The State v Roselyn Waiembi (2008) N3708

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 26 March 2008
• Citation: (2008) N3708
• Docket Number: CR. NO. 1049 OF 2005
• Court: National Court
• Year: 2008
• Judgement Number: N3708

Full Title: CR. NO. 1049 OF 2005; The State v Roselyn Waiembi (2008) N3708

National Court: David, J

Judgment Delivered: 26 March 2008

N3708

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1049 OF 2005

THE STATE

-vs-

ROSELYN WAIEMBI

Mt. Hagen: David, J

2008: 05, 19 & 26 March

CRIMINAL LAW – sentence – stealing – stealing from employer – offence committed over a long period of time - guilty plea – nor priors - expression of remorse - three (3) years imprisonment in hard labour – sentence suspended with strict conditions attached – ss. 19 & 372 (1) & (7)(a) Criminal Code.

Cases cited:

Wellington Belawa v. The State (1988-89) PNGLR 496

Seo Ross v. The State (1999) SC 605

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 Tio (2002) N2265

The State v. Louise Paraka (2002) N2317

The State v. Richard D. Bix & Siprian S. Karo (2003) N2415

The State v. Romney N. Simonopa (2004) N2551

The State v. Allan Nareti (2004) N2582

The State v. Lukeson Olewale (2004) N2758

The State v. Philip Andia, CR. 328 of 2006, 20 July 2007

Counsel:

J. Waine, for the State

P. Kumo, for the Prisoner

26 March, 2008

1. DAVID, J: INTRODUCTION: On 05 March 2008, the State presented an indictment charging Roselyn Waiembi (the Prisoner) that between 28 June 2002 and 26 November 2004 whilst being employed as a clerk of Kunai & Co. Lawyers stole Fifteen Thousand Kina (K15,000) the property of her employer contrary to s. 372 (1) and (7)(a) of the Criminal Code (the Code). The Prisoner pleaded guilty. I accepted the plea and recorded a conviction after reading the depositions.

2. During the course of submissions, Mr. Kumo of counsel for the Prisoner sought the Court’s sanction for a Means Assessment Report (the Report) to be furnished in respect of the Prisoner. I granted the request and adjourned to 19 March 2008 to give the Probation Service here time to prepare the Report. Mr. Ingke of the Probation Service prepared the Report and had it filed in Court within the time required for which I am grateful. Submissions in respect of that were heard on 19 March 2008.

INDICTMENT

3. The indictment was preferred as follows:-

ROSELYN WAIEMBI of KALA village, Mt. Hagen, Western Highlands Province, stands charged that between 28 June 2002 to 26 November 2004, being a clerk of Kunai & Co. Lawyers stole Fifteen Thousand Kina (K15,000.00) the property of her employer, Kunai & Co. Lawyers.

FACTS

4. The facts to which the Prisoner pleaded are these.

5. The Prisoner was employed as an Accounts Clerk with Kunai & Co. Lawyers (the law firm) here in Mt Hagen, Western Highlands Province. She was employed by the law firm because she also comes from the same tribe as the principal of the law firm, Mr. Kunai. Her duties involved:-

1. Receiving and banking monies paid by clients on account of costs into the law firm’s Trust Account;

2. Doing monthly bank reconciliations and trial balances for the law firm’s Trust Account;

3. Maintaining clients’ trust ledgers and cash books;

4. Maintaining debtors and creditors list;

5. Arranging payments for overheads including staff wages;

6. Debt collection.

6. Between 28 June 2002 and 26 November 2004, the Prisoner is alleged to have stolen a total of K15,000.00 whilst employed by the law firm as its Accounts Clerk. She stole this money by including extra monies in the Cheque Requisition Forms every payday Friday; she would then take them to Mr. Kunai for his verification and endorsement. Fridays being a busy day for Mr. Kunai, he would sign the wages cheques without checking or verifying the details of the wages that were being paid. The extra monies the Prisoner took using this method on a single occasion ranged from K50.00 up to K700.00.

THE RELEVANT LAW

7. The penalty prescribed for stealing simpliciter under s.372 (1) of the Code is imprisonment for a term not exceeding three (3) years. For other categories of stealing, the penalties are set out under s.372 (2) to (12) of the Code. These penalties are subject to s.19 of the Code which gives the Court a wide discretion to impose such other sentence which is appropriate depending on the facts or circumstances of a particular case. The Prisoner is charged under s. 372 (1) and (7) (a) for stealing whilst an employee from her employer. The penalty prescribed is imprisonment for a term not exceeding seven (7) years. I set out the relevant provisions below:-

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………………..

(7) If the offender is a clerk or servant, and the thing stolen –

(a) is the property of his employer; or ……………

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

8. In The State v. Robert Kawin (2001) N2167, His Honour, Kandakasi, J noted that there were no sentencing guidelines for the offence of stealing and therefore he attempted to formulate one in the following terms:-

In line with the accepted principle that, the maximum prescribe sentence in any offence should be reserved for the worse category of the offence under consideration, I am of the view the that the maximum of 3 years should be reserved for the worse category of stealing under s. 372 (1). A worse case of stealing would be one that might have factors like, the total value or the actual amounts of money stolen falls just short of K1, 000.00, thereby escaping an application of the provisions of subsection 10. It would also be a worse case if say an element of a breach of trust whether legal or a defector kind of trust not caught by any of the other subsections in s. 372 exists and the offence is committed in furtherance of an illegal activity or another offence.

At the end of the scale would be simple cases of stealing, such as, pocket pickings, or someone leaving some valuable item mistakenly at a place and another person steals it with full knowledge of its owner. Stealing in such a situation should attract a sentence of a few months say about 3 to 4 months. Then there would be cases in between. These might be cases in which say the amount of money or the value of item stolen is small but the offence is committed in pursuance of an illegal activity or another offence. In this category might be cases where the amount of money or value of item stolen is substantial but not necessarily up to K1, 000.00. In such cases the sentence could range from more than 4 months and closer to the maximum prescribed sentence of 3 years.

Of course a guilty plea by a first time offender, or a young offender could reduce the kind of sentence suggested. The need to do that as been made clear in a large number of cases though in the context of other offences as in the case Gimble v The State [1988—89] PNGLR 271, by the Supreme Court at page 275. The above suggestion is only put forward as a guide in the absence of any other guideline to the contrary. A judge may impose a sentence outside what is suggested, provided there is a good reason to depart from the suggested guideline.

9. Robert Kawin is a case where the prisoner was charged for two (2) counts of stealing under s.372 (1) of the Code. The prisoner and the victim worked for a company that had decided to retrench them. On the day they were retrenched, their employer did not pay them their respective retrenchment pay out. That was to be done sometime later. Both of them therefore had to wait for their finish pay. The prisoner was then entrusted with a PNGBC transaction account book belonging to the victim who was travelling out from his locality to visit his sick child. The prisoner was instructed by the victim to collect his retrenchment pay from their employer and deposit it into his account. During the victim’s absence, the prisoner completed a withdrawal form, forged the victim’s signature and withdrew from the account K50.00 and K2,200.00 on two (2) separate occasions. On a guilty plea with the prisoner being a first time offender and in a breach of a position of trust, the prisoner was sentenced to six (6) months and eighteen (18) months respectively to be served cumulatively.

10. In The State v. Timothy Tio (2002) N2265, His Honour, Kandakasi, J considered what he said in Robert Kawin as a useful guide for adoption with necessary modifications for an offence under subsection (10) or for any other offence under s. 372 generally. His Honour said:-

But these cases do not clearly provide us with any guideline for sentencing for any or all of the offences under s.372 of the Code. In the circumstances, I consider what I said in the Robert Kawin (supra) case as a useful guide, which should be adopted with necessary modifications for an offence under subsection 10. When what I said in that case is considered in the light of the above cases a number of principles emerge.

First, the maximum prescribed penalty should not be readily imposed. Instead it should be reserved for the worse type of the offence under consideration. Secondly, guilty pleas, and the offender being a first time young offender and the existence of such good factors operate in favour of sentences lower than the prescribed maximum. Thirdly, if the properties stolen are recovered it may operate as a factor in mitigation of an offender whilst...