The State v Joan Kissip (2020) N8340

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 05 June 2020
• Court: National Court
• Citation: (2020) N8340
• Docket Number: CR (FC) No 119 of 2019
• Year: 2020
• Judgement Number: N8340

Full Title: CR (FC) No 119 of 2019; The State v Joan Kissip (2020) N8340

National Court: Berrigan J

Judgment Delivered: 5 June 2020

N8340

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 119 of 2019

THE STATE

V

JOAN KISSIP

Waigani: Berrigan J

2020: 9th March & 5th June

CRIMINAL LAW–SENTENCE –S 372 of the Criminal Code – Stealing - Bank employee convicted of four counts of stealing a total of K36,140 following trial – Sentence of 4 years, wholly suspended on strict conditions including restitution.

Cases Cited

Wellington Belawa v The State [1988-1989] PNGLR 496

The State v Niso (No 2) (2005) N2930

The State v Tiensten (2014) N5563

The State v Neville Miria (2013) N5102

The State v Simon Paul Korai (2009) N3820

The State v Roselyn Waiembi (2008) N3708

The State v Timothy Tio (2002) N2265

The State v Ian Sevevepa, CR No.2007 of 2005, unreported, 10 May 2006

The State v Maurani (2008) N3560

The State v. Steven Luva (2010) N3909

The State v Taba (2010) N3939

The State v Bobo (2011) N4416

State v Pasliu (2014) N5696

The State v Vagi (2017) N6994

The State v Agnes Jimu and Charles Andrew Epei (2019) N8046

The State v Yani Paul & Anor (2019) N8026

Lawrence Simbe v The State [1994] PNGLR 38.

Goli Golu v The State [1979] PNGLR 653

Mase v The State [1991] PNGLR 88

Public Prosecutor v Kerua [1985] PNGLR 85

Tremellan v The Queen [1973] PNGLR 116

The State v Tardrew [1986] PNGLR 91

The State v Frank Kagai [1987] PNGLR 320

The State v Joan Kissip (2020) N8184

Legislation and other materials cited:

Sections 19, 372(1)(7)(a)(10) of the Criminal Code.

Counsel

Ms T. Aihi, for the State

Mr J. Kolowe, for the Accused

DECISION ON SENTENCE

5th June, 2020

1. BERRIGAN J: The offender was convicted following trial of four counts of stealing property belonging to her employer, Bank of South Pacific (BSP), contrary to s. 372(1)(7)(a)(10) of the Criminal Code: The State v Joan Kissip (2020) N8184.

2. The offender stole the monies in each case whilst employed as an Automated Telling Machine (ATM) Support Officer with BSP’s Transaction and Channel Support (TCS) Business Unit. It was her responsibility to rectify dispensing errors at the bank’s ATMs by removing cash from a “divert” or “reject” bin so that the machine could function again. She was then responsible for counting the cash, placing it in a bag and placing the bag back inside a separate part of the vault of the ATM for collection by other bank officers at a later time. On four separate occasions she stole the following monies from four ATMs across Port Moresby in the course of performing her duties:

Count 1: K7,350 on the 19th day of January 2017 from ATM device number 8230072 located at Gordon Bank South Pacific Commercial Centre.

Count 2: K5,290 on the 19th day of January 2017 from ATM device number 8230086 located at Brian Bell Home Centre Gordons.

Count 3: K11,500 on the 20th day of January 2017 from ATM device number 8230106 located at the Boroko Banking Centre.

Count 4: K12,000 on the 16th day of February 2017 from ATM device number 8230093 located at the Stop and Shop North Waigani.

3. In total K36,140 in cash monies was stolen.

Sentencing Principles and Comparative Case

4. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:

a) the amount taken;

b) the quality and degree of trust reposed in the offender;

c) the period over which the offence was perpetrated;

d) the impact of the offence on the public and public confidence;

e) the use to which the money was put;

f) the effect upon the victim;

g) whether any restitution has been made;

h) remorse;

i) the nature of the plea;

j) any prior record;

k) the effect on the offender; and

l) any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.

5. In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount misappropriated is between:

a) K1 and K1000, a gaol term should rarely be imposed;

b) K1000 and K10,000 a gaol term of up to two years is appropriate;

c) K10,000 and K40,000, two to three years’ imprisonment is appropriate; and

d) K40,000 and K150,000, three to five years’ imprisonment is appropriate.

6. Whilst the suggested scale of tariffs in Wellington Belawa is relevant it is to be noted that the offender in this case has been convicted of stealing. Unlike misappropriation which attracts a maximum of 10 years for amounts more than K2000 (and less than K1 million post the 2013 amendments), stealing contrary to s 372(1)(7)(a)(10) of the Criminal Code attracts a maximum penalty of 7 years of imprisonment.

7. It is generally accepted that whilst the principles to be applied when determining sentence remain relevant and applicable, the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; and The State v Tiensten (2014) N5563.

8. The defence submits that an effective sentence of two to three years of imprisonment would be appropriate. The State submitted that a sentence of one year of imprisonment should be imposed in respect of each count, to be served cumulatively. The State relied on the following cases:

a) The State v Neville Miria (2013) N5102, Gauli AJ, in which the offender, a data input officer with BSP, pleaded guilty to stealing K100,000from his employer. He transferred the monies to an account in a single transaction. The theft was discovered promptly by the bank, which limited its losses to K28,183.05. The offender was sentenced to 4 years of imprisonment. One month in custody was deducted and 2 years of the balance of 3 years, 11 months was suspended on conditions including restitution of the monies lost;

b) The State v Simon Paul Korai (2009) N3820, David J, in which the offender was employed by BSP, Kundiawa Branch, as a security guard. The offender was familiar with the victim and assisted her on several occasions to do her banking as she was illiterate. He came to know her PIN number and stole K21,460 from her account. He pleaded guilty and was sentence to three years of imprisonment less 9 months 3 weeks already served. Two years of the balance was suspended on the offender entering into his own recognisance to be of good behaviour; and

c) The State v Roselyn Waiembi (2008) N3708 in which the prisoner pleaded guilty to stealing K15,000 between 28 June 2002 and 26 November 2004, whilst employed by a law firm as its accounts clerk. She stole this money by including extra amounts in the cheque requisition forms every payday Friday and taking the balance of between K50 and K700 on each occasion. She was sentenced to three years’ imprisonment, less one month for time spent in custody. The balance of which was suspended upon conditions including restitution with the assistance of her family.

9. I have also had regard to the following cases:

a) The State v Timothy Tio (2002) N2265, Kandakasi J (as he then was) in which a security guard pleaded guilty to stealing a chainsaw, valued at K8000 from his employer, which he sold on to a third party for K3000. The chainsaw was later recovered. The offender was sentenced to 5 years’ imprisonment less time spent in custody;

b) The State v Ian Sevevepa, CR No.2007 of 2005, unreported, 10 May 2006, Lenalia J, in which the offender pleaded guilty to stealing the sum of K17,000 belonging to a service station proprietor. The offender walked into the office, pushed a female employee who was present away, and ran away with the bag of money, giving it to another person. He was sentenced to 3 years of imprisonment. The time spent in custody awaiting trial was deducted and the balance was ordered to be served out of custody;

c) The State v Maurani (2008) N3560, Davani J, where the prisoner pleaded guilty to one count of stealing a chainsaw that was the property of a company, together with his co-accused. Both were sentenced to 3 years, 6 months’ imprisonment;

d) The State v. Steven Luva (2010) N3909, Lenalia J, in which the offender was sentenced to 4 years, 5 months on 13 counts of stealing a total of K4,618.20 from his employer, PNG Power Limited. He was ordered to serve 12 months, while the balance of 3 years 5 months was suspended;

e) The State v Taba (2010) N3939, Cannings J, in which the prisoner was convicted of stealing 1000 cartons of tinned fish valued at K58,399 from his employer, RD Tuna Canner Ltd. He had joined other employees to steal the tinned fish and sell it to a third party. The prisoner was sentenced to 2 years, 6 months’ imprisonment less the 1 year 5...