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Public Prosecutor v Doriri [2011] VUSC 2; Criminal Case 118 of 2010 (15 February 2011)

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 118 of 2010

PUBLIC PROSECUTOR

V

JOSETTE DORIRI

Coram: Justice D. Fatiaki

Counsel: Mr. T. Karae for the State
Mr. E. Molbaleh for the Defence

Date of Sentence: 15 February 2011

SENTENCE

1. On 7 December 2010 the Defendant was convicted after she pleaded guilty to offences of Theft and Misappropriation involving the same victim Tropical Nectar and the same amount VT2,371,535. Both offences are contained within the same section of the Penal Code namely sections 125 (a) and (b) respectively and should have been charged in the alternative. For sentencing purposes, the offences will be treated as such.
   
2. The facts of the case are that the defendant was employed by Tropical Nectar as a sales representative from 2003 until her eventual dismissal in November 2007. As a sales representative she was paid VT12,000 a week and her responsibilities included book-keeping, accounting and doing the banking for her employer. Over a period of 2 years, between December 2005 and November 2007, the defendant stole small amounts of cash whenever she did the banking for her employer. Over time the amounts stolen by the defendant gradually increased and by the time of her dismissal the total amount the defendant had stolen from her employer was VT2,371,353.
   
3. Although her employer's suspicions were aroused fairly early in the course of the defendant's criminal activities, confirmation was difficult owing to the apparent "loss" of 3 computers which contained the company's accounting records.
   
4. In March 2008 the defendant was finally interviewed by the police and she admitted committing the offences between 2005 and 2007 by depositing less than the actual takings during her weekly bankings for her employer. She also admitted that she had spent her ill-gotten gains on electricity and water bills; foodstuff; clothing; a TV screen, a stove from Boral Gas; numerous items of personally jewellery and accessories from Prouds Dutyfree Store; and 2 Nikon digital cameras from Downtown Dutyfree Store. She also paid for building materials which were used to erect a 2 bedroom house.
   
5. Given that admission it is difficult to understand why charges were not laid until 28th September 2010 ie. 2 years and 6 months after her confession.
   
6. At the time of her conviction the Court ordered a pre-sentence report and a compensation report to be prepared on the defendant. I am grateful to the probation service for its assistance in that regard. The compensation report and financial statement clearly indicates that the defendant has no disposable income and her offer to pay VT5,000 per month must be viewed in that context. The owners of the complainant company prefer however to let the Court deal with the matter as a criminal case.
   
7. I turn next to consider the defendant's personal circumstances disclosed in her pre-sentence report. The Defendant is 32 years of age, married and the mother of three young children aged between 10 years and 9 months. Although she only attended primary school up to class 6, she was able to further her studies at the Vanuatu Institute of Technology where she obtained a Certificate in Accounting. This enabled her to obtain paid employment at various commercial companies where she worked as a receptionist and as a sales representative. At the time of committing the offences the defendant was paid a fortnightly wage of VT12,000. Her husband was then unemployed.
   
8. To the probation officer the defendant explained that she had committed the offences "... because of the pressure that she had from her family welfare issues and her low wages and at that time her husband was unemployed." She is ashamed of her actions and expresses remorse for what she has done. She promises never to offend again. She had offered to repay the stolen monies but her employer declined the offer.
   
9. The defendant is a first offender and has consistently admitted her wrong-doing firstly to the police and then in her guilty pleas in court. The defendant has offered to repay the stolen money but has no real prospects of doing so in the absence of any regular income source. I am also concerned at the inordinate length of time it has taken to bring this case to trial since it was first reported in November 2007 i.e. over 3 years ago.
   
10. The former Chief Justice Vaudin d'Imecourt in PP v. Keith Mala [1996] VUSC 22 typified the type of case that comes before the courts when he said:
    

"The type of case with which we are concerned is where a person in a position of trust, for example, an accountant, solicitor, bank employee, manager of a company or public servant, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of a sizeable sum of money. He will usually, as in this case, be a person of hitherto impeccable character ..."

11. Later his Lordship noted the importance of the amount taken in the fraud or theft as a primary consideration in sentencing when he said:
    

"... The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide. Where the amount involved cannot be described as small but less than 1 million vatu or thereabouts, terms of imprisonment ranging from the very short up to 18 months are appropriate. Cases involving sums of between 1 million and 5 million vatu will merit a term of about two to three years imprisonment. Where greater sums are involved, for example those over 10 million vatu, then a term of three and a half years to four and a half years would be justified." (my underlining).

12. Finally his Lordship conveniently listed the additional factors "... to which the Court will no doubt wish to pay regard in determining what the proper level of sentence would be", namely:
    

"(i) the quality and degree of trust reposed in the offender including his rank;

(ii) the period over which the fraud or the thefts have been perpetrated;

(iii) the use to which the money or property dishonestly taken was put;

(iv) the effect upon the victim;

(v) the impact of the offences on the public and public confidence;

(vi) the effect on fellow employees and partners;

(vi) the effect on the offender himself;

(viii) his own history;

(ix) those matter of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where as sometimes happens, there had been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police."

(my underlining for emphasis).

13. I do not propose to deal with each of the factors individually, but there can be no doubting in my mind that the position of sales representative in the employer company was an important position where the defendant was entrusted with the collection, receipting and banking of company takings, in other words, with dealing in cash, and where it might be said, temptations would be greater than in other positions that did not require the handling of cash. Undoubtedly a high degree of honesty and integrity is required in such a position and the defendant has clearly and intentionally betrayed her employer's trust in her, not once, or for a short time, but regularly, and with ever increasing amounts over an extended period of time.
    
14. The defendant's theft was not an isolated incident of an otherwise honest employee succumbing in a moment of weakness, to the temptation of handling money. The defendant's theft was calculated, persistent, and systematic and constituted a grave breach of her employer's trust and confidence. A sentence of imprisonment is inevitable.
    
15. You claim that you were under "family pressure" when you committed the offence but, at that time, only one of your three children would have been attending school if at all, and a large number of the items that you bought with the stolen money included personal jewellery, a TV, and not one, but 2 digital cameras which are all non-essential luxury items that many families in similar circumstances to you, do without.
    
16. The effect of your theft on your employer was to cause it to experience a "financial crisis", and, although you may have stolen small amounts on a weekly basis, the total sum involved of VT2,371,535 is large by local standards. By way of comparison, on the defendant's fortnightly salary of VT12,000, it would take her almost 8 years to earn the total amount which she stole from her employer over a 2 year period.
    
17. I am not unmindful that any incarceration will be acutely felt by your young family but, that is an unfortunate result whenever any parent is sent to prison. Furthermore, in your own words: "the people of the community have looked down" on you Your prospects of future employment in a similar position must also be considerably limited.
    
18. Prosecuting counsel submits that "the starting point in this case should be at least 2 years imprisonment". Defence counsel on the other hand urges a non-custodial measure including community work and supervision.
    
19. I have also considered the sentences imposed in past cases in the Supreme Court such as:
    
    • PP v. Leah Tureleo [1995] VUSC 16 where a woman with young children who was working in Government obtained VT6 million over a period of 12 months by means of forgery and the creation of a bank account in the name of a fictitious company. The former Chief Justice imposed a sentence of 2 years immediate imprisonment and an order for restitution of the amount stolen. The Chief Justice said:
      

"Such breaches of trust cannot in my view by dealt with by any other form of sentence except an immediate custodial sentence inspite of her plea and immediate admissions to the police. I am also told she has young children. That cannot weigh at all with the Court which is only too well aware of the type of hardship that is brought upon themselves and their families by this type of offender."

• PP v. Georgette Ravolou [2003] VUSC 53 where a senior bank officer was convicted of misappropriation of just over VT4 million from bank customers and the Chief Justice imposed an immediate custodial sentence of 2 years imprisonment. In doing so his Lordship said in words that might apply equally to this case:
  

"I must say there are alternative ways to cope with the pressure of life. The pressure of life must be assessed with wisdom and understanding. The defendant .... Thought the solution of such unwanted pressure is to steal and defraud other people. That is not the solution. The Court will definitely discourage that trend of mentality and misconduct."

• PP v. Titus Hapisai and others [2003] VUSC 122 where a female cashier who received payments from customers divided the daily receipts in a '50/50' split between her employer and a group of employees including herself. A sum of VT1.2 million was stolen over a period of a year. The cashier who was a 30 year old mother of 2 school age children was sentenced to 12 months immediate imprisonment.
  
• PP v. Mercy Ehndvaun [2004] VUSC 61 which involved a married woman of 29 years with four very young children the youngest of whom was only 5 months old. She stole VT865,179 over a period of 6 months from her employer. The Chief Justice sentenced the defendant to 6 months periodic detention and ordered her to pay VT750,179 by way of monthly installments. She was also ordered to perform 720 hours community service. The special mitigating factor in this case was the fact that the defendant was not remunerated for 18 months immediately before her criminal behaviour commenced and was under considerable financial stress.
  

Defence counsel relies heavily on this case but the circumstances in the present case are easily distinguished by the amount involved which is three times more and the defendant was being paid a regular wage at the time of offending.

• PP v. Patricia Rasu [2005] VUSC 24 where a young mother of a 4 month old baby was sentenced to 3 years imprisonment for stealing VT4,452,419 over a period of 3 months from her employer.
  
• PP v. Lizzie Kalotiti [2007] VUSC 94 where a 39 year old bank officer and single mother of 3 children pleaded guilty to forging cheques and obtaining VT539,500 over a couple of months and was sentenced to repay the total sum and ordered to serve 120 hours community service.
  

20. From the foregoing cases which all involved female offenders with young children, it is clear that the appropriate sentence in this case is one of immediate imprisonment for 18 months taking into account the defendant's guilty plea and previous unblemished record.
    
21. With good behaviour, the defendant would have already completed serving this sentence had she been dealt with closer to the time of her first admission of the offences to the police in 2008, instead, and through no fault of the defendant, this Court is required to deal with the matter 3 years after the event.
    
22. This unexplained and lengthy delay between the defendant being confronted with her dishonesty by the police in 2008 and her sentencing 3 years later is clearly a "matter of mitigation special to (the defendant)" and one which this court is entitled to take into account in determining what the proper level of sentence should be.
    
23. In all the circumstances the most appropriate course to adopt, given the special mitigating factor of inordinate and unexplained delay in bringing the defendant to trial, is to order a partial suspension of the defendant's sentence of imprisonment under section 58A of the Penal Code.
    
24. Accordingly, the defendant is sentenced on each count to 18 months imprisonment to be served concurrently making a total sentence of 18 months imprisonment, and, I further order that the defendant serve an immediate term of 9 months imprisonment. The remaining term of 9 months imprisonment is thereafter suspended for a period of 12 months.
    
25. What this sentences means is that after serving 9 months imprisonment the defendant will be released from prison with the remaining 9 months imprisonment suspended for 12 months. If the defendant does not re-offend during that 12 months of suspension then she will not be required to serve the remaining 9 months of this sentence but, if she is convicted of any other offence during the 12 months after her release, then, she will be returned to prison to serve the remaining 9 months of her sentence in addition to any other penalty she may receive for her reoffending.
    
26. For completeness, the items taken by the police from the defendant's residence, namely, a TV and 2 burner gas cooker are confiscated and ordered to be given to Tropical Nectar.
    
27. You have 14 days in which to file a notice of appeal against this sentence if you do not agree with it.
    

DATED at Port Vila, this 15th day of February, 2011

BY THE COURT

D. V. FATIAKI
Judge.