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State v Miria [2013] PGNC 37; N5102 (21 March 2013)

N5102

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 800 OF 2012

THE STATE

V

NEVILLE MIRIA

Waigani: Gauli AJ.
2013: 14, 18, 21 March

CRIMINAL LAW – Pleaded guilty – Sentence – Criminal Code Act – sections 372(1)(7)(10) – Stealing – Stealing from an employer – Mitigating factors – Entered early guilty plea – Saves time and costs – First time offender – Showed remorse – Aggravating factors – Stole substantial amount of money – Stole from an employer by unauthorized transfer of funds from one's account to another person's account – Was a person in possession of trust – Sentenced to 4 years imprisonment – Sentence partly suspended and placed on good behaviour with conditions

Cases Cited:

The State v Manga Kinjip [1976] PNGLR 86
Wellington Belawa v The State [1988-89] PNGLR 496
The State v Robert Kawin (2001) N2167
The State v Roselyn Waiembi [2008] PGNC 240; N3708
The State v Lukeson Olewale (2004) N2758
The State v Unem Denum (Unreported National Court judgment; CR. 525 of 2012)
The State v Eliakim (2007) N3190
The State v Johnson Bale (2004) N2626
The State v Louise Paraka (2002) N2317
The State v Steven Luva (2010) N3909
The State v Bygonnes Tuse Nae (1996) N1474
The State v Vurmete (2000) N2008
The State v John Akoko (2001) N206
Henry Rakatani v The State [1976] PNGLR 556; SC166

Counsel

Mr. A. Bray & Miss Eva Ortlauf, for the State
Ms. Kesak, for the Accused

SENTENCE

1. GAULI AJ: The prisoner Neville Miria was indicted on one count of stealing from his employer the Bank of South Pacific Limited, charged under Sections 372 (7) (10) of the Criminal Code Act. He entered a plea of guilty to the charge at an earliest opportunity. His early guilty plea saves time.
   

BRIEF FACTS

2. The prisoner Neville Miria was employed by the Bank of South Pacific Limited (BSP) since 2008 as an Input Officer. His was an Input operator to input cheques that came into BSP Branches, input Salaries for customers through CBS and general administration duties.
   
3. On 7th July 2011, the prisoner transferred an unauthorized amount of K100,000.00 from the Pacific Industries Limited account number 1000583665 held with the BSP Branch to an account number 1001724273 under the name of Stanley Wita, also held with the BSP Branch, without the consent of the Pacific Industries Limited.
   
4. The prisoner after making the transaction abandoned his place of work in Port Moresby and he flew to Madang the next day. Between the 8th and 11th of July 2011, while in Madang, he made several withdrawals from various ATM and EFTPOS outlets to a total amount of K13,201.80
   
5. On the 11th July 2011, the prisoner called and arranged with one Graham Mursau, a teller, with the BSP Bank, Madang Branch and withdrew K15,000.00 all in cash. The Pacific Industries Limited noticed some deficits in their balance and made inquiries with the BSP bank. The bank found that there were discrepancies in the transfer from their account. On the 12th July 2011 the BSP bank reimbursed the K100,000.00 to the Pacific Industries Limited. Upon conducting an investigation, the prisoner was arrested and charged for stealing. At the time the prisoner was the employee of the BSP bank and the property he stole belongs to his employer the BSP bank. The BSP bank has lost K28,183.05 as a result.
   

ACCEPTANCE OF GUILTY PLEA

6. The law is well established in The State v. Manga Kinjip [1976] PNGLR 86, that a Judge should only accept a plea of guilty if it is made in plain and unmistakable terms. I have read the contents of the depositions from the Committal Court including the record of interview and the statements of the seven witnesses who are all the employees of the BSP bank both in Port Moresby and Madang branches. The prisoner made admissions in the record of interview, particularly in his answers to Questions: 17 – 26 & 28 - 31. I am satisfied that it is safe to accept the plea of guilty as the prisoner made his plea in plain and unmistakable terms. And I formally convict him on a charge of stealing from his employer.
   

THE RELEVANT LAW

7. The law applicable for stealing is Section 372 (1) of the Criminal Code Act. It carries a maximum penalty of three (3) years imprisonment for the offence of stealing simpliciter. For the other instances of stealing, including stealing by servants or employees are provided in Subsections (7) & (10) of section 372 of the Criminal Code Act, which carry a maximum term of imprisonment not exceeding seven (7) years. The relevant Subsections of Section 372 are set out as below:
   

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.

(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 employment,

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.

8. The case of Wellington Belawa v. The State [1988-89] PNGLR 496 sets out the sentencing tariffs or guidelines on dishonesty but those sentencing guideline are also applicable to offences such as stealing. The sentencing tariffs in Wellington Belawa are set out as below:
   
   1. Between K1.00 and K1,000.00: a goal term should rarely be imposed.
   2. K1000 and K10,000: a goal term of 2 years is appropriate.
   3. K10,000 and K40,000: 2 – 3 years imprisonment.
   4. K40,000 and K150,000: 3 – 5 years imprisonment.
      
9. The present case involves a sum of K100,000.00 thus it falls within the category four (4) of Wellington Belawa's case. It will attract a imprisonment term of between 3 to 5 years.
   

PRIOR CONVICTIONS

10. The prisoner has no prior convictions.
    

ALLUCUTUS:

11. Before sentencing, the prisoner in his allucutus said:
    

"I am sorry for what I have done. I say sorry to the BSP Bank and to my family. I am a first time offender. I was frustrated at work that led me to commit this offence. I only benefited with a sum of K28,183.05, the rest of the money was recouped by the Bank. I ask the Court for leniency".

ANTECEDENT REPORTS

12. The prisoner Neville Miria is 26 years old single male from Waima village, Bereina in the Central Province. He is the second eldest of five boys from the family. The details of his educational qualifications and employment history are as stated in the Probation Officer's Means Assessment Report below.
    

MEANS ASSESSMENT REPORT (MAR)

13. The means assessment report has been provided by the defence to assist the Court in its decision on an appropriate sentence and to determine whether or not sentence should be suspended. The MAR was prepared by the Probation Officer. I summarize the Means Assessment Report of Neville Miria as below:
    

Age: 26 year old male.

Family background: Mixed parentage of Central and Madang Provinces. Father from Waima, Kairuku District in the Central province.

Marrital Status: Single father with a 2 year old daughter from Gabagaba woman through de-facto relationship. Daughter and mother reside in Gabagaba village.

Education: Completed Grade 10 at Tokarara High School in 2002. He obtained a Certificate of Business Studies in 2006 from Hohola Youth Development School.

Employment: Attached to Air Niugini HRD branch in 2006 for 4 months on job experience. He was attached to Pacific Industries Limited as Salesman on job experience for 6 weeks in 2006. Employed by Bank of South Pacific Limited since 2008 as Input operator prior to been caught up with this offence in 2011 and he was terminated.

Financial Status: Currently unemployed. He sustains his living by street selling basic stuff such as packets of rice and tinned fish. He makes about K150.00 a day or between K200.00 to K400.00 a week. He also receives financial assistance from parents and his elder brother when in really need.

Plans for Restitution: He does not have any cash at hand. But he will ask his elder brother Nathan Miria, who is a gold buyer in Wewak. Nathan Miria when contacted by Probation Officer, said he will pay K1,000.00 to start with if Court allows restitution. Prisoner intends to seek employment within two years and the family members to support him repay the money.

Recommendation: The Probation Officer is reluctant to recommend restitution due to the reasons that the amount of money stolen is considered too much and the prisoner has inability to repay.

MITIGATING FACTORS

14. The factors that favours the prisoner are that:
    
    • He has no prior convictions. Young first time offender but not a youth.
    • He entered an early guilty plea that saves time and costs to everyone.
    • He showed remorse for the wrong he has done.
    • He cooperated with police.
      

AGGRAVATING FACTORS

15. The features that disadvantages the prisoner are that.
    
    • The prisoner stole from his employer.
    • The prisoner was in a position of trust and he abused that trust.
    • He debited the stolen money from someone's account to the account of another person.
    • Immediately after making the transactions, he discontinued his employment with the BSP bank in Port Moresby then went to Madang.
    • The amount stolen (K100,000.00) was substantial.
    • The prisoner spent K28,183.05 from total money stolen for his own use.
    • Stealing by an employee from the employer is a prevalent offence.
      

PRISONER'S SUBMISSION

16. The defence referred to the case of Wellington Belawa v. The State [1988-89] PNGLR 496 and he submitted that the present case falls within Category 3 of Wellington Belawa which attracts a term of imprisonment between 2 - 3 years.
    
17. The counsel referred to a number of cases. In the case of The State v. Robert Kawin (2001) N 2167 and The State v. Timothy Tio (2002) N2265, his Honour Kandakasi J, said that modification can be made in the sentencing principles in Wellington Belawa (above).
    
18. In The State v. Roselyn Waiembi [2008] PGNC 240; N3708, the offender while employed as a clerk, stole K15,000.00 over a period of three years from his employer the Kunai & Company Lawyer. His honour David J, in applying the Wellington Belawa (supra), sentenced her to three years but wholly suspended it with condition to restitute the full amount. His Honour took into account of the prisoner's mitigating factors, his financial position and the willingness of his family for restitution. He ordered K1,000.00 of his bail towards part payment of restitution and the balance to be paid within two years.
    
19. In The State v. Lukeson Olewale (2004) N2758, on plea of guilty for uttering a cheque of K40,000.00 of the Fly River Provincial Government which he deposited into his own account and for misappropriation of K38,000.00 by withdrawing from the said amount of K40,000.00 immediately after he made

the deposit. He used K12,000.00 for himself while the balance was shared amongst the fellow conspirators and others. He was sentenced to three (3) years for uttering and four (4) years for misappropriation, the sentences were made concurrently but wholly suspended with conditions.

20. In The State v. Unem Denum (Unreported National Court Judgment; CR. 525 of 2012), the offender uttered K44,600.00 by falsely pretending to be an officer from Abau District and the BSP bank released the money to him. He was sentenced to three (3) years imprisonment.
    
21. Counsel submitted the Court to invoke s.19 of the Criminal Code and imposed a sentence between 2 – 3 years imprisonment to be wholly suspended with conditions that should include:
    
    1. The prisoner to fully restitute the amount of K28,183.05.
    2. The restitution be made within 2 years.
    3. Half of the amount be paid within six month, the balance be completed over a span of 2 years.
       
22. The Means Assessment Report (MAR) should benefit the prisoner. But due to lesser time given, the Probation Officer was unable to contact and interview all the family members to complete the MAR therefore the Report is quite shallow.
    
23. Defence submitted that the Court should consider the case based on its own facts and circumstances. Defence counsel is mindful that this is a prevalent offence. There should be leniency on the prisoner as the prisoner is a young first time offender.
    

STATE'S SUBMISSION

24. The State conceded that the prisoner only used K28,183.05 of the total amount while the balance was recouped by the Bank. But the fact is that he stole K100,000.00. The case of The State v. Unem Denum (above) is not relevant to the present case since the offender did not steal from the employer.
    
25. The State submitted that the sentencing guidelines in Wellington Belawa(supra) are also applicable on charges of stealing in determining the appropriate sentence to be given. This view is supported in the case of The State v. Paraka [2002] PGNC 29 by Justice Kandakasi and in The State v. Waiembi [2008] PGNC 240 by Justice David. In the present instance, the amount stolen was K100,000.00 thus a term of 3 – 5 years imprisonment is appropriate.
    
26. In The State v. Eliakim [2007] N3190, the accused pleaded guilty to one count of conspiracy to defraud and one count of stealing money from his employer, the total amount involved being K3,369.01. He was a field supervisor in a company and he planned with others and submitted false attendance sheets for ghost employees and obtained pay cheques, over a period of three months until he was caught. His Honour Cannings J, held the starting point for stealing from an employer by an employee is 3 years 6 months. The accused was sentenced to 18 months imprisonment on each counts to be served concurrently less time in custody.
    
27. In The State v. Waiembi (supra), the accused was sentenced to three (3) years imprisonment less time in custody, when he pleaded guilty of stealing K15,000.00 from his employer. She stole the money by including extra monies in the Cheque Requisition Forms every payday Friday when she took them for verification and endorsement. The balance of the sentence was wholly suspended with conditions that she make initial repayment of K1,000.00 and the balance be repaid over a period of two years.
    
28. And in The State v. Johnson Bale (2004) N2626, Sevua J, as he then was, sentenced the accused after a trial to four (4) years imprisonment for stealing K78,074.03 from his previous employer. That was a substantial amount which was not recovered. The accused was in a position of trust and he abused that trust.
    
29. The State submitted that in considering the circumstances of this, stealing by an employee from an employer is a prevalent offence. The aggravating factors far outweighed the mitigating factors. Therefore a sentence between 3 years to 5 years should be appropriate to deter other future like-minded people who might choose to commit such offence. The prisoner does not have the ability to restitute the portion of K100,000.00 that was yet to be recovered, the sum of K28,183,05.
    

DECISION OF THE COURT

30. The prisoner stole a substantial amount of K100,000.00 from his employer, the BSP bank. The case of Wellington Belawa v. The State (supra) involved the offence of dishonestly applying monies of the employer. It was suggested by His Honour Kandakasi J, in The State v. Louise Paraka (2002) N2317, that sentencing guidelines in Wellington Belawa (supra) should also apply to cases involving misappropriation, forgery, obtaining goods by false pretence, fraud, and stealing with necessary modification in the absence of any authority to the contrary. I will apply the sentencing tariffs in Wellington Belawa (supra).
    
31. The Wellington Belawa case was decided in 1988 and since that decision, cases of stealing by employees have become quite prevalent. The sentences imposed do not seem to have any deterrent effect at all. In the recent years the sentence has being increasing for the offences of stealing due to its prevalence. The increases in sentences for stealing are cited in few of the following decided cases.
    
32. In The State v. Timothy Tio (2002) N2265, Justice Kandakasi, sentenced the accused to five (5) years imprisonment for stealing a chainsaw valued at K8,000.00 from his employer which he sold it for K3,000.00 to a third party.
    
33. In The State v. Steven Luva (2010) N3909, Justice Lenalia sentenced the accused to 4 years 5 months on 13 counts of stealing totalling K4,618.20 from his employer the PNG Power Limited. He was ordered to serve 12 months while the balance of 3 years 5 months was suspended.
    
34. In The State v. Bygonnes Tuse Nae (1996) N1474, Sawong J, sentenced the accused to 4 years imprisonment on 19 counts of stealing totalling to K103,000.00. And in The State v. Vurmete (2000) N2008, His Honour Gavara – Nanu J, sentenced the accused to 3 years 6 months for stealing K41,000.00. In The State v. John Akoko (2001) N206, His Honour Injia J (as he then was), imposed a sentence of 5 years for stealing K7,000.00 which was part of the K180,000.00 recovered by police in an armed robbery case. The accused was a policeman.
    
35. In Henry Rakatani v. The State [1979] PNGLR 556; SC166, on appeal against his sentence of 2 years for stealing K1,263.49 of the Government money while employed as a public servant, the Supreme Court in confirming the sentence, held that:
    

(4) Offence of stealing as a servant calls for severe public deterrence as well as marked deterrence against repetition by the offender.

36. The case of Henry Rakatani (above) was decided before the case of Wellington Belawa. However the significant of Henry Rakatani is that the sentence must have public deterrence. In Wellington Belawa, the Supreme Court said that the factors that may be taken into account when considering sentence includes:
    
    1. The amount taken.
    2. The degree of trust in the offender.
    3. The period over which the offence was perpetrated.
    4. The use to which the money was put.
    5. The effect upon the victim.
    6. The effect upon the offender himself.
    7. The offenders own history.
    8. Restitution.
       
37. I shall consider each of these factors in determining what would be the appropriate sentence to impose on the prisoner in the present case.
    
    1. The amount taken.
       

The actual amount stolen by the prisoner was K100,000.00 and he has been indicted for the said amount. The amount is quite substantial.

2. The degree of trust.
   

The prisoner was employed with the Bank of South Pacific Limited as a Input Clerk. He was a person of trust in the highest degree.

3. The period over which the offence was committed.
   

It took only a day to do the transaction in transferring the funds from someone's account to another person's account. That simply show his expertise and experience. After the transfer of the funds, he left his place of employment and he went to Madang. And over the next five days he withdrew monies from the account of that other person to which he transferred the funds.

4. The use to which the money was put.

The prisoner put the money to his own use.

5. The effect on the victim.

The BSP bank has recovered 70 % of the stolen money but the Bank remains to be poorer with K28,183.05 which remains to be recovered.

6. The effect on the offender.

The prisonmer is well educated. He has lost his valuable employment with the bank as a result of his own doing which he brought it upon himself.

7. The offender's own history.

That can be referred to his antecedent report and the means assessment report.

8. Restitution.
   

The amount of K28,183.05 is yet to be recovered. The prisoner has made no attempt to restitute the said outstanding amount. The amount of K71,816.05 was recovered simply because it was still kept in the account of the other person. Had the full amount been withdrawn, it would have been difficult to recover.

38. From these given facts, I consider that this case falls in the worst category of the cases of stealing. That is because the prisoner has pre-meditated a scheme on where and how he would take the money and where and how he would access the said money for his own use.
    
39. I do agree with the State that this case falls within the category four (4) of the tariff recommended in Wellington Belawa since the actual amount he stole was K100,000.00 though the prisoner only effectively used K28,183.05. I do not accept the submission by the defence that this case falls in category three (3) of Wellington Belawa. The term "stealing" is defined by Section 365 (2) & (3) of the Criminal Code in these terms:
    

365 Definition of stealing

(2) ...... a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(3) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise deals with it by some physical act.

40. By this definition, when a person moves a thing capable of being stolen from point A to point B, that would include debiting of funds from one's account to the account of another without the knowledge and or consent of either of them, would amount to stealing whether he benefited from it or not.
    
41. The prisoner admitted that he debited K100,000.00 from the account belonging to the Pacific Industries Limited into the account belonging to one Stanley Wita and he began to withdraw from Stanley Wita's account for his own use. There can be no doubt that the prisoner did actually steal K100,000.00 and not just K28,183.00. Thus the appropriate sentencing tariff applicable in this case is the category four (4) in Wellington Belawa (supra). And that is a sentence attracting between 3 to 5 years.
    
42. Stealing by servants or employees from the employers are becoming so prevalent that it calls for stern custodial sentences to serve as public deterrence. An employee who come up with a scheme to steal from his employer and he put such scheme into effect must not expect leniency from the court. Accordingly I sentence the prisoner to a term of four (4) years imprisonment in hard labour.
    
43. The prisoner was apprehended by police on the 3rd of July 2012. He was remanded in custody until sometime before the 16th August 2012 when he appeared from K1000.00 bail. Time in custody of one month will be deducted, pursuant to section 3 (2) of the Criminal Justice (Sentences) Act 1986.
    
44. In the light of the prisoner's aggravating factors that he was a person of trust and he has breached that trust. However in considering his mitigating factors, in that he has no prior convictions and he has entered an early guilty plea and the fact that the Bank has recouped 70 % of the money, I would exercise my discretion under Section 19 of the Criminal code Act to partly suspend the sentence with conditions. I feel inclined not to wholly suspend a sentence: The State v. Steven Luva (2010) N3909 followed.
    
45. The prisoner must first serve 1 year 11 months of the sentence in custody. Upon completion of that term in custody, he be released and the following conditions will apply:
    
    1. He be placed on good behaviour bond for the period of the suspended sentence of 2 years.
       
    2. He must keep the peace and be of good behaviour.
       
    3. He must reside at Erima in the NCD and nowhere else except by written approval of the National Court.
       
    4. He must not leave the NCD without the approval of the National Court.
       
    5. He must restitute K28.183.05 to the BSP bank within 18 months from the date of his release from custody.
       
    6. He must report to Waigani National Court Registry every second Monday of each month between 9.30am and 3.30pm and sign the register book.
       
    7. If he breaches one or more of these conditions, he will be arrested and brought to Court to explain why he should not be taken back to custody to serve the balance of his suspended sentence.
       

SENTENCE:

46. Having said all that, this Court sentences Neville Felix on one count of stealing as follows:
    

Length of sentence imposed - 4 Years IHL.
Time in custody deducted - 1 month.
Resultant length of sentence to be served - 3 Years 11 Months.
Time to be served in prison - 1 Year 11 Months.
Amount of sentence suspended - 2 Years with conditions.

Sentenced Accordingly.

_________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused