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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1505 of 2000
THE STATE
LOUISE PARAKA
MT. HAGEN: KANDAKASI, J.
2002: 21st, and 24th January
DECISION ON SENTENCE
CRIMINAL LAW – PRACTICE & PROCEDURE – Presentation of indictment – Indictment need not correspond with charge on which an accused was committed to stand trial – Public Prosecutor under no restriction to present an indictment expect as the facts may dictate – Counsel taking issue on variance between charge accused committed upon and indictment eventually presented without any purpose in mind – Such conduct amounts to unprofessional conduct – s. 525 Criminal Code – s. 15 (3) Professional Conduct Rules 1989.
CRIMINAL LAW – PRACTICE & PROCEDURE - Pre-sentence and means assessment reports – Where restitution and or a non custodial sentence is to be argued for as an appropriate penalty counsel must organize before hand such reports to avoid wastage of Court’s time and to avoid a delay in a decision on sentence.
CRIMINAL LAW — Particular offences — Forgery and uttering of cheques — Guilty plea to all charges — First time offender — Expression of remorse through pre-sentence report — Circumstances forced or cause prisoner to offend - Pre-sentence report recommending non-custodial sentence — Relatives and clans prepared to assist in restitution and supervise offender in his reformation efforts — Unsafe to send offender to prison —3 years fully suspended sentence imposed on terms — ss. 462 (1) and (3) and 463 (2) Criminal Code.
CAUSES OF ACTION – Class or representative action – A means of unjust gain by persons that may not necessarily be entitled to - Too many instances of this now – Lawyers and Court under duty to ensure person purporting to represent another does in fact have the others clear and unequivocal instructions to do so and that the proceeds will go to the person actually entitled.
Cases cited:
The State v. James Gurave Guba (19/12/00) N2020.
The State v Joseph Ping (17/12/01) N2169.
The State v. Sabarina Yakal [1988-89] PNGLR 129.
Dori Inaria v. The State (unreported judgement delivered 10/07/02) SC688.
The State v. James Gurave Guba (unreported judgement delivered 19/12/99) N2020.
Tom Amaiu v. The State Tom Amaiu [1979] PNGLR 576.
Acting Public Prosecutor v. Don Hale (27/08/98) SC564.
Wellington Belawa v. The State [1988-89] PNGLR 496.
The State v. Paulus Takesi (11/06/96) N1468.
The State v Jimmy Solomon (20/07/01) N2100.
Doreen Liprin v. The State (9/11/01) SC675.
The State v Dobi Ao (No 2) (01/05/02) N2247.
The State v. Micky John Lausi (27/03/01) N2073.
The State v. Nyama [1991] PNGLR 127.
The State v. Morobet Awui Koma and Peter Kevin [1987] PNGLR 262.
Overseas Cases cited:
R v. Barrick (1985) 81 Cr App R 78.
Counsels:
Mr. J. Kesan and Mr. J. Be’soer for the State
Mr. P. Kumo for the Prisoner
24th January 2002
KANDAKASI J: On Tuesday the 21st of this month, you pleaded guilty to two counts of forgery and a further two counts of uttering contrary to ss. 462(1) and 463(2) of the Criminal Code respectively committed on the 28th and 29th of April 2000, here in Mt. Hagen. Through these, you gained K6, 000.00.
A further charge of stealing contrary to s. 372 (10) also under the Criminal Code was presented against you. You pleaded not guilty to that charge and the State decided not to present any evidence against you on that. I therefore dismissed that charge.
I then heard submissions on your sentence and adjourned to the next day for a pre-sentence report. Only a means assessment was furnished the next day so your case was adjourned again to enable a pre-sentence report to be furnished. The report in question was furnished midday yesterday. I then had the matter adjourned finally to today for me to consider the report and arrive at a decision on your sentence. What follows hereunder is the decision on your sentence.
Preliminary Issue
Before I get to the Court’s decision on your sentence, it is necessary to cover a preliminary point that was raised by your lawyer. After the Court took your pleas, your lawyer argued that the charges did not confirm with the charge that was initially presented against you and the brief facts supporting that in the committal process.
In my short experience at the bench, I have not come across such an argument or issue. I know only of a right in a defence lawyer to make an application under s. 563 of the Criminal Code to enter a plea of not guilty notwithstanding his client’s guilty plea in appropriate cases. I am also aware of a right in a defence counsel to apply for an adjournment to enable him or her to seek further instructions where an accused enters a plea that is contrary to his instructions. Given this, I could not work out what was the purpose behind your lawyer’s arguments. I therefore asked him, what was the purpose of raising that issue. I also asked, if what he was doing was consistent with the practice of plea bargains. Your lawyer said there was really no purpose in mind when taking the issue and he also accepted that, what he was trying to do was not consist with the practice of plea bargains. He therefore abandoned his arguments.
If your lawyer did not abandon the issue he was taking, I would have dismissed it. The reason for that is very simple. Section 525 (1) of the Criminal Code empowers "the Public Prosecutor or a State Prosecutor" to "consider the evidence in the matter and" decide whether or not to:
"(a) reduce into writing in an indictment a charge of any offence that the evidence appears to him to warrant; or
(b) decline to lay a charge."
It is plainly clear from this that, the State through the Public Prosecutor is not restricted to a charge initially presented against an accused person and for which he or she has been committed to stand trial in the National Court for. Instead the Public Prosecutor is free to present one or more indictments as the facts on which the accused has been committed may disclose and the State is able to follow them through by appropriate evidence to support the charges that may be presented. As a consequence of this, plea bargains have been possible. As I said in The State v. James Gurave Guba (19/12/00) N2020 (also cited in The State v Joseph Ping (17/12/01) N2169):
"This emanates from the fact that, under our constitutional framework, the Public Prosecutor is the only one that has the power to decide whether or not to prosecute an offender and in what manner or for what offence. That power is not subject to any direction, control or supervision of any other authority, not even the courts. It also proceeds on the basis that the Public Prosecutor is in a better position to consider the interest of the people and the mechanics of proving a charge against an accused person and then proffers the charge he considers sustainable."
Having regard to this, I find your lawyers conduct improper and an unnecessary waist of the Court’s time. This amounts to a breach of the professional conduct rules, particularly s.15 (3) of the Professional Conduct Rules 1989, which imposes a professional duty on a lawyer to:
"(a) act with due courtesy to the Court before which he is appearing; and
(b) use his best endeavours to avoid unnecessary expenses and waste of the Court's time;"
Since this is the first time your lawyer Mr. Kumo, has acted in this way before me, I will only caution him and direct him not to repeat such conduct again and warn him in the strongest terms possible not to repeat such a conduct. If he does not heed this warning, I will not hesitate to have him dealt with appropriately.
Relevant Facts
For the purposes of determining an appropriate sentence for you, I must have regard to the particular facts of your case. These can be ascertained from the facts as they were put to you at the time of putting the charges to you and those that appear in the District Court depositions. A large number of case authorities support the use of depositions to extract the relevant facts. One of the authorities on point is The State v. Sabarina Yakal [1988-89] PNGLR 129. A recent example is the Supreme Court judgement in Dori Inaria v. The State (unreported judgement delivered 10/07/02) SC688. All of these authorities confirm the existing practice of the courts invariably reading the depositions and using them following a guilty plea to determine appropriate sentences. In the case of The State v. James Gurave Guba (supra), I expressed the view that:
" ... there should be no restriction as to the use of the depositions to determine the appropriate sentence simply because there has been a plea bargain. This is because an indictment is presented and an accused person pleads on the basis of facts presented which are in turn based on facts set out in the depositions and only after reading the depositions can a court decided whether or not to confirm a guilty plea and record a conviction before proceeding to sentence the offender."
Having said these, I now proceed to deal with the relevant facts in your case, which are these. A compensation claim for the land on which the Holy Trinty Teachers College is built on was put up against the State. That claim was settled by a payment of about K800, 000.00. About one half of that, K400, 000.00 appears to have been retained by an Alphonse Paua, who was the main person pursuing the compensation claims against the State and handling the eventual distribution of that money.
You were one of the previous owners of the land in question and were a claimant. You claim that you are one of the principal landowners. You therefore claimed about K50,000.00 from the total pay out from the State. You were however given a cheque for only K1,700.00. You were obviously not happy and dissatisfied with that. So when you received the cheque, you changed the amounts stated in the cheque to read K4.700.00 instead of K1, 700.00 by changing the figure 1 to 4. In the same manner you changed another cheque made out for a Paul Akil for K1, 150.00 to K4, 150. These cheques were then presented to Bank of South Pacific for cashing and that was done.
There are currently proceedings and steps being taken against Mr. Paua. This concern his receipt of the payments from the State and how he distributed them to those who were in fact entitled to. It is not clear whether these are criminal proceedings or civil proceedings for proper accounting.
I note that there are many frustrate landowners in most of the resource development areas such as mining, logging, and extraction of oil and gas and even in land payments either from the State or other persons. The same goes for class actions in police raid cases. In nearly all of these cases, there is always one person pursuing claims for such payments to be made. Once the payment is made the person pursing the claims distributes only a very small proportion of that to the other claimants or persons entitled to a greater share and keep the rest for themselves. This is what appears to have happened here.
This case therefore, gives me cause to say that the practice of casually allowing one or two persons to peruse claims purportedly on behalf of others and allowing payments to be channelled through them needs to be closely re-examined. There are far too many instances of only one or two persons greatly benefiting at the expense of other people. This practice should thus be brought to a stop immediately before more people are caused to suffer with the kind of system that has been allowed to operate up to now. I consider it necessary therefore for lawyers to properly have a claim by a person claiming to represent one or more other persons checked out in two respects. First ensure that such claims does in fact have the clear and unequivocal instructions from those he claims to represent to represent him or them. Secondly, ensure that there is in place a secure mechanism to appropriately pass on or distribute the proceeds appropriately to those entitled in the correct amounts. On the parts of the Courts, the Courts should ensure not to proceed to any order or judgement unless they are satisfied as to these two aspects. This is necessary to avoid the kind of abuses we see these days and unjust gains at the expenses of those who are in fact entitled to due mainly to the ignorance of most of our people. After all, there is nothing stopping the persons who are entitled to a relief at law from bringing their own actions unless one is strictly speaking, under disability as is known to law.
In the case before me, I consider it necessary to order a full and detailed investigation by police into Mr. Alphonse Paua’s receipt and distribution of the payments by the State for the Holy Trinity Teachers College land. Such an investigation should aim to establish who where the persons entitled to take a share from the payment and how much, depending on their interest in the relevant land. The investigation should also aim to establish whether those who were entitled to benefit from the payment did receive their full shares that were properly due to them. If such an investigation discloses the commission of any offence, the person or persons responsible should be immediately charged and brought before the Courts to be appropriately dealt with. I consider this appropriate and make orders in those terms.
Now returning back your case, I note that in the charge against you for stealing, the State alleged that, you stole a sum of K6,000.00 being the total of extra amounts you obtained through your acts of forgery and uttering. In your record of interview, you admitted to doing that. However, when the charge was put to you, you denied it and the State decided not to present any evidence against you in respect of that charge. The charge was therefore dismissed. But there is clear admission in your record of interview. Your lawyer submitted that I should take this into account and so has the State. Initially in the course of mentioning your case, I indicated that I could not take this fact into account on account of the dismissal of the stealing charge. On reconsideration however, I am of the view that I should take this fact into account in the context of the charges that have resulted in your conviction. I note this practice has been approved by the Supreme Court in Tom Amaiu v. The State Tom Amaiu [1979] PNGLR 576. Consequently, I consider restitution is still a relevant consideration notwithstanding what I said in the course of the hearing and the subsequent mention of your case.
Arguments
You acknowledge that the offences you committed are serious. At the same time, you argue through your lawyer that, you have a good number of mitigating factors operating in your favour. These include your freely pleading guilty to the charges and cooperating with the police. You also point to having no prior conviction and so therefore this is you first ever offence and hence a step out of line for the first time. Further, you submit that the circumstances forced you to commit the offences and finally that the proceeds of your offences are part of what you were entitled to and therefore not necessarily from a third party, which you are in any case prepared to repay.
Having regard to these factors, you asked for a wholly suspended sentence between one and half years and two years. The State’s argument prefers restitution but failing that, agrees with a suspended sentence but for a longer time. These arguments proceed on the basis that the maximum prescribed penalty is a term of imprisonment not exceeding three years in terms of s. 462 (1) of the Criminal Code.
These submissions were not supported by any pre-sentencing report despite the clear dictates of the law as stated in Acting Public Prosecutor v. Don Hale (27/08/98) SC564 at p. 6 in these terms:
"The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."
This in my view requires a Court to first ask and then consider and make a decision whether or not to impose a suspended sentence based on a pre-sentence report. Such reports would contain the community’s wish in relation to how an offender should be dealt with and more importantly, whether an offender should be returned to the community. I therefore, had to adjourn your case and require such a report to assist me in determining whether or not, you should be given a suspended sentence.
This has unfortunately meant a delay in a delivery of a decision on your sentence. To avoid this from happening in future, I repeat what I said in Court to both lawyers that, where there is going to be a submission for a wholly or partly suspended sentence, it is incumbent on counsel to secure a pre-sentence report before bringing the matter to Court. For as the Supreme Court said, there can be no suspended sentence unless there is a strong community support or call for it: Acting Public Prosecutor c. Don Hale (supra). If a pre-sentence report is pre-arranged, it will help avoid unnecessary adjournments or otherwise a delay in judgement. Time is a scarce resource and every minute or hour is valuable to the Court. Counsel should therefore, take careful note of this and in particular, their obligation under s. 15 (3) of the Professional Conduct Rules (supra). A failure to do so should visit the counsel responsible with serious consequences.
Pre-sentence Report
Before anything else, I repeat my sincere appreciation of the speed with which the probation service has been able to produce both a means assessment and pre-sentence reports. This was done despite the very short time given to that office. I also note from developments of the day before yesterday that the probation officer was placed under unnecessary pressure especially from the person who first reported you to the police. I commend the relevant probation officer, Mr. Martin Tongamp for his great efforts and courage in having done the report notwithstanding the pressures he was put under.
The first of the two reports confirm that you are in no formal employment. So you are living in a subsistence style dwelling supporting yourself and your family. You have some traditional land on which you grow food to feed your family and the surplus is sold for cash income. Through these, you make about K80 to K100 a fortnight. From this and the assistance of your relatives, the report states that you could afford to meet any orders for compensation, which I take, is any order for restitution given the offences with which you have been convicted. The report recommends you be given about 14 – 16 weeks to fully repay the amounts you gained through your illegal conducts.
In addition to that, the pre-sentence report speaks mainly about your personal and family background and the circumstances in which you committed the offences. It also touches on the effect of the offences on you and your family together with you and your relatives’ preparedness to repay the monies you took. The report then recommends in the end that you be given a non-custodial sentence. The main basis for that recommendation is that:
The body of the report and attachments thereto support the above recommendations. A number of leaders in your community have been interview. All of these people speak of you having a clean record. Two formal character references support your leaders. They also make it clear that this is the first time you have ever committed an offence and gotten into trouble with the law. They also say this was caused by an uneven distribution of the proceeds of the payment of the substantial sums of money from the State in land compensation.
The Relevant Law
You have been charged under s. 462 (1) of the Criminal Code, for forgery, which carries a maximum of 3 years imprisonment. But a close examination of that provision indicates a different intention. The provision reads:
"A person who forges any document, writing or seal is guilty of an offence that, unless otherwise stated, is a crime.
Penalty: If no other punishment is provided—imprisonment for a term not exceeding three years."
(Emphasis supplied)
It seems to me therefore that 3 years is the maximum penalty "unless otherwise stated" and "if no other punishment is provided". Clearly therefore, if it is stated otherwise then what is stated and a punishment other than that in subsection (1) is provided for, the 3 years maximum prescribed penalty appears not to apply. So the question here is, is there a penalty stated to be something other than the 3 years maximum provided for under s. 462 (1)?
The question raise above can be answered by having an examination of the provisions dealing with the offence of forgery. Section 462 deals with forgery generally, while other provisions in the Code deal with specific cases but not necessary cheques. Section 462 (2) and (3) deal with the kind of documents or instruments that could be forged. Subsection (2) concerns forging seals while the next one deals with other cases. Paragraphs (h) in my view covers cheques in that they concern:
"(h) a bank note, bill of exchange or promissory note, or an acceptance, endorsement, or assignment of a bank note, bill of exchange or promissory note; or
(i) a deed bond or other written obligation, or a warrant, order or other security for—
(i) the payment of money; or
(ii) the delivery or transfer of a valuable security; or
(iii) procuring or giving credit, whether negotiable or not, or an endorsement or assignment of any such document;"
This view is strengthened by the definition of the term "bank note" in s. 495(1) of the Code in these terms:
" ‘bank note’ includes—
(a) any negotiable instrument issued—
(i) by or on behalf of any person or corporation in any part of the world; or
(ii) by the authority of any State, Prince or Government,
and intended to be used as equivalent to money, immediately on issue or at any time afterwards; and
(b) a bank bill or bank post bill;"
A cheque is a negotiable instrument used by many people and or corporations and even governments all over the world, which serves as the equivalent of money either immediately on the date of its issuance or at any other time.
In view of the foregoing, I am of the view that, the penalty provided for under subsection (1) does not apply in a case where a bank note such as a cheque is the subject of a forgery. Instead the penalty provided for in subsection (3) applies. The penalty provided for in subsection (3) is a term of imprisonment not exceeding 14 years. This is of course subject to the general sentencing discretion vest in this Court under s. 19 of the Code.
You might of course argue that, you were charge under s. 462 (1) and you pleaded guilty to two charges under that provision. Therefore it would be most unfair for you to be sentenced under subsection 3. If the phrases "unless otherwise stated" and "If no other punishment is provided" were not used in subsection (1), then certainly there might be basis for such an argument and concern. But the use of these phrases make it clear that if a penalty other than what is provided for in subsection (1) is provided, than that other penalty applies. Hence, there should be no surprise to you that you stand the risk of facing a sentence beyond 3 years. I am most surprised that both your lawyer and the Public Prosecutor were not able to address me on this. Their submission proceeds only on the basis that the only prescribed penalty is 3 years under subsection (1). That is in my view, a matter between you and your lawyers. I am duty bound to uphold the law and determine a sentence under subsection (3) of s. 462, which requires me to consider a sentence not exceeding 14 years.
In relation to the charge of uttering under s. 463 (2) of the Criminal Code it provides for you to be dealt with as if you committed the offence of forgery. Hence it follows that there is no need for a separate consideration in terms of the factors that the Court should take into account to determine an appropriate sentence for you.
In all case of sentencing, it is necessary to consider the sentencing tariffs for the kind of offence (s) under consideration. Neither your lawyer nor that of the State provided me with the relevant tariffs in sentences in these types of cases.
You lawyer has however referred me to the case of Wellington Belawa v. The State [1988-89] PNGLR 496. This case he submits should be of assistance to the Court as to how I should exercise the sentencing discretion vested in me, as he was not able to find any other case on point to assist. My quick research for any case on point as failed to produce a case. In these circumstances, I accept your lawyer’s submissions that I should be guided by the case of Wellington Belawa (supra).
This I do having regard to the fact that, although it was not a case of forgery, it was a case of dishonesty. All acts of forgery, obtaining goods by false pretence, fraud, misappropriation and the like involve an element of dishonesty. Therefore the guidelines set by the Supreme Court in the Wellington Belawa (supra) case apply with the necessary modifications to cases of forgery in the absence of any authority to the contrary.
In the case cited, the Supreme Court had before it on appeal from a decision of the National Court in a case of obtaining goods by false pretence. The Supreme Court found that there was no consistency in sentencing tariffs in the kind of cases before it. So it decided to lay down general guidelines for sentencing in the kind of cases before it following the Lord Chief Justice of England in R v. Barrick (1985) 81 Cr App R 78. In so doing the Supreme Court said the following factors should be taken into account (from the head note):
"(1) the amount taken;
(2) the quality and degree of trust reposed in the offender including his rank;
(3) the period over which the fraud or the thefts have been perpetrated;
(4) the use to which the money or property dishonestly taken was put;
(5) the effect upon the victim;
(6) the impact of the offences on the public and public confidence;
(7) the effect on fellow-employees or partners;
(8) the effect on the offender himself;
(9) the offender’s own history;
(10) restitution; and
(11) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police."
There appears to be a lack of a good number of forgery cases lately from which we could extract the relevant sentencing practices and tariffs. An exception to that is the case of The State v. Paulus Takesi (11/06/96) N1468, a judgement of my brother Justice Sevua. In that case, Mr. Takesi, a lawyer by profession obtained through false pretence under s. 404(1) (a) of the Criminal Code a sum of K7, 000.00 belonging to his client. He was in a position of trust, which he destroyed and he was given a 2 years sentence in hard labour. The offence carries a maximum of 5 years.
The only other latest case of forgery and uttering and misappropriation is my own judgement in The State v Jimmy Solomon (20/07/01) N2100. There I imposed a fully suspended 5 years sentence on certain conditions. That was in a case of guilty pleas to two counts each of fraudulently uttering two cheques and misappropriation of their value totalling K6, 350.00. The offences were committed at different times against different people. The offender in that case was remorseful and his siblings and others were prepared to assist in his rehabilitation.
I consider it important to note that, there as been much discussion lately and both the Supreme and the National Courts have given serious consideration to alternatives to prison terms to convicted offenders, especially in less serious and less violent offences such as misappropriation. Examples of these are the cases of Doreen Liprin v. The State (9/11/01) SC675 (?) and my own judgement in The State v Dobi Ao (No 2) (01/05/02) N2247.
Also it is now almost settled law that sending a convicted offender back to society instead of sending him to prison is not an exercise of leniency toward an offender. Instead it is a form of punishment that is to be served outside the prison system in appropriate cases. I stated that principle in these terms in the case of The State v. Micky John Lausi (27/03/01) N2073 (also cited in The State v. Jimmy Solomon (supra) and The State v. Dobi Ao (N0.2) (supra):
"It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such order is made in the community interest and is generally designed to prevent re-offending which a prison sentence, standing alone seldom does. A person so released as an obvious incentive not to re-offend. Therefore, there should be no misconceptions as to what will occur if he does. From time to time, persons charged with more serious offences may be dealt with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that a particular offender will be positively damaged by immediate incarceration."
These principles were adopted and applied in a number of cases before by other judges as in The State v. Nyama [1991] PNGLR 127, Hinchliffe, J. and The State v. Morobet Awui Koma and Peter Kevin [1987] PNGLR 262, by Wilson J.
Your Sentence
For the purposes of determining an appropriate sentence for you, I find in so far as is relevant, that the amount of money involved in your acts of forgery and uttering add to K6,000.00. That in my view is a substantial amount. But I do accept your lawyer’s submission that you were not in a position of trust when you committed the offences. The commissions of the offences were in effect a one off incidence. Despite, the dismissal of the charge against you for stealing, there is no dispute that you obtained through your forgery and utterances a total of K6,000.00. You are now prepared to have all of that repaid in full with the help of your relatives.
As I said in The State v Dobi Ao (No 2) (supra) the long established principle of punishing only the offender has been imposed on us as a result of adopting almost whole scale the Western norms of criminal law punishment. I then noted that:
"Traditional or customary Papua New Guinea is more communal and family responsibility. Everyone affected by a problem in society contributes towards resolving it. Schedule 2.1 (1) of the Constitution adopts custom as part of our underlying law provided it is consistent with the Constitution, any statute and is not repugnant to the general principles of humanity."
It is now accepted that sentencing or punishing an offender is a community responsibility: see Acting Public Prosecutor c. Don Hale (supra). But as I also said in The State v. Dobi Ao (N0.2) (supra), relatives and the community can only be made to contribute or participate in an offender's penalty if they contributed to the commission of the offence at the first place or have benefited from the offence.
In your case, there is no evidence of either your family or your relatives having caused you to commit the offences or they benefited from the proceeds of your illegal conducts. I will therefore have little regard for the preparedness on the part of persons other than you to help repay the monies you took. If you wish, you could borrow from them to meet any order for restitution if I were to so order against you.
Nevertheless, I consider the preparedness generally of your relatives and your leaders is important to the extent that they are ready to see you change and go back to your past good life and record. I therefore consider it necessary and important that I should take particular note of the preparedness of your people and its leaders to participate in your penalty.
Next I find that, based on the pre-sentence report, I find that the commissions of the offences have brought upon you and your family great shame. You are therefore very remorseful. I also find that, prior to the commission of the offences, you were a very trusted person according to the character references attached to the pre-sentence report. You were forced into committing these offences due to a build up of frustration against the manner of distribution of the proceeds of land compensation payment made by the State.
Whilst noting that one wrong can not correct another, I find that the circumstances in which you committed the offences operate in your favour. For I note your case is not as in a case of an employee forging or using such other means to steal from his employer or the employers clients, or as in the case of never ending instances of misappropriation of public funds by politicians and other public officer holders. These are offences committed by people in positions of trust. In your case, you were entitled and as far as you are concerned to more than what you were given from the proceeds of the payment received from the State. So you took the law into you own hands and in so doing you broke the law. For that you must be punished because your wrongs do not correct the wrongs of Mr. Paua and whoever else was distributing the proceeds of the payment for the State. I have already ordered that his manner of distribution be investigated and for appropriate steps to be taken against him and body else if a case for such steps to be taken are found. That is the way you should have addressed your grievances.
In addition to the above, I also find in your favour that you have no prior convictions. These are therefore, your first ever offences. You freely pleaded guilty to the charges and have co-operated well with police evidenced by your admissions in your record of interview. You are married with two wives and 4 children, with both of your parents still surviving. You have until the commission of these offences, had a good record and have not been in any trouble with the law.
Your immediate community, your community leaders and a good number of your clan’s men are prepared to assist you to meet your penalty for the offences you have committed, which includes any order for restitution.
I take into account both the factors for and against you as noted above and find that the factors in your favour outweigh the factors against you. Given this and the limited sentencing trends emerging from the few cases cited in this judgement, I am of the view that the maximum prescribed sentence of 14 years imprisonment is in appropriate. Instead a sentence lower than that should be imposed.
Even if any of cases cited or any other case previously dealt with comes closure to your case, it does not necessarily mean the same sentence should be imposed. Instead the Court is under an obligation to take note of all developments, if any, in the incident or the kind of offence under consideration. If there is a decline in the offence, it could mean amongst others that the past sentences have been effective. If however there is an increase in the number of the kind of offence under consideration, it means the opposite. When such is the case, then the sentences previously imposed must be reviewed with a view to increasing the sentences.
Presently there can be no dispute that the number of forgery or other acts of dishonesty have not declined. Instead they are on the increase. This means the past sentences have failed to deter possible offenders, which a sentence is supposed to do. Therefore, the sentences must be appropriately increased to counter the increase in the offences. It thus follows that sentences for forgery or such other offences should be increased. Of course the maximum prescribed limit of 14 years must be reserved for the worst kind. Cases meeting that category are cases in which large sums of money may be involved, there is a breached of trust, the offences have been perpetrate over a period of time, the offences have an adverse impact on the reputation and business of the victims of the offences. Having a prior disciplinary or conviction record may aggravated the case and strengthen the need for a higher penalty. A conviction after a trial may also eliminate any chances of leniency. The opposite of that might be a one off offence committed by a person of good repute and standing in community, who freely admits to committing the offence and is truly remorseful for what he has done as in your case. There would then of course be cases falling in between these two extremes.
No matter where ever a case may be placed, committing an act of forgery and or utterance is a serious offence. It deprives persons who are entitled to the properties either stolen or misappropriated of the use and enjoyment of them. State resources in terms of police, the courts and public lawyers are expanded and wasted in bring them to justice. It therefore, has to be punished appropriately to help deter others from committing similar offences. I therefore consider that a charge of forgery going past subsection (1) of s. 462 of the Code should start at a term of three years. The actual sentence to be imposed should then be adjusted to a sentence between three years and the maximum prescribed under the relevant provisions as in this case 14 years under subsection (3).
Now turning to you case, taking into account the factors operating in your favour as already noted, I consider an head sentence of three years appropriate. Then again taking these factors into account I would order a suspension of the whole of such a sentence only on the condition that:
I consider that this sentence and the terms and conditions of the sentence proposed sufficiently accommodate all of the comments and
concerns raised in foregoing. Accordingly, I make orders in those terms.
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