The State v Margaret Donny (2004) N2609

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 11 May 2004
• Citation: (2004) N2609
• Court: National Court
• Year: 2004
• Judgement Number: N2609

Full Title: The State v Margaret Donny (2004) N2609

National Court: Sevua J

Judgment Delivered: 11 May 2004

1 CRIMINAL LAW—Sentence—Misappropriation—Employee of company—Pay Clerk and Supervisor—Fraudulent scheme established to swindle funds from employer—Amount misappropriated K11,400.00.

2 CRIMINAL LAW—Sentence—Misappropriation—No restitution—Employer withheld entitlements and recovered musical equipment purchased with stolen money—Whether amounted to restitution—Sentence of 2 years with partial suspension

3 Wellington Belawa v The State [1988–89] PNGLR 496 referred to

___________________________

N2609

PAPUA NEW GUINEA

[National Court of Justice]

CR 206 of 2004

THE STATE v. MARGARET DONNY

Kavieng : Sevua, J

6th & 111h May 2004

CRIMINAL LAW – Sentence – Misappropriation – Employee of company - Pay Clerk and Supervisor – Fraudulent scheme established to swindle funds from employer – Amount misappropriated K11, 400.00.

CRIMINAL LAW – Sentence – Misappropriation – No restitution – Employer withheld entitlements and recovered musical equipment purchased with stolen money – Whether amounted to restitution – Sentence of 2 years with partial suspension

Case cited

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

L.Rangan for State

A.Turi for Accused

11th May 2004

SEVUA, J: The accused has pleaded guilty to a charge of misappropriation of the sum of K11, 400.00, contrary to s. 386A (2) (b) of the Criminal Code.

She was employed by Emirau Marine Products in Kavieng as a Pay Clerk and Supervisor in the vanilla buying business of the company. Between 30th April and 4th June 2003; she devised a fraudulent scheme where she started to steal cash from her employer. She was responsible for writing receipts for the registered customers of the company who came to sell their vanilla beans to the company. She sent these receipts with details of the customers’ sales, ie.names, quantity, weight and cost per kilogram to another employee who processed the payment in cash and handed them back to the accused to pay the customers. During the same period, the accused began writing false receipts with falsified entries of customers’ names, weight of their beans and the costs. She submitted these to the other employee who gave her the cash. When she received the cash she paid the customers, however those whose names she falsified, she took the money in their names to her house until she deposited them into her bank account at BSP Kavieng Branch. The total amount of money she misappropriated through her fraudulent scheme was K11, 400.00. Consequently, she was dismissed from her employment.

On behalf of the accused, Ms. Turi submitted the following. The accused is 40 years old and married with 7 children whose ages range from 5 years to 22 years. She comes from Niuiruka Village in Kwikila Sub District of Central Province. She resides at Rawal No 4 Compound near Kavieng and she has been a resident there for 10 years. She was arrested on 13th November 2003 and released on bail on 14th November therefore she spent only one day in custody.

At the time of committing this offence, the accused was employed in the capacity of Pay Clerk and Supervisor by Emirau Marine Products. She commenced employment sometime in 2000 and was eventually terminated in June 2003 so she had been employed for about 3 years. Her commencement salary was K70.00 a fortnight which increased to K80.00 per fortnight last year. Counsel submitted that the reasons the accused stole the money were that firstly, she had asked for financial assistance to attend her father’s funeral at home and was promised assistance, however the employer later reneged on this therefore she was not given any assistance. She therefore did not attend her father’s funeral. Secondly, it was submitted that the accused had been working overtime and long hours but was never paid any remuneration for overtime. She was placed under financial strain that eventually she decided to employ the scheme she set up to systematically swindle funds from her employer.

In answer to Question 57 of the record of interview conducted on 11th December 2003, the accused advanced three reasons for committing the crime. Firstly, she said her father died in Port Moresby and her relatives telephoned her boss to permit her to travel to Port Moresby to see her deceased father. However, when she asked for assistance, her employer did not help. Secondly, she asked the company for financial assistance towards her brother’s bride price but her employer did not help her. And finally, she said she used to work overtime but was never remunerated for that. She therefore decided to steal from her employer.

The accused has not made any restitution of the sum of K11, 400.00 that she misappropriated. At the time of her termination she did not receive her entitlements and I think she is entitled to some benefits in accordance with the provisions of the Employment Act. The Court has perused the documents provided by the Department of Labour in Kavieng relating to this issue and it is noted that the State does not dispute this. The Court has also heard that the money stolen by the accused was used to buy food and other items for her children. There is evidence that the accused purchased a Yamaha PSR 2000 Keyboard for her son on 9th May 2003 for a sum of K5, 999.90. This instrument was recovered by the complainant company on 17th November 2003, some five months after the accused was dismissed over this offence.

Furthermore, counsel had submitted that the Department of Labour in Kavieng was preparing some documents for the accused in relation to her termination benefits which she asked the Court to take into account and these documents have been provided to the Court as I adverted to earlier on. The State has not raised any objection to this and although, the benefits or entitlements are issues that needed to go before a civil Court, this Court is of the view that submissions relative to that issue can be considered in mitigation as it is satisfied that the accused is, in law, (under the Employment Act) entitled to some benefits at her termination. And since the State takes no objection on this issue the Court...