The Sate v Neville Miria

• Jurisdiction: Papua New Guinea
• Judge: Gauli AJ
• Judgment Date: 21 March 2013
• Citation: (2013) N5102
• Court: National Court
• Year: 2013
• Judgement Number: N5102

Full : CR. 800 OF 2012 The Sate v Neville Miria (2013) N5102

National Court: Gauli AJ

Judgment Delivered: 21 March 2013

N5102

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 800 OF 2012

THE STATE

V

NEVILLE MIRIA

Waigani: Gauli AJ.

2013: 14, 18, 21 March

CRIMINAL LAW – Pleaded guilty – Sentence – Criminal Code Act – sections 372(1)(7)(10) – Stealing – Stealing from an employer – Mitigating factors – Entered early guilty plea – Saves time and costs – First time offender – Showed remorse – Aggravating factors – Stole substantial amount of money – Stole from an employer by unauthorized transfer of funds from one's account to another person's account – Was a person in possession of trust – Sentenced to 4 years imprisonment – Sentence partly suspended and placed on good behaviour with conditions

Cases Cited:

The State v Manga Kinjip [1976] PNGLR 86

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

The State v Robert Kawin (2001) N2167

The State v Roselyn Waiembi [2008] PGNC 240; N3708

The State v Lukeson Olewale (2004) N2758

The State v Unem Denum (Unreported National Court judgment; CR. 525 of 2012)

The State v Eliakim (2007) N3190

The State v Johnson Bale (2004) N2626

The State v Louise Paraka (2002) N2317

The State v Steven Luva (2010) N3909

The State v Bygonnes Tuse Nae (1996) N1474

The State v Vurmete (2000) N2008

The State v John Akoko (2001) N206

Henry Rakatani v The State [1976] PNGLR 556; SC166

Counsel

Mr. A. Bray & Miss Eva Ortlauf, for the State

Ms. Kesak, for the Accused

SENTENCE

1. GAULI AJ: The prisoner Neville Miria was indicted on one count of stealing from his employer the Bank of South Pacific Limited, charged under Sections 372 (7) (10) of the Criminal Code Act. He entered a plea of guilty to the charge at an earliest opportunity. His early guilty plea saves time.

BRIEF FACTS

2. The prisoner Neville Miria was employed by the Bank of South Pacific Limited (BSP) since 2008 as an Input Officer. His was an Input operator to input cheques that came into BSP Branches, input Salaries for customers through CBS and general administration duties.

3. On 7th July 2011, the prisoner transferred an unauthorized amount of K100,000.00 from the Pacific Industries Limited account number 1000583665 held with the BSP Branch to an account number 1001724273 under the name of Stanley Wita, also held with the BSP Branch, without the consent of the Pacific Industries Limited.

4. The prisoner after making the transaction abandoned his place of work in Port Moresby and he flew to Madang the next day. Between the 8th and 11th of July 2011, while in Madang, he made several withdrawals from various ATM and EFTPOS outlets to a total amount of K13,201.80

5. On the 11th July 2011, the prisoner called and arranged with one Graham Mursau, a teller, with the BSP Bank, Madang Branch and withdrew K15,000.00 all in cash. The Pacific Industries Limited noticed some deficits in their balance and made inquiries with the BSP bank. The bank found that there were discrepancies in the transfer from their account. On the 12th July 2011 the BSP bank reimbursed the K100,000.00 to the Pacific Industries Limited. Upon conducting an investigation, the prisoner was arrested and charged for stealing. At the time the prisoner was the employee of the BSP bank and the property he stole belongs to his employer the BSP bank. The BSP bank has lost K28,183.05 as a result.

ACCEPTANCE OF GUILTY PLEA

6. The law is well established in The State v. Manga Kinjip [1976] PNGLR 86, that a Judge should only accept a plea of guilty if it is made in plain and unmistakable terms. I have read the contents of the depositions from the Committal Court including the record of interview and the statements of the seven witnesses who are all the employees of the BSP bank both in Port Moresby and Madang branches. The prisoner made admissions in the record of interview, particularly in his answers to Questions: 17 – 26 & 28 - 31. I am satisfied that it is safe to accept the plea of guilty as the prisoner made his plea in plain and unmistakable terms. And I formally convict him on a charge of stealing from his employer.

THE RELEVANT LAW

7. The law applicable for stealing is Section 372 (1) of the Criminal Code Act. It carries a maximum penalty of three (3) years imprisonment for the offence of stealing simpliciter. For the other instances of stealing, including stealing by servants or employees are provided in Subsections (7) & (10) of section 372 of the Criminal Code Act, which carry a maximum term of imprisonment not exceeding seven (7) years. The relevant Subsections of Section 372 are set out as below:

372. Stealing

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

(7) If the offender is a clerk or servant, and the thing stolen –

(a) is the property of his employer; or

(b) came into the possession of the offender on account of his employment,

he is liable to imprisonment for a term not exceeding seven years.

(10) If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.

8. The case of Wellington Belawa v. The State [1988-89] PNGLR 496 sets out the sentencing tariffs or guidelines on dishonesty but those sentencing guideline are also applicable to offences such as stealing. The sentencing tariffs in Wellington Belawa are set out as below:

1. Between K1.00 and K1,000.00: a goal term should rarely be imposed.

2. K1000 and K10,000: a goal term of 2 years is appropriate.

3. K10,000 and K40,000: 2 – 3 years imprisonment.

4. K40,000 and K150,000: 3 – 5 years imprisonment.

9. The present case involves a sum of K100,000.00 thus it falls within the category four (4) of Wellington Belawa's case. It will attract a imprisonment term of between 3 to 5 years.

PRIOR CONVICTIONS

10. The prisoner has no prior convictions.

ALLUCUTUS:

11. Before sentencing, the prisoner in his allucutus said:

"I am sorry for what I have done. I say sorry to the BSP Bank and to my family. I am a first time offender. I was frustrated at work that led me to commit this offence. I only benefited with a sum of K28,183.05, the rest of the money was recouped by the Bank. I ask the Court for leniency".

ANTECEDENT REPORTS

12. The prisoner Neville Miria is 26 years old single male from Waima village, Bereina in the Central Province. He is the second eldest of five boys from the family. The details of his educational qualifications and employment history are as stated in the Probation Officer's Means Assessment Report below.

MEANS ASSESSMENT REPORT (MAR)

13. The means assessment report has been provided by the defence to assist the Court in its decision on an appropriate sentence and to determine whether or not sentence should be suspended. The MAR was prepared by the Probation Officer. I summarize the Means Assessment Report of Neville Miria as below:

Age: 26 year old male.

Family background: Mixed parentage of Central and Madang Provinces. Father from Waima, Kairuku District in the Central province.

Marrital Status: Single father with a 2 year old daughter from Gabagaba woman through de-facto relationship. Daughter and mother reside in Gabagaba village.

Education: Completed Grade 10 at Tokarara High School in 2002. He obtained a Certificate of Business Studies in 2006 from Hohola Youth Development School.

Employment: Attached to Air Niugini HRD branch in 2006 for 4 months on job experience. He was attached to Pacific Industries Limited as Salesman on job experience for 6 weeks in 2006. Employed by Bank of South Pacific Limited since 2008 as Input operator prior to been caught up with this offence in 2011 and he was terminated.

Financial Status: Currently unemployed. He sustains his living by street selling basic stuff such as packets of rice and tinned fish. He makes about K150.00 a day or between K200.00 to K400.00 a week. He also receives financial assistance from parents and his elder brother when in really need.

Plans for Restitution: He does not have any cash at hand. But he will ask his elder brother Nathan Miria, who is a gold buyer in Wewak. Nathan Miria when contacted by Probation Officer, said he will pay K1,000.00 to start with if Court allows restitution. Prisoner intends to seek employment within two years and the family members to support him repay the money.

Recommendation: The Probation Officer is reluctant to recommend restitution due to the reasons that the amount of money stolen is considered too much and the prisoner has inability to repay.

MITIGATING FACTORS

14. The factors that favours the prisoner are that:

· He has no prior convictions. Young first time offender but not a youth.

· He entered an early guilty plea that saves time and costs to everyone.

· He showed remorse for the wrong he has done.

· He cooperated with police.

AGGRAVATING FACTORS

15. The features that disadvantages the prisoner are that.

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