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State v Mark [2025] PGNC 257; N11365 (12 June 2025)

N11365

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 257, 258. 259, 260, 261 OF 2024

THE STATE

V

SIMON MARK

ARAWA: TOLIKEN J
4,12 JUNE 2025

CRIMINAL LAW – sentence – forgery – 5 x counts – guilty plea – forgery by president of youth association - aggravating and mitigating factors considered – breach of trust – early offer for restitution refused – Appropriate sentences – cumulative sentence of 60 months – totality principle applied - effective sentence of 24 months less time in presentence detention - Suspension – appropriate case for – resultant sentence wholly suspended on condition including restitution – Criminal Code Ch. 262, s 462(1).

Cases cited
Goli Golu -v- The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1983] PNGLR 92
Public Prosecutor v Tardrew [1986] PNGLR 91
Lawrence Simbe -v- The State [1994] PNGLR 38
Kaya v The State (2020) SC2026
Lipirin v The State (2006) SC673
Acting Public Prosecutor v Don Hale (1998) SC564
The State v Benson (2006) N4481
The State v Paraka (2002) N2317
The State v Kawin (2001) N2167

Counsel

Ms. P Matana, for the State
Mr. F Lugabai, for the prisoner

SENTENCE

1. TOLIKEN J: Introduction - Simon Mark, the State indicted you with five counts of forgery, pursuant to Section 462 (1) of the Criminal Code (the Code). The counts are –
   

Count 1: That on 6 December 2022 at Arawa, you forged a document described as Bank South Pacific Ltd Cheque No. 000021, for the amount K400.00 belonging to Arawa Urban Youth Association.

Count 2: That on 9 December 2022 at Arawa, you forged a document described as Bank South Pacific Ltd Cheque No. 000023, for the amount of K400.00 belonging to Arawa Urban Youth Association.

Count 3: That on 01 February 2023 at Arawa, you forged a document described as Bank South Pacific Ltd Cheque No. 000059, for the amount of K200.00 belonging to Arawa Urban Youth Association.

Count 4: That on 29 October 2023 at Arawa, you forged a document described as Bank South Pacific Ltd Cheque No. 000061, for the amount of K1000.00 belonging to Arawa Urban Youth Association.

Count 5: That on 13 December 2023 at Arawa, he forged a document described as Bank South Pacific Ltd Cheque No. 000095, for the amount of K500.00 belonging to Arawa Urban Youth Association.

Facts

2. Briefly, the State alleged that between 01 December 2022 and 31 December 2023, you held the position of President of the Arawa Urban Youth Association (the Association). The Association operated a bank account with the Arawa Branch of Bank South Pacific Ltd (BSP). The signatories to the account were the President, Treasurer and Secretary of the Association. You were therefore a signatory by virtue of your position as President of the Association.
   
3. Between the period of 01 December 2022 and 31 December 2023, you withdrew a total sum of K2500.00 from the Association’s account by forging the signatures of the Treasurer Jochy Oisoco and Secretary A K Kumpota.
   
4. The particulars of the forgeries are as follows –
   

Plea

5. You pleaded guilty to all five counts and further admitted the supporting facts.
   

The offence

6. Section 462 (1) relevantly provides for the offence of simple forgery in the following terms –
   
   462. FORGERY IN GENERAL: PUNISHMENT IN SPECIAL CASES.
        

(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.

Issues

7. What falls to be determined is what an appropriate sentence for you ought to be.
   

Sentencing Principles

8. The maximum penalty is usually reserved for the worst instances of offending. An offender must be sentenced according to the facts and circumstances of his own case, with the view to achieving proportionality between the punishment and the crime. (Goli Golu v The State [1979] PNGLR 653 (Raine DCJ, Kearney, Wilson JJ ); Avia Aihi v The State (No.3) [1983] PNGLR 92(Kidu CJ, Kearney DCJ, Greville Smith, Andrew, Kapi JJ; Lawrence Simbe v The State [1994] PNGLR 38 (Woods J, Konilio J, Sevua J).
   
9. In sentencing offenders for offences of dishonesty such as forgery, the Court is guided by the principles enunciated by the Supreme Court in Belawa v The State [1988 -89] PNGLR 496 (Bremeyer J, Woods J, Barnett J). There the Supreme Court said that apart from any aggravating and mitigating factors the factors that should be considered, include the following -
   
   1. The amount of money taken;
   2. The quality and degree of trust reposed in the offender;
   3. The period over which the fraud or theft was perpetrated;
4. The use to which the money or property fraudulently taken was put;
   5. The effect upon the victim;
   6. The effect of the offence on the public and public confidence;
   7. The effect on the offender;
   8. The offender’s own history.
      
9. The Supreme Court set a range of sentences on a graduating scale depending on the amount involved. These held sway until they were reviewed by the Supreme Court in Kaya v The State (2020) SC2026 (Batari J, Mogish J, Berrigan J). The majority there (Batari J and Berrigan J) suggested the following –

Comparative Sentences

10. While offenders must be sentenced according to the circumstances of their individual offending, it is important that consistency is maintained so that similar cases are given similar (not uniform) sentences.
    
11. The following cases are like your own case. Some were cited to me by counsel in their submissions.
    
12. The State v Kawin (2001) N2167 (Kandakasi J): The offender pleaded guilty to two counts of stealing. A fellow employee who had been retrenched and awaiting his final entitlements entrusted his Transaction Savings Account Passbook to the offender while he left for the village to attend to his sick brother. On the first occasion the offender withdrew K50.00 from the victim’s account by forging his (Victim’s) signature on a withdrawal slip. He then withdrew K2,250.00 by the same fraudulent method. He was sentenced to 2 years imprisonment less time in custody.
    
13. The State v Paraka (2002) N2317 (Kandakasi J): The offender was a member of landowning group who previously owned the land on which the Holy Trinity Teachers College in Mt Hagen sits. The group was paid K800,000.00 by the State as compensation or settlement payment. The offender who claimed to be a principal landowner claimed K50,000.00 as his share but was paid a cheque for K1700.00 instead. Aggrieved by this, he forged the cheque by altering the figure to K4700.00 by changing the figure 1 to 4. In the same manner he also altered another cheque made out to a clansman of his for K1150.00 to K4150.00. Both cheques were presented and cashed at the bank.
    
14. The offender pleaded guilty to two counts of forgery and two counts of uttering. He was sentenced to 3 years imprisonment which was wholly suspended on conditions which included restitution.
    
15. The State v Benson (2006) N4481 (Cannings J): The offender pleaded guilty to two counts of forgery and two counts of uttering. He was the Deputy Governor of Sohano Primary in Buka. On the first occasion he forged the signature of an authorized signatory on a bank withdrawal slip, presented it at the bank and withdrew K500.00. Nine days later, he forged the same signature on another withdrawal slip, presented it at the bank and withdrew K1500.00. By the time of the trial, he had repaid most of the money.
    
16. The prisoner was sentenced to 6 months each for the first counts of forgery and uttering and sentenced to 12 months each for the subsequent counts to a total of 36 months. In applying the One-transaction Rule, counts 1 and 2 were ordered to run concurrently as were counts 2 and 3. However, since the acts which constituted the offences were committed 9 days apart, the concurrent sentences of 6 months and 12 months were made cumulative to a total sentence of 18 months.
    
17. The sentence was wholly suspended on conditions including an order for restitution for the unrepaid balance of the stolen funds, and peculiarly, an order for the offender to resign from all positions of trust he held in the community or church organizations. He was further prohibited from holding such positions for the duration of his suspended sentence.
    
18. Lipirin v The State (2006) SC673 (Amet CJ, Kapi DCJ, Los J): The applicant, a bank teller was convicted after trial for one count each of forgery, uttering and misappropriation. She was sentenced to 1 year each for the counts of forgery and uttering and 3 years for misappropriation. She was ordered to repay the sum she took (K6000) within 2 months. She applied for the review of both conviction and sentence.
    
19. Her challenge to her conviction was unsuccessful but she succeeded in overturning her sentence on a majority decision. Amet CJ, with whom Los J agreed, held that the sentence of 3 years for misappropriation was disproportionate to the amount involved (K6000). Furthermore, the order for her to make restitution within 2 months only was held to be unreasonable. The offender was not a violent offender and was not a threat to the community. Amet CJ expressed the view that imprisonment was not appropriate for misappropriation of amounts of this kind should warrant imprisonment at all. Rather “the court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, deterrence and rehabilitation ...”
    
20. The sentence of 3 years was therefore varied to 9 months - the period the applicant had already served. She was ordered to repay the sum of K6000.00 within 2 years.
    

Current Case

Antecedents

21. Returning to your case, you are 30 years of age. You are originally from Tonu in the Siwai District but now reside here in Arawa. You are married with two children aged 7 and 3 years. You completed Secondary School and hold an Advanced Diploma in Human Resources Management from Kumul Training Institute, Port Moresby. You are currently self-employed. You have no criminal record. You spent 2 months and 3 weeks in pre-sentence detention before you posted bail.
    

Allocutus

22. You apologized for your offence and to the victim of your crime, the Arawa Urban Youth Association. You said you acted out of frustration as you were not paid for the job you were performing as President of the Association. You said you offered to refund the money when your crime came to light. Your offer was, however, rejected by the victim because the matter was already before the law. Finally, you pleaded for leniency because you are the only breadwinner for your family.
    
23. Your presentence report (PSR) is favourable, even though the view of the Association through its current leadership was not sought. You are assessed to be suitable for probation supervision and that you have the means to make restitution.
    

Submissions

24. Ms. Matana, for the State, submitted that yours is not a worst offence. She cited several aggravating factors which I shall come to presently. Counsel was of the view that a sentence of 6 months for each count ought to be appropriate for you, which may be suspended at the Court’s discretion.
    
25. Your Lawyer Mr. Lugabai agreed with Ms. Matana that your offending does not fall under the worst category of forgery. Counsel submitted that your offence is non-violent and that you are not a threat to the community hence justifies a non-custodial sentence in line with what the Supreme Court said in the matter of Lipirin v The State (supra). He agreed with the range of sentences suggested by Ms. Matana and further that is an appropriate case for suspension to be considered.
    

Aggravating & Mitigating Factors

26. The following factors aggravated your offence –
    
    • There was a high degree of betrayal of trust.

• These was not a one-off offence but one that was repeated over a period of 12 months.
  • Offences of this nature are prevalent.
    

27. However, in your favour the following factors mitigate or lessen the gravity of your offence –
    
    • You pleaded guilty to the offence. It was an early plea which saved the State from incurring unnecessary costs had you forced a trial.
    • You co-operated with the police by making early admissions in the Record of Interview.
      • You have no prior convictions.
      • You were of prior good character.
      • You expressed what to me appears to be genuine remorse.

• Your early offer to repay the funds you stole, a position you maintained in your PSR demonstrates contrition on your part.
  

28. So, what would be an appropriate sentence for you?
    

Deliberations

29. At this juncture, I must agree with counsel that yours is not a worst offence. It in fact falls under the second category in the Belawa and Kaya guidelines because it involved a sum between K1000.00 and K10000.00 which should attract a term of imprisonment of up to 2 years.
    
30. Applying the Belawa considerations I make the following observations in order to determine an appropriate sentence for you.
    
31. The amount you took from the Association was K2500.00. For a youth group that would have been a substantial amount. Youth groups or associations are not flush with money. Most often struggle even to raise funds to run their affairs let alone achieve their objectives. The Association, therefore, without a doubt, would have suffered a significant financial loss.
    
32. You held the position of President in the Association hence you were reposed with a very high degree of trust by your peers – the youths of Arawa. The Association was obviously formed to advance the collective interests of youths within the town - and if I could be allowed surmise - to help keep them out of trouble and be the vehicle through which members can assist themselves to become useful members of the community, garner support from programs to enhance personal development and acquisition of life skills.
    
33. You betrayed their trust. It was a very serious betrayal of that trust, and it should go without saying that the higher the trust, the higher the consequences when that trust is breached.
    
34. This was not a one-off incident but one that was perpetrated over a period of 12 months involving five separate and distinct instances of forgery. You did not stop after the first instance or second. It appears that you became emboldened rather than feel a sense of guilt for what you were doing – stealing from your fellow youth members. You continued in your fraudulent scheme by making three more fraudulent withdrawals until you were caught.
    
35. So, what did you use the monies for? Obviously for your own personal use. You said that you acted out of frustration because you were not remunerated for the work you were doing. However, you knew exactly what you were signing up for when you took up the position. You knew that you will not be paid as did the other members of the executive committee of the Association. The result is that the funds you stole did not advance the objects of the Association at all.
    
36. The negative effect of your offending on yourself cannot be overstated. You no doubt had good standing among the youths of Arawa, otherwise they would not have elected to be the President of the Association. Because of that they entrusted stewardship over the Association’s affairs, including its finances on you. That good reputation, however, has been destroyed and it will take time for people in your community to trust you again. The loss of reputation is, however, self-inflicted and I know that you are regretting everything that you did. Whether you regain your reputation is entirely up you.
    
37. Your case is similar to that of Benson (supra.) who was the Deputy Chairman of the Board of Governor of Sohano Primary School in Buka. Benson as you have seen, pleaded guilty to two counts of forgery and two counts of uttering over a period of 9 days only. You, on the other hand, are guilty of five instances of forgery over a period of 12 months. That makes you offence a lot more serious. To your advantage, Ms. Matana, in the exercise of her prosecutorial discretion, did not charge you with uttering, which often accompanies charges of forgery.
    
38. Benson got 6 months for the first counts of forgery and uttering (made concurrent), and 12 months for the second counts (made concurrent as well) or a total cumulative sentence of 18 months which was then suspended.
    

Appropriate Sentence

39. Should you get a similar sentence? I think you should. Appropriate sentences for should therefore be as follows –
    

Count 1. 6 months imprisonment
Count 2. 6 months imprisonment
Count 3. 12 months imprisonment
Count 4. 18 months imprisonment
Count 5. 24 months imprisonment
Total = 60 months.

40. While the victim was the same, the offences were committed over different days, and the sentences therefore should run cumulatively. In other words, you ought to serve a total of 60 months or 5 years.
    
41. However, applying what is called the totality principle, which requires me to consider the effect of the cumulative sentence and ascertain if the sentence would have a crushing effect on you with the view to avoiding such an effect, I do find that 60 months or 5 years would indeed be devastating. A just and effective sentence for you should therefore be 24 months.
    
42. This sentence holds you accountable for your criminal behaviour. It is also aimed at deterring you personally so that you do not repeat what you did. It will hopefully deter others as well who might be similarly inclined.
    

Suspension

43. Finally, should any part of your sentence be suspended whether?
    
44. You have a favourable PSR even though the views current executive committee or members of the Association were not sought. I am, however, confident that they will want you to repay what you stole. A suspension will in my view promote personal deterrence, rehabilitation, and an opportunity for restitution. You therefore have met the requirements for suspension of a sentence (Acting Public Prosecutor v Don Hale (1998) SC564; Public Prosecutor v Tardrew [1986] PNGLR 91).
    

ORDERS/SENTENCE

45. I therefore make the following orders:
    
    1. You are therefore sentenced as follows –
       

Count 1. 6 months imprisonment.

Count 2. 6 months imprisonment.

Count 3. 12 months imprisonment.

Count 4. 18 months imprisonment.

Count 5. 24 months imprisonment.

Total = 60 months.

2. Applying the totality principle, you are to serve an effective sentence of 24 months from which 2 months and 3 weeks for time in pre-sentence detention shall be deducted.
   
3. The balance shall be wholly suspended upon your entering into probation for a period of 2 years with the following conditions –
   
   • (i) You shall repay K2500.00 to the Arawa Urban Youth Association within 3 months, which sum you shall deposit directly to the Association’s Bank Account held at the Bank South Pacific Ltd Arawa Branch. The original Deposit Slip shall be delivered to the Probation Officer at Arawa who file a report before the Court on Monday 06tth October 2025 at 09.30am to confirm compliance with this condition.
   • (ii) You are restrained from holding any official position in any youth group, school board, church board or group, non- government organization, and government bodies or government sanctioned organisation, and if you are currently holding any such positions, you shall immediately resign from or relinquish such position.
   • (iii) You shall perform at least 6 hours of community service every Monday of each week for 12 months at any of the following places – (1) the Arawa District Court, (2) Arawa Police Station, and (3) the Law and Justice Office.
   • (iv) The Probation officer shall file 6-monthly Reports with the National Court Registry in Buka or the National Court Sub-Registry in Arawa.
4. Your cash bail surety and any sureties paid by guarantors shall be refunded forthwith.

Ordered accordingly.

_____________________________________________________________

Lawyer for the State: H Raulakona, Acting Public Prosecutor

Lawyer for the prisoner: L B Mamu, Public Solicitor