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State v Genamo (No. 2) [2022] PGNC 333; N9805 (28 July 2022)

N9805

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 119 OF 2021

BETWEEN:
INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
VELE GENAMO
(No 2)

Waigani: Wawun-Kuvi, AJ
2022: 6^th, 28^th June and 28^th July

CRIMINAL LAW-SENTENCE-Convicted following trial-Stealing from employer, 372(1)(7) & (10) Criminal Code-Foreign currency in the sum of US$9, 760.00 equivalent to K31, 033.37-sentence of 3 years imprisonment

Cases Cited
State v Kissip [2020] PGNC 151; N8340
State v Jimu [2019] PGNC 238; N8046
State v Paul [2019] PGNC 270; N8026
State v Miria [2013] PGNC 37; N5102
Liprin v The State [2001] PGSC 11; SC673
Anis v The State [2000] PGSC 12; SC642
Wellington Belawa v The State [1988-1989] PNGLR 496
The State v Tardrew [1986] PNGLR 91

Legislation
Criminal Code Ch 262
Criminal Justice (Sentences) Act 1986

Counsel
Ms Lilly Jack, for the State
Mr Jeffery Kolowe, for the Offender

28^th July, 2022

DECISION ON SENTENCE

1. WAWUN-KUVI, AJ: Vele Genamo (the offender) is a 33-year-old male from Kelekapana Village, Abau, in the Central Province. In 2017 he would have been a familiar face to frequent international travelers at the Jackson International Airport. This was because he was employed with the Bank of South Pacific Limited (BSP) as the foreign exchange teller.
   
2. The offender is present in Court today because he stole from the Bank of South Pacific Limited US$ 9, 670.00 in cash. According to the exchange rates at the time, this amount equated to K31, 033.37.
   
3. As a foreign currency teller, he was given US currency amongst other currencies to exchange with customers. On 6 October 2019, he had a staring balance of US$ 11, 550.00. His supervisor also supplied him US$10, 000.00. After trading, the physical cash should have been US$ 17, 469.00. However physical cash was only US$7, 799.00. The difference of US$ 17, 469.00 from US$7, 799.00 was US$9 670.00. The accused was the sole custodian of the money. Several attempts were made by the offender’s supervisor and the Bank Manager to balance the offender’s account. The only conclusion of which the accused was convicted was that he had taken the money. And that he took it with an intent to permanently deprive the Bank of South Pacific Limited.
   
4. He was convicted following a trial on these facts and I must now decide the appropriate penalty.

The Charge

5. The offender was convicted following a trial for the charge of Stealing under section 372(1)(7) and (10) of the Criminal Code.

Penalty

6. The maximum penalty is 7 years imprisonment.
   
7. It is trite law that the maximum is reserved for the worst case: see Goli Golu v The State [1970] PNGLR 653.

Guidelines

8. While this is a stealing case, the sentencing factors as well as the guidelines in Wellington Belawa v The State [1988-1989] PNGLR 496 are appropriate.
   
9. I do accept that whilst guidelines assist, I am to decide this case on its own peculiar facts.
   
10. The guidelines in Belawa v The State [1988]^[1], have been applied over the years. They are:
    

“(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 K1,000 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.”

11. According to this guideline, the case would fall into the third category and attract imprisonment between 2 and 3 years.

Submissions

State’s submissions

12. Whilst the State concedes that the case falls within the third category of Belawa v The State(supra), it submits for a term of imprisonment between 3-5 years. The State contends that no part of the sentence should be suspended as the amount is significant, the offender has not made any restitution and has no means to restitute.
    
13. In mitigation it was submitted, that the offender is a first-time offender.
    
14. In applying the Belawa factors, the State submits that the amount stolen was significant, that the stealing occurred between some days, the offender used the monies for his own purpose, he had breached his employer’s trust, there was no restitution and the prevalence of the offence. The State has asked the Court to also consider the extent of the offender’s dishonesty.
    
15. The State refers the Court to the following cases:
    
16. State v Kissip [2020]^[2], Berrigan, J: The offender was convicted following a trial for four counts of stealing monies totaling K36, 140.00 under section 372(1)(7)(a)(10). The offender was employed by Bank of South Pacific Limited. She was responsible for rectifying dispensing errors at ATM locations. On four separate occasions instead of placing the monies for collection she stole the monies. The offender was sentenced to 4 years imprisonment which was wholly suspended with conditions.
    
17. State v Miria [2013]^[3], Gauli, AJ: The offender pleaded guilty and was convicted of one count of stealing from his employer. The offender was employed with the Bank of South Pacific Limited as an input operator. Using his position in the bank, he transferred K100, 000.00 from a customer’s account into another account. He then left the Bank and started withdrawing cash from several ATM machines. He also arranged with another teller and withdrew K15, 000.00 in cash. By the time, the stealing was discovered, the offender had withdrawn K28, 183.05. The Bank reimbursed the monies. The prisoner was sentenced to 4 years imprisonment. The sentence was partially suspended with conditions.
    
18. Unlike State v Kissip(supra), the findings in the offender’s case is that the offence occurred in one day. It was a one-off incident. As this was the offender’s first offence and there was nothing presented to demonstrate that the offender had prior issues with the Bank, I conclude that the degree of dishonestly was much lower than that of State v Kissip(supra).
    
19. I accept the submissions by the Prosecutor that State v Kissip is also disguisable in that the offender had means to restitute and was also pregnant at the time of sentencing.
    
20. State v Miria is distinguished in that the amount that was stolen was K100, 000.00. The Court was of the view that it fell within the fourth category of the Belawa guidelines.
    

Defence submission

21. The defence submit for a sentence of 3 years imprisonment to be wholly suspended. That when considering suspension, the Court consider that the offence is a non-violent offence and the adverse consequences of sending the offender to prisoner. The Court was invited to consider the sentencing principles in Liprin v The State [2001]^[4], Anis v The State [2000]^[5] and The State v Tardrew [1986] PNGLR 91 when determining an appropriate sentence.
    
22. In mitigation, it is submitted that the offender has no prior convictions, he expressed remorse, he has six young children and has lost his job because of the offence.
    
23. The defence concedes the factors in aggravation.
    
24. The defence also rely on the cases of State v Kissip [2020]^[6] and State v Miria [2013]^[7].
    
25. In considering the Pre-Sentence Report, it has been submitted that the Court consider that the offender’s family is willing to assist in restitution. That they will be able to so if given 12 months.

Comparative cases

26. I also consider the following cases as being comparable:
    
27. State v Jimu [2019]^[8], Berrigan J: The offender Agnes Jimu pleaded guilty and was convicted of one count of stealing and one count of arson. Her husband Charles Epei was convicted following a trial. K47, 700 cash was held as an exhibit in a safe at the Boroko Police Station. The offender set fire to the building which contained the safe to disguise the theft. Her husband was convicted of aiding and abetting her. The monies were recovered the same night. Each offender was sentenced to 4 years imprisonment for the charge of stealing.
    
28. State v Paul [2019]^[9], Berrigan J: two offenders pleaded guilty and were convicted of stealing electrical capable valued at K37, 633.18. The offenders broke into a warehouse and stole the cables. They were caught whilst their accomplices escaped. The cables were never recovered. The offenders were sentenced to 3 years imprisonment
    

Personal Antecedents

29. The offender is married and has six children. Both he and his wife are unemployed and are supported by his father and in-laws.
    
30. Both his parents are alive. His father is employed with Moore Printing while his mother is a housewife.
    
31. Three of his children attend school in the village and the other three are at home with the offender and his wife in Taurama.
    
32. The offender completed Grade 10 at Dells Salle Secondary School in 2007. In 2011 he obtained a certificate in accounting from the Innovative Training Centre. In 2012 he obtained a diploma in accounting with the International Training Institute.
    
33. He commenced employment with the Bank in 2013 and was employed up until his termination.
    

Pre-Sentence Report

34. The Probation Officer obtained information from the offender, his father, and the Bank Manager.
    
35. The offender maintained his innocence and stated that there was a balancing error, and he was not given the opportunity to rectify it. He has offered to use his Nasfund Savings but did not provide any details to the Probation Officer.
    
36. The offender’s father stated that he is aware of his son’s case. That he and his wife are willing to make restitution.
    
37. Alex Kuna after consultation with the Bank’s legal division informed that the Bank has paid the money and that the offender did not reimburse the money. The bank also considers that the offender has no means to make restitution. It is the Bank’s view that the Court decide an appropriate sentence.

Allocutus

38. The offender still maintains his innocence. He apologies to the Court and to his family and to the Bank. He pleads for leniency considering his family. He asks for time to make repayments.
    
39. I do not accept that the offender is remorseful. He has continued to maintain that there was a balancing error regardless of the Court finding that monies were stolen, and that he was responsible.

Aggravating Factors

40. The offender applied the monies to his own use, the monies belonged to his employer, he has not expressed any remorse for his actions, he has not made any restitution, the amount taken was significant and the offence is prevalent.

Mitigating Factors

41. In mitigation is that the offender is a first-time offender.

Consideration:

42. Dishonesty offences are prevalent in our society. Especially by employees. Whilst some businesses like the Bank of South Pacific can recover from the theft, others sadly do not survive the continuous theft from employees. Whilst we read in the papers above corruption by public officials, many everyday fathers and mothers like the offender whether tempted by greed, selfish desires, or family pressures are resorting to stealing from their employers.
    
43. Whilst I accept that this was a one-off incident and that it occurred only once, the amount taken was significant and there was a serious breach of trust.
    
44. In considering the peculiar circumstance of this case, the guidelines, the sentencing trends, the mitigating and aggravating features and all the foregoing matters, the offender is sentenced to a term of imprisonment of 3 years.
    
45. I have considered the principles in the cases of Liprin v The State [2001]^[10], Anis v The State [2000]^[11] and The State v Tardrew [1986] PNGLR 91 and am of the view that they do not support suspension in the offender’s case.
    
46. The offender has been convicted of stealing a sum of USD9, 670.00 cash monies equivalent to K31, 033.37. This is a significant amount of money in which the offender has no means to restitute. He has six young children, an unemployed wife, and no permanent residence in the city. He relies heavily on his extended family and has no tangible plans to gain employment. The Court cannot place the burden on the offender’s parents who have their own commitments, and no doubt are already burdened from catering for their adult son, his wife, and their grandchildren.
    
47. He continues to maintain that it was a balancing error and refuses to accept the decision of the Court in convicting him. Rehabilitation would be an option if there was a genuine expression of remorse.
    
48. The offender is 33 years old and there is no evidence of any illness. Imprisonment would not cause him an excessive hardship.
    
49. There are also no views from the offender’s community.
    
50. Suspension is not appropriate for the foregoing reasons.

Orders

51. The Orders of the Court are as follows:
    1. The Offender is sentenced to 3 years imprisonment.
    2. The Offender shall serve the term of his imprisonment at the Bomana Correctional Institution in light labor.
    3. Bail is refunded.
       

___________________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Defence

^[1] PGSC 6; [1988-89] PNGLR 496 (1 December 1989)
^[2] PGNC 151; N8340 (5 June 2020)
^[3] PGNC 37; N5102 (21 March 2013)
^[4] PGSC 11; SC673 (9 November 2001)
^[5] PGSC 12; SC642 (25 May 2000)
^[6] Refer to note 2
^[7] Refer to note 3
^[8] PGNC 238; N8046 (10 October 2019)
^[9] PGNC 270; N8026 (20 September 2019)
^[10] PGSC 11; SC673 (9 November 2001)
^[11] PGSC 12; SC642 (25 May 2000)