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State v Maino [1997] PGDC 6; DC15 (22 August 1997)

Unreported District Court Decisions

[1997] PNGDC 23 - STATE V KENNY MAINO

[1997] PNGDC 23

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CIR NO 151 OF 1997

THE STATE

V

KENNY MAINO

Waigani

Abisai SPM

20-22 August 1997

CRIMINAL LAW - Sentence - Stealing from employer� - Position of Trust - No priors - shown Remorse - TB patient - Plea Guilty.

Cases Cited

John Aubuku v The State [1987] PNGLR 267 p269

Gimble v The State [1988 - 1989] PNGLR 271 p273

Wellington Belawa v The State [1988 - 89] PNGLR 497

Counsel

C/O P Kulwaum for the State

Mr Caspar for the Prisoner

JUDGMENT ON SENTENCE

22 August 1997

ABISAI SPM:� The Prisoner pleaded guilty that on the 11th day of� February 1997 whilst being employed by Butter Cup Pty Ltd Stole Eight Hundred and fifty five Kina (K855.00) which came into his possession as a debt collector by virtue of his employment.

The State laid an information charging the prisoner of stealing under section 372 (1) of the Criminal Code Act Chapter No 262 Section 372.

N2>(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.

N2>(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 employer,

he is liable to imprisonment for a term not exceeding seven years.

The offence itself is a serious offence because it carries the penalty of three (3) years.

BRIEF FACTS

Accused in this matter is Kenny Maino (M) age 27 years of Maopa village, Kupiano in the Central Province.� He was employed as a Debt Collector with the Butter Cup Pty Ltd.

On the 11th of February 1997 accused wet to Poon Catering Pty Ltd office and collected a ANZ Bank cheque No 765967 made payable to Butter Cup Pty Ltd in the sum of K855.00 date 30/01/97. He never brought the said cheque back to the office but altered the name Butter Cup Ptd Ltd to his name KENNY MAINO. He later brought the said cheque to Papindo Supermarket at Gerehu and cashed it.

On the 13th day of February 1997, at 9.30 am he was apprehended at his place of work and taken to the Fraud Squad at Badili where he was questioned in relation to the allegation. In explanation stated that he is in financial problems as he owed other people money. He stole the said cheque, altered it to his name and used the proceeds after cashing it a Papindo Supermarket. He was then arrested, Cautioned informed of his rights under Section 42(2) of the constitution and charged.

In his allocatus, the prisoner said that he is very sorry for what he has done in committing this offence.

The Defence Council Mr Caspar submitted that the prisoner is 27 years old comes from Maopa village in the Central Province. He is the second born in the family of (8) children. He is married with 2 children 1st male� 5 year old, second female 3 years old. There was no record of his Primary school, however, completed his grade 10 at Kwikila High School in 1986 and in 1987 - 1993 he was employed by Butter Cup Pty Ltd and was retrenched in 1993 and re employed in 1995 to the date of offence, he was given debt collectors position in the first, second weeks when he committed this offence.

Mitigation Mr Caspar submitted that the prisoner pleaded guilty and co-operated with the Police during their investigations, record of interview and in Court. He has not wasted Court�s time and save the State in bringing witnesses.

The prisoner is a first offender. He is willing to repay the Companies money upon receipt of his N.P.F contributions. He is remorseful. He is sorry for what he has done and apologises to this Court.

The prisoner at the moment living with his inlaws and he is the only bread winner in the family and 7 other people living with him. He only earns K150.00 per fortnight now lives opposite of PTC housing scheme. He is appearing from K100.00 bail. He has TB in his abdomen and his appearing as patient from the hospital.� Mr Casper ask the court to take into considerations on the above matters and consider non custodial sentence or probation with conditions. Custodial sentence will be bad for the prisoner and will worsen his conditions as a TB patient and not give for other detainees. TB spread quickly if not treated with the right treatment and if the living� conditions at PNG C.I.S.� Have gone from bad to worse. If he does not receive proper treatment, his life and other detainees might contract the same disease. I believe it is the duty of this court to see that Justice is done.

Cadet Officer P. Kulwaum on behalf of the State submitted that the prisoner is the employer of Butter Cup Pty Ltd as a debt collector of which he stole the property (Check) valued at K855.00 also draws Courts attention to section 19 of the Criminal Code Act, to be considered on sentence.

State further submitted that the prisoners former employer Alfred as secretary to Butter Cup Pty Ltd in his statement stated that this is not the first time the prisoner has committed such offence.

State call sympathize with hardship, problems and sickness encountered by the prisoner but that does not excuse him from custodial sentence court should strongly consider custodial sentence to deter future offenders committing similar offences.

SENTENCE

In considering what is the appropriate sentence in the prisoners case. I have taken into considerations, the seriousness of the offence, prevalence of the offence, determine, what the prisoner said in his allocatus, what the lawyer and the prosecutor told the court plus other factors.

This particular case the prisoner pleaded guilty, has no prior convictions recorded. His Council informed the Court that the prisoner will payback the money to the Company, by apologising to Court and co-operating with the Police shows or demonstrates how remorseful he is. The prisoner is therefore entitle to a reduction on an sentence that the Court might impose upon the prisoner.

In John Aubuku v The State [1987] PNGLR 267, at page 269, the Supreme Court said �that a plea of guilty, perhaps more or so then in other cases, would normally result in some reduction from what would otherwise be the appropriate sentence� and in Gimble v The State [1988 - 1989], 271 at page 27 the Supreme Court made the following remarks:

�we think the trial judge is here saying that the appellant is not entitled to any reduction in sentence which would otherwise have been given if he had pleaded guilty. It is wrong for a Court to increase the sentence because an accused has pleaded not guilty. Nevertheless the fact is that, if and accused classes to plead not guilty, he loses the benefit of the reduction which is normally granted to an accused who pleads guilty.�

By committing a serious offence, you have brought shame of your self and family, you were employed by the company and entrusted you with a very important job, to make sure that company do receives its money through you. However you have breached that trust; furthermore you should have learnt from you previous experience not to commit such offence again yet you have fail to do so.

Although there was no record of prior convictions recorded against you, however I do agree with he State that such practice should be ceased, even though you stole and used the money to bail you out of your mischief but that does not give you the right to use the money.

You are very fortunate to be charged under section 372(1) of CCA; which carries the penalty of 3 years.� In this kind of situation or present cases mot offenders are charged under section 372 SS (7)(a)(b) which carries the penalty of 7 years which is very serious charges, even though you knew that what you were doing was wrong yet you went ahead and carried out you motives.

Stealing is very prevalent, you abuse the trust placed on you by your employer or company to look after and deliver its property safely yet, you have breached the trust that place on you.

Wellington Belawa v The State [1988 - 89] PNGLR 497 applied as a guideline.

In deciding what is appropriate sentence in the prisoners case I take count of the matter that are prisoners favour and against prisoner. T.B is a communicable disease in general PNG Goals including Bomana are over crowded and in no better state it would be Healthy to put you. There I must bear that in mine and decide your case on its own merits.

In my view the appropriate sentence should be suspended sentence with conditions.

I therefore sentence the prisoner to 16 months in hard labour CIS Bomana. I order that the two months be deducted for pleading guilty and a balance of 14 months be wholly suspended on prisoner entering into his own recognizance on the following conditions:

N2>(1)����� The prisoner enter into his own recognizance with K100.00 cash surety to pay forthwith.

N2>(2)����� Promise to keep the peace and good behaviour for 12 months commencing today this 25-8-97 - 25-8-98.

N2>(3)����� His to repay the Companies money within 6 months period the sum of K855.00 as of 25.8.97 - 25.2.98.

N2>(4)����� To show the receipt to the Clerk of Grade 5 Fives at Waigani after payment of Companies money.

N2>(5)����� To report to the Police Station that Waigani once a month on every Last Fridays of each month from 8 - 10am until the sum of K855.00 is fully settled.

N2>(6)����� If any of the above recognizance are not complied with the prisoner to be brought back to this Court to be death with accordingly.

N2>(7)����� The Court further orders that his bail (Prisoner) bail money sum of K100.00 be converted to his surety.

Lawyer for the State: Police Prosecutions

Lawyer for the Prisoner:� Public Solicitor