The State v Kelly Kanjip

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 09 April 2014
• Citation: (2014) N5590
• Court: National Court
• Year: 2014
• Judgement Number: N5590

Full : CR. No.689 of 2013; The State v Kelly Kanjip (2014) N5590

National Court: David, J

Judgment Delivered: 9 April 2014

N5590

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. No.689 of 2013

THE STATE

V

KELLY KANJIP

Prisoner

Minj & Mt. Hagen: David, J

2014: 4 & 19 March & 9 April

CRIMINAL LAW – Criminal Code, Section 372(1) and (7)(b), stealing – guilty plea – first offender - a single one-off incident – fourth - no pre-planning - until the offence, the offender had a good character - with caution, the welfare of the prisoner’s family – loss of job - the amount taken was substantial - the degree of trust reposed in the prisoner was high - the victim company suffered a substantial loss - the offender personally benefitted from the money stolen - the prisoner acted with another person - the offender regarded as an educated and sophisticated person who should have known between right and wrong - the victim company and customer wasted a lot of time, effort and money arranging police and staff to locate the prisoner on the date of the incident - the victim company contacted the prisoner on the date of the incident to return the money, but he refused - the offender was at large for over 4 years and 8 months avoiding arrest - the prisoner stole from a foreign business house operating in the country which impacted adversely or was a deterrent to possible or future foreign investors or people coming into the country with their foreign currencies to help economy - the offence was prevalent – aggravating factors outweigh those in mitigation - pre-sentence report and means assessment report compiled and filed by the Probation Service - reports not favourable to prisoner - pre-sentence report recommends custodial sentence - not an appropriate case to suspend all or any part of sentence – custodial sentence of 3 years in hard labour imposed for personal and public deterrence – time spent in custody of 1 year and 21 days deducted.

Cases cited:

Public Prosecutor v William Bruce Tardrew (1986) PNGLR 91

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

Public Prosecutor v Don Hale (1998) SC564

Doreen Liprin v The State (2001) SC673

The State v John Akoko (2001) N2061

The State v Robert Kawin (2001) N2167

The State v Timothy Sio (2002) N2265

Edmund Gima and Siune Arnold v The State (2003) SC730

The State v Allan Nareti (2004) N2582

The State v Alice Wilmot (2005) N2857

The State v Ian Sevevepa, CR No.2007 of 2005, Unreported & Unnumbered Judgment of Lenalia, J delivered at Popondetta on 10 May 2006

Richard Liri v The State (2007) SC883

The State v Roselyn Waiembi (2008) N3708

The State v Simon Paul Korai (2009) N3820

The State v Cheppy Novaii, CR 1097 of 2009, Unreported & Unnumbered Judgment of Ellis, J delivered at Wabag on 17 May 2010

The State v Siam Serave, CR 303 of 2009, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 16 November 2011

The State v Mathias Lunga, CR 1380 of 2010, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 17 November 2011

Counsel:

Messrs Joe Kesan with Philip Tengdui, for the State

Mr. Vincent Agusave, for the prisoner

9th April, 2014

1. DAVID, J: The prisoner, appearing before me from custody, pleaded guilty to a charge of stealing from his employer, Bintagor Trading Company Limited on or about 30th June 2008 at Banz, Jiwaka Province cash in the sum of K9,900.00, which came into his possession on account of his employer contrary to Section 372(1) and (7)(b) of the Criminal Code. Having been satisfied that the evidence contained in the depositions supported the charge, I convicted the prisoner.

2. For the purposes of arraignment, the State Prosecutor, Mr. Tengdui presented the following short facts to the Court. The prisoner who is from Kol village in the Jimi District of the Jiwaka Province was at Banz on Monday, 30th June 2008 on a cargo delivery trip for his employer, Bingtagor Trading Company Limited from Mt. Hagen to a customer namely, Feng Hua Trading operating in Banz. The cargo was valued at K19,800.00. Upon delivery of the cargo, the proprietor of Feng Hua Trading, Tei Zheng paid a sum of K19,800.00 being payment for the cargo which he gave to the prisoner in a box to be delivered to his employer in Mt Hagen. The prisoner did not deliver the money to his employer. Instead, he took the money and shared it with another person, in equal parts. He applied K9,900.00 to his own use. The money he stole came into his possession because of his employment. He was on the run for four years until apprehended at Banz on Tuesday, 19th March 2013.

3. The prisoner has no prior convictions.

4. In his allocutus, the offender recounted how the plan to steal the money was hatched with the driver of the delivery vehicle after the owner of Feng Hua Trading had delivered to him K19,800.00 in a box as payment for the cargo they had delivered. The money was shared in equal parts near a tea factory at Kujip and the driver undertook to cover for him. He got off there, took a PMV and went to Simbu. The offence was not pre-planned and he fell into Satan’s temptation when the driver suggested the plan to him after receiving the box of money. He said he was employed by his former employer as a Dispatch Master and Debt Collector and never at anytime got himself into trouble with his employer despite handling a lot of money which came into his possession in the course of performing his duties. He was concerned about the welfare of his entire family particularly his three young female children, two of whom were attending school at Kol Community School and his parents who were old as there was no one else to pay for the children’s school fees or look after all of them. He said sorry to; Bruce Sia, owner of Bintagor Trading Company Limited; God; and the National Court. He pleaded for mercy and requested that he be handed a non-custodial sentence so that he could find employment and repay the money he stole. He said whilst incarcerated, several companies had shown interest in engaging his services. He conceded that he was on the run and working in Lihir (with Assert Protection), but was in Banz whilst on leave when he was apprehended for this offence.

5. After administering the allocutus, the defence applied for a pre-sentence report and a means assessment report to be compiled by the Probation Service here to assist the Court in determining an appropriate sentence for the offender. I granted the request and directed that the reports be filed on or prior to 19th March 2013 at 9:30 am and the matter was adjourned to that date and time for mention and or submissions on sentence giving the Probation Service sufficient time to prepare the reports. The Probation Service filed the reports within the period given and I thank Ms. Theresa Puk, Probation Officer for her efforts in compiling the reports.

6. The pre-sentence report and the means assessment do not speak favourably of the prisoner. The pre-sentence report recommends that a custodial sentence be imposed for several reasons; first, probation supervision including monitoring of rehabilitation programmes would be quite difficult due to the remoteness of the prisoner’s village; second, as is reported by the means assessment report, the prisoner’s only source of funds was K2,737.81 standing to his credit at NASFUND hence he was financially incapable of meeting any order for restitution or compensation on his own; and third, the victim company preferred that the prisoner be accorded a custodial sentence as it was not interested in any form of restitution from the prisoner.

7. The offender originates from Kol village which is situated in the upper Jimi District of the Jiwaka Province. His family resides at the village. He is now aged about 44 years, married with 3 female children. The first born child is aged 12 years and she is doing Grade 6 at the Kol Community School. The second born child is aged 6 years and she is attending Elementary School at Kol. The last born is aged 1 year and 2 months and obviously is breast fed. He does not have any physical or mental disabilities. He was the sole bread winner for the family. Until the offence, he had been residing at the Mopa Compound at Warakum here in Mt. Hagen. Both parents are alive and reside at Kol. He completed Grade 6 at the Kol Community School and then attended the Minj High School where he completed Grade 10 in 1992. In 1997, he attended the Commercial Training College here in Mt. Hagen and graduated with a certificate in Modern Salesmanship. He was employed as a Dispatch Master, Debt Collector and salesman with the victim company. He has also worked with several security companies in Lihir in the New Ireland Province. He was in the employ of Kopun Investment Holdings Limited as a salesman when he was arrested and detained for this offence on 19th March 2013. He has been in custody for 1 year and 3 weeks. He comes from a family of three boys including himself and they are all married and have children. He was a baptized member of the Evangelical Brotherhood Church.

8. In mitigation, it was submitted by Mr. Kapi of counsel for the prisoner that; the prisoner accepted criminal responsibility by pleading guilty to a...