The State v Scholar Zuvani (2004) N2641

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 August 2004
• Citation: (2004) N2641
• Court: National Court
• Year: 2004
• Judgement Number: N2641

Full Title: The State v Scholar Zuvani (2004) N2641

National Court: Cannings J

Judgment Delivered: 25 August 2004

1 Criminal Law—indictable offence—Criminal Code, Subdivision VI.1A—s383A, misappropriation of property—guilty plea—sentencing principles—prisoner a bank officer at time of offence—relevance of amount misappropriated (K22,685.43)—violation of position of trust—abuse of privilege—consistent course of conduct—use to which money put questionable—effect on bank's customers—effect on offender—degree of restitution—appropriate head sentence—whether part or whole of sentence should be suspended—trend towards alternative sentencing for crimes not involving physical violence—probation—conditions.

2 The State v Yaulipa Bulaim (1980) N234, Wellington Belawa v The State [1988–89] PNGLR 496, The State v Peter Sari [1990] PNGLR 48, The State v Paroa Kaia (1995) N1401, Doreen Liprin v The State (2001) SC673, The State v Mekeu Kig (2001) N2177, Eric Vele v The State (2002) N2252 referred to

___________________________

N2641

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 904 0F 2004

THE STATE

V

SCHOLAR ZUVANI

WEWAK : CANNINGS J

19, 25 AUGUST 2004

Criminal Law – indictable offence – Criminal Code, Subdivision VI.1A – Section 383A, misappropriation of property – guilty plea – sentencing principles – prisoner a bank officer at time of offence – relevance of amount misappropriated (K22,685.43) – violation of position of trust – abuse of privilege – consistent course of conduct – use to which money put questionable – effect on bank’s customers – effect on offender – degree of restitution – appropriate head sentence – whether part or whole of sentence should be suspended – trend towards alternative sentencing for crimes not involving physical violence – probation – conditions.

Cases cited

The State v Yaulipa Bulaim (1980) N234

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

The State v Peter Sari [1990] PNGLR 48

The State v Paroa Kaia (1995) N1401

Doreen Liprin v The State (2001) SC673

The State v Mekeu Kig (2001) N2177

Eric Vele v The State (2002) N2252

Mr J Wala for the State

Mr L Siminji for the accused

CANNINGS J:

INTRODUCTION

This is a criminal case. The accused, Scholar Zuvani, is a woman aged 27, who lives in Wewak. She faced the following indictment:

Scholar Zuvani of Abegani in Madang Province stands charged that while being employed as a bank officer by Bank South Pacific Ltd, Wewak branch, she between 13 August 2003 and 4 March 2004 at Wewak in Papua New Guinea, dishonestly applied to her own use K22,685.43, property of Ponam Local Church and Ecom High School, both in Manus Province.

The indictment was presented under Section 383A of the Criminal Code.

Section 383A states:

(1) A person who dishonestly applies 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 of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:—

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

(b) where the offender is an employee and the property dishonestly applied is the property of his employer; or

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

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

(3) For the purposes of this section—

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and

(b) a person's application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property; and

(c) a person's application of property shall be taken not to be dishonest, except where the property came into his possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps; and

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender's application of the property, had control of it.

BACKGROUND

The events giving rise to the charge occurred from August 2003 to March 2004. On 27 April 2004 the accused was interviewed, arrested and charged at Wewak. She was released on K400.00 Police bail. On 29 July 2004 she was committed to stand trial.

On 19 August 2004 the indictment was presented and the accused was arraigned. She pleaded guilty. I then entered a provisional plea of guilty subject to my reading of the District Court depositions.

CONSIDERATION OF GUILTY PLEA

Purpose

The purpose of my reading the District Court file was to satisfy myself that the accused had properly pleaded guilty to the charge. I had to be satisfied that there was reasonable evidence available, on the face of the file, of all of the elements of the charge.

Further that there were no reasonable defences available to the accused that may have been overlooked. An accused person has a right under Section 37(1) of the Constitution to the full protection of the law.

The Court has a duty to satisfy itself that it is safe to accept a plea of guilty. The Court must not surrender its duty by relying merely on the word of defence counsel. (See The State v Yaulipa Bulaim (1980) N234 and The State v Peter Sari [1990] PNGLR 48 and, generally, Chalmers et al Criminal Law and Practice of Papua New Guinea 3rd edition, Lawbook Co 2001, at pages 471– 479.)

District Court depositions

The Court was adjourned for 15 minutes and I examined the depositions and observed the following matters.

The accused was a bank officer. She was employed by the bank from October 1996 to March 2004, when her employment was terminated. In 2003 she was working at the bank’s Lorengau branch until November when she transferred to Wewak. She was at the Wewak branch when she was terminated.

From August 2003 to March 2004 she used her knowledge and position as a bank officer to transfer a total of K22,685.43 from two accounts at the Lorengau branch to an account in the name of her sister-in-law. She transferred the money by ‘paperless transactions’ without the knowledge or consent of the operators of the accounts or her employer, the bank. The bulk of the money (K20,015.43) came from an account operated by Ponam Local Church. It was transferred by making 25 separate transactions. The rest (K2,670.00) was from the Ecom High School account.

She obtained the use of her sister-in-law’s Save card. Then she used the card to withdraw cash from her sister-in-law’s account for personal consumption. Her sister-in-law did not know about this and was not a party to the scheme.

In March 2004 the church and the school discovered that their accounts were depleted of funds. They contacted the bank. The bank investigated. The accused was interviewed. She admitted what she had done. The matter was reported to the Police National Fraud and Anti-Corruption Squad. On 27 April 2004 she was interviewed by Detective Senior Sergeant Frank Misso at Wewak. She admitted everything. She has co-operated with the Police.

Amendment of indictment

When looking at the District Court file I reconsidered the indictment. It originally stated that the misappropriated property belonged to Bank South Pacific Ltd. Upon my suggestion and with the consent of the accused’s counsel, Mr Simingi, the prosecutor, Mr Wala, amended the indictment. It then read that the misappropriated property was that of Ponam Local Church and Ecom High School.

I read the amended indictment to the accused. She again pleaded guilty.

Entry of plea

I was satisfied that the accused had properly pleaded guilty. I accepted the guilty plea, entered a guilty verdict and convicted the accused of the offence as charged.

ANTECEDENTS

Mr Wala notified the Court that the prisoner has no prior criminal record.

ALLOCUTUS

The prisoner was given the opportunity to say what matters the Court should take into account when deciding on punishment. A...