N8808

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 340 of 2019

THE STATE

V

SOLIS IMA
(No 2)

Waigani: Berrigan J
2021: 4th and 10th May

CRIMINAL LAW – SENTENCE - S 463(2) of the Criminal Code – Uttering - Knowingly and fraudulently uttering false documents – 2 years of imprisonment imposed .

Cases Cited:

The State v Solis Ima (2021) N8676
Mari v State [2007] PGSC 49; SC1147
The State v Lapan Mesa Pati (2018) PGNC 113, N7186
The State v Niso (No 2) (2005) N2930
The State v George Steven CR/FC 184 of 2014, unreported
The State v Roland Tom and Kalen Kopen, unreported
The State v Louise Paraka (2002) N2317
The State v Karapen (2019) N7840
Lawrence Simbe v The State [1994] PNGLR 38
Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91 

Legislation and other materials cited:

Section 19, 404(1)(a) and 463(2) of the Criminal Code.   

Counsel

Ms L. Jack, for the State
Mr M. Sumbuk, for the Offender  

DECISION ON SENTENCE

10th May 2021

1.	BERRIGAN J: The offender was charged with obtaining goods by false pretence on Count 1 of the indictment, and uttering false documents on Count 2 of the indictment, contrary to s 404(1)(a) and s 463(2) of the Criminal Code, respectively.   

2.	Upon arraignment the offender pleaded not guilty to obtaining goods by false pretence and guilty to uttering false documents.  A provisional plea of guilty was recorded on Count 2 and a trial proceeded on Count 1. 

3.	The offender was acquitted of obtaining by false pretence for the reasons set out in The State v Solis Ima (2021) N8676, in particular that the State failed to establish that the accused “obtained” the cheque.  To “obtain” any chattel, money or valuable security for the purposes of s 404(1)(a) of the Criminal Code, an accused must obtain ownership and not merely possession of it: Amaiu v The State [1979] PNGLR 576; see also The State v Ruth Tomande (2019) N8030 at [20] to [22].

4.	The offender’s guilty plea to Count 2 was confirmed.

5.	It remains to sentence him.

Facts

6.	At the time the offender was unemployed and residing in Port Moresby with Korul Bal.  On 26 March 2019 the offender went to the Internal Revenue Commission (IRC) and presented two documents to the Internal Revenue Commission (IRC), both of which he knew to be false, namely: an identification card purportedly issued by “JMart”, bearing his photograph and name and stating that he was employed as JMart’s “Admin and HR Clerk”; and a letter on JMart letterhead authorising him as the “duly appointed representative to collect and receipt any IRC cheque due for JMart Limited”.  The offender was never employed by JMart Limited and had no authority to collect any cheque on its behalf.  Upon presentation of the false documents to Cyril Kupesan, a Goods and Services Tax (GST) refund officer with the IRC, the offender collected a cheque payable to JMart Limited in the sum of K583,353.70.  He gave the cheque to Korul Bal. 

7.	The cheque was subsequently deposited on 21 May 2019 into bogus account set up in the name of JMart Limited, Number 7016961943, at the BSP (SME) Water Front Branch, which account was opened on 7 May 2019.  Nathan Kupa is the sole signatory to the account. Due diligence checks conducted by BSP with the IRC revealed that payment was not intended for the said account and the cheque was dishonoured.  

Maximum penalty

8.	Section 462 (forgery in general: punishment in special cases) of the Criminal Code, relevantly provides:
(1) 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…
(5) If the thing forged purports to be, or is intended by the offender to be understood to be or to be used as–
(s) an authority or request for the payment of money or for the delivery of property; …
the offender is liable to imprisonment for a term not exceeding seven years.
9.	According to its ordinary meaning, to “deliver” means to “bring and hand over (a letter, parcel, or goods) to the proper recipient or address”: Oxford Dictionary.    

10.	In my decision on verdict I expressed the view that the authorisation letter and identification card falsely purported to provide authority for the delivery of property to JMart Limited via the offender, its authorised employee, for the purposes of s 463(2) read together with s 462(5)(s) and that accordingly, the maximum penalty for the offence is seven years.  

11.	That is factually correct but the State did not explicitly raise s 462(5)(s) on presentation of the indictment and the terms of the indictment itself did not explicitly identify the false instruments as authorities although it could have for the reasons stated above.

12.	Count 2 alleged that the offender:

“knowingly and fraudulently uttered false documents namely an identification card and an authorization letter purporting to be an employee and an authorized officer of J Mart Limited to collect a Goods and Services Tax (GST) refund cheque for the sum of Five Hundred and Eight-three Thousand, Three Hundred and Fifty-three Kina and Seventy Toea (K583, 353.70)”.

13.	It might be contended that the terms of the indictment on their face make it  sufficiently clear that s 462(5)(s) applies but given that the issue was not raised by either party, and I did not give them an opportunity to address it, I think I should err on the side of caution, and sentence on the basis of s 463(2) alone, particularly as the offender pleaded guilty:  Mari v State (2007) SC1147.  

14.	Accordingly, the maximum penalty in this case is 3 years pursuant to s 463(2) of the Criminal Code.

Submissions on Sentence and Comparative Cases

15.	Defence counsel submitted that a sentence of 3 years of imprisonment was appropriate.  The offender has been in custody for almost 2 years and suspension of the balance was sought.  Counsel proceeded on the basis that the offender had been convicted of false pretence and conspiracy to defraud,  however.  The State submitted that a sentence of 3 to 7 years was appropriate.  It had no objection to suspension in view of a number of factors which I will refer to below.   I take note of the fact that submissions have been made following my finding on verdict that s 462(5) had been invoked. 

16.	I have had regard to the sentences set out by Kaumi AJ (as he then was) in The State v Lapan Mesa Pati (2018) PGNC 113, N7186.  I have also considered the following decisions:

a.	The State v Niso (No 2) (2005) N2930, Gavara-Nanu J, in which the prisoner was found guilty following trial of conspiracy, fraudulently uttering a false document, and the misappropriation of K500,000.00 belonging to his employer, the Bank of Papua New Guinea.  The offences took place over a period of about 3 weeks.  At the time he was the Senior Clerk and Supervisor in the General Ledgers Section.  The prisoner was sentenced to an effective term of 7 years, 6 months of imprisonment (from which 8 months spent in custody was deducted);
b.	The State v George Steven CR/FC 184 of 2014, Salika DCJ: the Prisoner was convicted of forging his wife’s signature to transfer property to himself. The Court sentenced the prisoner to 3 years imprisonment with suspension on the condition that K30, 000.00 be repaid to the person the property was sold to. The title of the property was restored to the former wife;
c.	The State v Roland Tom and Kalen Kopen, Salika DCJ:  both prisoners were convicted after trial for forging a land transfer document and contract of sale which resulted in the transfer of land to Roland Tom. This court sentenced each Prisoner to 5 years imprisonment and the title was restored to the original owner;
d.	The State v Louise Paraka (2002) N2317, Kandakasi J: the Prisoner pleaded guilty to 2 counts of uttering in relation to 2 separate cheques where the amount on the cheques were altered and increased to higher amounts. The Prisoner was sentenced to 3 years imprisonment and further ordered for suspended sentence upon restitution; and 
e.	The State v Karapen (2019)N7840, Salika DCJ:  The prisoner lodged four forms at the Investment Promotion Authority aloffice containing false information which purported to remove Mek Onguglo as the sole shareholder and director of Moitaka Development Corporation Limited and purportedly appointed the Prisoner and four others to be shareholders and directors of Moitaka Development Corporation. The IPA registry records were updated to effect the changes. Sometime later the Prisoner wrote a letter dated 3 June 2013 to Young and Williams Lawyers, the lawyers representing Moitaka Development Corporation Limited in civil proceedings in WS 305 of 2011 against the Department of Education. The proceeding was a result of a claim by Moitaka Development Corporation Limited to the Education Department for the use of the land where the Moitaka Primary School is built. That piece of land is owned by Moitaka Development Corporation Limited of which Mek Onguglo is the sole shareholder and director. The letter to Young and Williams Lawyers was received on 4 July 2013. In the letter the Prisoner made false representations that: he was the new chairman of the Board of Directors for Moitaka Development Corporation Limited; that a resolution was passed by the Board of Directors for Moitaka Development Corporation Limited on 2 July 2013 to terminate and withdraw instructions to Young and Williams Lawyers to cease acting for Moitaka Development Corporation Limited in proceedings WS 305 of 2011; and that based on that resolution, Moitaka Development Corporation Limited will withdraw the proceedings WS 305 of 2011 and will not pursue the matter further; Mex Onguglo as the previous director of Moitaka Development Corporation limited was the subject of a joint fraud investigation by the Police and other relevant government agencies; and Young and Williams Lawyers are instructed to take steps to comply by filling the appropriate notice at the National Court Registry. The State proved that the Prisoner forged IPA forms 13, 15, and 16 when he lodged this forms on 24 June 2014. The State also proved that the Prisoner uttered the IPA company extracts when he attached the extract to his letter of 3 June 2013 to Young and Williams Lawyers and made several false statements in that letter.  He was sentenced to 7 years on each of the forgery counts and 2 years on the uttering count, all to be served concurrently.

17.	The sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Consideration

18.	Section 19 of the Criminal Code provides the Court with broad discretion on sentence.  It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Although this case does not fall within that category, the offence remains a serious one. 

19.	In aggravation the potential loss to the IRC was very large, K583,353.70.  Dishonesty offences are prevalent and the case calls for both specific and general deterrence.

20.	In mitigation this is the offender’s first offence.  He is previously of good character.  He is 57 years old.  He has two wives and 7 children.  He was educated to Grade 6 in 1978 and normally lives in his wife’s village in Morobe.  It appears his in laws brought him down to Port Moresby as part of their scheme.   He says he was forced into the offence by his inlaws but he accepts responsibility for what happened. He told both the court and Probation Services that he blames himself.  He has ruined his life, used up all his savings and just wants to go back to the village.   He suffers from high blood pressure. 

21.	The offender cooperated with authorities at a very early stage and fully admitted his role in the offence.  He also pleaded guilty at the first opportunity at the National Court and has saved the Court and the State the inconvenience of a trial.  I also take this into account as indicative of his genuine remorse.

22.	This is further demonstrated by his statement, which he read on allocutus, and which was very considered and which I accept as genuine.

23.	It is also relevant to my consideration that the offender played a very limited role in the overall scheme to defraud the IRC.  Both the State and defence agree that he knew nothing of the bogus company and that he was used by his relatives.  That is clear to me too from the evidence presented at trial.  The offender has been terribly used by his more sophisticated relatives.  Whilst it does not excuse his conduct – he knew what he was doing was wrong and I am sure he hoped to gain from it – it is clear that he might be described as an unsophisticated who was taken advantage of to some extent. 

24.	It is also relevant that no loss was actually occasioned on the victim in this case.  The cheque was stopped before any monies were taken.  For this and the above reasons this case is different from those outlined above.

25.	Having regard to all of the above matters it is my view that a sentence of 2 years of imprisonment is appropriate.

26.	In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. 

27.	Probation Services recommends the prisoner for suspension and the State has no objection. 

28.	Restitution is not in issue here as no monies were obtained by the offender. In my view, however, he has demonstrated strong prospects for rehabilitation.  In addition I note his age and health. I also note that he has already spent almost 2 years in custody, since 27 May 2019.

29.	According I make the following orders:

a.	The offender is sentenced to 2 years of imprisonment in hard labour;

b.	Less time spent in custody, 1 year, 11 months, 12 days;

c.	The balance is immediately suspended. 

________________________________________________________________   
Public Prosecutor:   	Lawyer for the State		
Public Solicitor:	Lawyer for the offender