State v Warimi [2021] PGNC 90; N8853 (31 May 2021)

N8853

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 118 OF 2020

THE STATE

v

DAVE WARIMI

Waigani: Salika CJ
2021: 10^th, 14^th, 17^th, 18^th & 31^st May

CRIMINAL LAW – Practice and Procedure – Sentence – s. 470 of Criminal Code – without lawful authority or excuse knowingly had in his possession, a forged bank note – Plea of Guilty.

Cases Cited:

The State v Ivan Kikimaro (2008) N3529

Counsel:

Ms H Roalakona & Ms Mosoro, for the State
Mr M Sumbuk , for the Prisoner

31^st May, 2021

1. SALIKA CJ: INTRODUCTION: The prisoner in this matter pleaded guilty to one count of having in his possession a forged bank note. The actual charge reads:
   

“Dave Warimi of Apenda Village, Pangia, Southern Highlands Province stands charged that he on the 12^th day of June 2019 at Waigani in the National Capital District in Papua New Guinea, without lawful authority or excuse knowingly had in his possession a forged bank note.”

2. The charge is laid under Section 470 (b) of the Criminal Code Act (CCA). Section 470 (b):
   

“Section 470. Purchasing forged bank note.

A person who, without lawful authority or excuse (proof of which is on him) has in his possession a forged bank note, whether filled up or in blank knowing it to be forged is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 7 years.”

3. I note that the charge under s. 470 of the CCA is considered a lot more serious than the charge under s. 462 of the CCA because the maximum penalty for ordinary forgery charges under s. 462 is only three years. Section 470 charge carries a maximum of 7 years.
   

Facts

4. The State alleges that on 12^th June 2019, the accused, Dave Warimi, was at the Bank South Pacific, Waigani Drive Branch. He had in his possession cheque no. 000059 dated 12 June 2019 for the sum of K10,000.00.
   
5. The accused took the cheque no. 000059 to a Bank Officer for her to assist him to cash the cheque. When the Bank Officer conducted her checks on the cheque, she found out that the cheque leaf was one of the missing leaf from the cheque book that belonged to SunFree Investment Ltd which had been reported missing and a stop placed on it.
   
6. Further checks were made to verify the signature on the cheque and the signature were also found to be forged signature.
   
7. The matter was reported to the BSP Security and the accused was apprehended.
   
8. The State says when the accused had in his possession the forged bank cheque no. 000059, he had no lawful authority or excuse to have in his possession the forged cheque, thereby contravening s. 470 (b) of the Criminal Code Act.
   

Issue

9. The issue for this Court is to consider and determine what sentence to impose on the prisoner.

The Law

10. I have already mentioned the maximum penalty for this offence to be 7 years imprisonment. I note that the State Prosecutors have not used this charge often to charge possible offenders. They are used to charging forgery offences under s. 462 and as a result, there are not many report cases under this section of the Criminal Code. This is one of those rare occasions that a charge under s. 470 (b) is before the Court.

11. Section 19 of the CCA gives the Court a discretion to impose a lesser sentence than the maximum prescribed.

Personal Particulars of Prisoner

12. The prisoner worked as a security officer with the BSP at its Waigani Branch for 12 years and he resigned. He is now unemployed but helps his wife in the informal sector doing odd little things like selling vegetables at the market.

13. He is well known by most Bank officers located in Waigani. He is originally from Apenda village in Pangia in the Southern Highlands Province. He attended Grade 10 at Pangia Secondary School and did some computing studies at the ITI College. He is of the Baptist Church faith and is 43 years old. He is married and has 3 children.

Mitigating Factors

14. The prisoner pleaded guilty to the charge and is a first-time offender. He co-operated with the police and made early admission. He did not benefit from the crime because the Bank officer found that the cheque he presented was a fraud. He regrets his actions having agreed to present the cheque at the bank and asked for leniency.

Aggravating Factors

15. He said a person by the name of Joel gave him the cheque and because he was known to the Bank officers, he thought it would be easy for him to cash the cheque. The cheque leaf did not belong to Joel nor the prisoner. It was filled and it was intended to be actioned upon but the Bank officers were not fooled.

Sentence

16. The offence under s. 470 is a serious offence. It is a more serious charge then the forgery charge under s. 462 of the CCA. The penalty under s. 462 charge is 3 years imprisonment while the penalty under s. 470 of CCA is 7 years.

17. Counsel referred the Court to the case of The State v Ivan Kikimaro (2008) N3529 to assist the Court to come to an appropriate sentence. In that case, the amount involved was K48,975, a lot more than in this case. In that case, the prisoner pleaded guilty to the charge ‘under s. 470 (a). He knowingly received without authority or excuse a forged bank note from another person, Mane Kute. The forged bank note was a BSP cheque for K48,975.00. The cheque was drawn from the New Ireland Administration. The prisoner went to the Boroko Branch of BSP to deposit the cheque into Mane Kute’s BSP bank account. The prisoner was told to come back in two days after the cheque was cleared. Two days later, the prisoner returned only to be told that the cheque was forged. In that case the prisoner did not benefit from that money. The prisoner was sentenced to 4 years imprisonment. All of that was suspended. In the Kikimaro case, the prisoner too did not benefit from that money. In this case too, he did not. Every case has its own peculiar circumstances. In this case, the prisoner served two weeks in custody. He pleaded guilty and similarly did not benefit from the crime.

18. As alluded to earlier, the prisoner tried his luck at trying to cash the fraudulent cheque but never succeeded. He now regrets his actions. This charge is more serious than forgery charges under s. 462 of the Criminal Code in that in this case a Joel is said to have given the prisoner the forged cheque to cash. The prisoner used his common sense he would have immediately ask Joel why he (Joel) himself cannot cash the forged cheque. The prisoner should have refused outright to cash someone else’s cheque. He gladly accepted the role to cash the cheque and got into trouble. Joel who gave him the forged cheque to cash and escaped scot free. Considering the circumstances of the case, I will impose a term of two years, but 1 year 6 months is suspended on condition that he is of good behaviour during his time in custody while serving his 6 months. He is to serve 6 months in custody at Bomana jail.
________________________________________________________________Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner