The State v Makeu Kig (2001) N2177

• Jurisdiction: Papua New Guinea
• Judge: Sawong J
• Judgment Date: 21 June 2001
• Citation: (2001) N2177
• Court: National Court
• Year: 2001
• Judgement Number: N2177

Full Title: The State v Makeu Kig (2001) N2177

National Court: Sawong J

Judgment Delivered: 21 June 2001

N2177

PAPUA NEW GUINEA

[In the National Court of Justice in Madang]

CR 1027 OF 1999

THE STATE

-V-

MAKEU KIG

MADANG : SAWONG J.

2001 : 9th April, 21st June

Criminal Law-Sentence-Misappropriation of funds belonging to employer-Person in

position of Trust-

Criminal Law-Sentence-Misappropriation-Non violent offence-term of imprisonment

inapropriate-Suspended sentence-Order for restitution-

CASES CITED:

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

Griffiths v The Queen [1977] 13 C.L.R. 293

J. WALA, for the State

D. KARI & D. KOEGET, for the Accused

S E N T E N C E

21st June, 2001

SAWONG J: The accused was indicted and pleaded guilty to one count of misappropriation, an offence contrary to S. 383 A(1) (a) and (2) (b) of the Criminal Code Act (Ch. No. 262).

The facts show that the accused was employed as a sales Manageress by FRG Clothing Pty Ltd in Madang. During the course of her employment between the period 8th November, 1996 and 28th April, 1997 various customers of the employer placed orders for various uniforms and clothes. These customers either paid cash at the time of placing the orders or made payments subsequently. The evidence also shows that she received monies through the post office by the Salim Kwik transactiion system or the clients also paid money into her bank account. Essentially, she used three methods to receive these monies. These payments were collected by the accused. She then systematically applied or used the money for her own use. The total amoiunt she misappropriated in the relevant period was K28,189.53. This money was the proper ty of FRG Clothing Pty Ltd, her then employer. She used the system for approximately five (5) months when the fraud was discovered and she was dismissed from her employment.

The crime of misappropriation pursuant to S. 383 (A) (2) (b) of the Criminal Code attracts a maximum sentence of ten (10) years imprisonment. Your lawyer has referred me to the Supreme Court decision in Wellington Belawa v The State [1988-89] PNGLR 496. In that case the Supreme Court set out various factors that ought to be taken into account when considering sentencing an offender for an offence involving dishonesty. These include the amouint taken, the quality and degree of trust reposed in the offender including his rank, the period over which the fraud or theft had been perpetrated, the use to which the money dishonestly taken was put to, the effect upon the victim, the impact of the offence on the public and public confidence, the effect on fellow employees, the effect on the offender himself or herself, the offender’s own istory, restitution and other mitigating factors particular to the offender. The Court there suggested that in a case where the amount misappropriated is between K10,000.00 and K40,000.00 a term of imprisonment of two (2) to three (3) years imprisonment would be appropriate.

The Supreme Court in the above case set out the sentencing guidelines and suggested range of tariffs for sentences to be imposed by the National Court on offenders who commit crimes of dishonesty. Your lawyer has submitted that, even though the Supreme Court has said that offenders who are convicted of stealing large amounts of money, as in your case, ought to be sent to jail, nevertheless, in your case the court should not send you to jail. He submitted that looking at all your personal antecendents, the mitigating factors in your favour and your willingness to repay the money, a non custodial sentence would be appropriate.

I wish to make a few remarks about setting down rang eof tariffs for various offences. In setting down a range of tariffs of sentences it creates difficulties for the trial judge. Whilst I accept that a Supreme Court in attempting to set down a rang eof tariffs, has an important value, I consider that in doing so, it crates some difficulties.

The principle difficulty, in my view is that, such a system creates pressure on the trial judge to impose a sentence within the suggested range or tariff. It would also put pressure on the trial judge to impose a severe sentence than a sentence one would consider appropriate. It could also put pressure on the primary judge not to explore other sentencing alternatives.

The difficulty with setting down in principle tariffs for various offences is that, a trial judge feels somewhat compelled to follow such a guideline or tariff. This difficulty was succinctly expresed by Murphy J, in Griffiths v The Queen [1977] 137 C.L.R. 293 at 330:

“Emphasis on and adherence more or less to a scale of penalties for various

offences (the Tariff System) exerts pressure on the primary judges to

impose more severe sentences thatn they would sometimes wish and in

practise inhibits desirable experimentation and exploration of alternative

causes contemplated by legislature.”

This is more particularly so in my view in crimes involving non-violent crimes such as...