The State v Alice Wilmot (2005) N2857

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 17 June 2005
• Citation: (2005) N2857
• Court: National Court
• Year: 2005
• Judgement Number: N2857

Full Title: The State v Alice Wilmot (2005) N2857

National Court: Sevua J

Judgment Delivered: 17 June 2005

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 426 of 2005

THE STATE

-v-

ALICE WILMOT

Waigani : Sevua, J

2005 : 24th May

6th & 17th June

CRIMINAL – Sentence – Misappropriation – Bank employee – Misappropriation of money in course of employment – Crime committed due to “threats” to prisoner – Amount misappropriated K19,600.00 – Part restitution – Whether non custodial sentence appropriate.

MISAPPROPRIATION – Sentence – Restitution – Whether full or substantial restitution should enable prisoner to a non-custodial sentence – Restitution no means to buy freedom.

Held: 1. Restitution of misappropriated money is a mitigating circumstance,

however it should never be used as a means by the rich and wealthy to buy their freedom so that they escape criminal responsibility.

2. Where restitution is to be considered as a genuine remorse, the

prisoner must make personal contributions towards restitution and not rely solely on family members and relatives. When the prisoner contributes personally, it will be seen as a personal deterrence because he or she will bear the burden of the crime as the real weight is in relation to the money he or she losses towards restitution.

3. The prisoner has not expressed remorse despite the opportunity accorded her, and she has not personally contributed to the sum of K10,000.00 paid as part restitution therefore the Court should be very cautious in accepting submissions in relation to restitution and remorse.

4. Sentence of 3 years is appropriate with partial suspension to take into account the restitution and other mitigating circumstances.

Cases cited:

Wellington Belawa v. The State [1988-89] PNGLR 496

The State v. Welford [1986] PNGLR 253

The State v. Rex Lialu [1988-89] PNGLR 449

The State v. Mapiria, unreported and unnumbered, 7th September 2004

The State v. Lawrie Patrick & 3 Ors [1995] PNGLR 195

The State v. Sukope Tova, unreported, N.1522, 17th March 1997

Ms. T. Ganaii for State

Mr. F. Komang for Prisoner

17th June 2005

SEVUA, J : You pleaded guilty to a charge of misappropriation of the sum of K19,960.00 whilst employed as a Teller at ANZ Bank, Port Moresby.

The facts you admitted are these. Up to the period you committed this crime, you were employed as a Central Teller with ANZ Bank at its Port Moresby Branch. Your duties included maintaining the banks retention limit to a minimum, transfer of cash in and out of the bank and supply of cash to other branches. One of your responsibilities also was to count, bundle, staple, pack and send to Bank of Papua New Guinea, the bank’s soiled or mutilated notes. Between 1st April 2003 and 31st July 2004; you stole the sum of K19,960.00 from the bundles of cash you had prepared to send to Bank of Papua New Guinea.

The procedures employed prior to the movement of cash to Bank of Papua New Guinea were that you counted the cash, packed and stapled them in the presence of your supervisor who was required to count and verify the amount of money for shipment. You failed to adhere to those procedures.

When invited to speak during allocutus, you elected not to say anything, instead informed the Court that your counsel would speak on your behalf. Mr. Komang then addressed the Court on a number of submissions and cited several cases in support of his submissions on your behalf.

Regardless of what the National Court might have said in other misappropriation cases, I consider that the starting point for submissions in this type of cases is the Supreme Court decision in Wellington Belawa v. The State [1988-89] PNGLR 496, as that case established the relevant principles and guidelines for misappropriation and other dishonesty offences. However that judgment was delivered over 15 years ago, and because white collar crimes have increased significantly and are quite prevalent, I consider that the penalties imposed by the Court must be increasing not decreasing. In my view, those guidelines are no longer applicable to the circumstances of Papua New Guinea today since misappropriation and other dishonesty offences have become so prevalent.

I have taken into account your personal antecedents favourable to you. You are 23 years old and single. This is your first offence. You have pleaded guilty. You cooperated with police by readily admitting your guilt. Your family, most notably, your father, has made some payments to the Bank as part restitution, although I have not sighted any confirmation of those payments from ANZ Bank. He has further undertaken to repay the total amount you had stolen. Because of the generosity of your father, your counsel has submitted that you have made restitution and would restore fully the monies you stole.

Whilst counsel has addressed significantly on restitution and remorsefulness, I consider that it is not entirely correct to say that you have expressed genuine remorse and made restitution. The Court can acknowledge the level of support from your parents and other family members, however it is not entirely correct to say that the restitution was made by you personally. Rather, the total amount of K10,000.00 said to have been paid to ANZ bank, was paid by your father, not by you personally so that clarification needs to be made for purposes of sentence.

Furthermore, you were given the opportunity when allocutus was administered and you elected not to say anything. I would have thought that expressing your remorse would have come from you personally at that stage of the proceedings. But you did not personally express remorse when given the opportunity, so it is not entirely correct to say that you have expressed genuine remorse, because as a matter of record, you have not despite having the opportunity to do so.

Even if I agree with Wilson, J. in The State v. Welford [1986] PNGLR 253, which counsel cited, especially what His Honour said on restitution at p.256 – “It goes a long way to redressing the harm done and is indicative of genuine remorse……” I could not in good conscience say that you have personally paid back monies to the bank. There is one fundamental difference that counsel has failed to appreciate. In that case, the prisoner’s father did not repay the money stolen by the prisoner, but the prisoner himself made restitution and the amount was quite insignificant compared to your case. It is my view that, in order for the Court to accept expression of remorse through restitution of monies stolen, a prisoner must bear the burden of restoring what he or she has stolen. If I were to accept that the part restitution made to date were made by your father, then I must also accept that you did not make the actual restitution personally, so could I correctly say that the prisoner has actually effected restitution?

Your counsel has referred the Court to other cases decided by the National Court – The State v. Mapiria, unnumbered and unreported, 7th September 2004; The State v. Lawrie Patrick & 3 Ors [1995] PNGLR 195, a decision of this Court, and The State v. Sukope Tova, unreported, N.1522, 17th March 1997. First of all, let me say that Mapiria’s case is not a binding precedent upon this Court, but a case of its own. With the amount of money involved, I doubt if the principles in Belawa (supra) were properly considered and applied. The other two cases are also not binding upon me. I maintain that the Supreme Court decision in Belawa (supra) is the authoritative pronouncement of the law in this area of criminal law and one that must be applied in all misappropriation and dishonesty offence cases.

Having said that let me reiterate that the Court has duly considered the relevant sentencing principles established by the Supreme Court in Belawa (supra).

For the appropriate tariff, this case falls under the third category where the recommended tariff is two to three years for amounts between K10,000.00 and K40,000.00. However as I also adverted to earlier, that case was decided on 1st December 1989, a little over 15 years ago and I am of the view that the tariffs or guidelines suggested therein are no longer applicable these days because this crime is very prevalent. For my part, the Courts should increase sentences for this crime significantly because it is on the increase. Furthermore, despite custodial sentences being imposed on offenders, the warnings issued by the Courts do not seem to be heeded by offenders. So in my view, the sentences must increase to demonstrate the concerns of the Court and society as well.

It is my view that in misappropriation cases, a prisoner must contribute towards restitution of monies he or she has stolen. For the prisoner to plead for leniency, it is not enough to say his or her family members have made part or full restitution. In the present case, how could the Court accept restitution as a genuine remorse, when you have not personally contributed any money towards restitution? It is my view that, unless the monies stolen were used on the family members’ needs,...