The State v Oa Seseka (1990) N921

• Jurisdiction: Papua New Guinea
• Judge: Amet J
• Judgment Date: 19 October 1990
• Citation: (1990) N921
• Court: National Court
• Year: 1990
• Judgement Number: N921

Full Title: The State v Oa Seseka (1990) N921

National Court: Amet J

Judgment Delivered: 19 October 1990

N921

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR: 391 OF 1990

THE STATE

V

OA SESEKA

Waigani

Amet J

8-9 October 1990

16 October 1990

19 October 1990

CRIMINAL LAW — Sentence — Restitution — Extended family Customary commitment in restitution as mitigation — Effect of as sanction -

The prisoner between the first day of July 1988 and the 4th day of December 1989 dishonestly applied to his own use the sum of Twenty-Five Thousand Kina, the property of New Guinea Australia Lines (NGAL) and Cathay Pacific Airways. He pleaded guilty to the charge.

Held:

(1) A sentence of imprisonment was warranted despite a strong plea in mitigation.

(2) Extended family customary commitment and obligation to make restitution is a mitigating factor.

(3) The extended family commitment imposes corresponding obligations upon the prisoner and is a form of sanction to be taken into account.

Principles of Sentencing in the case of Wellington Belawa v. The State [1989] Unreported, SC 375, restated and applied.

Cases Cited:

The following case is cited in the judgment:

Wellington Belawa v. The State [1989] Unreported, SC 375.

JUDGMENT ON SENTENCE

This was a judgment on sentence for one count of misappropriation by the prisoner who pleaded guilty to the charge under S.383A of the Criminal Code (Ch. 262).

Counsel:

J. Pambel, for the State

I. Wartovo, for The Accused

Cur adv vult.

19 October 1990

AMET J: The prisoner pleaded guilty to one count "that he between the first day of July 1988 and the 4th day of December 1989 at Port Moresby, dishonestly applied to his own use the sum of Twenty-Five Thousand Kina, the property of New Guinea Australia Lines (NGAL) and Cathay Pacific Airways.

He was employed by New Guinea Australia Line as an accounts clerk from 1985. In 1988 he assumed the role of Airline Accounting Clerk. One of his duties, was the collection of daily takings from the Sales Office for banking, the recording of same and actual banking of the cash and cheques.

The method of execution of this scheme of misappropriation quite simply was that over this period of some 17 months, the prisoner only banked the cheques and some of the cash and took some or all of the cash from time to time. The scheme was straight forward yet not easily detectable until a thorough reconciliation was done upon discovery that there was not sufficient funds in the bank to make payment.

This offence involved a very large sum of money, and I wish to restate some of the principles that the Supreme Court in the case of Wellington Belawa v. The State (Unreported Supreme Court Judgment No. SC.375 of 1st December 1989) stated should be taken into account in considering the appropriate sentence.

1. THE AMOUNT TAKEN

The principle here is simple. The larger the amount the greater should be the punishment. I agree generally with the suggested guidelines for serious theft or serious misappropriation by a servant, that for an amount of K1,000 to K10,000, a gaol term of up to two years is appropriate. For cases involving between K10,000 and K40,000 two to three years imprisonment is appropriate. These ranges obviously have to be guidelines from the actual sentence can be adjusted upwards or downwards taking into account the other factors hereunder referred to. The amount here was large.

2. THE DEGREE OF TRUST REPOSED IN THE OFFENDER

The higher the position of trust the greater the responsibility. The prisoner was in a position of trust. He was able to do a lot of accounting transactions without any immediate supervision. This unfortunately allowed the opportunity for this dishonesty to be perpetrated.

3. THE PERIOD OVER WHICH THE FRAUD WAS PERPETRATED

The principle is that a series of dishonest acts over a long period indicates a more confirmed state of "guilty or criminal mind" than the situation where an offender committed only one "spur of the moment" criminal act. The prisoner's criminal conduct spread over 17 months and involved numerous distinct acts of criminal dishonesty. This of course demonstrates a more serious conduct than a "spur of the moment" act which was unlikely to be repeated.

4. THE USE TO WHICH THE MONEY WAS PUT

Where the money is used to maintain an offender's desperately impoverished family or some other worthwhile purpose then it can be a mitigating factor. The prisoner said he used K22,000 to build a family house, K2000 — to buy two generators and K1,000 for motor vehicle spare parts. These were not desperate family or worthwhile needs. There is no mitigation in this.

5. RESTITUTION

Restitution or repayment of the money taken is always a mitigating factor because it restores the victim to the position he or it was in before the commission of the offence.

6. REMORSE

If restitution is made it may or may not show remorse. The sooner restitution is made after the commission of the offence, or after the detection of the offence, the more clearly it shows remorse, If it is made on the one of trial or immediately after conviction it does not show remorse. If restitution had not been made but is being undertaken...