State v Tongayu [2021] PGNC 198; N8975 (5 August 2021)

N8975

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 293 OF 2019

THE STATE

V

ALEX TONGAYU

Bomana: Berrigan, J
2021: 22^nd June and 5^th August

CRIMINAL LAW – SENTENCE – FORGERY – Offender forged the signature of the Minister of Trade Commerce and Industry on two instruments of appointment purporting to appoint the offender to the position of Chairman of the Securities Commission and Registrar of Companies, respectively – Most serious instance of the offence – Maximum of 3 years of imprisonment imposed.

Cases Cited
Papua New Guinea Cases

The State v Alex Tongayu (2021) N8798
The State v George Steven, unreported, 2017
The State v Lawrence Pukali (2014) N5695
The State v Max Karapen (2019) N7840
The State v Louise Paraka (2002) N2317
The State v Raka Benson (2006) N4481
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
State v Miguel [2002] PNGLR 365

Overseas Cases

R v Edwards (1996) 90 A Crim R 510

References Cited

Sections 19, 462(1) of the Criminal Code

Counsel

Ms Mosoro, for the State
Mr Sasingian, for the Offender

DECISION ON SENTENCE

5^th August, 2021

1. BERRIGAN J: The offender was convicted following trial of two counts of forgery, contrary to s 462(1) of the Criminal Code: The State v Alex Tongayu (2021) N8798.
   
2. The offender in his capacity as Acting Chairman of the Securities Commission and Registrar of Companies worked with Hon. Richard Maru, the Minister for Trade Commerce and Industry, for about five years. The Minister became dissatisfied with the offender’s response to his request for information and advice regarding the change of ownership of a company registered with the IPA, which he regarded as suspicious. On 20 October 2016 the Minister revoked the offender’s appointment as Acting Chairman of the Securities Commission. The relationship deteriorated further. The Minister referred the matter to police. The accused commenced proceedings in the National Court challenging the revocation of his appointment as Acting Chairman of the Securities Commission. He referred Mr Maru to the police for extortion, black mail and official corruption, and to the Ombudsman Commission, and indicated he would be seeking damages in defamation. On or about 7 March 2017 Minister Maru revoked the accused’s position as Registrar of Companies pursuant to an NEC decision. At some stage thereafter the accused also commenced proceedings against Minister Maru in respect of that decision. The accused retained his substantive position as Director, Business Registration at the IPA.
   
3. The offender forged two instruments of appointment, containing identical signatures inserted by electronic means, purporting to be those of the Minister. On 7 June 2017, the offender gave the instruments to Mark Timea, Scanning Officer, in a sealed envelope, in the car park of the IPA, in the presence of two other officers. The accused told Mr Timea to take the documents to the Government Printing Office (GPO) for urgent publication, and that there was K500 cash in the envelope for that purpose. The instruments were published in Gazette No. 441. At the time the Minister was on the campaign trial in his home province. He returned to Port Moresby upon learning of the appointments and revoked them on 19 July 2017, before reporting the matter to police.
   

Allocutus

4. On allocutus the offender said words to the effect that: Firstly, I take the opportunity to apologise to the Court and to anyone affected by the incident. I apologise to my family and for putting them and my children under a lot of stress. I apologise to Mr Maru. Secondly, after the conviction, I resigned from my position. I needed to do that to safeguard the integrity of the office. Since then I have encountered a lot of challenges. I have lost friends and my standing in the industry. I am on my own. I have suffered mentally and emotionally. I am not able to get any job from former colleagues to feed my kids. I have a very young family... These challenges have been suffered with my family since 2017... I am struggling to put food on the table... and meet the loan on the family home. My wife and I assist and help missionaries, especially pastors. We pay tithes of 10% to support the pastors in their work on a monthly basis. We also support them to build churches in remote area. Have been doing that with my wife for a long time. I am chief of my tribe back in the village... My wife and I do fundraising and have built an elementary school in the village and are in the process of building an aid post. It is a very remote village. I am the only one educated from the village. Those things have been affected. Following my resignation I have been advising the NEC appointee to the Securities Commission. All in all I ask you to give me a suspended sentence to let my wife and I to continue to support the community and the churches, especially in the remote areas. I sincerely apologise to everyone affected. I have a very sick wife, chronic asthma. Her life depends on medication, which I provide... My worry if I go to prison is who will pay for medication, for bank loans, and I would like to continue community service... I intend to continue to support the government as well. I respect the discretion of the court but humbly ask for a suspended sentence so that I can do what I love doing to help the community.
   

Submissions and Comparative Cases

5. Defence counsel submitted that in mitigation the offender was a first time offender. He was of prior good character and has an exceptional employment record. He built the IPA and Securities Commission from the ground up. He contributed a lot to the Commission, for instance through the drafting of three pieces of legislation passed in 2015, the Capital Markets Act, the new Securities Commission Act, and the Central Depository Act. Whilst Registrar of Companies, he introduced online searches at the IPA, which remains in place today and is convenient for all Papua New Guineans. The offences were not committed for corrupt purposes, that is not for the purpose of stealing. He asked the Court to take into account that the offender was removed for refusing to do what the Minister told him to do which he thought was not right. Furthermore, despite the disagreements with the former Minister, the offender was reappointed in March 2018 as the Acting Chairman of the Securities Commission by Minister Mori. He remained Acting Chairman up until the time of his conviction. At the time of his conviction he took it upon himself to resign as the proper thing to do. A new Chairman has since been appointed. The effect of the offence was short lived. It was only a week before the Minister became aware and rectified the position. He was arrested twice, once in relation to this matter and again by the same complainant, and has suffered public humiliation. He continues to have strong support from senior members of the public service. He takes responsibility for the current case and seeks mercy to continue to care for his ill wife.
   
6. In aggravation Counsel acknowledged that this was a very serious case of forgery. Even though the State did not seek to invoke a higher penalty, this case was similar to the forgery of a Land Title or Government Seal, which would have resulted in a penalty of 14 years. Forgery is prevalent. The offences should be served concurrently. In all, a sentence of 2 years of imprisonment, wholly suspended with strict conditions was appropriate.
   
7. Counsel referred to the decision of Salika DCJ (as he then was) in The State v George Steven, unreported, 2017, in which the offender forged the signature of his former wife on a land transfer document. He was found guilty after trial and sentenced to 3 years of imprisonment, which was wholly suspended on condition that title be returned to his wife. In this case the offender has shown that he has taken responsibility by resigning and handing over the position to the State.
   
8. The State submitted that a sentence in the range of 2 to 3 years was appropriate. In aggravation: it involved a serious breach of trust; was planned and conducted over a period of time; involved other officers of the IPA to lodge the instruments; will affect public confidence in the ability of PNG to regulate its securities market and protect investments in the economy, and had the potential to affect public confidence in the integrity of the legal profession; the victim was a Minister; the instruments were used to acquire two important public offices; it would be reasonable to conclude that the victim will be more concerned about the risk of others using his signature without his consent; and such offences are prevalent. It acknowledged that this is the offender’s first offence, that the offending has impacted on him, and he has expressed remorse. It submitted that partial rather than total suspension would be appropriate.
   
9. In addition to Steven, the following cases were referred to by the State in its submissions.
   
   1. The State v Lawrence Pukali (2014) N5695, Salika DCJ: The offender, a lawyer, was found guilty following trial of one count of falsely promising that he would pay K405,600.00 in exchange for 2,535 grams of gold nuggets with the intent to defraud; and one count of forging a Bank South Pacific Cheque in the amount of K170,000.00, contrary to s s.462(3)(b) of the Criminal Code for which a maximum of 14 years applies. He was sentenced to 2 years and 5 years, respectively, in light labour, to be served concurrently;
      
   2. The State v Max Karapen (2019) N7840, Salika CJ: The State v Karapen (2019)N7840, Salika DCJ: The prisoner lodged four forms at the Investment Promotion Authority office containing false information which purported to remove the sole shareholder and director of Moitaka Development Corporation Limited and purportedly appointed the offender and four others as shareholders and directors in his place. The IPA registry records were updated to effect the changes. Sometime later the prisoner wrote to the lawyers representing the company in civil proceedings containing several false representations, including a direction to terminate the proceedings to recover against the Education Department for use of land belonging to the company. The false instruments were uttered in support of that letter. He was sentenced to 7 years on each of the forgery counts and 2 years on the uttering count, all to be served concurrently;
      
   100. The State v Louise Paraka (2002) N2317, Kandakasi J: the prisoner was charged with two (2) counts of forgery and a further two (2) counts for uttering two (2) cheques worth K6, 000.00, offences contrary to s.462 (1) and s.463 (2) of the Code. The prisoner pleaded guilty to all the charges. The Prisoner was a claimant together with others as previous customary landowners in a compensation claim made against the State in respect of the land upon which the Holy Trinity Teachers College stands. The claim was settled by the State paying K800,000.00. Out of the settlement proceeds, the Prisoner received a cheque for K1,700.00, but he changed the figure 1 to 4 making the cheque to read K4,700.00. He also did the same with another cheque made in favour of a Paul Akil for K1,150.00 which came into his possession and changed it to read K4,150.00. The cheques were cashed. In the process, the Prisoner benefited by K6,000.00. The Prisoner was given a three (3) years suspended sentence with conditions including the repayment of K6,000.00;
        
   4. The State v Raka Benson (2006) N4481, Cannings J: the offender 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. He was sentenced to: count 1, 6 months, to be served consecutively with count 2, 6 months; count 3, 12 months to be served consecutively with count 5 and count 4, 12 months. Effective sentence of 18 months, wholly suspended.
      

Consideration

10. The offender has been found guilty of forgery contrary to s 462(1) of the Criminal Code, for which the maximum penalty is 3 years.
    
11. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653.
    
12. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are very relevant considerations, every sentence should be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    
13. The offender is 43 years of age from Walun Village in Kopiago Sub-District, Hela Province. He is the chief of his tribe and the son of a former chief and community worker.
    
14. He lives with his wife and six children, including two adopted children, in Port Moresby. His youngest is 3 years old and the eldest is 19. His family are dependent on him financially.
    
15. The offender is highly educated. He graduated from Mogol Secondary School, Mendi, Southern Highlands Province before obtaining his Bachelor of Laws from the University of Papua New Guinea and is admitted to the National and Supreme Court bar. He obtained a Master’s degree in Public Administration from the Divine Word University in 2014.
    
16. In mitigation this is the offender’s first offence.
    
17. In addition, he is of prior good character and has an impressive history of public service. He began working as a lawyer with the Office of the Public Prosecutor in 2003, before joining Kwimberi Lawyers in 2005. In 2006 he joined the IPA as a Senior Legal Officer and was seconded to the Securities Commission of Papua New Guinea, tasked with building the institution, which existed in name only. In November 2006 he was appointed Deputy Registrar of Companies. In February 2010 he was appointed Director of Business Registration & Certification Division and subsequently Registrar of Companies and the Chairman of the Securities Commission. He was terminated in 2011 from the positions of Chairman of the Securities Commission and Registrar of Companies. He was reinstated to both in 2012 and held them until his positions were revoked by Minister Maru as outlined in the verdict. He was reappointed as Acting Chairman by the subsequent Minister, Hon. Wera Mori. In October 2018, the Securities Commission Appointment Committee confirmed his appointment.
    
18. The offender’s achievements are many. They are set out in the offender’s own words in over 15 pages in the pre-sentence report and are too many to reproduce here. In addition to sitting on various boards, commission of inquiries, and audits, his achievements include drafting several pieces of legislation including Rule 27A in the Takeovers Code, The Securities Commission Act 2015; Capital Market Act 2015; and Central Depository Act 2015. As Registrar of Companies he delivered the Companies (Amendment) Act 2014, Companies Regulations 2014 and the Business Names Act 2014 and Regulations 2015 and developed the Online Company Registrar, which has modernised the way searches are done. He led the establishment of the Securities Commission as an independent office and is working with Treasury, the World Bank and the Central Bank reform the capital market as per the Financial Sector Development Strategy.
    
19. In addition to his work with the Securities Commission and the IPA, he was Acting Registrar – Co-operative Societies from 2013 to 2014, and Registrar of Personal Properties & Securities (PPS) from 2015 to 2017, responsible for leading the Personal Properties law reform program. He also established the electronic Personal Properties Securities Registry within the Registrar of Companies Office. He was a Board member of the Central Bank or Bank of Papua New Guinea from 2010 – 2017; Chairman of the Audit & Governance Committee (AGC) of the Central Bank Board from 2010 – 2014; a member of the Board of Mainland Holdings from 2011 - 2015; engaged by the judiciary between 2015 to 2016 to implement the Personal Properties Securities Act 2011; and a Task Force Member for the SME Policy and Master Plan. He was a member of the National Coordination Committee on Money Laundering & Counter Financing of Terrorism (AML & CFT) and supported the establishment of the FASU (Financial Analysis Surveillance Unit) with the Bank of Papua New Guinea. He worked with the Department of Treasury and the Asian Development Bank to establish the Credit Bureau Register and supported the development of the Personal Property Security Act, 2011. He also advised the Autonomous Bougainville Government (ABG) on the drawdown of foreign investment powers from the National Government.
    
20. The highlight of his career was serving as the Chairman of the Securities Commission. In recognition of his service to government and business, he was awarded the Member of British Empire Medal by the Governor-General on behalf of the Queen on 19 October 2016.
    
21. Ivan Pomaleu, OBE, Secretary, Department of Prime Minister and National Executive Council, and the former Managing Director of the IPA under whom the offender worked for 10 years, gives a detailed testament to the hard work and dedication of the offender and the impact of his work. He attributes him with singlehandedly building the Securities Commission and designing legislation that will reform the capital market in this country.
    
22. I also take note of the offender’s work in the interests of the community and through the church. As the only educated person and the chief of his tribe, the offender is responsible for managing its affairs, including land disputes, compensation, bride price and other responsibilities, both back in the village and in the city where a significant number of the tribe resides. He established a not for profit organisation, Lagayu Hewa Peoples Association Incorporated, to bring basic services to his people, as there are no health, education or other government services available. The Association established an elementary school in the village, which services two other council wards in addition to his own. Its water tank provides fresh water for the village and nearby villages and other tribes. Due to the remoteness of the village, the Association engaged a helicopter to fly the materials in. Since his father’s death, the Association is re-establishing the aid-post in the village. Steven Naiybe, Deputy Chairman and Community Leader, NCD, confirms the offender’s role in the Association and asks for his sentence to be suspended so that he may continue to support the Association’s work.
    
23. He and his wife look after several pastors and church workers from different denominations with allowances on the monthly basis through their tithes and offerings. As a result churches have been built in tribal war zones and areas where drugs are rife, improving peace in the area. Senior Pastor Sugam Koma, Pastor William Damong, and Pastor Wamb Tongia of Four Square Church in Kiunga, Makana and Kundiawa, respectively, also support the offender’s plea for a suspended sentence so he might continue to provide financial support for the work of the church, confirming that he continues to provide financial support to this day.
    
24. The offender has expressed remorse which I accept as genuine. On allocutus he apologised to Minister Maru and anyone affected by his conduct.
    
25. There is also no doubt that the impact of the offences on the offender has been grave. Since stepping down from his position, he is unemployed. More significantly, he has lost his career and his reputation after a life dedicated to public service. I also accept that it will be difficult for him to obtain employment in the future given the nature of the offence, particularly in his trained profession as a lawyer, and more broadly in both business and public service.
    
26. I also accept that the offences were not motivated by financial gain. The offender gave evidence at trial, which was not contradicted by the State that he received no additional remuneration in the positions. There is no doubt, however, that he was motivated by his own sense of entitlement to the positions, and by his belief that he had been wrongly dismissed by the Minister. As I said at trial, there were strong views on both sides and it was not for me to determine the merits of the disagreement. I take into account that the offender’s judicial review proceedings were successful. None of that, however, justifies the offender’s conduct and it does not constitute an extenuating circumstance reducing the culpability of the offending itself.
    
27. I have also taken into consideration the fact that he was reappointed less than a year later to the position of Acting Chairman of the Securities Commission by Minister Mori and continued to serve in that position for three years until he stepped down following his conviction.
    
28. The impact on his wife and family has been and will continue to be significant. Whilst he is in good health, his wife is a chronic asthma sufferer. Her condition requires medication on a regular basis and she struggles to perform routine household tasks. He and his family are particularly concerned for wife’s health during the pandemic. They also say that the family suffered following his termination in 2017 in relation to the offences and before he was reinstated in 2018. As a result the children missed out on their education for two years and the family had no money for electricity or food. The family are financially and emotionally dependent on him, and have no assets or savings to fall back on, and all of their friends have turned their back on them. They fear what will happen to their mother’s health if the offender goes into prison.
    
29. I have taken these factors into account but they do not constitute matters of special mitigation on the part of the offender.
    
30. Against the matters in mitigation, the aggravating factors must be taken into account.
    
31. Before doing so, I make clear, however, that, contrary to defence counsel’s submission, the fact the offender was convicted following trial is not an aggravating factor. Whilst a person is usually entitled to a discount on sentence for pleading guilty, I make clear that a sentence must never be made more severe because a convicted person has insisted on his or her rights under ss. 37(4) and 37(5) of the Constitution, including the right under s. 37(4)(a) to have the charge proved according to law. SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122.
    
32. Section 462(1) of the Criminal Code provides that unless no other punishment is provided, the penalty is imprisonment for a term not exceeding three years. Whilst defence counsel conceded that the offending appeared to be as serious as that captured elsewhere under s 462, the State did not draft the indictment in those terms and did not proceed on that basis. I make it clear in the circumstances that the sentence will be determined having regard to the maximum of three years.
    
33. There is no doubt that the aggravating factors in this case are very serious.
    
34. The signatures forged were purportedly those of the Minister responsible for Trade, Commerce and Industry. To forge the signature of a member of government, a person who it must be remembered has been elected to that position by the people of this country, is extremely serious. Not only that but the purpose of the forgeries was to appoint the offender to two very senior and important public offices.
    
35. The offences involved a very serious breach of trust by the offender both of the senior position he still held with the IPA, and of the trust placed in him in the positions he previously held working closely with the Minister.
    
36. Furthermore, the purpose of the Securities Commission is to ensure trust and confidence in the capital market and protect consumers and investors, including through regulation and enforcement. The purpose of the IPA is, as its name suggests, to promote investment, both local and international, in Papua New Guinea. Public confidence in the work of those offices depends upon their integrity. I have no doubt that the discovery of the offender’s appointment to the helm of those institutions through the brazen forging of the Minister’s signature must have tarnished the reputation of those offices, and had a serious effect on the public confidence not only in the work of those offices but in the administration of government services as a whole. Whilst the fact that the offender was a lawyer is relevant to the level of his culpability, I do not accept the State submission that the offences have by that fact had an impact on public confidence in the legal profession.
    
37. Regrettably, the State failed to seek the views of the Minister, the Securities Commission or the IPA. I find the State’s submission about the Minister’s concern about his signature speculative and unhelpful. I have no doubt, however, that he regards the offences as very serious given the statements made by him to that effect in evidence at trial. I am sure that, as Mr Hoot said on trial, the offences caused great disruption and disharmony at the IPA.
    
38. The forgeries also involved deliberate and careful planning. The State’s submission that the offence took place over the period of a month is misconceived. The offences took place between the dates alleged but there is no evidence that the offending took place over a month.
    
39. Finally, forgery, like other offences involving dishonesty is increasingly prevalent.
    
40. The aggravating factors in this case far outweigh the mitigating ones. In my view the offences represent the worst type, or the most serious instance, of the offence under s 462(1). The offending calls for both strong personal and general deterrence.
    
41. Accordingly, I sentence the offender to 3 years of imprisonment in light labour on each count of the indictment. I understand that to date no time has been spent in custody.
    
42. I have had regard to the principles outlined in Mase v The State [1991] PNGLR 88 at 92. There is an argument that the sentences should be served cumulatively. On balance, however, it is my view that the sentences should be served concurrently. Whilst they concern two different appointments, they are of the same character and arise out of the same or closely related facts: Tremellan v The Queen [1973] PNGLR 116; Public Prosecutor v Kerua [1985] PNGLR 85.
    
43. The question remains whether any or all of the sentence should be suspended.
    
44. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. Suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.
    
45. Probation Services regards the offender as suitable for probation. It is clear that there is strong support for the recommendation from those close to the offender.
    
46. Restitution is not relevant here. Nor is there any evidence that the offender will suffer excessively in prison.
    
47. In the words of the former Chief Justice, Injia J in State v Miguel [2002] PNGLR 365 this case calls for real punishment:
    

“By real punishment, I am referring to a punitive and deterrent sentence in the form of custodial sentence. A fine or a suspended sentence in my view would not have sufficient punitive and deterrent effect. And speaking of the affluent, both locals and expatriates in our country, their good personal, educational, church, prior good character, guilty plea, remorse and concern over the welfare of their young family, cannot deter imprisonment. These are very attributes, which get him into a position of influence and respect, but they abuse those attributes to engage in corrupt practices. And when they do, such attributes have little or no effect in preventing a custodial sentence. Also these are things which should help him decide against committing the offence in the first place.”

48. Whilst I have great sympathy for the offender’s family, a term of imprisonment, will almost inevitably cause hardship and suffering to an offender’s family. It is very well established that except in very extreme circumstances, it is not ordinarily a relevant consideration on sentence: see for example Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
    
49. In R v Edwards (1996) 90 A Crim R 510, at 515, Gleeson CJ said:
    

“There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed... it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment.”

50. Whilst the offender’s incarceration will impact on his family, I am not satisfied that it will cause the very extreme hardship that would be required to suspend the sentence.
    
51. It does seem to me, however, that the offender has demonstrated strong prospects for rehabilitation. The offences occurred some four years ago, in 2017. Since then the offender has continued to serve in various public offices with what appears to be distinction. He continues to serve his community and his churches. Those matters must, however, be balanced against the seriousness of the offence, the need to ensure proper punishment and general deterrence. Accordingly, a suspension of one year only is appropriate.
    
52. I make the following orders:
    

Orders

(1) The offender is sentenced to 3 years of imprisonment in light labour.

(2) One year of the sentence is suspended upon the offender entering into his own recognisance to keep the peace and be of good behaviour.

(3) The balance shall be served in custody.

(4) Bail monies shall be immediately refunded.

Sentences accordingly.

_______________________________________________________________
Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Accused