The State v Mathias Watt

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, J.
• Judgment Date: 06 June 2014
• Citation: (2014) N5654
• Docket Number: CR. 96 OF 2013
• Court: National Court
• Year: 2014
• Judgement Number: N5654

Full Title : CR. 96 OF 2013; The State v Mathias Watt (2014) N5654

National Court: Kirriwom, J.

Judgment Delivered: 6 June 2014

N5654

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 96 OF 2013

THE STATE

–v-

MATHIAS WATT

Wewak: Kirriwom, J.

2014: June 6

(NO.2)

CRIMINAL LAW – Sentence – Convicted of stealing as employee – Abuse and breach of position of trust – Prisoner married to sister of business owner – Prisoner’s wife held responsible management position in company’s operation – Prisoner took advantage of his marriage to become privy to secret safe combination numbers and stole office keys from his wife’s bilum to carry out theft – Prisoner had confidential information of the money in the safe through his wife – Lack of remorse – No restitution – Money stolen was spent on excessive drinking spree over a period of three days - Trial was unwarranted – Sentenced to four years.

Cases cited:

The State v Johnson Maurani (2008) N3560

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

Counsel:

D. Mark, for the State

F. Fingu, for the Accused

DECISION ON SENTENCE

6th June, 2014

1. KIRRIWOM, J.: This accused was convicted after a trial on a charge of stealing under section 372 of the Criminal Code. He stole K11,300 belonging to Waiu Ltd, a nationally owned company belonging to his wife’s brother, Kenny Samuel. The accused got married to Rachael Samuel, who was the Depot Supervisor of the company’s Maprik Operations. She was involved in the administration of the company in its Bonz premises at Maprik and after marriage to Rachael Samuel, the accused took up employment in the Operations.

2. He and Rachael Samuel lived inside the company premises. In the early hours of the morning of 24th October, 2012 the prisoner sent Rachael to feed their pigs outside the fenced area of the company. While the wife was away he took the keys to the office and the safe and proceeded to the warehouse where he entered the office and opened the safe using the secret code he somehow learnt of it and took out K11,300 in the safe that was delivered only few days ago by one of Rachael’s brothers for the company’s operations in Maprik. All that money was in K100 note denomination.

3. From 6:00am that day after coming into possession of that money, the accused went on a drinking spree with friends, mostly fellow work mates from Waiu Ltd and police from Maprik. He not only bought drinks but threw away money to friends recklessly as if he had so much that giving some away did not hurt his pocket or wallet. People who saw him spending lavishly said that he was carrying around substantial cash in K100 notes.

4. Maprik did not have a bank or banking facilities at the time of this offence and the accused had no reasonable explanation as to how he came into possession of that money apart from accusing two politicians of paying him varying sums of money by way of bribes for election related favours he did for them during voting and counting in the 2012 National Elections. One of those he named is a current sitting member. I will be recommending to the Police Commissioner for this story to be investigated and if found to be true, the accused and those he implicates be appropriately charged with criminal offences. He also stated that the monies were from his NPF savings which he received every month in the sum of K6000 per month and his brother in Port Moresby was in-charge of that account. However, he produced no evidence to support his claim. In the end the court could not believe a word of what he was saying, jumping from one story to another, being the source of his sudden change of luck when only a day before he was forced to sell his mobile phone because he needed money badly for his drink and rejected his evidence as recent invention and fabrication.

5. For purposes of sentencing, the prisoner is liable to be punished under subsection (5)(f) or even subsections 7 and 10 which create different categories of stealing which carry a maximum penalty of seven (7) years. But it must be noted that since the recent amendment offences under section 372 are capable of attracting maximum determinate term of 50 years without remission and without parole and even mandatory life imprisonment. Section 372 as amended provides:

“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.

(1A) If the thing stolen is money exceeding K1 million and does not exceed K10 million an offender is liable to imprisonment for a term of 50 years without remission and without parole.

(1B) If the thing stolen is money exceeds K10 million, the penalty shall be life imprisonment.

(2) If the thing stolen is a testamentary instrument, (whether the testator is living or dead), the offender is liable, subject to Section 19, to imprisonment for life.

(3) If the thing stolen is anything in course of transmission by post, the offender is liable, subject to Section 19 to imprisonment for life.

(4) If the thing stolen is an aircraft, the offender is liable to imprisonment for a term not exceeding 14 years.

(5) If—

(a) the thing is stolen from the person of another person; or

(b) the thing is stolen in a dwelling-house, and—

(i) its value exceeds K10.00; or

(ii) the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; or

(c) the thing is stolen from a vessel, vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another; or

(d) the thing is stolen from a vessel that is in distress or wrecked or stranded; or

(e) the thing is stolen from a public office in which it is deposited or kept; or

(f) the offender, in order to commit the offence, opens a locked room, box or other receptacle by means of a key or other instrument,

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

(6) If the offender is a person employed in the Public Service, and the thing stolen—

(a) is the property of the State; or

(b) came into the possession of the offender by virtue of his employment,

he is liable to imprisonment for a term not exceeding seven 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 employer,

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

(8) If the offender is a director or officer of a corporation, and the thing stolen is the property of the corporation, he is liable to imprisonment for a term not exceeding seven years.

(9) If the thing stolen is—

(a) property that has been received by the offender with a power of attorney for its disposition; or

(b) money received by the offender with a direction that it should be applied to any purpose or paid to any person specified in the direction; or

(c) the whole or part of the proceeds of a valuable security that was received by the offender with a direction that the proceeds of it should be applied to a purpose or paid to a person specified in the direction; or

(d) the whole or part of the proceeds arising from a disposition of any property that have been received by the offender by virtue of a power of attorney for such disposition, the power of attorney having been received by the offender with a direction that the proceeds be applied to a purpose or paid to a person specified in the direction,

the offender 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.

(11) If the thing stolen is a fixture or chattel let to the offender to be used by him with a house or lodging, and its value exceeds K100.00, he is liable to imprisonment for a term not exceeding seven years.

(12) If the offender, before committing the offence—

(a) had been convicted on indictment of an indictable offence against any provision of this Division; or

(b) had been twice previously summarily convicted of an offence against any such provision punishable on summary conviction whether or not each of the convictions was in respect of an offence of the same character,

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

6. The maximum penalty provided by law is usually reserved for the worst case scenario. Whether this is a worst case depends on the circumstances of the offence and that of the offender.

7. Matters that aggravate this offence include serious breach of trust, failure to disclose the truth to his wife once the theft was discovered, making serious allegations implicating others in criminal acts as his source of sudden windfall gain and no restitution made to date.

8. In his favour I bear in mind that this is the prisoner’s first offence against the law and he expressed remorse for his actions while undertaking to repay what he stole from the...