I agree with both lawyers that the decision in the Supreme Court case of Belawa is still good law and is applicable to your case. In that Supreme Court judgment, the Supreme Court set out the sentencing guidelines/principles for an offence of this sort. What you have been convicted on. Where the amount of money misappropriated is under K1,000.00, the Supreme Court in Belawa held that a gaol sentence should rarely be imposed. I see no reason to depart from this principle, and will apply it to your case.

9. In your case, the amount you took from the school was K990.00. Applying the principle in Belawa, the question I ask myself is, is your case one that requires a jail sentence?

10. The Supreme Court in Belawa did not set out the type of cases or give examples of cases that fall into category which warrants jail term. In the circumstances, it is left to individual Courts to determine each individual case on its own.

11. In your case, you misappropriated K990.00 from the school that employed you. You say you took the money because you needed the money to pay rent and water bills and so when you got the money you spent it on "bills", but you accepted that the reason for taking the money is no excuse for what you have done and you apologised for that and not only did you apologise which you did in Court, but prior to that, you took steps to make right your "wrong doing" by repaying what you took. Two instalment payments to the school of K290.00 and K200.00 have been made. That to me is two strong factors in your favour:

1. Genuine remorse; and
2. Instalment repayments only indicate willingness to make restitution.
   

12. In addition you pleaded guilty to the offence and not only did you plead guilty but you also pleaded guilty very early and you are a first time offender. All of these are factors in your favour. As to the reason why you did what you did, as a mother, I cannot ignore the struggle a single mother as yourself go through, where there are children at school, accommodation rentals to be paid, water bills to be paid, power bills, etc and food for daily up keeping and you only earn a mere K200/fortnight. So it is not difficult to see why you stole from the school. But that still does not excuse you for the wrong you have done which is still a crime.

13. That in mind, I note however that, you have accepted that what you did is wrong and have lived with the embarrassment since, and in spite of that, you kept your head up, found another job and have commenced restitution. Where restitution is made, in my view an offender is not likely to repeat the offence.

14. I also note that you did not use the money for yourself personally. For instance, to go partying, buy yourself clothes, do your hair ..., you used it for life's basic necessities: house rental and water bills.

15. In all those circumstances, I do not find that your case is one that warrants a jail sentence. As submitted by both lawyers, you have suffered enough and so I will not imprison you. Instead I will sentence you to the Rising of the Court with a warning that, under no circumstances are you to commit another offence like this again. If you do and come back to Court, you will be severely punished.

16. I also make the Order that your bail money of K500.00 be forfeited and paid to Lanokapi Lutheran School forthwith.
___________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused