The State v Newton Simbiri (2012) N5161

• Jurisdiction: Papua New Guinea
• Judge: Toliken AJ
• Judgment Date: 24 August 2012
• Citation: (2012) N5161
• Docket Number: CR.NO. 808 OF 2008
• Court: National Court
• Year: 2012
• Judgement Number: N5161

Full Title: CR.NO. 808 OF 2008; The State v Newton Simbiri (2012) N5161

National Court: Toliken AJ

Judgment Delivered: 24 August 2012

N5161

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 808 OF 2008

BETWEEN

THE STATE

V

NEWTON SIMBIRI

Popondetta: Toliken AJ

2012: 07th, 24nd of August

CRIMINAL LAW – Sentence – Stealing from Employer – Stealing by School Headmaster - High degree of trust – Abuse of trust – Prevalent offence - Appropriate sentence for cases of stealing by servants of the State – Sentences should serve to punish, deter and exact restitution out of offenders and hopefully also rehabilitate offenders - Partial imprisonment to restore public confidence in public institutions, public servants and our system of justice – Head sentence of 2 years - Partial suspension with condition for restitution – Criminal Code Act Ch. 2626, ss 19, 372(1)(7)(b).

CRIMINAL LAW – Sentence – Mitigating factors considered – Extenuating circumstances – Involvement of others and prisoner’s degree of participation considered - Allegation of conspiracy by Board members in theft in allocutus and defence submission – Not negatived by the State – Considered and applied to benefit of prisoner.

Cases Cited

The following cases are cited in the judgment:

The Public Prosecutor v. Sam Minimo [1977] PNGLR 226

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

The State v. Paulus Takesi [1997] PNGLR 507

Allan Peter Utieng v The State (2000) SCR 15 of 2000(unreported and unnumbered judgement)

The State v. John Akoko (2001) N2061

The State v. Robert Kawin (2001) N2167

The State v. Timothy Tio (2002) N2265

The State v. Louise Paraka (2002) N2317

The State v. Shirley Tainoli (24/11/2004) (unreported and unnumbered judgment)

Saperius Yalikabut v The State [2006] PGSC 27; SC890 (27 April 2006)

The State v. Roselyn Waiembi (2008) N3708

The State v. Simon Paul Korai (2009) N3820

The State v. Steven Luva (2010) N3909

Counsel

M. Ruarri, for the State

A. Ninkama, for the Prisoner

SENTENCE

24th August, 2012

1. TOLIKEN AJ. Newton Simbiri, you were committed by the Popoendetta District Court on 02nd August 2008 to stand trial for one count of fraudulent uttering contrary t o Section 463 of the Criminal Code Act Ch. 262 (the Code). However, on 07th August 2012, the State presented an indictment charging you with the offence of stealing from your employer. The indictment charges that:

“... between the 15th and 31st of August 2007 at Popondetta in Papua New Guinea [you] stole K10,400.00, the property of [your] employer Urio Primary School”

Stealing is an offence under Section 372 (1)(7)(b) of the Criminal Code Act Ch. 262.

2. You entered a guilty plea which I confirmed after perusing the statements of witnesses and your Record of Interview in the committal file and satisfying myself that evidence supported your plea.

3. I deferred my sentence to today and I hereby deliver it.

BRIEF FACTS

4. The State alleged that at the time of the offence you were the Headmaster of Urio Primary school. On three different occasions between the 15th and 31st August 2007 you withdrew a total of K10,400.00 from the school account after forging the signatures of the school’s Board Chairman and Treasurer. You made the first withdrawal of K5000 on 15th of August 2007, followed by a second withdrawal of another K5000 two days later on 17th August. Then on 31st August 2007 you made the final withdrawal of K400.00. All these withdrawals were done without the approval of the school’s Board. You put these monies to your own use.

ANTECEDENTS

5. The following are your antecedents:

(i) You are from Buna village, Oro Bay Local Level Government, Oro Province.

(ii) You are 46 years old, a school teacher by profession and until very lately were a Senior Teacher at Popondetta Primary School.

(iii) You are married with 4 children aged 20, 18, 17 and 14 years. Your wife is also a teacher by profession. You reside with your family at Popondetta Primary School.

(iv) You are a member of the Anglican Church.

(v) You have no previous convictions.

YOUR ADDRESS ON SENTENCE (ALLOCUTUS)

6. You verbally addressed the Court on sentence and also relied on an affidavit that you filed on 17th October 2011. You apologised to God, the Court, lawyers, your wife who is a professional teacher like you and your children, the students, parents and the community of Urio Primary School. You said you were sorry for bringing shame to your family (especially your wife) and yourself. You admitted getting the money but said that this was a joint enterprise between you and the Board Chairman and Treasurer whom you said are biological brothers. You said that the Board Chairman came to your house with withdrawal slips which he and his brother the Treasurer had pre-signed.

7. You said that you only personally benefitted from the first and third withdrawals of K5000.00 and K400 while the rest was used by your alleged co-conspirators. You also said that you used some of the monies to buy school materials but you were unable to produce the receipts as you were not allowed back into your office after you were released on bail or earlier when the arresting officer did not listen to your pleas to have access to your office.

8. You said that this matter has affected you and your family to the extent that you have not been able to live a normal life without being constantly bothered by criticisms. You have been demoted to Senior Teacher and until very lately have been teaching at Popondetta Primary School where you assisted the Senior Subject Master and the Deputy Headmaster in school administration. You were also the Teachers’ representative on the school Board.

9. You said in your affidavit that you are married with 4 children aged 20, 18, 17 and 14 years of age who are doing Grades 12, 10, 9 and 6 respectively. You also said that you are now 46 years old. You were first posted here to the Oro Province after graduating from Madang Teachers College in 1984 and have faithfully served in various rural and urban schools in the province for the last 27 years.

10. You deposed that you are the 7th in a family of 11. Both your parents have died and you lost three of your brothers in 2008, 2009 and 2011. You said you had taken out loans to assist with funeral expense and you are still repaying these loans. You said that you have been so psychologically affected as a result and therefore you have since tendered your resignation from the Teaching Service so that you can use your service entitlements to repay the money you stole.

11. You said that you realized that it was pointless denying the offence and therefore instructed your lawyers that you will plead guilty in the August 2011 National Court Circuit. You acknowledged that your tarnished reputation is the direct consequence of what you did.

12. Finally you deposed that you have taken steps to repay what you stole. On 12th October 2011 you paid a first instalment of K800.00 to the school. A copy of the deposit slip is annexed to your affidavit. You undertook to continue to make instalment payments and will also use your service entitlements to repay the sum of K5400 which you said you benefitted from personally.

SUBMMISSION ON YOUR LAWYER

13. Your lawyer submitted that between 15th, 17th, and 31st August 2011, while employed by the Department of Education as the Headmaster of Urio Primary School you fraudulent conspired with the Board Chairman and Treasurer and stole K10,400.00 from the school. You had signed withdrawal slips and withdrew the monies on the three occasions alleged in facts by the State. The monies were used by the three of you. Counsel submitted that there are two sentencing issues for the Court to consider. These are:

(i) What would be the appropriate sentence to be imposed on you?

(ii) Whether or not the whole or part of the sentence can be suspended.

14. Counsel submitted that while simple stealing under Section 372(1) of the Code attracts a penalty of 3 years imprisonment, your case is aggravated with the application of s. 372(7) as you committed the offence in the course of your employment. The penalty there is imprisonment for a term not exceeding 7 years.

15. He also submitted the following factors as mitigating your offence:

(i) You were 43 years old at the time of the offence but are now 46.

(ii) You are the father of a young family and although you wife is also a teacher your needs your support

(iii) All your children are in school and need your support daily

(iv) You are a first time offender

(v) You entered an early plea thereby saving judicial time and expense

(vi) You expressed remorse for...