The State v Adel Gaumior (No.2)

• Jurisdiction: Papua New Guinea
• Judge: Geita J
• Judgment Date: 07 December 2015
• Citation: (2015) N6141
• Court: National Court
• Year: 2015
• Judgement Number: N6141

Full : CR (FC). 615 of 2012; The State v Adel Gaumior (No.2) (2015) N6141

National Court: Geita J

Judgment Delivered: 7 December 2015

N6141

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC). 615 of 2012

THE STATE

-v-

ADEL GAUMIOR

(NO.2)

Wewak: Geita J

2015: 10, 17, 23, 25 September, 7 December

CRIMINAL LAW – Sentence – Stealing K31, 680.00 from employer Sepik Savings & Loans Society in Wewak through fraudulent accounting – Aggravating factors outweigh mitigating factors – High level of planning and breach of trust - Stealing over a 9 months period – Integrity and good will of (SS&LS) tarnished - Immediate recovery of amounts stolen not guaranteed - Wholly suspended sentence considered inappropriate - Deterrence and restitution preferred.

CRIMINAL LAW –Sentence – General and specific deterrence - Concurrent sentence of four years imposed – 4 years on count 1 for stealing and 4 years on count 2 for fraudulent accounting –Prisoner to serve 2 years and the remaining sentence to be wholly suspended upon full restitution - Section 372 (7) (a) & Section 418 (b) Criminal Code Act.

Cases cited:

Konis Haha v The State [1991] PNGLR 205.

Lawrence Simbe v The State [1994] PNGLR 38

Mase v The State [1991] PNGLR 88

The State v Doreen (2001) SC 673

The State v Frank Kagai [1987] PNGLR 320

The State v Ivan Salle No. 2 CR (FC) 310 of 2013

The State v Louise Paraka (2002) N2317

The State v Niso (2) (2005) N2930

The State v Simon Paul Korai (2009) N3820

State v Taulaola Pakai (2010) N4215:

The State v Waiembi (2008) N3708

The State v Wellington Balewa [1988-89] PNGLR 496

Counsel:

Ms. Sabine Dusava & Paul Tusais, for the State

Mr. Darrel Sakumai, for the Prisoner

JUDGMENT ON SENTENCE

7 December, 2015

1. GEITA J: The prisoner was found guilty after trial for stealing and fraudulent accounting, contrary to Sections 372 (7) (a) and 418 (b) of the Criminal Code. The offence attracts a maximum penalty of seven years.

Brief Facts

2. The facts as found by the court on the conviction following the trial on 13 August 2015 are these. Between 1stJanuary 2011 and 1st September 2011, the prisoner whilst being employed as Customer Service and Data Operating Officer with Sepik Savings and Loans Society (SS&LS) made fraudulent entries from a deceased’s contributors account and later stole K31,680.00 from that same account, over a period of 9 months unbeknown to the beneficiary of the account Jacklyn Mainguma.

Antecedents

3. The prisoner recorded no prior convictions.

Allocutus

4. During allocutus the prisoner said this was her first time in court. She said she is married with three young children and she was the only working member in her family as her husband is unemployed. She asked for leniency with suspension orders on probation. The prisoner said the four years since her suspension from employment her family has suffered greatly. She is now greatly concerned about the welfare of her young children aged between 2 years to 6 years old.

Mitigating factors

5. No prior convictions.

Extenuating circumstances

6. Family related financial problems said to be the cause of the stealing.

Aggravating factors

7. Prisoner stole from her employer over a period of 9 months involving breach of trust relationship.

Pre - sentence report and Means assessment report

8. Your pre-sentence report covers in great detail your family and marital background including your work history, financial situation, your future plans and community views. I have thoroughly read though both reports and find them to be very favourable to you. For this I must thank the Probation Officer Ms Kutan Poniou for going to great lengths in collecting all the information contained therein to assist this court in its decision making process on sentencing. Your family members and close friends stand ready to assist you repay the stolen monies which is a welcome sign. Your means assessment report does not look very healthy despite your willingness and undertaking to make full restitution within 18 months. In my view that is a huge ask and the task of restitution insurmountable. Despite having you successfully prosecuted the management of Sepik Savings and Loans Society still feel for you and your family. Their main concern is for the full recovery of contributor’s savings and their “good will’’ in society restored as reports of members closing their accounts and joining other savings and loans societies is now coming through.

Submissions by the prisoner

9. Your lawyer Mr. Sakumai concedes with State submissions that the lead authority in these types of cases was that of Wellington Balewa v The State [1988-89] PNGLR 496. The amount of monies stolen, using Balewa case as a guide will attract a prison term of three years. Mr Sakumai has correctly pointed out that Section 19 of the Criminal Code was available to you and that your case must be decided on its own facts and circumstances: (Lawrence Simbe v The State [1994] PNGLR 38.). The case of The State v Frank Kagai [1987] PNGLR 320 was also referred to me. The Kagai case emphasis the point that suspensions of sentences of imprisonment should not be seen as an exercise of leniency but an order made in the community interest and designed to prevent re-offending, more so for persons with good character. A recommendation for a suspended sentence was mooted.

Submissions by the State

10. The State’s submission is based largely on the lead case of Balewa in this types of crimes. All the attributes of Balewa principles were present which warranted calls by The State for the prisoner to be sentenced to a head sentence of six years. Any reductions of sentence on condition that the prisoner serve some time in prison as a deterrence to others. The State submitted that this case was one of serious breach of trust. The high breach of trust and the position occupied at the time the crime was committed was cause for heavier punishment imposed as a deterrent, the State submitted. The State has correctly pointed out a steady trend of offences of stealing from employer by offenders opting for early guilty pleas hence attracting the sentencing guideline and ranges in The State v Balewa case. (The State v Louise Paraka (2002) N2317 and The State v Waiembi (2008).

11. Notwithstanding the Balewa case Courts have constantly made pronouncements on the inadequacies in the sentencing range due to the frequency and prevalence of such crimes. (The State v Niso (2) (2005). The State referred the court to a series of cases involving stealing by persons in position of authority from their employers. I have taken judicial notice of all cases referred to me. The State submitted that in almost all situations the crimes were committed by persons in position of trust with higher penalties given. They submitted that given the degree of trust, the level of planning, and the amount stolen by the prisoner over a period of 9 months, a custodial sentence of six years was warranted.

12. The sentencing trend these days for non-violent crimes of this nature often attract non-custodial prison terms with strict conditions for either release on probation or good behaviour with orders for restitution. (Doreen Liprin v The State (2001) SC675). As I stated earlier in your case all the attributes usually contributing to the consideration of degree of the type of punishment described in the Belawa case are present here. It follows that I will use that case as a guide in deciding your sentence. I must reiterate here that your case is decided on its own facts and circumstances alone. Other cases referred to this court either support or disagree with your pleas for leniency or otherwise. Based solely on the facts before me I consider the amount stolen substantial warranting a custodial sentence as a form of deterrence to would-be perpetrators in future. The amount of monies stolen is substantial and immediate recovery long time coming.

13. In another stealing related case I deliberated upon this month a young man was sentenced to 4 years for stealing more than K62, 000.00 from a banking institution over a period of 2 months. He was ordered to serve 12 months in prison with the remaining sentence to be suspended with conditions should he repay all the monies he had stolen and returned to the owners. (The State v Ivan Salle No. 2 CR (FC) 310 of 2013.) That case is distinguished from your case in seriousness, gravity and multiplicity of charges. Furthermore the crime you committed was two pronged: stealing and fraudulent accounting. It goes without saying that the crime that you have committed has long lasting effects on the “good...