N10113

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 3 OF 2022

BETWEEN:
INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
SIMON DUGUNO

Waigani: Wawun-Kuvi, AJ
2022: 9th ,10th & 12th August & 30th September
2023: 10th February

CRIMINAL LAW-SENTENCE-Guilty Plea- Uttering, s463(2) under the Criminal Code-Uttering of attachments to a Third-Party Insurance Claim
Cases Cited:
Karapen v The State (2022) SC2333
State v Robin Kusa Irapo (2022) Unreported National Court Judgement, CR (FC) 176 of 2021 (delivered on 27 June 2022)
State v Paul Waggi Merimba [2022] N9604
State v Alfred Terep [2022] N9526
State v Kohuo [2019] PGNC 336; N7946 
State v Max Karapen [2019] N7840
Mikoro v State [2015] PGSC 12; SC1424 (1 May 2015)
Gima v The State [ 2003] SC 730, State v Winston [2003] PGNC 146; N2347 
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Public Prosecutor v Hale [1998] SC564
The State v. Aruve Waiba [1994] CR1/94(Unreported and Unnumbered
Kalabus v The State [1988-89] PNGLR 193 
State v Kagai [1987] PNGLR 320
State v Tardrew [1986] PNGLR 91
The State v Tardrew [1986] PNGLR 91
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
Public Prosecutor v Thomas Vola [1981] PNGLR 412
The State -v- Tendi Kalio Ulio [1980] PNGLR
Public Prosecutor v Sima Kone [1979] PNGLR 294
Goli Golu v The State [1970] PNGLR 653
References
Criminal Code, Chapter 262
Counsel:
Mr. Johnathan Siminji, for the State
Mr. Jeffery Kolowe, for the Offender

SENTENCE
10th February, 2023

1.	WAWUN-KUVI, AJ: Simon Duguno (offender) is a 48-year-old male from Kilau Village, Nomane- Karamui District in the Chimbu Province. The offender is in court because he presented false documents to Motor Vehicle Insurance Limited (MVIL) for the purpose of claiming third party insurance.

2.	The documents subject of the charge were attached to a Notice of Intention to Claim. The claimant was listed as Anna Simon.

3.	Following the lodgment, irregularities in the documentation were identified. This gave rise to an internal investigation. The investigation revealed that the attachments which included a Medical Report, a Discharge Summary Sheet, a Road Accident Report and X-ray images were not genuine. The findings also revealed that the woman who had identified herself as Anna Simon was instead a person called Elsie Jack.

4.	Following the findings of the investigation, the matter was reported to police and the offender was arrested and charged.

5.	The offender was convicted on the above facts. I am now to decide on the appropriate penalty.
The Charge

6.	The offender initially pleaded not guilty, and the matter went to trial. After the conclusion of the evidence by the first State witness, the offender applied and was granted leave to change his plea from not guilty to guilty.

7.	The offender was subsequently convicted on the charge of uttering under 463(2) of the Criminal Code.

Penalty

8.	The maximum penalty is 3 years.

9.	 The maximum is reserved for the worst case: see Goli Golu v The State [1970] PNGLR 653.

Submissions

10.	The State submits for a sentence between the range of 18 and 24 months imprisonment. The defence submit for a range between 6-12 months imprisonment. 

11.	In support of each of the range of sentences, counsels submitted the following comparable cases:

12.	State v Robin Kusa Irapo (2022), Wawun-Kuvi AJ: the offender was convicted following a trial. He was the first cousin of the victim. They are members of the same clan. The victim is the son of a member of the Southern Highlands Provincial Assembly. His father and other Provincial Assembly Members filed legal proceedings and obtain orders for payments of entitlements owed to them. The monies were held by a PNG Legal Service, a law firm. The victim’s father died before he could receive his benefits. The offender without the knowledge of the victim, wrote a letter to PNG Legal Service stating that he had the consent of the widow and other clan members to receive the entitlements. He attached the names of the clan members to the letter. All of which were false. The letter was subsequently delivered to PNG Legal Service. The existence of the letter was made known to the victim and the matter was reported to police. The offender did not benefit from the offence. He was sentenced to 6 months for forgery and 6 months for uttering. The sentences were made concurrent and was suspended on conditions.

13.	State v Paul Waghi Merimba [2022], Berrigan J: the offender was convicted following a trial for one count of forgery and one count of uttering. The offender and the victim are brothers. They had incorporated a company. The victim without the knowledge of the offender reduced the offender’s shares in the company. The offender having learned of his brother’s action, proceeded to forge meeting minutes by signing the victim’s signature. The purported minutes returned the shares to his brother and himself. He forged an IPA form and signed as Director declaring that he was director and transferred 40 shares back to himself. He presented the form to the Investment Promotion Authority. He was sentenced to 6 months and 1 year for the forgery counts and 1 year for the charge of uttering. The sentence was made concurrent and was wholly suspended on conditions.

14.	State v Alfred Terep [2022], Wawun-Kuvi AJ: The offender was convicted following a trial. The offender and the victim were shareholders and directors of Kotipap Security Limited. The offender created a meeting minute and signed a signature under the victim’s name. The meeting minute contained a resolution that removed the victim as a director and shareholder. The offender then took the meeting minutes and presented it to the Registrar of Companies. The offender and the victim were cousins. The offender was sentenced to 12 months for each count and the sentence was made concurrent. The sentence was wholly suspended, and the offender was placed on a Good Behaviour Bond. He was also ordered to pay a fine.

15.	State v Kohuo [2019], Susame AJ: The offender pleaded guilty to forgery of a letter authorizing the change of directors of a company. The offender went to the Business and Development Service and informed them that he was removed as director and his shares were transferred. He was informed that in order for him to be reinstated, he needed a written authorization from a current director. The offender then had a letter written under the name of a director who was deceased. He signed the letter and lodged it. Following the lodgment changes were made to the composition of directorship and shareholding. The offender was 50 years old at the date of sentencing. The offender was placed on a good behavior bond for 12 months with cash surety of K500.00.

16.	State v Max Karapen [2019], Salika CJ: The offender was convicted following a trial on three counts of forgery and one count of uttering. The offender lodged forms 13, 15 and 16 at the Investment Promotion Office. The forms contained false information which resulted in company records being changed to reflect the offender and others as directors and shareholders. The sole director and shareholder was removed. The offender further wrote a letter containing false particulars and attached the forms. The letter was sent to a law firm. The offender was sentenced to 7 years imprisonment each for the forgery offences and 2 years for uttering. The sentences were made cumulative.
  
17.	The Supreme Court in its recent decision in Karapen v The State (2022) SC 2333 (14 December 2022) quashed the convictions for forgery and confirmed the conviction for uttering. There was no appeal against sentence and as such the sentence for uttering was affirmed.

18.	In addition to the cases submitted by counsel, I also find similar is the case of State v Pati [2018] decided by Kaumi, AJ (as he then was). Like the present case it involved a high level of sophistication. In Pati the offender pleaded guilty to obtaining by false pretence, forgery, and uttering. The offender and others falsely pretended that monies were deposited into a hire car company account. They then forged a cheque butt indicating that the deposit had been made. The cheque butt was given to the employees of the company and the vehicle was released. The vehicle was later sold, and the offender and others shared the proceeds of the sale. The offender was sentenced to 24 months for forgery and 24 months for uttering. The sentences were made concurrent to the sentence of 3 years for the false pretence charge. 2 years of the sentence was suspended, and the balance was ordered to be served.
 
19.	In the present case, the facts demonstrate that the culpability of the offender is significantly higher. Medical Documents which included X-Rays images and Police Traffic Documents were falsified for the purpose of obtaining third party insurance. These were official documents. In my view, this demonstrates not only a deliberate and calculated intent to defraud the MVIL but also reveals a far more elaborate and sophisticated scheme which comprised of a significant degree of planning and preparation. 

20.	Whilst the State did not charge the offender of forgery, he has pleaded guilty to knowing that the documents were false when he lodged them. He also pleaded guilty to knowing that the woman who identified herself as the purported claimant was another person. These factors indicate that the offender did not act alone.

21.	 The present case is unlike all the cases cited with exception to State v Pati [2018], where the disputes were over company matters or entitlements that the offenders felt that they had some right to. Here, the offender had no entitlement to the monies.

22.	Given the circumstances of the case, I find that the appropriate range for this case would be between 2 and 3 years.
Personal Antecedents
23.	The offender resides at 6 Mile at the Manuti Settlement in the National Capital District.

24.	The offender has three sisters and 1 brother. He and his brother reside in NCD while his sisters reside in Kundiawa in Chimbu Province. Their parents are deceased.

25.	The offender is married and has five daughters.

26.	The offender has been educated to High School. He graduated from Passam National High School in 1992.

Employment and Financial Situation

27.	The offender is presently unemployed and relies on the informal sector to support himself and his family. He generates between K400-K500 a fortnight from the sale of betel nuts.

28.	He has no funds in his bank account.

Allocutus

29.	Whilst the offender expressed his apology to the victim in one sentence, he went to great lengths to explain that other people were involved, which included staff of MVIL. He described himself as being a “small fish”.

30.	The offender made a bold statement to the effect that had it not been for his actions, the victim would not have tightened its processes. 

31.	He concludes by addressing his illness and pleads for his family’s welfare.

32.	Given his statement, that his guilty plea was given after the State called its first witness and his non-cooperation with police investigators, I find that there is no genuine expression of remorse: see Kalabus v The State [1988-89] PNGLR 193 (27 October 1988) regarding genuineness of remorse.

Victim Impact Statement

33.	 The victim impact statement was given by Robert Mitt. He is the Business Leader for the Business Strategy Division of MVIL. He has been employed with MVIL for 22 years.

34.	He states that fraudulent claims result in loss of revenue which also affects payment of insurance to clients and dividends to the State.

35.	MVIL spent K500 to assist police investigations and a further K12, 705.40 for accommodation and allowances for two State witness who were flown into Port Moresby for the trial.

36.	In concluding Mr. Mitt submits that given the gravity of the offending conduct and the monies expended by MVIL, it is MVIL’s position that the offender be given the maximum penalty imposed by law.

37.	He states that given that this is the first case which has made it past committal and reached a conviction, a deterrent sentence is appropriate to serve as a warning to likeminded individuals.

Aggravating Factors

38.	I have considered submissions and find that the offender did not act alone, the offence involved a high degree of sophistication and planning, falsified official documents were presented, there was no genuine expression of remorse and the victim had expended funds to bring witnesses in for the case. The offence is also prevalent.

Mitigating Factors

39.	 In mitigation, the offender is a first-time offender with no prior convictions.

40.	I do not accept his guilty plea as mitigation because it was belated and given only after the overwhelming evidence by the 1st State witness: see Kalabus v The State [1988-89] PNGLR 193 (27 October 1988).

41.	Additionally, I reject Mr. Kolowe and the offender’s statements that the sentence should be mitigated because the offender’s actions caused the victim to apply more stringent protocols to prevent further fraud. This is not a factor in mitigation as the offender cannot be given the benefit for committing the crime.

Consideration

42.	Whilst I accept that no benefit was obtained due to the hard and diligent work of MVIL staff, it is recognized that this is a serious case of fraud. As has been reiterated, official documents which include medical reports, patient records, X-rays and police traffic reports were falsified and presented for the purpose of obtaining significant sums of monies from MVIL. The offender planned and gave deliberate thought to his conduct.

43.	 According to both the offender and the victim, this type of fraudulent behaviour is extensively prevalent; a deterrent sentence is therefore warranted.

44.	In considering the circumstances of the case, the mitigating and aggravating factors and all the foregoing matters, the offender is sentenced to 2 years imprisonment.

45.	The offender has spent two days in police custody prior to being released on police bail. That period is deducted, and the offender shall serve 1 year, 11 months, 3 weeks, and 5 days in light labour at Bomana Correctional Institution.
 Suspension
46.	 I have considered the three broad categories in the case of The State v Tardrew [1986] PNGLR 91 and other authorities that relate to suspension of sentence.

47.	The Pre-Sentence Report Speaks favorably of the offender and recommends a non-custodial sentence. 

48.	Factors advanced in the Pre-Sentence Report in support of suspension are the offender’s prior good character, family suffering and the offender’s poor health.

49.	In support of the offender’s prior good character, are the character references from David Waula, Ben Taul and the offender’s family.
 
50.	The Character Reference from David Waula explains that he was informed by the offender that he has a matter in the National Court. The reference was given after the conviction of the offender and is addressed to the National Court. From the contents, I am satisfied that the reference was given for the purpose of sentencing. 

51.	Mr. David Waula is the Ward Councilor for Ward 6 in 6 Mile. He and the offender reside in the same area, and he is the offender’s in-law. The offender is married to his cousin. He says that the offender has a good character, is mild and humble in nature. He does not commit trouble in his community, and this was the first time he heard that the offender was involved in such trouble. 

52.	I do not place significant weight on this letter as the person is related to the offender as his in law.

53.	Similar statements were shared by Mr. Ben Taul. However, there are two factors that render the statement unreliable. Firstly, it is apparent that the insignia of the Royal Papua New Constabulary has been pasted on this document. Secondly, whilst he states that he has known the offender since their High School days in the 1980’s, the Pre-Sentence Report indicates that the offender completed High School in 1992. I do not place any weight on the contents of the letter.

54.	The offender’s wife, daughter and sister-in-law wrote a joint letter describing the offender as a good person.

55.	For the Court to consider suspension, it must have before it the views of the community. Those views but not be biased and must clearly support reintegration and rehabilitation. In considering the gravity of the offence against the letters, I am not satisfied that suspension is justified based on prior good character.

56.	The offender and his family have advance family suffering as a consideration. Whilst I accept the offender’s family will face some suffering, I am reminded that impacts on families as a result of imprisonment whilst grave is not a relevant consideration in sentencing except in the rarest occasion: Mikoro v State [2015] PGSC 12; SC1424 (1 May 2015), Allan Peter Utieng v The State (2000) SCR No 15 of 2000 and The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
 
57.	Kapi DCJ held in Prosecutor v Vangu’u Ame [1983]:

“Indirect effects of a man going to gaol, although proper considerations, must not be over-emphasized nor allowed to cloud the fact a person has committed a most serious offence. Justice, it has been said, must of course be tempered by mercy, but in my view not to the extent of allowing a person who has committed a very serious offence to, in fact, go free.
…If a court is weakly merciful and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences.” (Citations removed).

58.	 I am not satisfied that the offender’s family circumstance is one that would permit me to exercise my discretion to suspend the sentence.

59.	 The final consideration is whether imprisonment would cause undue hardship. The offender has attached medical or clinical notes. Much of the documents are dated in 2019. The Court must be assisted by a recent medical report by a qualified and competent doctor stating the diagnosis and adverse effects that imprisonment may have on the health of the offender. Here there is none.

60.	The offender has attached a letter purportedly written by a Dr. Kenneth K. Maima. The letter is not written to the Court but styled as Dear Sir/Madam. The letter is difficult to follow and comprehend. I restate the concluding paragraph to emphasize this. It reads:

“The summative toll of the vexatious and existential maladies; their near unabated insidious course and attendant negative socioeconomic repercussions has been pernicious with exacerbating malign post-traumatic stress disorder, substantially contributing to ill begotten poverty miring his family -longstanding denizens interminably travailing for Papua New Guinea’s prosperity but ungrudgingly residing beyond the verdant suburbs of Port Moresby”.

61.	Counsel must assist the Court but ensuring that materials that come before the Court are able to assist the Court. Likewise, the Prosecutor must check the veracity of the documents submitted by offenders for the purpose of sentencing. In a case where an offender has been convicted of presenting falsified medical notes, x-rays, and a medical report, it is important that those medical documents are verified. However, presently there is nothing before the Court to demonstrate that the letter is false. I only proceed hereon by attaching little weight to the letter for the reasons I have outlined already.

62.	 There is no confirmed diagnosis of any illness and very little to demonstrate any adverse impacts that the offender will face in the event of imprisonment. The offender has not demonstrated that he is likely to suffer adverse hardship due to poor health.

63.	 In conclusion, the offence in which the offender has been convicted whilst nonviolent is a serious and prevalent offence. Suspension is therefore not appropriate.

Orders

64.	The Orders of the Court are as follows:
1.	The offender is sentenced to 2 years imprisonment for uttering under section 463(2) of the Criminal Code.
2.	Time spent in custody of 2 days is deducted.
3.	The offender shall serve the sentence of 1 year, 11 months, 3 weeks, and 5 days in light labour at the Bomana Correctional Institution.
4.Bail and any paid securities are refunded.

Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Offender