State v Benson [2006] PGNC 68; N4481 (17 August 2006)

N4481

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 447-450 0F 2006

THE STATE

V

RAKA BENSON

Buka: Cannings J
2006: 10, 11, 16, 17 August

SENTENCE

CRIMINAL LAW – sentences – forging and uttering bank withdrawal slips for K500.00 and K1,500.00 – sentence on plea of guilty – four offences – total sentence 18 months imprisonment, suspended on conditions.

A man pleaded guilty to two counts of forgery and two counts of uttering. He forged the signature of the authorised signatory on a bank withdrawal slip, then presented it at the bank and withdrew K500.00. He later forged the same signature on another bank withdrawal slip, presented it at the bank and withdrew K1,500.00. The bank account belonged to a school and the accused was deputy governor of the school’s controlling board. By the time of the trial he had repaid most of the money.

Held:

(1) The starting point for sentencing for forging and uttering, without circumstances of aggravation, is 18 months for each offence.

(2) Each offence was allotted a notional sentence: count 1, 6 months; count 2, 6 months; count 3, 12 months and count 4, 12 months; a total of 36 months.

(3) Counts 1 and 2 should be served concurrently, as should counts 3 and 4. However, counts 3 and 4 involved different transactions at different times to counts 1 and 2, and therefore should be cumulative.

(4) The total sentence of 18 months is not excessive.

(5) The offender, having already spent four days in custody, had the balance of his sentence suspended, subject to various conditions including that he resign from and not hold any positions of trust, especially those that give him access to other people’s money, for the period of the sentence.

Cases cited

The following cases are cited in the judgment:

Doreen Liprin v The State (2004) SC673
Kali Mari v The State (1980) SC175
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v A Juvenile, "TAA" (2006) N3017
The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919
The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801
Tom Longman Yaul v The State (2005) SC803
Wellington Belawa v The State [1988-89] PNGLR 496

Abbreviations

The following abbreviations appear in the judgment:

ARB – Autonomous Region of Bougainville
BSP – Bank South Pacific
CID – Criminal Investigation Division
CJ – Chief Justice
CR – Criminal
DCJ – Deputy Chief Justice
J – Justice
K – Kina
N – National Court judgment
No – number
PNGLR – Papua New Guinea Law Reports
SC – Supreme Court judgment
SCRA – Supreme Court Criminal Appeal
SDA – Seventh Day Adventist
v – versus

PLEA

A man pleaded guilty to forging and uttering and the following reasons for sentence were given.

Counsel

R Luman, for the State
P Kaluwin, for the accused

INTRODUCTION

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to two counts of forging and two counts of uttering.

INDICTMENT

2. The indictment was framed as follows:

• Count 1 – forgery – forging signature on withdrawal slip;
  
• Count 2 – uttering – presenting withdrawal slip and obtaining K500.00;
  
• Count 3 – forgery – forging signature on withdrawal slip;
  
• Count 4 – uttering – presenting withdrawal slip and obtaining K1,500.00.
  

ALLEGATIONS

3. The accused was deputy chairman of the board of governors of Sohano Primary School, Bougainville.

4. On 6 February 2006 he forged the signature of one of the authorised signatories, the school principal, on a BSP withdrawal slip, for K500.00, presented it at BSP Buka and received K500.00 cash.

5. On 15 February 2006 he did the same thing – forged the same signature on a BSP withdrawal slip and presented it to the bank – except on this occasion the amount was K1,500.00.

CONVICTION

6. The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the offender.

7. He was convicted on two counts of forgery (by putting a false signature on two withdrawal slips) and two counts of uttering (by using the false slips to withdraw cash, ie circulating them).

ANTECEDENTS

8. The offender has no prior convictions.

ALLOCUTUS

9. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I committed these offences out of frustration. The K500.00 was used to repair a school house. Of the K1,500.00, I have given back K1,350.00 to the CID and I applied K150.00 to my personal use.

I met with the school board on 6 August 2006 and reconciled with them.

OTHER MATTERS OF FACT

10. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, (Jalina J, Mogish J, Cannings J)).

Depositions

• In his police interview the offender explained why he committed the offences. First, the school had not paid him for maintenance work he did on a school house. Secondly, when he was away the school authorities had lied to his wife that he had given the OK for them to use his personal tools; and then did not pay him anything for them. Thirdly, he wanted to make the school board realise that the school has a lot of outstanding credits. Fourthly, the board chairman had told him not to sign on the school account.
  
• He used the K500.00 to buy materials to repair a school house.
  
• He made admissions to the police and co-operated fully.
  

Allocutus

• He used the first K500.00 to buy materials for repair of a school house.
  
• He gave K1,350.00 to the CID.
  
• He applied only K150.00 of the K2,000.00 to his personal use.
  
• He has reconciled with the school board.
  

Matters disclosed by defence counsel

• The offender deposited K150.00 in the school bank account on 11 July 2006.
  
• The K1,350.00 that was in the possession of the CID was deposited into the school bank account on 11 August 2006 (during the course of the proceedings, at the direction of the court).
  
• The offender deposited K100.00 in the school account on 15 August 2006.
  
• The school is therefore out of pocket by only K400.00; and the offender is willing to apply his bail money of K400.00 for the repayment of that amount.
  
• The school actually owes him and another person K746.00 for work done on a school house.
  

PERSONAL PARTICULARS

11. The offender is aged 43, married with four children. He is a member of the SDA Church. As well as being Deputy Governor of Sohano Primary School, he holds a number of other community positions. He is: youth co-ordinator of the Buka Atolls District; adult literacy co-ordinator; chairman of Chebu Elementary School; clerk for the council of chiefs; Village Court magistrate for Sohano Island; clerk of community policing; youth leader, Sohano; secretary of Sohano Community Policing; and chairman of the National Alliance Party, Sohano Island.

12. He also holds two positions in the Bougainville government: treasurer of the Bougainville Autonomous Sports Foundation and admin clerk in the Bougainville Sports Office.

SUBMISSIONS BY DEFENCE COUNSEL

13. Mr Kaluwin highlighted the following mitigating factors: the offender pleaded guilty; he made admissions freely to the police; he has not personally benefited from what he did.

14. He should be given a suspended sentence, Mr Kaluwin submitted.

SUBMISSIONS BY THE STATE

15. Mr Luman, for the State, agreed that a suspended sentence would be appropriate.

DECISION MAKING PROCESS

16. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what other sentences have been imposed recently for equivalent offences?
  
• step 4: what considerations should be taken into account in determining the head sentence, in terms of years?
  
• step 5: what is the head sentence for each offence?
  
• step 6: should the sentences be served concurrently or cumulatively?
  
• step 7: what is the effect of the totality principle?
  
• step 8: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 9: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

17. The offender has been convicted of two offences under Sections 462(1) and Section 463(2) of the Criminal Code.

18. Section 462(1) (forgery in general: punishment in special cases) states:

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.

* Note that sub-sections (2) to (5) apply in the case of particular documents etc, and impose higher penalties, eg if the seal of the Governor-General is forged the offender is liable under Section 462(2)(a)(v) to imprisonment for life.

19. Section 463(2) (uttering false documents and counterfeit seals) states:

A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.

20. The offender therefore faces a maximum of three years imprisonment for each offence. For all offences the maximum sentence is:

• 3 years x 4 offences = 12 years.
  

21. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

22. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a ‘starting point’ for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances.

23. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of 18 months as the starting point for each offence.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

24. I have had regard to a number of Supreme Court decisions on sentencing for forging and uttering, as shown in the table below.

TABLE 1: SUPREME COURT CASES RE SENTENCING
FOR FORGING AND UTTERING

No	Case	Details	Sentence
1	Kali Mari v The State (1980) SC175 Kearney DCJ, Andrew J, Pratt J	Appeal against sentence of 18 months for uttering by fraudulent alteration, by K1,000.00, of the credit balance shown in a bank passbook – appeal upheld – trial judge erred by giving too much weight to what was regarded as an intelligent, pre-meditated cunning plan – the offender’s plan was better categorised as naïve.	1 year
2	Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91 Kidu CJ, Bredmeyer J, Barnett J	Appeal by Public Prosecutor against suspension of 54 months of five-year concurrent sentence for eight offences re forging and uttering four cheques worth a total of K82,202.73 – the offender was operations manager of the National Computer Centre, which printed government cheques for the Department of Finance – sentence confirmed – appeal against suspension upheld – offender committed to custody.	5 years
3	Doreen Liprin v The State (2004) SC673 Amet CJ, Kapi DCJ, Los J	Review of conviction and sentence for forging, uttering and misappropriation re K6,000.00 – the offender was a bank teller and misappropriated the money from her employer – the National Court sentenced her to 1 year for forging, 1 year for uttering and 3 years for misappropriation, all to be served concurrently, and suspended execution of sentence for two months to allow money to be repaid – money not repaid and offender committed to custody – Supreme Court review of conviction unanimously dismissed; review of sentence granted 2:1 (Kapi DCJ dissenting): nine months in custody sufficient, offender given two years to repay money and community service ordered.	2 years, 9 months

25. In Liprin’s case Amet CJ and Los J expressed strong views against sending offenders to prison for non-violent crimes. However, whether an offender is committed to custody or given a part or full suspended sentence is a different question to the length of the sentence. It is best to work out a head sentence first, in terms of a length of time; and then consider where the sentence is to be served: inside or outside jail, ie whether the sentence is to be suspended.

26. In the present case the offender has been convicted of four offences so I will impose a sentence for each offence, then decide whether they are to be served concurrently or cumulatively and then apply the totality principle to arrive at a total sentence, in terms of a length of time. Only then will I address the issue of suspension.

STEP 4: WHAT ARE THE RELEVANT CONSIDERATIONS TO TAKE INTO ACCOUNT IN DETERMINING THE HEAD SENTENCE FOR EACH OFFENCE?

27. I have developed a list of relevant considerations based on the sentencing criteria given by the Supreme Court in Wellington Belawa v The State [1988-89] PNGLR 496. That was a misappropriation case but the sentencing principles for that crime are similar to those for forging and uttering. I have also considered the Supreme Court cases in table 1: Mari, Tardrew and Liprin.

1. Was only a small amount of money involved?
   
2. Was the offender in no special position of trust?
   
3. Did the transactions take place over a short period and not involve a pre-meditated, cunning plan of deceit?
   
4. Was the money or property applied to a good use?
   
5. Did the offender’s actions have only a small adverse effect on other persons, eg the owner of the property, and were the victims in a position to carry the losses caused by the offender?
   
6. Did the offender’s actions have only a small adverse effect on public confidence in the integrity of the public sector, the banking system or the private sector or a company?
   
7. Did the offender give himself up before being detected?
   
8. Did the offender cooperate with the police in their investigations?
   
9. Has the offender repaired his wrong, eg by repaying the money?
   
10. Has the offender pleaded guilty?
    
11. Has the offender genuinely expressed remorse?
    
12. Is this his first offence?
    
13. Has the offender and his family already paid a heavy price for his actions?
    
14. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
    
15. Are there any other circumstances of the misappropriation or the offender that warrant mitigation of the head sentence?
    

Rationale

28. The above considerations have been framed so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

29. There are three sorts of considerations listed:

• Numbers 1 to 6 focus on the circumstances of the forging or uttering.
  
• Numbers 7 to 11 focus on what the offender has done since he committed the crime and how he has conducted himself.
  
• Numbers 12 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.
  

STEP 5: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

Count 2: uttering and obtaining K500.00

30. I will first of all focus on count 2: uttering of the first withdrawal slip, by presenting it at the bank and obtaining K500.00. Once I fix a sentence for that offence I will compare the other offences with it, and fix a sentence for each of them.

31. I apply the above considerations as follows:

1. Yes, a relatively small amount of money was involved.
   
2. No, the offender was in a special position of trust. He was deputy governor of the school board.
   
3. Yes, the transaction took place over a short period.
   
4. Yes, the money was put to a good use. He has pleaded guilty and his claim that he used the K500.00 to purchase materials for a school house has not been contested.
   
5. No, the offender’s actions did not have only a small adverse effect on other persons. The sum of K500.00 for a primary school is a lot of money. The school principal must have been greatly distressed when she learned that K500.00 was missing from the school account.
   
6. Yes, the offender’s actions would have had only a small adverse effect on public confidence in the integrity of the banking system.
   
7. No, the offender did not give himself up to the police.
   
8. Yes, the offender cooperated fully with the police.
   
9. Yes, the offender has repaired his wrong in a monetary sense as he has repaid K100.00 out of the K500.00 and is making plans for immediate repayment of the other K400.00.
   
10. Yes, he pleaded guilty.
    
11. No, he did not express genuine remorse.
    
12. Yes, this is his first offence.
    
13. Neutral. There is no evidence that the offender and his family have already paid a heavy price for his actions. He and the family are probably feeling some shame and embarrassment over the court proceedings, but that is the price normally paid when someone gets involved in criminal activity. He has not lost his job.
    
14. No, he is not a youthful offender. He is a mature-aged family man holding leadership positions in the local community and should have known better.
    
15. Yes, there are no other circumstances that warrant mitigation. He committed the offence out of frustration.
    

32. To recap, the following are mitigating factors:

• No 1 – small amount;
• No 3 – short period;
• No 4 – money put to good use;
• No 6 – small effect on banking system;
• No 8 – co-operated with police;
• No 9 – repayment of money;
• No 10 – pleaded guilty;
• No 12 – first offender;
• No 15 – reason for committing offence: frustration.
  

33. The following are aggravating factors:

• No 2 – breach of trust;
• No 5 – big impact on school and distress caused;
• No 7 – did not give himself up;
• No 11 – no remorse;
• No 14 – should have known better.
  

34. The other is a neutral factor:

• No 13 – no heavy price already paid.
  

35. After weighing all these factors and bearing in mind that there are nine mitigating factors compared to five aggravating factors, and comparing this case with other reported sentences for forging or uttering, the head sentence should be below the starting point of 18 months.

36. I impose a head sentence of six months imprisonment on count 2.

Count 1: forging signature on first withdrawal slip

37. The circumstances in which this offence was committed are similar to those applying to count 2. The head sentence should be the same: six months.

Count 3: forging signature on second withdrawal slip

38. The circumstances in which this offence was committed are much more serious than the first. The amount of money involved was much greater. It represented a course of conduct, part of a plan of deceit, which could no longer be regarded as a spontaneous action. The head sentence should be double that of the first: 12 months.

Count 4: uttering and obtaining K1,500.00

39. The sentence should be the same as for count 3: 12 months.

Total potential sentence

Count 1 : 6 months

Count 2 : 6 months

Count 3 : 12 months

Count 4 : 12 months

Total : 36 months.

STEP 6: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

40. I summarised the principles to apply in this situation in three cases recently decided in Kimbe: The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919; The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801; and The State v A Juvenile, "TAA" (2006) N3017. They were armed robbery cases but the same principles apply irrespective of the nature of the crime.

41. That is:

• First, apply the "one transaction rule". Where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent.
  
• Secondly, where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable, eg burglary and violence to the householder, or assault plus escaping from custody, or sexual assaults on different victims.
  
• Thirdly, apply the "totality principle". When the court has arrived at appropriate head sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total.
  

41. The one transaction rule applies to counts 1 and 2. The forging and uttering were committed for a single purpose: to get K500.00 out of the school bank account. The sentences of 6 months for each offence will be regarded as concurrent.

42. Likewise, the one transaction rule applies to counts 3 and 4. The sentences of 12 months for each offence will be regarded as concurrent.

43. However, counts 3 and 4 involved a different set of events and a different transaction to counts 1 and 2. The offences were committed nine days after the first offence. The offender had ample time to see the error of his ways and correct what he had done. Instead of correcting his mistake, he became a repeat offender.

44. The sentence for counts 3 and 4 must be cumulative upon the sentences for counts 1 and 2.

45. Thus:

6 months (counts 1 and 2) + 12 months (counts 3 and 4) = 18 months.

STEP 7: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

46. I now look at the total sentence that the offender is potentially facing, to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence, ie one that is ‘over the top’ or manifestly excessive.

47. I do not think a total sentence of 18 months is excessive for these sorts of crimes. Forging and uttering bank documents to obtain money illicitly from a school bank account is a very serious matter. These were crimes of dishonesty and the sentence must reflect the community’s disappointment that a person in the offender’s position did such things.

STEP 8: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

48. The offender has spent four days in custody in connexion with these offences and it is proper that that period be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, as shown in table 2:

TABLE 2: CALCULATION OF FINAL SENTENCE

Length of sentence imposed	18 months
Pre-sentence period to be deducted	4 days
Resultant length of sentence to be served	17 months, 3 weeks, 3 days

STEP 9: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

49. This is an appropriate case in which to consider a suspended sentence in view of the restitution that has already taken place. However, strict conditions must be imposed.

50. There is a risk in immediately suspending the sentence that the offender might too quickly forget that he has been convicted of criminal offences involving deceit and breach of trust.

51. The sentence should provide a deterrent against similar acts of dishonesty by other Bougainvilleans, whether prominent members of the community or otherwise.

52. The rest of the sentence will be suspended on the following conditions:

1. must within five days after the date of delivery of sentence pay bail money of K400.00 into the Sohano Primary School account;
   
2. must within five days after date of delivery of sentence resign from all positions of trust in community or church organisations and must not hold any such positions during the period of sentence and, without limiting the generality of the foregoing, must resign and must not hold the positions of: Deputy Governor, Sohano Primary School; youth co-ordinator of the Buka Atolls District; adult literacy co-ordinator; chairman of Chebu Elementary School; clerk for the council of chiefs; Village Court magistrate for Sohano Island; clerk of community policing; youth leader, Sohano; secretary, Sohano Community Policing; and chairman of the National Alliance Party, Sohano Island.
   
3. must reside on Sohano Island and nowhere else except with the written approval of the National Court;
   
4. must not leave Bougainville without the written approval of the National Court;
   
5. must perform at least six hours unpaid community work each week at Sohano Hospital under the supervision of the chief executive officer or his delegate;
   
6. must attend Sohano SDA Church every Saturday for service and worship and assist the church in its community activities under the supervision of the most senior Church Elder;
   
7. must report to the senior Correctional Service officer at Buka Police Station every government pay week between 9.00 am and 3.00 pm and sign the register;
   
8. must not consume alcohol or drugs;
   
9. must keep the peace and be of good behaviour;
   
10. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of imposition of sentence;
    
11. the person responsible for filing the probation report will be the ARB senior welfare officer;
    
12. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

53. Condition No 12 means that if any of the other conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the ARB senior welfare officer, any of who may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803, Salika J, Mogish J, Cannings J.)

SENTENCE

54. Raka Benson, having been convicted of two counts of forgery and two counts of uttering, is sentenced as follows:

Length of sentence imposed	18 months
Pre-sentence period to be deducted	4 days
Resultant length of sentence to be served	17 months, 3 weeks, 3 days
Amount of sentence suspended	17 months, 3 weeks, 3 days; subject to conditions as prescribed herein.

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused