The State v Henry Eliakim (2007) N3190

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 March 2007
• Citation: (2007) N3190
• Docket Number: CR NO 778 0F 2004
• Court: National Court
• Year: 2007
• Judgement Number: N3190

Full Title: CR NO 778 0F 2004; The State v Henry Eliakim (2007) N3190

National Court: Cannings J

Judgment Delivered: 16 March 2007

N3190

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 778 0F 2004

THE STATE

V

HENRY ELIAKIM

Bialla: Cannings J

2007: 12, 15, 16 March

CRIMINAL LAW – sentences – Criminal Code, Section 407 (conspiracy to defraud) – Criminal Code, Sections 372(1) and (7)(a) (employee stealing from employer) – sentence on plea of guilty – two offences – total sentence 18 months imprisonment – offender to serve three months in custody.

A man pleaded guilty to one count of conspiracy to defraud and one count of stealing money from his employer. The amount involved was K3,369.01. He was a field supervisor in a company and he planned with two others to submit false attendance sheets for ghost employees and obtain pay cheques. He put the plan into action over a three-month period until caught.

Held:

(1) The starting point for sentencing for conspiracy to defraud, is 3 years, 6 months imprisonment.

(2) The starting point for sentencing for an employee stealing from an employer, is 3 years, 6 months imprisonment.

(3) Each offence was allotted a notional sentence: count 1, 18 months; count 2, 18 months; a total of 36 months.

(4) Both sentences should be served concurrently as the offences were part of the same set of transactions. The total sentence of 18 months is not excessive.

(5) The offender was sentenced to three months in custody and had the balance of the sentence suspended, subject to various conditions including that he make restitution, in kind, to his former employer within six months after the date of release from custody.

Cases cited

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

The State v A Juvenile, “TAA” (2006) N3017

The State v Augustine Seckry CR 376/2005, 19.04.05

The State v Iori Veraga (2005) N2921

The State v Joyce Gulum CR 1620/2005, 06.04.06

The State v Obert Poesan Pokanas (2004) N2702

The State v Paul Taro CR 237/2006, 03.08.06

The State v Richard Dusal Bix and Siprian Sipi Karo (2003) N2415

The State v Rictor Naiab CR 387/2005, 08.09.05

The State v Robert Kawin (2001) N2167

The State v Rochus Navus CR No 390 of 2005, 19.04.05

Tom Longman Yaul v The State (2005) SC803

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

PLEA

The accused pleaded guilty to conspiracy to defraud and stealing and the following reasons for sentence were given.

Counsel

F Popeu, for the State

O Oiveka, for the accused

16 March, 2007

SENTENCE

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to two charges: conspiracy to defraud and stealing from his employer.

INDICTMENT

2. The indictment was framed as follows:

· Count 1 – conspiracy to defraud – an offence under Section 407(1)(b) of the Criminal Code;

· Count 2 – stealing from employer – an offence under Sections 372(1) and (7)(a) of the Criminal Code.

CONVICTION

3. The offender pleaded guilty to the following facts:

· He was employed as a field supervisor by Hargy Oil Palms Ltd. He was engaged in the harvesting and maintenance section at Area 8, Urumaili. His responsibilities included keeping records of attendance of employees and filling in time sheets for purposes of processing their pays.

· In September 2003 a number of casual workers were laid off. However, he conspired with two other Hargy employees to ensure that attendance sheets for the five laid-off workers were still completed. Upon receiving them he would approve them and send them to the accounts section for their pays to be processed. The pay cheques for the laid-off workers continued to be raised and he received them. He arranged to have the cheques cashed and shared the proceeds with the two with whom he had conspired.

· He received a total of K3,369.01 until caught out in December 2003.

· He therefore entered into a conspiracy to defraud his employer and he stole from his employer.

4. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted him of the two offences, as charged. He is now referred to as the offender.

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I had been working with the company for three years when I committed these offences. I have three children in high school. I have arranged with the company to supply them with timber and pay back the money that I stole.

I ask the court for mercy. This is my first time to be in court. I say sorry to the company and to everyone in the courtroom today. Please consider putting me on a good behaviour bond.

OTHER MATTERS OF FACT

7. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, (Jalina J, Mogish J, Cannings J)). In his police interview in March 2004 the offender made admissions and made a full confessional statement. He also left the company of his own volition. He was not sacked.

PRE-SENTENCE REPORT

8. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received a pre-sentence report under Section 13(2) of the Probation Act for the offender. The report, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, is summarised below.

HENRY ELIAKIM

Age: 43-year-old male.

Family background: parents are from Kukula village, Bialla area – born and raised here – oldest in family of 12 – lives in the village. Father died in 2001. Mother alive but frail.

Marital status: Married with seven children; some of the children are employed or doing tertiary education, eg DWU.

Education: grade 8, Hoskins Secondary School, 1977.

Employment: consistently employed in the formal sector from 1987 to end of 2003 when the offences were committed. Employed on various plantations, including 13 years as a field supervisor, the last three with Hargy.

Health: OK.

Financial status: has four blocks that he works to sustain himself and the family – owns a chainsaw, which he uses to cut timber and sell – this is what he proposes to do to pay off the money that he stole from the company.

Plans: wants to establish an oil palm estate – complete the permanent house in the village – reconcile with the company – look after his mother.

Attitude of community to the offence: a village leader, Exson Rogi, says the offender is highly regarded in the village and the offender is a clan leader; HOPL company secretary, Cosmas Kaue, would prefer that the offender repay the money rather than go to jail – arrangements have already been made re supply of sawn timber – the company did not terminate him as he was one of the company’s most experienced and diligent workers.

Attitude of family: his wife and children are very supportive of him – don’t want to see him go to jail.

Recommendation: the offender is suitable for probation – capable of repaying money if he is given time.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Oiveka highlighted the following mitigating factors: the offender pleaded guilty; he made admissions freely to the police; he has expressed genuine remorse; he has a big family to care for; the company does not want him to go to jail. The offender has been made a scapegoat, as the other two with whom he entered in the conspiracy were not charged.

10. He should be given a suspended sentence, Mr Oiveka submitted.

SUBMISSIONS BY THE STATE

11. Mr Popeu, for the State, submitted that to be consistent with similar sorts of cases decided recently in WNB the offender should be sent to jail.

DECISION MAKING PROCESS

12. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· Step 3: what other sentences have been imposed recently for equivalent offences?

· step 4: what is the head sentence for each offence?

· step 5: should the sentences be served concurrently or cumulatively?

· step 6: what is the effect of the totality principle?

· step 7: should the pre-sentence period in custody be deducted from the term of imprisonment?

· step 8: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. The offender has been convicted of offences under Section 407(1) and Sections 372(1) and (7)(a) of the Criminal Code.

14. Section 407(1) (conspiracy to defraud) states:

(1) A person who conspires with another person—

(a) by deceit or any fraudulent means to affect the market price of any thing publicly sold; or

(b) to defraud the public, or any person (whether or not a particular person); or

(c) to extort property from any person,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

15. Section 372 (stealing) relevantly states:

(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)(a) If the offender is a clerk or servant, and the thing stolen … is the property of his employer, he is liable to...