The State v Eric Emmanuel Vele (2002) N2252

• Jurisdiction: Papua New Guinea
• Citation: [2002] PNGLR 74
• Date: 24 July 2002
• Court: National Court
• Year: 2002

Full Title: The State v Eric Emmanuel Vele (2002) N2252

National Court: Kandakasi J

Judgment Delivered: 24 July 2002

1 CRIMINAL LAW—Sentence—Misappropriation of K16,499.77 from employer in breach of trust—First time offender—Restitution and non–custodial sentence with community work orders possible sentences—Community willing to supervise any community work orders—Appropriate to make orders to accommodate such preparedness because sentencing is a community responsibility.

2 Public Prosecutor v Don Hale (1998) SC564, The State v Dobi Ao (No 2) [2002] PNGLR 55, Wellington Belawa v The State [1988–89] PNGLR 496, Brian Kindi Lawi v The State [1987] PNGLR 183, The State v Paroa Kaia (1995) N1401, The State v Bygonnes Tuse Nae (1996) N1474, Doreen Liprin v The State (2001) PNGLR 6, The State v Micky John Lausi (2001) N2073, The State v Jimmy Solomon (2001) N2100, Constitutional Reference No 1 of 1977; Poisi Tatut v Chris Cassimus [1978] PNGLR 295 and The State v Oa Seseka (1990) N921 referred to

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Kandakasi J: On 9 April 2002, you pleaded guilty to one charge of misappropriation contrary to s383A(1)(a) of the Criminal Code. You misappropriated a total of K16,499.77 from the Westpac Bank (the "Bank") your then employer. I convicted you for that offence and heard submissions on sentence on 7 May 2002 after two earlier adjournments. I then reserved a ruling on you sentence to a date when I am ready. This is now the judgment of the Court.

Between 2 and 26 April 2001, you were in the employ of the Bank as Supervisor, International Business Centre at its Port Moresby branch. You debited various accounts of your employer and credited them to both your own, your wife and a cousin namely Eric Warren's personal accounts. You then took the money out of those accounts and applied them to your own personal use. The Bank discovered what you were doing in early April. You also became aware that the Bank discovered your offences and you started to stay away from work until 18 May 2001, when you were terminated.

You have repaid a total of K11,091.23, leaving you with a balance of K4,008.77. You are now prepared to repay the remaining amounts by fortnightly installments until the full amount is repaid. That is possible if the Court does not impose a custodial sentence and you continued to be in paid employment. You therefore, ask for a non–custodial sentence with orders for restitution.

The State is prepared to accept an order for restitution as the appropriate penalty for the offence you have committed and are in Court for. In view of that, I asked for a pre–sentencing report in line with authorities such as Public Prosecutor v Don Hale (1998) SC564, before determining an appropriate sentence for you. After all, as I observed in a number of my own judgments with the latest in The State v Dobi Ao (No 2) [2002] PNGLR 55 criminal sentencing is a community responsibility. As such, the Courts must be responsive to the wishes of the community, which can be obtained through a pre–sentencing report.

The pre–sentencing report recommends a non–custodial sentence with community work or service orders under Probation Services supervision. At about the time of ordering a pre–sentencing report on your case, I received advice from the author of the report now before me that, previous such orders I have made are being faithfully complied with and is having a positive impact on the prisoners.

In your case, there is indication from members of your community, especially the Ela United Church of its preparedness to help you to become a better law–abiding citizen. That Church is prepared to supervise any community service orders this court might order. You have expressed deep remorse both in person before me and in writing for what you have done and are desirous of not repeating the same mistake or for that matter, get into trouble with the law again. You have a family that is supportive and willing to assist you to overcome you problems. You also have an employer who is prepared to keep you employed as long as you will this time, remain very faithful. Keeping that employment will be necessary to meet your undertaking to repay the balance of what you took away from the Bank.

Bearing the above in mind I consider sending you to prison will do you more harm then see you come out a reformed offender. As I said in The State v Dobi Ao (No 2) [2002] PNGLR 55, prisons are appropriate places to keep most violent offenders like murders, rapists and armed robbers. Cases of misappropriation do not require imprisonment if an order for restitution will be complied with and or other forms of punishment will do.

I came to that decision bearing in mind the relevant Supreme Court set guidelines in Wellington Belawa v The State [1988–89] PNGLR 496, in cases such as yours. In summary, the Supreme Court held that the lesser the amount of money involved the lesser the sentence terms should be. The converse of that is that, the higher the amount is, the higher the sentence terms should...