The State v Robyn Emba

• Jurisdiction: Papua New Guinea
• Judge: Kawi, J
• Judgment Date: 14 August 2011
• Citation: (2011) N5012
• Court: National Court
• Year: 2011
• Judgement Number: N5012

Full : CR No 777 of 2007; The State v Robyn Emba (2011) N5012

National Court: Kawi, J

Judgment Delivered: 14 August 2011

N5012

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 777 OF 2007

THE STATE

V

ROBYN EMBA

Kimbe: Kawi, J

2011: 14th August

CRIMINAL LAW – sentence – change of plea – accused pleaded guilty to charges of misappropriation and conspiracy to defraud – appropriate sentence considered – restitution considered as appropriate penalty – prisoner to pay restitution with suspended sentence

Cases cited:

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

Brian Kindi Lawi –v- The State [1987] PNGLR 183

The State –v- Gabriel Ramoi.

Doreen Lipirin –v- The State

The State –v- Nancy Miviri (CR 984 of 2007, Unreported judgement)

The State –v- Harold Piniau (No. 2) CR 1338 of 2008,

The State –v- Tainoli, unreported National Court Judgement

The State –v- Christian Korei [2005] N2946

Public Prosecutor –v- Bruce Tardew [1986] PNGLR 91

Counsel:

Mr. A. Kupmain, for the State

Mr. T. Potoura, for the Prisoner

DECISION ON SENTENCE

14th August, 2011

1. KAWI J: The State presented an indictment charging Robyn Emba with two charges. The first count was a charge for conspiracy to defraud Air Niugini of its money.

The second charge was brought under Section 515 of the Criminal Code. The second charge was one of misappropriation brought under Section 383A of the Criminal Code. The accused pleaded not guilty to both counts.

2. The trial then commenced with the State calling one witness to testify. During luncheon break, both the defence counsel and State prosecutor entered into serious discussions.

3. When the court resumed after the luncheon break, the defence counsel, Mr Potoura advised the court that his client had changed her plea from one of not guilty to a plea of guilty. Mr Kupmain for the State on his part advised the court that following the change of plea the State had agreed to offer no evidence to the charge of conspiracy to defraud. The accused would therefore plead guilty to the charge of misappropriation only. I accepted this and had the accused re-arraigned. I accepted her plea of guilty and convicted her of the charge of misappropriation under Section 383A. This is now my judgement on her sentence.

ALLOCUTUS

4. During her allocutus statement the prisoner apologized to the court as well as her then employer, Air Niugini Limited. She begged the court for mercy and leniency when sentencing her.

5. She asked the court to consider the fate of her disabled child when considering her penalty.

THE FACTS

6. The facts to which the accused pleaded guilty are that at all material times, she was employed as a cashier with Air Niugini Limited based here in Kimbe. She was employed between 6th September 2004 and 5th September 2006.

7. Being the cashier, Robyn was primarily responsible for collecting cash monies from the sale of airline tickets.

8. Having collected the cash monies, she would then be responsible for locking up these cash monies in the safe. She had the keys to the safe. Being the cashier, it was her primary responsibility, to take out the monies from the safe and have them deposited in the bank.

9. The State alleges that between the 4th September 2004 and 5 September 2006, Robyn obtained cash monies in the sum of K286,491.71 belonging to Air Niugini which were primarily monies from the ticket sales. To avoid detection by Air Niugini, the prisoner got the ticket coupons and destroyed them. She applied these stolen monies to her own use.

THE ISSUES

10. A number of issues arise here to be considered:

(a) what sentence can the court impose upon the prisoner here?

(b) Can the court suspend the sentence imposed upon the prisoner either fully or partially

(c) If either the whole or part of the sentence is suspended, what are the conditions to be imposed.

(d) Should interests be imposed upon the monies dishonestly applied?

THE LAW

11. The prisoner pleaded guilty to the charge of misappropriation contrary to Section 383A(1)(a)2(b)(d). Relevantly this provision is stated in these terms:

383A – Misappropriation of property

(1) A person who applied to his own use or to the use of another person:-

(a) Property belonging to another; or

(b) Property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person;

is guilty of the crime of misappropriation.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for five (5) years except in any of the following cases when he is liable to imprisonment for ten (10) years;

(a) where the offender is a director of a company and the property dishonestly applied is company property.

(b) where the offender is an employee and the property dishonestly applied is the property of the employer.

(c) where the property dishonestly applied was subject to a trust, direction or condition;

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

DETERMINATION OF ISSUES

Issue No: 1 what is an appropriate sentence can the court impose upon the prisoner?

12. In considering the appropriateness of the sentence that I intend to impose, I take as the start point the Supreme Court decision in Wellington Belawa –v- The State [1988-89] PNGLR 496. This case sets out the sentencing guidelines in misappropriation cases. In my view this decision may be outdated by some 20 years, and may not truly reflect the changing social circumstances and trend in Papua New Guinea. Therefore it would need another Supreme Court to review and set new guidelines. But until that is done, the guidelines set out in Wellington Belawa has been religiously and judiciously followed and applied by judges in this jurisdiction. In summary the Supreme court stated that the lesser the amount of money dishonestly applied, the lesser the sentence terms should be. The flipside of this is that, the higher, the amount of money, dishonestly applied, the higher will be the penalty imposed.

13. The Supreme Court in Wellington Belawa’s case stated that the following factors should also be taken into account:

(1) Amount taken;

(2) The quality and degree of trust reposed upon the offender including his rank;

(3) The period over which the frauds or the theft were perpetrated;

(4) The use to which the money or property dishonestly taken was put into;

(5) the effect upon the victim;

(6) The impact of the offences on the public and public confidence;

(7) The effect on fellow employees or partners;

(8) The effect on the offender herself;

(9) The offender’s own history;

(10) Restitution and;

(11) These matters of mitigation special to himself such as illness;

Being placed under great strain by excessive responsibilities or the like, where, as sometimes happens, there has been a long delay say over two years, between his being confronted with his dishonesty by his professional body or the police or the start of his trial; and finally any help given by him to police.

14. I will now address this factors first before I come to the sentence to be imposed:

(a) Amount of money dishonestly applied

The amount of money stolen is very substantial some K286,491.71 was stolen. No-one employee of Air Niugini occupying positions below the senior management level can afford to earn that kind of money in his/her entire working life with the National Airline.

(b) Period over which the frauds or the thefts were perpetuated

The thefts here commenced around September 2004 and was not detected until September 2006. It was an ongoing theft over a two year period.

(c) The nature of Trust

Air Niugini Ltd placed a lot of trust and confidence upon the prisoner by appointing her to a position where she was dealing with thousands of Kina on a daily basis. Positions were employees dealt with and were entrusted to collect thousands of Kina every day are positions of trust, responsibility and authority. She was initially employed by Air Niugini. Then she left that employment and was away for two years. Upon her re-engagement, she was appointed to the same position again. This demonstrates the degree and level of trust the National airline placed upon the prisoner.

15. Although it was not a managerial position, the position of cashier was more or less a very important position because it involved handling thousands of kina every day of the week.

16. Air Niugini placed a very high degree and quality of trust upon its cashiers since they are at the forefront of collecting and making money for the National flag carrier.

17. Persons who occupy position of trust, must be very honest and trust worthy in all their dealings. Their conduct must be above reproach.

18. Despite the high quality of trust bestowed upon you by the National Airline, you abused that trust and confidence by literally stealing from the very hand that was feeding you. To avoid detection, you engineered a scheme whereby you destroyed the ticket butts. You were very dishonest and you squandered your ill gotten gain with the...