State v Kohuo (No 2) [2019] PGNC 336; N7946 (20 June 2019)

N7946

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) N0. 201 0F 2018

THE STATE

V

ELIAS AROS KOHUO

(No 2)

Lihir: Susame, AJ
2019: 17, 18, & 20^th June

CRIMINAL LAW – sentence on plea- offence forgery of a document –s462 (1) criminal code – sentence – 12 months good behaviour bond

Cases Cited:
Wellington Belawa v The State [1988-89] PNGLR 496

Counsel:
Mr. L. Rangan, for the State
Mr. A. Tunuma, for the Accused

DECISION ON SENTENCE

20^th June, 2019

1. SUSAME, AJ: You pleaded guilty to the charge and were convicted on 17 June 2019. You are in court to receive your sentence.

2. Facts are straight forward. On 30 May 2016 you presented yourself before Sylvester Kimson, Manager of Business Development Services and made representation to the effect that you were the original director. You told him the directors decided in a meeting held on 14 May 2010 to remove you as a director and your shares were transferred to a Laurah Rapis thinking that you were dead. Laurah Rapis was one of the shareholders of the company. You asked to be reinstated as the sole director of the company and all the other directors to be removed.

3. Sylvester advised you changes cannot be made without a written authorization from a current director for lodgment to be made online. You then instructed Sylvester to write the authorization letter on behalf of Roland Molaka and he will have him sign. Roland was the former shareholder and Secretary of the company and had since passed on in 2006. Sylvester did as he was instructed. You left with the letter and personally signed it. You returned the following day, 31 May 2016 with the signed letter and Sylvester made the lodgment online.

4. Following the lodgment changes were made to the composition of directorship and shareholding. The company extract as of 6 July 2016 showed you were the sole director and a shareholder, Roland Molaka (deceased) as the company secretary and a shareholder. Other shareholders were Giar Arau, Ezekiel Puot and Lavinia Roland.

Based on the above facts you were convicted.

5. My task now is to decide what sentence I should impose on you more fitting to the offence you committed. That requires proper exercise of judicial discretion.

Submissions

6. Lawyers’ submissions have been considered. Basically, Mr. Tunuma representing you considered mitigating factors outweighed factors that should weigh against you. On your behalf he pleaded for a 12 months suspended sentence without surety.

Allocutus

7. You said it was your first time in court. You had no intention to steal from the company or the directors. You wanted your shares back and wanted to be the sole director of the company. They thought you were dead and made the decision on 14 May 2010 to remove you as shareholder. You said sorry and asked to be placed on good behaviour bond.

Antecedents

8. You are 50 years old. You are married and have 04 children. You attended mechanical training at Namatanai Vocational after completing Grade 6. You do odd jobs to earn income.

Penalty

9. The penalty is found in s 462. The section provides 05 different penalties depending on the circumstances spelt out in the section. In the circumstances of your case 03 years is the maximum prescribed penalty applicable. The accepted sentencing practice is that maximum penalty is usually reserved for the worst type of cases. Maximum penalty will not be considered as I do not consider you cases falls within the worst type of cases. I will consider a sentence lower than the maximum in the exercise of my discretion fitting to the offence you have committed.

10. I have not been referred to any decided cases for guidance. Mr. Rangan asked the court to be guided by sentencing guidelines in Wellington Belawa v The State [1988-89] PNGLR 496. I get no assistance in that case because tariffs recommended in that case depended on monetary value. Not the present case.

11. I have gone online and have read some decided cases in PNG on Paclii. I noted the types of sentences imposed in particular for s 462 (1) offence. Most of them were non-custodial sentence with conditions.

12. I concur with your lawyer factors are more favourable and lean in your favour to mitigate your sentence than those that should weigh against you. They are set out below.

• You pleaded guilty to the charge.
• You are a first time offender. You have no recorded history of being convicted of similar offence or any other offence.
• You expressed remorse of the offence you committed.
• No information is available to me if the complainant company had made any loss, substantial or otherwise because of deception or fraudulent act.
• There is no evidence you enriched yourself through your fraudulent act.
• The company has corrected the company shareholding and directorship as of 2017 as evidenced by the copy of the company extract dated 04 January 2017.
• Offence you committed is a non-violent crime. Fact is no one sustained injuries.

13. In the final result I consider a non-custodial sentence is appropriate in your case. In the exercise of my discretion enabling me under s 19 the sentence I shall impose on you is that you are hereby sentenced to 12 months imprisonment which is suspended.

14. You are to enter into a written recognizance with cash surety of K500.00 as a condition and you are to keep peace and be of good behaviour for a period of 12 months.

15. You shall have your cash bail refunded upon evidence of payment of cash security order.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner