The State v Bonnie Sari (2012) N5167

• Jurisdiction: Papua New Guinea
• Judge: Toliken AJ
• Judgment Date: 24 August 2012
• Citation: (2012) N5167
• Docket Number: CR 440 OF 2009
• Court: National Court
• Year: 2012
• Judgement Number: N5167

Full Title: CR 440 OF 2009; The State v Bonnie Sari (2012) N5167

National Court: Toliken AJ

Judgment Delivered: 24 August 2012

N5167

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 440 OF 2009

BETWEEN

THE STATE

V

BONNIE SARI

Popondetta: Toliken AJ

2012: 08th, 24th August

CRIMINAL LAW – Sentence – Misappropriation – Plea of guilty – one-off offence – existence of high degree of trust – Employer-employee trust – Employee-customer trust - Breach thereof – Full restitution – 12 months imprisonment – Sentence suspended – Criminal Code ss. 383A (1)(a);s 19.

Cases Cited

Goli Golu v. The State [1979] PNGLR 653

Acting Public Prosecutor v Uname Auname [1980] PNGLR 510

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

Doreen Liprin v. The State (2001) SC 673

State v. Dobi Ao (No 2) (2002) N2247

The State v. Gibson Haulai (2004) N2555

The State v. Schola Zuvani (2004) N2641

The State v. Seilala Ipai (2006) N3169

The State v. Robert Lorou Sevese (2006) N3453

The State v. Siba Kua (2007) N3230

The State v Elizabeth Teka (2008) N3509

The State v. Ruth Mamando (2008) N3709

The State v. Francisca Iralu (2008) N3710

The State v. Danny Yannam (2008) N3958)

Counsel

M. Ruarri, for the State

A. Ninkama, for the defendant

SENTENCE

24th August, 2012

1. TOLIKEN AJ: On 08th August 2012, you pleaded guilty before me to one count of misappropriation. It was the State’s allegation that:

“... on the 29th day day of March 2008, at Popondetta ... [you] applied to [your] use a sum of K650.00 in cash, the property belonging to one ELIZABETH TAPIEDI”

This is an offence under Section 383A (1) (a) of the Criminal Code Act Ch. 262.

2. I confirmed your plea after reading the committal file and was satisfied that the evidence sustained the charge.

THE BRIEF FACTS

3. The brief facts which you pleaded to and upon which I am about to sentence you are that on the 29th March, 2008, you were working as a Cashier at the HQH Supermarket, Popondetta in the Northern Province when you stole K650.00 from Miss. Elizabeth Tapidie.

4. At that time, you were at the check-out counter. Elizabeth Tapidie came in and bought an electric Jug worth K37.90 using her BSP Save Card.

5. After you processed the purchase of the jug, you gave a receipt to Ms. Tapidie but then you swiped the card for the second time for a cash amount of K650.00. Ms. Tapidie did not notice this second transaction and therefore did not authorize it. You dishonestly took her money and applied it to you own use.

6. Ms. Tapiedi did not notice the theft until after a couple of days when on 31st March 2008 she and her brother attempted to make a withdrawal at the local ATM which was refused for insufficient funds. They enquired with the bank resulting in an internal investigation which cleared the bank and revealed that the transaction in question was done at the shop you had worked.

7. As a result you were arrested and charged with misappropriation.

ANTECEDENTS

8. You are from Jonita village, Popondetta, Northern Province. You have resided there most of your lifetime with your family.

9. You are now 25 years old but the time you committed the offence you were only 21 years old. You come from a family of 6 siblings. Your father died some years ago but your mother is still alive.

10. You have a g Grade 10 education. You are now married with a six (6) month old baby.

11. You are a first offender.

ADDRESSES ON SENTENCE

(i) Your Address on Allocutus

12. You apologised to the court and said that at the time in question you were desperately in need.

13. You also filed an affidavit where you deposed that you were on bail after committal to trial and that you appeared at several National Court call - overs but when your case was not called on those occasions you thought that your case was over so you stopped appearing in subsequent call-overs. A bench warrant was issued for your arrest. You were apprehended and remanded in custody awaiting trial. After 5 months in remand you were granted bail by the National Court on 12th May 2012.

14. When you were arrested and advised by police that your case was not over yet, you deposed that you fully repaid the amount you took from Ms. Tapidie through a direct bank deposit into an account nominated by her.

15. Ms. Tapidie also filed an affidavit confirming the payment you made.

16. You therefore asked for a non-custodial or a suspended sentence.

(ii) Submission by Your Lawyer

17. Your lawyer Mr. Ninkama, took the Court through his written submission when he addressed the Court on your behalf.

18. Essentially counsel directed the court’s attention to its sentencing discretion under the s 19 of the Criminal Code, well settled sentencing principles and guidelines and the sentencing trend by the courts for this type of offence.

19. Firstly he alluded to the generally accepted purposes for sentencing, these being deterrence, rehabilitation, separation from society and retribution, (Acting Public Prosecutor v Uname Auname [1980] PNGLR 510 where counsel quotes extensively from a passage from Kapi J.’s (as he then was) judgment.

20. He reminded the court that the maximum prescribed penalties are reserved for the worst category of offences (Goli Golu v. The State [1979] PNGLR 653). He submitted that your case does not fall within the worst category of cases of misappropriation and therefore should attract a much, much lesser sentence.

21. He then drew the court’s attention to the sentencing trend over the years for this kind of offence, starting with the leading case of Wellington Belawa v The State [1988-89] PNGLR 496 which sets out factors that may be taken into account and a scale of sentences that may thereafter be imposed in cases involving dishonesty such as misappropriation.

22. Counsel referred the Court to other cases of misappropriation which he said are relevant to your case. These cases involved varying amounts of monies ranging from a low K800 (The State v Danny Yannam (2008) N3958) to K37000.00 (The State v Elizabeth Teka (2008) N3509). I will discuss some of these cases further down in this judgment. I am grateful for the summaries which counsel provided for these cases in hard copy and upon my request.

23. Counsel submitted that except for The State v Danny Yannam (supra.) where the prisoner was sentenced to a custodial sentence, sentences in all the other cases were suspended despite the larger sums of monies involved. The attitude of the courts has therefore been towards non-custodial sentences where prisoners are ordered to make restitution. This he said stemmed from Doreen Liprin v. The State (2001) SC 673 where the Supreme Court said that custodial sentences were inappropriate for misappropriation cases or other non-violent crimes.

24. Counsel then submitted a long list of factors which mitigated your offence. Some of these are that you pleaded guilty to your crime, you are a first offender, you fully repaid the monies in question and your expression of remorse.

25. Counsel, however, conceded that there are two aggravating factors against you. These are; you were in a position of trust and abused that position and that you committed the crime in the course of your employment.

26. Taking all these into account and applying the guidelines in Belawa v. The State (supra) counsel argued that yours is not the worst of its kind and ought therefore to attract a wholly suspended sentence of between 6 months to 1 year only. Counsel was of the view therefore that an effective sentence of 5 months should be imposed which should be cancelled out by deduction of the 5 months spent awaiting trial in custody.

(iii) Submission by the State

27. Mr. Ruarri for the State acknowledged the guidelines in Belawa and your expression of remorse and left it to the court to exercise its discretion.

SENTENCING ISSUES

28. In deciding an appropriate sentence for you your counsel posed the following issues for the court to which the State made no objection.

(i) What is the appropriate head sentence to be imposed?

(ii) Should part or whole of the head sentence be suspended?

(iii) What conditions should be imposed?

THE LAW

29. Section 383A(1)(a) of Criminal Code provides for the offence of misappropriation as follows:

383A. Misappropriation of property.

(1) A person who dishonestly applies to his own use or to the use of another person—

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