The State v Claire Vagi

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ
• Judgment Date: 26 September 2017
• Citation: (2017) N6994
• Court: National Court
• Year: 2017
• Judgement Number: N6994

Full : CR (FC) 81 of 2016; The State v Claire Vagi (2017) N6994

National Court: Salika, DCJ

Judgment Delivered: 26 September 2017

N6994

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 81 of 2016

BETWEEN:

THE STATE

AND:

CLAIRE VAGI

Madang: Salika, DCJ

2017: 9, 12, 13 June; 25, 26 September

PRACTICE AND PROCEDURE – Criminal Law – Charge of stealing – s.372 of the Criminal Code Act – what is appropriate sentence – 5 years imprisonment is appropriate.

Cases cited:

State v Elizabeth James CR 557 of 2015

Wellington Belawa v The State (1988-1989) PNGLR 496,

Counsel:

Mr F Popeu, for the State

Mrs A Meten, for the prisoner

SENTENCE

26th November, 2017

1. SALIKA, DCJ: INTRODUCTION: On 26 May 2017 the prisoner was convicted on a charge that, she between 6 November 2015 and 12 November 2015, in Madang whilst being employed as a clerk of JKT Lim Limited stole JKT Limited – Puma Service station Madang cash in the amount of K119,187.58 monies belonging to her employer JKT Lim Limited.

Facts

2. The facts are that at the material time Claire Vagi was the manageress of the service station. The service station was in the business of providing fuel and oil lubricants services to customers who paid in cash and cheques for such services. The cash and cheque payments were done to the fuel attendants and the cashier and at the end of the day all the cash and cheque payments were given to Claire Vagi to put in the safe to bank it the next day.

3. However between the 6th and 12th November 2015, Claire failed to bank the cash and the amount of cash she failed to bank was K119, 187.58.

4. She was convicted of stealing that money after a trial.

Issue

5. The issue for this court is to consider the appropriate sentence to impose on the prisoner.

The Law

6. The law itself provides for the maximum sentence to be imposed. In this case s.372 (1) (2) and (10) of the Criminal Code says:-

372. Stealing.

(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.

(2) If the thing stolen is a testamentary instrument, (whether the testator is living or

(10) If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.

7. Section 372 (2) says if the offender is a clerk or servant and the thing stolen (a) belongs to his employer; or (b) come into the possession of the offender on account of his employer, he is liable to imprisonment for a term not exceeding 7 years and S 372 (10) says if the thing stolen is of the value of K1, 000.00 or more, the offender is liable to imprisonment for term not exceeding 7 years.

8. In this case Claire Vagi was a clerk of JKT Lim Limited and the money she stole belonged to her employer and that the money she stole exceeded K1, 000.00 thus she is liable to be imprisoned for a term not exceeding 7 years.

9. Under the Wellington Belawa v The State (1988-1989) PNGLR 496, sentencing guidelines as the prisoner stole K119, 187.58 she would be liable to an imprisonment term between 3 to 5 years.

Sentencing Considerations

10. The sentencing consideration the court must look at to help it come to an appropriate sentence in these type of crime are:

a) What amount was taken or stolen?

- K119,187.57 was stolen

b) Was Claire Vagi in a position of trust?

- Yes, Claire was the Manageress of the operations of the Puma Service Station and as such she held a high degree of trust

c) Did Claire’s actions take place over a short period?

- The offence was committed over a period of 7 days and in those 7 days K119,187.57 was taken.

d) Was the money put to a good use.

- There is no evidence of how the money was used.

e) Did the prisoner’s actions have any adverse effect on the company?

- Yes, the company’s base is in Lae, its Chief Finance Officer (CFO) came down to find out why Claire was not banking the money.

- It caused anxiety to the management team of the company.

- Valuable money for the company is gone and the company is left poorer.

f) Did the prisoner’s action have any adverse effect on the public confidence and integrity of the public confidence and integrity of the public sector, the bank and other stake holders.

- There is no evidence of that.

g) Was the prisoner and her family been affected by her actions?

- The prisoner lost her job with the JKM Limited.

- She has brought shame to herself and her family but there is no other evidence on this point.

h) Did the prisoner give herself up?

- No, she had to be confronted by her boss and she was arrested.

i) Did the prisoner co-operated with police?

- Yes, she did.

j) Has the prisoner made any restitution?

- Not yet but has offered restitution.

- A means assessment report was done by the Probation Service.

Mitigating factors.

11. The mitigating factors are:

a) She is a first time offender.

b) Co-operated with her bosses in Lae and with police.

Aggravating Factors.

12. The aggravating factors:

a) A large amount of money was taken (K119,187.58).

b) She was in a high position of trust and she breached that trust.

13. This stealing is not the worst type of stealing I have had to deal with. This stealing was dumb as she was always going to be caught out sooner or later. She devised a scheme where today’s takings will be covered by tomorrow’s takings, but there will always be a hole which could not be filled, sure enough the hole was getting deeper and deeper and she could not stop it getting deeper each day for that very short period.

Sentence

14. Stealing is a serious cause of dishonesty, deceit and fraud. It has all the attributes of what is commonly referred to as corruption. This was corruption in the private sector. This type of conduct eats away at the fabric of our society. Our society must be made up and based on honesty, decency and fairness. People must work hard with total honesty.

15. Corrupt and criminal conduct must have no place in the lives of our people. We ourselves must be above that and do business properly and within the laws of our land.

16. The prisoner’s legal team also relied on the case precedent of the State v Elizabeth James CR 557 of 2015. This is a case of the former Manageress of the same Puma Service Station. The operator is the same that is JKT Lim Ltd. Elizabeth James stole money using the same scheme as Claire Vagi. She stole some K73, 150.00 and was sentenced to 4 years imprisonment but was suspended on conditions that the entire K73, 150.00 would be repaid within 18 months from 13 May 2016. 12 months lapsed on 12 May 2017. That period is to lapse on 12 November 2017. I dealt with that case. I have now also dealt with Claire Vagi’s case and she has asked through her lawyers that she be given the same or similar sentence with identical conditions in order to be consistent and to be fair. I have to succumb to that argument.

17. Considering all the circumstances of the case and as Claire took more than Elizabeth she will be sentenced to a higher term and given the same amount of time to restitute the money. Claire Vagi is sentenced to 5 years imprisonment, but all of that is suspended on condition that she repays the entire K119, 187.59 within 18 months from todays date.

Ordered accordingly.

________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Prisoner