The State v Ruth Mamando (2008) N3709

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 22 April 2008
• Citation: (2008) N3709
• Docket Number: CR. NO. 1652 OF 2003
• Court: National Court
• Year: 2008
• Judgement Number: N3709

Full Title: CR. NO. 1652 OF 2003; The State v Ruth Mamando (2008) N3709

National Court: David, J

Judgment Delivered: 22 April 2008

N3709

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1652 OF 2003

THE STATE

-v-

RUTH MAMANDO

Mt. Hagen: David, J

2008: 02, 16, 17 & 22 April

CRIMINAL LAW – sentence – misappropriation - monies belonging to employer – offence committed over two (2) consecutive days - guilty plea – nor priors - expression of remorse – breach of trust - four (4) years imprisonment in hard labour – immediate custodial sentence - part of sentence suspended with strict conditions attached – ss. 19 & 383 (1)(a) Criminal Code.

Cases cited:

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

The State v. Rex Lialu [1988-89] PNGLR 449

Doreen Liprin v. The State (2001) SC673

The State v. John Akoko (2001) N2061

The State v. Paroa Kaia (1995) N1401

The State v. Bygonnes Tuse Nae (1996) N1474

The State v. Simon Paul Vurmete (2000) N2008

Tom Amaiu v. The State [1979] PNGLR 576

Joshua Yaip Avini and Plaridel Nony Acosta v. The State

(1997) SC523

The State v. Sylvanus Siembo & Ors, CR 1220/2000, CR. 97/1999 & CR 722/1999, Unreported Judgment, 30 May 2002

The State v. Daniel Mapiria, Unreported Judgment, 01 October 2004

The State v. Benson Likius (2004) N2518

The State v. Allan Nareti (2004) N2582

The State v Nerrius Boas (2004) N2608

The State v. Johnson Bale (2004) N2626

The State v. Lukeson Olewale (2004) N2758

The State v. Roselyn Waembi, CR.1049 of 2005, Unreported Judgment, 26 March 2008

Counsel:

J. Waine, for the State

M. Norum, for the Prisoner

22 April, 2008

1. DAVID, J: INTRODUCTION: On 2 April 2008, the State presented an indictment charging Ruth Mamando (the Prisoner) that between 01 and 02 April 2003 whilst employed as a cashier of Coca Cola Amatil (her former employer) she dishonestly applied to her own use an amount of Thirty Four Thousand Three Hundred Twenty Six Kina Seventy Five Toea (K34,326.75) the property of her employer contrary to s. 383A (1)(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 the defense’s submissions, Mr. Norum of counsel for the Prisoner sought the Court’s sanction for a Means Assessment Report and a Pre-Sentence Report to be furnished in respect of the Prisoner pursuant to s. 4 of the Criminal Law (Compensation) Act 1991 and s.13 of the Probation Act Chapter 381 respectively. I granted the request and adjourned to 16 April 2008 for the continuation of submissions and to give the Probation Service here time to prepare the reports. Mr. Ingke of the Probation Service prepared the reports and had them filed in Court within the time required for which I am grateful. Submissions were concluded on 17 April 2008.

FACTS

3. The brief facts presented by the State to which the Prisoner pleaded are these.

4. The Prisoner was employed as a cashier by her former employer at their Mt. Hagen depot in the Western Highlands Province. One of her duties involved the banking of daily takings. On 01 and 02 April 2003, the Prisoner collected moneys from customers who paid for goods. She did the banking on 01 and 02 April 2003. However, she did not bank the whole of the monies. She took a total of Thirty Four Thousand Three Hundred Twenty Six Kina Seventy Five Toea (K34,326.75) moneys belonging to her former employer and used the same for her own benefit.

5. The details of the misappropriation are these.

6. On 01 April 2003, a customer from Wabag paid Fourteen Thousand Three Hundred Eighty Two Kina Fifty Toea (K14,382.50) and was issued with receipts to pick up the goods at the Wabag depot. On that day, she took that money with other proceeds to the bank. Instead of depositing that money into the Wabag account, she kept it to herself.

7. On 02 April 2003, another Wabag customer paid Twelve Thousand Nine Hundred and Forty Four Kina Twenty Five toea (K12,944.25) in cash and was also issued with receipts to collect the goods at the Wabag depot. This money together with other takings from the Mt Hagen depot was taken to the bank for banking. At the bank, she deposited other proceeds, but did not deposit Twelve thousand Nine Hundred and forty four kina twenty five toea (K12,944.25) into the Wabag account, but kept it to herself.

8. On the same day after the banking, she realised that she had an excess of Seven Thousand Kina (K7,000.00). She did not return the money to her employer, but kept the money and used it for her own benefit.

THE RELEVANT LAW

9. Section 383A(1)(a) of the Criminal Code creates the offence and prescribes the penalty. I set out the provision below.

383A Misappropriation of property.

(1) A person who dishonestly applies to his own use or to the use of another person—

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:—

(a) where the offender is a director of a company and the property dishonestly applied is company property;

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

(c) where the property dishonestly applied was subject to a trust, direction or condition;

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

(3) For the purposes of this section—

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; ……….”

10. The prescribed maximum sentence that can be imposed for the offence of misappropriation in this case is imprisonment for ten (10) years pursuant to s.383A (2)(b) and (d). The case of Wellington Belawa v. The State [1988-89] PNGLR 496 sets out the sentencing guidelines for misappropriation cases. That case recommends that the following factors should be taken into account when determining what penalty to impose on an offender and these are the amount taken; the degree of trust reposed in the offender; the period over which the offence was perpetrated; the use to which the money was put to; the effect upon the victim; the effect upon the offender himself; restitution; the offender’s own history and matters of mitigation special to himself, such as ill health, young or old age, effect of excessive nervous strain, co-operation with the police.

11. Wellington Belawa also recommended a scale of sentences to be adjusted upward or downward depending on the various factors mentioned above and these are, where the amount misappropriated is between K1.00 and K1,000.00, a goal term should rarely be imposed; between K1,000.00 and K10,000.00, a goal term of up to two (2) years; between K10,000.00 and K40,000, a goal term of two (2) to three (3) years; between K40,000.00 to K150,000.00 a goal term of three (3) to five (5) years.

12. It is generally accepted now that while the factors set out in Wellington Belawa are still relevant, the tariff recommended is outdated and therefore the need to impose stiffer sentences due to the prevalence of the offence. However, the Court still has a discretion under s.19 of the Code to impose a sentence that it considers appropriate under the facts or circumstances of a particular case.

13. I will also refer to some other cases that have been decided in relation to the offence under discussion to assist the Court in determining the appropriate sentence for the Prisoner.

14. In The State v Paroa Kaia (1995) N1401 a bank accounts supervisor pleaded guilty to misappropriating approximately K94,000.00. He was convicted and sentenced to four (4) years imprisonment. He had hatched a scheme in collaboration with two (2) associates. He misused his authority to withdraw amounts from innocent customers’ accounts and transfer them to the accounts of his associates.

15. In State v. Bygonnes Tuse Nae (1996) N1474, the prisoner, aged thirty two (32) years and father of three (3) children whose ages ranged from two (2) to seven (7) years pleaded guilty to nineteen (19) counts of misappropriation of K103,587.71, the property of several individuals. The crime was committed over a period of eighteen (18) months. An effective sentence of four (4) years imprisonment was imposed with no part of the sentence suspended.

16. In The State v. Simon Paul Vurmete (2000) N2008, the prisoner pleaded guilty to misappropriating K41,233.24 which was money belonging to his former employer, namely The Water Board. He was the Debtors Clerk for the Water Board in Lae when he committed the offence. The prisoner misappropriated the monies over a period of five (5) months. None of the money was recovered. The prisoner used them for himself. A sentence of three (3) years six (6) months was imposed.

17. In The State v Benson Likius (2004) N2518, the prisoner pleaded guilty to one (1) count of misappropriating a sum of K68,679.06. He was a payroll clerk. There were assets from...