State v Kikimaro [2008] PGNC 173; N3529 (10 November 2008)

N3529

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No 111 OF 2008

THE STATE

V

IVAN KIKIMARO

Waigani: Paliau, AJ
2008: 6th & 10th November

CRIMINAL LAW – Sentence – Without authority or excuse knowingly received a forged bank note – Charge of – Guilty Plea – Criminal Code S. 470(a).

Cases cited:
The State v Simon Laki, CR 568/2007
The State v James Helia, CR 1073/2007

Counsel:
Ms. M. Zurenuoc and Mr. J. Wohuinangu, for the State
Mr. J. Mesa and Ms. G. Peu, for the Accused

10 November, 2008

1. PALIAU, AJ: The prisoner pleaded guilty to one count of knowingly receiving without authority or excuse a forged bank note from Mane Kute. The bank note was a Bank of South Pacific (BSP) cheque in the sum of Forty Eight Thousand, Nine Hundred and Seventy Five Kina (K48,975.00). The cheque was to have been drawn against the New Ireland Administration, Division of Integral Human Development cheque account number 1000 687 750.
   
2. The State alleged that on the 24th July, 2007, the prisoner went to the BSP Boroko Branch to deposit the above cheque into Mane Kute’s account number 1001 190 783. He had also with him a bank deposit slip. The bank teller having completed the transaction advised the accused to return after two days to find out if the cheque was cleared.
   
3. On the 26th July 2007, the prisoner returned to the Bank only to be told that the cheque was forged and he was required to be questioned. The Bank Manager interviewed him and referred him to the BSP Reserve Police Unit for interrogation. He was later arrested and charged.
   
4. The issue for determination is what is the appropriate penalty to be imposed on the prisoner?
   
5. The prisoner is charged under Section 470(a) of the Criminal Code. This Section provides that a person who, without lawful authority or excuse (proof of which is on him), receives from any person, a forged bank note, whether filled up or in blank, knowing it to be forged, is guilty of a crime. The penalty is imprisonment for a term not exceeding seven years.
   
6. Section 19(1)(a) of the Criminal Code states that, in the construction of this Code, it is to be taken that, except when it is expressly provided, a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term.
   
7. The maximum penalty for the offence that the prisoner is charged with is seven years. I am however given the discretion pursuant to Section 19(1)(a) to impose a lesser penalty. The imposition of a lesser penalty would of course depend on the peculiar circumstances and the mitigating and aggravating factors of this case.
   

Antecedent Report

8. The prisoner has no prior convictions.

Allocutus

9. The prisoner expressed remorse and asked for the Court to have mercy and be lenient. He has three children to look after. The children’s mother died not so long ago. He wants to be put on probation and placed on community work order.

10. The Counsel for the prisoner Mr. Mesa urged the Court to reserve the maximum penalty of seven years for the worst case of this crime. The mitigating factors that should be taken into account are that the prisoner is a first time offender, has three children 12, 8 and 5years old with no mother to care for, and he did not benefit from the crime.

11. Mr. Mesa cited two cases namely The State v Simon Laki; CR 568/2007 and The State v James Helia; CR 1073/2007 where Mogish J. imposed eighteen months and three years imprisonment terms respectively. The imprisonment terms were wholly suspended and the prisoners were placed on good behaviour bond for two years. Both prisoners pleaded guilty. The amounts filled in the forged bank notes were K 15,000.00 and K1,800.00 respectively.

12. Mr. Mesa further submitted that the pre-sentence period in custody is one and half months and this is sufficient punishment. He submitted that a suspended term of eighteen months imprisonment is appropriate and the prisoner be placed on good behaviour bond.

13. Counsel for the State Mr. Wohuinangu submitted that in the case of James Helia (supra) the accused repaid the money. In the present case the prisoner did not repay the money. He urged the Court to exercise its discretion with caution with a view to impose an appropriate penalty that better suits the circumstances of this case.

14. After considering the submissions of both Counsels, what I consider to be the aggravating factor in this case is the amount that was filled in the forged bank notes. This amount is of a greater value than the amounts in the Simon Laki and James Helia cases (supra). This to me is serious and calls for a higher penalty than what were imposed in those two cases. Had the crime not been detected by the bank officials, the prisoner who I consider to be the middleman could have benefited immensely.

15. I therefore impose a term of imprisonment of four years. I will deduct six weeks pre-sentence period in custody. The resultant length of sentence to be served is three years, eleven months and two weeks. I will wholly suspend the three years, eleven months and two weeks on the following conditions:

(1) The prisoner shall enter into his own recognizance and keep peace and be of good behaviour for three (3) years commencing today, 10th November, 2008.

(2) If the prisoner breaches the above condition, 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.

Sentence

16. IVAN KIKIMARO, having been convicted of the crime of knowingly receiving a forged bank note, you are sentenced to:

Length of Sentence imposed - Four (4) years

Pre-Sentence period deducted - Six (6) weeks

Resultant Length of Sentence to be served - 3 years, 11 mths & 2 wks

Amount of Sentence suspended - 3 years, 11 mths & 2 wks

Time to be served in custody - Nil

Sentenced accordingly.

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