The State v Simon Paul Korai (2009) N3820

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 18 December 2009
• Citation: (2009) N3820
• Docket Number: CR. NO. 1752 OF 2005
• Court: National Court
• Year: 2009
• Judgement Number: N3820

Full Title: CR. NO. 1752 OF 2005; The State v Simon Paul Korai (2009) N3820

National Court: David, J

Judgment Delivered: 18 December 2009

N3820

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1752 OF 2005

THE STATE

v

SIMON PAUL KORAI

Kundiawa: David, J

2009: 10 & 17 June &

18 December

CRIMINAL LAW – sentence – stealing – stealing by prisoner as security guard – prisoner an employee of bank – victim bank customer – victim illiterate – prisoner assisted victim to do her banking – victim’s PIN number known by prisoner in the course – prisoner conducted 13 unauthorised withdrawals – offence committed over a period of 2 months – victim reimbursed by bank - substantial amount stolen – prevalence of offence - guilty plea – nor priors - expression of remorse prisoner has medical condition – no evidence that health condition not life threatening or incurable - prisoner in position of trust - breach of trust - 3 years imprisonment IHL – sentence part custodial and part non-custodial – ss. 19 & 372 (1) & 10 Criminal Code.

Cases cited:

R v. Mary Josephine Harley [1971-1972] PNGLR 399

Public Prosecutor v. William Bruce Tardrew [1986] PNGLR 91

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

Lawrence Simbe v. The State [1994] PNGLR 38

Seo Ross v. The State (1999) SC 605

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. Rocky Walesa Peraki (2003) N2463

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

The State v. Allan Nareti (2004) N2582

The State v. Janet Morgan (2004) N2704

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

The State v. Jack Maite (2007) N3269

The State v. Johnson Maurani (2008) N3560

The State v. Geo Rayner Laina (2008) N3344

The State v. Roselyn Waiembi, CR1049 of 2005, Unreported Judgment of David, J delivered on 26 March 2008 at Mt. Hagen

The State v. Francisca Iralu, CR 269 of 2007, Unreported Judgment of David, J delivered on 10 July 2008 at Mt. Hagen

The State v. Joe Dekene, CR 667 of 2006, Unreported Judgment of David, J delivered on 9 June 2009 at Kundiawa

The State v. Paul Dom, CR No. 329 of 2009, Unreported Judgment of David, J delivered on 20 June 2009 at Kundiawa

Counsel:

J. Waine, for the State

P. Kapi, for the Prisoner

SENTENCE

18 December, 2009

1. DAVID, J: INTRODUCTION: The Prisoner pleaded guilty to a charge that between 4 April 2005 and 3 June 2005, he stole K21,460.00 the property of Agetha Gena (the victim). Upon reading the depositions, I was satisfied that the evidence contained therein supported the charge. I therefore accepted the Prisoner’s plea of guilty and convicted him of the charge.

BRIEF FACTS

2. Facts put to the Prisoner by State Prosecutor, Mr. Waine for purposes of arraignment are as follows. At the material time, the Prisoner was employed by the Bank of South Pacific, Kundiawa Branch as a security guard. The Prisoner was familiar with the victim and her husband. This is because, the victim and her husband often fronted up at the bank to do their banking. The Prisoner at times assisted the victim who was illiterate. In the course of assisting the victim, the Prisoner came to know the victim’s PIN number. The PIN number was a name of something. Between 4 April 2005 and 3 June 2005, the Prisoner wrote out 13 withdrawals in different amounts using the victim’s PIN number. The Prisoner withdrew a total of K21,460.00 and he used the money for his own benefit. The victim never authorised the Prisoner to make any of those withdrawals. The management of the bank was alerted and eventually led to the arrest of the Prisoner for stealing that amount.

PRE-SENTENCE REPORT

3. To assist me in making a decision on the appropriate sentence for the Prisoner, I directed that a pre-sentence report be filed by the Community Corrections and Rehabilitation Service here at the request of the Prisoner’s counsel. The pre-sentence report was prepared and filed. I have read the pre-sentence report and note the details and recommendation of the Community Corrections and Rehabilitation Service to impose an appropriate sentence that befits the crime and that if the Prisoner were to be released on probation, he would be placed under the supervision of a volunteer probation officer, namely Api Kamane who comes from the Prisoner’s village.

4. I also note that the Bank of South Pacific has paid the victim the full amount of the monies stolen by the Prisoner. The victim confirms that.

5. I also note the victim’s views that he trusted the Prisoner when he engaged him to assist her with her banking. She wants to see that an appropriate punishment that befits the crime should be imposed.

ANTECEDENTS

6. The Prisoner has no prior convictions.

7. According to the Antecedent Report, the Prisoner was born on 15 May 1979 and should therefore be over the age of 30 years by now. He is originally from Womai village, Sinasina District, Simbu Province. He is currently residing at the Nawai Block in Lae with his family. His parents who are old are alive and reside with him. He is the first born in the family. He has 3 other brothers and a sister. He has completed formal Grade 10 education. He has been baptised into the Revival Church. He is married and has 3 children who are aged 12, 7 and 3 years respectively. Prior to committing the crime, he was employed by the Bank of South Pacific, Kundiawa Branch as a security guard earning a fortnightly salary of K109.00. He had been employed by Securimax in Goroka in 1997.

8. After being apprehended, charged and detained, he spent a total of 9 months and 3 weeks in custody.

ALLOCUTUS

9. On allocatus, the Prisoner admitted committing the crime. He said he was sorry for what he had done and asked the Court to have mercy on him and grant him a suspended sentence. His reasons for asking for a suspended sentence were that; he was a first offender; he got sick thinking about the case; he was the sole bread-winner in the family consisting of his immediate nuclear family, his parents and younger siblings; his parents were old; he was renting a property the retention of which will be affected by his incarceration; and they resided in an area in Lae where security was not good and he feared for the safety of his family if he were incarcerated.

SUBMISSIONS OF THE PRISONER

10. Notwithstanding that the amount stolen was substantial, Mr. Kapi of counsel for the Prisoner pleaded for leniency and for a short and sharp non-custodial sentence to be imposed because of the Prisoner’s plea of guilty, lack of prior convictions, expression of remorse; the effect of the crime upon the victim was not so serious because the Bank of South Pacific had repaid the victim with the amount stolen by the Prisoner, but in the course the bank although a commercial entity also suffered; the Prisoner has a big family; this was a non-violent crime; and the Prisoner has a chronic health problem associated with his abdomen which is confirmed by a medical report issued under the hand of Dr. Kabaiye of the Kundiawa General Hospital on 15 June 2009.

11. Mr. Kapi submitted that the maximum penalty prescribed under s.372 (1) was imprisonment for a term not exceeding 3 years. He also stated that it was trite that the maximum penalty is usually reserved for cases of the worst category for a particular offence and that each case must be considered on its own merits relying on Lawrence Simbe v. The State [1994] PNGLR 38 to support those propositions. He suggested that the circumstances of the present case warranted a sentence between 2 to 3 years which should be wholly suspended in the light of the mitigating factors operating in the Prisoner’s favour and that the time spent in custody by the Prisoner was sufficient punishment.

12. Mr. Kapi referred me to a number of cases to guide me in considering an appropriate sentence for the Prisoner. They are; Wellington Belawa v. The State [1988-89] PNGLR 496; The State v. Janet Morgan (2004) N2704; The State v. Ian Sevevepa, CR No. 2007 of 2005, Unreported Judgment of Lenalia, J delivered on 10 May 2006 and The State v. Paul Dom, CR No. 329 of 2009, Unreported Judgment of David, J delivered on 20 June 2009 at Kundiawa. Apart from Wellington Belawa which I will discuss later, I briefly discuss the other cases below.

13. In Janet Morgan, the prisoner pleaded guilty to 1 count of stealing an amount of K8,772.01 from her employer, a company contrary to s.372 (1) and (7). She was employed as an Accounts Clerk. Her duties included receiving monies, maintaining expenditure records, compilation of staff wages and doing the company’s banking. She failed to do the banking of the takings for 3 consecutive days which was the total amount stolen. Taking into account the prisoner’s guilty plea, that there was part-restitution of the amount stolen soon after the discovery was made, the prevalence of the offence; the amount stolen was substantial; the amount stolen was made up of takings for 3 consecutive days which meant that she was determined and fearless in committing the crime; and the degree of trust reposed in the prisoner was high and she breached that trust, a sentence of 2 ½ years imprisonment to be served IHL was...