State v Kirkman [2020] PGNC 391; N8659 (23 October 2020)

N8659

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 190 OF 2020

THE STATE

V

CAMERON KIRKMAN

Kokopo: Batari J
2020: 22^nd & 23^rd October

CRIMINAL LAW– Sentence – Stealing, Forgery and uttering – charges of – offender stole cheque belonging to grandmother, forged her signature and uttered falsified cheque in exchange of goods and services – offences committed under same set of facts – guilty plea – advantage of – full restitution preceded conviction and sentence – compensation – payment of under prevailing customary rites and practices in Tolai Society – acceptance of – 4 years concurrent sentences fully suspended on terms appropriate.

Cases Cited

APP v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299
State v Chan Alois and Augustine Tutu (2008) N3668
Wellington Belawa v The State [1988-1989] PNGLR 496
The State v Frank Kagai [1987] PNGLR 320
Public Prosecutor v Tardrew [1986] PNGLR 91

References

Criminal Code
Criminal Law (compensation) Act 1991
Customs Recognition Act (Ch.19)

Counsel

A. Bray, for the State

N. Kubak, for the Offender

SENTENCE

23^rd October, 2020

1. BATARI J: Cameron Kirkman, you were presented before the Court yesterday upon indictment charging one Count each of Stealing, Forgery and Uttering. You are back in court today to receive your punishment.
   
2. The offence of stealing was charged under s. 372(1) of the Criminal Code. The things stolen were 10 blank Bank of South Pacific Limited (Kokopo) cheque, I think at minimum value of 50t each. The cheques were the properties of Jessie Horis. The offence is commonly known as stealing simpliciter. The maximum penalty is three years.
   
3. The second Count on forgery was charged under s. 462(1), (3), (h) of the Code. You committed forgery when you signed each cheque, forging the signature of the owner of the cheques, Jessie Horis. The maximum penalty prescribed is 14 years imprisonment.
   
4. The uttering offence is charged under s. 463(2) of the Code. This count is directly connected with your presentation of the forged cheques to a third party in exchange of goods and services. By operation of the nexus with the forgery charge, the prescribed maximum penalty is 14 years imprisonment.
   
5. You have pleaded guilty to each Count upon arraignment on the following brief facts. Between 1/10/2018 and 15/12/2018, you stole from Jessie Horis, 10 blank Bank of South Pacific Limited (Kokopo) cheques. You filled out the blank cheques for various amounts ranging between K500 and K1000 and signed each cheque by forging the signature of Jessie Horis. You then presented the false cheques to Xin Liliang Trading Limited in Kokopo for encashment of the amounts written on the cheques.
   
6. This is a sad story of a member of one family stealing from the other. Jessie Horis is your grandmother. At the time you stole from her, you and a cousin relative were living with her in her house at Vunamami village within the outskirts of Kokopo town.
   
7. The story of your theft sounds all too familiar with children and grandchildren walking away with parents’ and grandparents’ personal items and effects without asking. It is sometimes tolerated as insignificant out of love, albeit annoying. Other times, such roguish acts lead to distrust and disharmony. In extreme cases where valuable personal items, or items with personal attachments, or property of commercial value or trust is pilfered, motivated by greed, disrespect and ingratitude best described as a rebellious act, undesirable family hostility and irreparable rift results.
   
8. What has landed you in court today is a consequential domestic resentment and rift. The common outcome of such foolishness seen in your fraudulent and dishonest act is invariably, punishment by imprisonment. Your scheming act against your own elderly grandmother is inexcusable, it was uncalled for. It is highly commendable that your family members have shown maturity and greater understanding to amicably reconcile and restore relationships. Your grandmother has been repaid her lost and things seems to be back to normal with your uncles fully trusting and supporting you.
   
9. Seeing your conduct from any perspective and accepting its seriousness, aggravated by some planning, I agree with both lawyers Mr Bray and Mr Kubak, the circumstances of your case warrant restorative justice than incarceration. I proposed to deal with you that way in deliberating your case.
   
10. You are a young first offender at 23 years with a young family and a three-year old son. You are currently employed by your own supportive uncle, Alan Horis and you plan to remain employed to repay him for helping you make good, your grandmother’s loss.
    
11. You have pleaded guilty. That is a big plus. It is supported by your expression of remorse which I accept as genuine because it followed your cooperation with the police and your plea of guilty at the earliest opportunity.
    
12. A plea of guilty is a factor that may in appropriate cases substantially mitigate criminal conduct and act as an incentive itself to plead guilty. It is trite, the value of a plea factor should be clearly articulated by a sentencing policy so that the accused knows with certainty, the advantage of pleading guilty early. I adopt what his Honour Lay, J suggested in The State v. Chan Alois and Augustine Tutu (2008) N3668:
    

“I therefore consider that it is important, to encourage early pleas of guilty in appropriate cases, that is in cases where the accused is guilty, for the court to have a clearly enunciated policy so that the accused person can know with some certainty what the advantage is of an early plea. Except in cases of horrific personal violence, I propose to adopt the English practice of making a reduction of 25% to 33% from the appropriate head sentence where there is an early admission to police and a subsequent plea of guilty, without any intention of creating a binding strict mathematical formula.”

13. In this case, you confessed upon arrest, followed by an early plea of guilty thereby saving the Court and the State inconveniences, costs and time. Your guilty plea is supported by a good background, expression of remorse and pre-trial restitution. In Wellington Belawa v The State [1988-1989] PNGLR 496 Barnett J stated at p. 507:
    

“If restitution is made, it is proper to take that into consideration in mitigation of sentence as it will reduce the suffering of the victim and, depending upon the circumstances of the restitution, may demonstrate remorse and that the offender is unlikely to repeat the offence.”

14. The considerations that early restitution may demonstrate remorse and that the offender is unlikely to repeat the offence is, most pertinent to your case as you have also offered to customarily compensate your grandmother. That has been the subject of conversation with other family members as the most fitting way to say sorry, promote harmony and restore relationships.
    
15. Compensation payment is open to the Court under the Criminal Law (compensation) Act 1991. It is mandatory under s. 2 of the Act, that the Court when considering punishment to be imposed for an offence, to also consider whether in the circumstances of the case, compensation should be ordered. Section 3 sets out factors to be considered in making compensation orders if the order for compensation will advance the interest of justice as:
    
    1. Nature and seriousness of the offence;
    2. Degree and nature of any personal injury suffered by the victim;
    100. Any other factors from the offence or the offender’s attitude which may be considered in mitigation or aggravation of punishment;
    4. Any relevant customs regarding compensation;
    5. Report on “means;”
    6. Other relevant matters.

16. I have had regard to those matters. The only issue here is customary compensation payment of tabu shell money according to the customary rites and practices of the Tolai Society in East New Britain Province.
    
17. Under s. 2 of the Customs Recognition Act (Ch.19) proof of the existence and nature of custom in relation to a matter, and its application in or relevance to any particular circumstances, shall be ascertained as if they were matters of fact. If no direct evidence is called, the court may be referred books, treatises, reports or other works of reference, or statements by Local Government Councils or committees of Local Government Councils (whether published or not). The court may accept any matter or thing stated in such works as evidence on the question.
    
18. In Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299 the Supreme Court affirms, that customary compensation is a matter that may be considered on sentencing where such payment is considered relevant to sentence. An accused person who relies on payment of customary compensation as a mitigating factor on sentence, bears the onus of proving, as a matter of fact, the existence of such a custom on the balance of probability. In deciding this issue, the Court is not bound by strict legal procedure or technical rules of evidence. The Supreme Court then was dealing with a homicide case. The principles discussed, has application to all cases where customary compensation payment is a matter that may be considered on sentencing and that such payment is considered relevant to sentence.
    
19. In this case, in deliberating compensation payment as recognised and accepted by the Tolai people, I am fortunate to have been ably assisted by counsel Mr Bray and Mr Kubak, both of Tolai origin. I am also able to discern from my own knowledge, information and observations, the effect of compensation by tabu shell money being deeply rooted in the Tolai society as a ritual of considerable significance and solemnity.
    
20. The strong customary practices involving tabu shell money is well entrenched and revered in this part of the New Guinea Islands region. It is possibly the only practice in the country, where a traditional currency is a highly treasured and prized medium of exchange such that Tabu Banks are being operated in parts of the Gazelle Peninsula where Tabu can be exchanged for hard cash and vice versa. Too, from my own information and knowledge, the use of the shell money to express remorsefulness or as compensation is more meaningful and deeply taken by aggrieved parties than the use of cash alone as if it (Tabu) has a spiritual meaning. So, while cash is accepted, any compensation payment that is done in both cash and Tabu has a deeper weight to typical Tolai families.
    
21. Your offer of customary compensation has profound connotations. It is indicative of genuine expression of remorse and unreserved recognition of wrongdoing, and a preparedness to make sacrifices to address the disrespect and harm caused to an elderly relative. Furthermore, I accept that payment of compensation by tabu shell money has a customary retributive effect against such acts as yours.
    
22. I am satisfied that compensation in accordance with the prevailing customary rites and practices of the Tolai society should be ordered.
    
23. In addition, I propose to impose terms of imprisonment to reflect the gravity of your conduct and the interest of the community to see that those who offend must be visited with imprisonment. You will be incarcerated for each count to be served concurrently.
    
24. Both counsel have submitted, the term imposed be wholly suspended on terms. So, I have had recourse to the three broad considerations set out by the Supreme Court in State v Tardrew [1986] PNGLR 91 in which it may be appropriate to suspend a sentence:
    
    • (i) whether it will promote the general deterrence or rehabilitation of the offender;
    • (ii) whether it will promote the repayment or restitution of stolen money or goods;
    • (iii) whether imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
      
25. The list is not exhaustive. I am satisfied, that suspension of the sentence would promote the rehabilitation of the offender and the payment of customary compensation. Suspension in cases like this one, is not an act of leniency, but an order made in the community interest: The State v Frank Kagai [1987] PNGLR 320.
    
26. The sentence of the Court is that you be imprisoned as follows:
    
    • Count 1 on stealing: 12 months IHL;
    • Count 1 on forgery: 3 years IHL;
    • Count 1 on uttering: 4 years IHL;
    • The sentences of 12 months for stealing and 3 years for forgery are to be served concurrently with the 4 year sentence for uttering.
      
27. Pursuant to s. 6 of the Criminal Law (compensation) Act, you are ordered to compensate your grandmother, Jessie Horis with 50 fathoms of tambu in accordance with the customary rites and practices prevailing amongst the Tolai people, in a ceremony to be organised by family members within three months of today or by 23 January 2021.
    
28. The concurrent sentences are to be wholly suspended and you are to be discharged forthwith upon your own recognizance in the sum of K1,000.00 in default 12 months without sureties to be on good behaviour bond for four years and to keep the peace.
    
29. A breach of the good behaviour bond will result in the payment of the K1,000.00 recognizance, in default 12 months imprisonment and that you shall be further summoned to appear before the National Court to show cause why you should not be imprisoned for the full term of the suspended sentence.
    

Sentenced accordingly
_____________________________________________________________
Public Prosecutor: Lawyers for the State
Kubak & Co Lawyers: Lawyers for the Accused