The State v Sylvia Gabriel & Sarufa Akia (2019) N8024
| Jurisdiction | Papua New Guinea |
| Judge | Berrigan, J |
| Judgment Date | 23 August 2019 |
| Court | National Court |
| Citation | (2019) N8024 |
| Docket Number | CR (FC) 102 of 2019 and 126 of 2019 |
| Year | 2019 |
| Judgement Number | N8024 |
Full Title: CR (FC) 102 of 2019 and 126 of 2019; The State v Sylvia Gabriel & Sarufa Akia (2019) N8024
National Court: Berrigan, J
Judgment Delivered: 23 August 2019
N8024
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR (FC) 102 of 2019 and 126 of 2019
THE STATE
V
SYLVIA GABRIEL & SARUFA AKIA
Waigani: Berrigan, J
2019: 19 June; 10 July and 23 August
CRIMINAL LAW –Sentence –Misappropriation –383A(1)(a)(2)(d) of the Criminal Code.
Cases Cited:
Papua New Guinea Cases
Doreen Liprin v The State (2001) SC673
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Sanawi v The State (2010) SC1076
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
The State v Janet Morgan (2004) N2704
The State v Wilmot (2005) N2857
The State v Niso (No 2) (2005) N2930
The State v Philip Wiamai (2007) N5492
The State v Yannam (2008) N3958
The State v Sari (2012) N5167
The State v Kelly Kanjip (2014) N5590
The State v Tiensten (2014) N5563
The State v Eddie Eiwana Kekea CR (FC) 68 of 2017, unreported, 23 June 2017
The State v Gibing Yawing (2017) N6836
Wellington Belawa v The State [1988-1989] PNGLR 496
Overseas Cases
Mario Postiglione v The Queen (1997) 189 CLR 295
Counsel
Ms O. Mandui, for the State
Mr E. Sasingian, for Sylvia Gabriel &Sarufa Akia
DECISION ON SENTENCE
1. BERRIGAN J: Both accused persons pleaded guilty to one count of misappropriation, that they between 1January 2018 and 30 January 2018 dishonestly applied to their own use monies to the sum of K4,200 belonging to Joslyn Kinfu Fuvule.
Facts
2. At the material time, Sylvia Gabriel and Sarufa Akia were employed with Paradise Private Hospital as a receptionist and cleaner, respectively. The complainant was also a cleaner at the hospital. Sometime during late December 2017, the complainant asked Sylvia Gabriel to show her how to use her bank card to withdraw monies from her (the complainant’s) Westpac Bank account using the automated teller machine (ATM) at the hospital. Sylvia Gabriel assisted her and in the course of doing so learnt the complainant’s bank card PIN number.
3. Not long after, on at least three occasions during the material period, Sarufa Akia took the complainant’s bank card from her (the complainant’s) bag without permission and passed it to Sylvia Gabriel. Sylvia Gabriel then used the card to withdraw monies from the complainant’s account via ATM as follows:
· Four withdrawals of K500 (a total of K2000) on 2 January 2018
· One withdrawal of K400 on 5 January 2018
· Two withdrawals, one of K300 and one of K500 on 8 January 2018
· Two withdrawals of K500 (a total of K1000) on 16 January 2018
4. On each occasion Sylvia Gabriel gave Sarufa Akia a portion of the monies withdrawn from the complainant’s account. Of the total amount of K4,200, Sylvia Gabriel gave Sarufa Akia K700.
5. The offence was only discovered when the complainant checked her bank account and found that most of the K4,726.17 previously held in the account was missing.
6. The offenders acted with common purpose, pursuant to s. 7 of the Criminal Code.
7. It now remains to sentence each of them.
Sentencing Considerations
8. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:
a. the amount taken;
b. the quality and degree of trust reposed in the offender;
c. the period over which the offence was perpetrated;
d. the impact of the offence on the public and public confidence;
e. the use to which the money was put;
f. the effect upon the victim;
g. whether any restitution has been made;
h. remorse;
i. the nature of the plea;
j. any prior record;
k. the effect on the offender; and
l. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
9. In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:
a. K1 and K1000, a gaol term should rarely be imposed;
b. K1000 and K10,000 a gaol term of up to two years is appropriate;
c. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
d. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
10. This case falls within the second category of Wellington Belawa. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; and The State v Tiensten(2014) N5563.
11. The State referred me to the following cases in support of their submissions:
a. The State v Sari (2012) N5167, Toliken AJ (as he then was), in which the prisoner pleaded guilty to misappropriating K650 in cash. He was sentenced to 1 years’ imprisonment in light labour. 5 months was deducted for the period spent in pre-trial custody and the balance of 7 months was wholly suspended on condition that he entered into a recognisance of K200 to be of good behaviour; and
b. The State v Yannam (2008) N3958, Cannings J in which the prisoner pleaded guilty to misappropriating K800 from his family on the pretext that he would buy them a television and other items. A sentence of 12 months’ imprisonment was imposed, from which time already served awaiting trial was deducted, with the balance to be served in custody.
12. It must be noted that sentence in these cases was imposed having regard to a maximum of 5 years’ imprisonment. In this case the amount misappropriated is K4,200 and thus the maximum applicable is 10 years pursuant to s. 383A(1)(a)(2)(d) of the Criminal Code.
13. I have also had regard to the following:
a. The State v Janet Morgan (2004) N2704, Lenalia J, in which the prisoner pleaded guilty to 1 count of stealing an amount of K8,772.01 from her employer whilst an accounts clerk. She was sentenced to 2 ½ years’ imprisonment in hard labour, 1 and 1½ years of which was suspended on conditions including restitution;
b. The State v Kelly Kanjip, (2014) N5590, David J, in which the prisoner pleaded guilty to a charge of stealing K9,900 from his employer. He was sentenced to 3 years in hard labour, less time spent in custody, leaving the balance of 1 year, 11 months and 7 days to be served.
c. The State v Doreen Liprin (2001) SC673, in which a bank teller was found guilty of forging and uttering a bank withdrawal slip and misappropriating K6000 from her employer. The National Court sentenced her to 1 year each for forging and uttering and 3 years’ for misappropriation, to be served concurrently, wholly suspended on condition of restitution within 2 months. On appeal the sentence for misappropriation was varied to the 9 months’ already served, with further orders for restitution over 2 years with community service.
14. The sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
Nature and Circumstances of the Offence, including Matters of Aggravation
15. Applying the considerations set out in Wellington Belawa, the following matters of aggravation have been established.
16. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount of money involved the more serious the offence. K4200 is a substantial amount of money. The offence was committed over a period of about two weeks and involved a number of transactions. Given the respective roles of the offenders, the offence clearly involved planning and ongoing dishonesty during the period.
17. If not strictly, the offence also involved a breach of trust in the sense that the offenders were the complainant’s colleagues and they took advantage of the trust the complainant placed in Sylvia Gabriel when she sought her assistance to use the ATM.
18. It is not in dispute that the offenders were motivated by financial gain. The monies were applied for their own use. Sarufa Akia has already restituted the K700 she personally received from the offence. Sylvia Gabriel has committed to restituting the balance.
19. The impact on the victim in this case has also been severe. The monies belonged to Joslyn Kinfu Fuvule, a cleaner at the Paradise Private Hospital. She lost almost all of the money held in her bank account. This was a huge amount of money from her perspective. According to her victim impact statement it represented the monies she had earned at the informal market...
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