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State v Lengade [2012] PGNC 76; N4690 (28 May 2012)

N4690

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 78 OF 2012

THE STATE

V

ANDREW AOPO LENGADE

Waigani: Makail, J
2012: 14th, 25th & 28th May

CRIMINAL LAW - Plea - Sentence - Multiple offences - Forgery - Uttering of documents - Non-custodial sentence appropriate with strict conditions - Aggravating and mitigating factors considered - Criminal Code, Ch 262 - Sections 19, 462(1) & 463(2).

Cases cited:

Wellington Belawa -v- The State [1988-89] PNGLR 496
The State -v- Lukeson Olewale (2002) N2758
The State -v- Jimmy Solomon (2001) N2100
The State -v- Louise Paraka (2000) N2317
Goli Golu -v- The State [1979] PNGLR 653
Public Prosecutor -v- Don Hale (1998) SC564

Counsel:
Mr D Kuvi, for the State
Mr J Malambaol with Mr B Mol, for the Prisoner

SENTENCE

28th May, 2012

1. MAKAIL, J: The accused is charged with one count of forgery and one count of uttering of documents under section 462(1) and section 463(2) of the Criminal Code, Ch 262 respectively. Each offence carries a prescribed maximum penalty of 3 years imprisonment. He is alleged to have committed these offences when he falsely represented to the National Forest Authority that he was Andrew Aopo and sought to claim Nambawan Super savings of Andrew Aopo when at all material times he was not Andrew Aopo.

2. On arraignment, he pleaded guilty to the following facts; at the material time between February and June 2011, he was a part time student at the University Waigani campus. On a date between these months, he picked up a letter addressed to Andrew Aopo. He is Andrew Aopo Lengade. That letter belonged to Andrew Aopo who is a totally different person but also bore the same name as Andrew Aopo. The letter contained a Nambawan Super Statement of Account and rightfully belonged to Andrew Aopo and not him. Armed with that letter, he went to Nambawan Super Funds head office in down town Port Moresby. There, he collected a separation form. This is an important document because it allows an account holder with Nambawan Super Fund to withdraw his savings from the Fund.

3. On 20th June 2011, he fraudulently filled in and forged the separation form. On 08th August 2011, he took it to the National Forest Authority and submitted it with other documents to the Human Resources Division. The claim was for K164,945.69. At all material times, he was not Andrew Aopo. The real Andrew Aopo was and is a Principal Management Officer employed by the National Forest Authority. When contacted, he said he did not authorise the withdrawal of his savings with Nambawan Super Fund. When the accused followed up with claim, he was arrested and charged with these offences.

4. Having pleaded guilty and convicted of these offences, the accused is now a prisoner of the State. At his lawyer's request, the Probation Office provided a pre-sentence report to the Court and counsel. The case of Wellington Belawa -v- The State [1988-89] PNGLR 496 is a useful guide on sentencing in dishonesty cases. The offences he had committed involved dishonesty and so, I will use that case as a guide to determine an appropriate sentence for him. Some of the matters that may apply in his case are the amount taken or value of property taken, degree of trust, pre-planning, use of property and effect on the victim.

5. First, on allocutus, he apologised to the Court for what he did. Secondly, he pleaded guilty to the offences, thus saving the Court and the State time and money to conduct a trial to determine his guilt. Thirdly, he is a first offender. He has never been on the wrong side of the law before. In addition to these factors that are special to him, he did not obtain the money. As a result, no significant damage was done. There is no relationship of trust between him and the National Forest Authority. When the opportunity presented itself, he seized it and tried to obtain the money but was caught.

6. However, there was considerable pre-planning. He knew that he was not the owner of the letter containing the Nambawan Super Statement of Account. Yet he went ahead and devised a scheme and effected it with much success and would have come to fruition had it not been for the alertness and quick action of the staff of the National Forest Authority. Only smart people pull such stunt because they believe in themselves that it will work. They are also prepared to take the risk. The prisoner took that risk but unfortunately for him and fortunately for the real Andrew Aopo, he was caught.

7. The prevalence of the offences is a reminder to all that such crimes are on the rise. The cases cited by counsel in The State -v- Lukeson Olewale (2002) N2758, The State -v- Jimmy Solomon (2001) N2100 and The State -v- Louise Paraka (2000) N2317 are proof of that. The record of interview of the prisoner showed that he did not cooperate with the police during the investigations. He was adamant that the money was his.

8. I am of the view that this is not a worst case of forgery and uttering and the maximum penalty should be reserved for the worst cases: Goli Golu -v- The State [1979] PNGLR 653. The Court has discretion under section 19 of the Criminal Code, Ch 262 to impose a lesser penalty. But I must emphasise that the scheme the prisoner employed to obtain the money frightens me. He was able to gain access to the personal information of the real Andrew Aopo at the Nambawan Super Fund office without arousing any suspicions in the minds of the staff there. He would have walked away with K164,945.69 had it not been for the alertness and quick action of the staff of the National Forest Authority.

9. The pre-sentence report is relevant to determine whether an offender is a suitable candidate for a suspended sentence. see Public Prosecutor -v- Don Hale (1998) SC564. In the present case, one has been provided by the Probation Office. It stated that the prisoner is from Gregabu village in Keram in the Middle Ramu District of Madang Province. His parents died when he was a child. He was raised by an aunt. He has 5 siblings and they live in the village. He is the only one in the family that is educated and living in Port Moresby. He is single and goes to Assemblies of God Church at Gordon for church service. He is unemployed, although he had odd jobs in the past, one of them as coordinator for ward council in Madang Province for former member for Middle Ramu, Mr Tommy Tomscol. He is residing with Simeon Kas at Bavaroko Primary School.

10. A friend of his, Michael Wartovo was interviewed and he stated that the prisoner goes to Assemblies of God Church at Gordon for church service and he sometimes assisted him with pocket money because he felt sorry for him. But he labeled him as a conman. The report also stated that the prisoner had made general denial of the offences and showed no sign of remorse. It concluded that the prisoner is a danger to the community where he is staying. I am concern that the prisoner has displayed this attitude. If he is not willing to accept his wrongs, it would mean that he has the propensity to reoffend and may not be a suitable candidate for a suspended sentence. To balance the two competing interests, one being personal and the other, public, I consider a partly suspended sentence with strict conditions would be appropriate.

11. In the end, it is the judgment of the Court that he is sentenced to a term of 1 year imprisonment in hard labour for each offence. 9 months is deducted in each case for time spent in pre-sentence custody and the balance of 3 months is suspended and he be placed on probation. As the two offences were committed in a single transaction, applying the single transaction rule, I order both sentences be served concurrently. The conditions of probation are:

(a) The prisoner shall perform community work in and around the Assemblies of God Church at Gordon including but not limited to cutting grass, making and cleaning flower gardens, cleaning drains, etc every Mondays and Fridays of each week between the hours of 8:00 am and 4:00 pm for a period of 3 months.

11.2 In performing the community work, the prisoner shall report to the Pastor in Charge of Assemblies of God Church at Gordon to be assigned work each day.

11.3 The prisoner shall not leave the National Capital District during the period of the suspended sentence unless with the leave of the Court.

11.4 The Probation Officer shall attend to the prisoner to ensure that he complies with conditions 1, 2 and 3 above.

11.5 The Probation Officer shall compile a report for the prisoner and present to the Court for review at the end of each month at the National Court circuit at Waigani.

11.6 If for whatever reason the prisoner breaches these conditions, he shall serve the balance of the term of the suspended sentence of 3 months as at the time of the breach.

Prisoner sentenced accordingly.

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Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Prisoner