State v Terep (No. 2) [2022] PGNC 79; N9526 (25 March 2022)

N9526

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 153 OF 2021

BETWEEN:
INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
ALFRED TEREP
(No 2)

Waigani: Wawun-Kuvi, AJ
2022: 1^st, 8^th & 25^th March

CRIMINAL LAW-SENTENCE-Convicted following a trial- Forgery and Uttering, 46 2(1) and 463(2) under the Criminal Code- Forgery of signature of Director and Shareholder-Presentation of forged meeting minutes to the Registrar of Companies

Cases Cited

State v Kohuo [2019] PGNC 336; N7946
State v Max Karapen [2019] N7840
State v Pati [2018] PGNC 113; N7186
State v Kayak [2012] PGNC 339; N5176
State v Larry [2011] PGNC 166; N4455
Gima v The State [2003]PGSC 3; SC730
State v Winston [2003] PGNC 146; N2347
Liprin v The State [2001] PGSC 11; SC673
Public Prosecutor v Hale [1998] PGSC 26; SC564
State v Kagai [1987] PNGLR 320
Public Prosecutor v Tardrew [1986] PNGLR 91
Public Prosecutor v Vola [1981] PNGLR 412
The Public Prosecutor v Sima Kone [1979] PNGLR 294

References
Criminal Code, Chapter 262

Counsel
Ms Lois Illave, for the State
Mr Ralph Deweni, for the Offender

SENTENCE

25^th March 2022

1. WAWUN-KUVI, AJ: Alfred Terep (offender) was convicted following a trial. The offender and Larson Talian were shareholders and directors of the company Kotipap Security Limited. Alfred Terep created a meeting minute and signed a signature under Larson Talian’s name. The meeting minute contained a resolution that removed Larson Talian as a director and shareholder. The offender then took the meeting minutes and presented it to the Registrar of Companies.
   
2. Those are the facts in which the offender was convicted.
   
3. I am now to decide on the appropriate penalty.
   

The Charge

4. The offender was convicted on the charges of forgery under section 462(1) and uttering under 463(2) of the Criminal Code respectively.
   

Penalty

5. The maximum penalty for both offences is 3 years.
   
6. The maximum is reserved for the worst case: see Goli Golu v The State [1970] PNGLR 653. This is not such a case.
   

Purpose of Sentencing

7. I am reminded that sentencing involves many considerations and is not limited to punishment of the offender. Sentencing involves factors such as rehabilitation, deterrence, and protection of the community in cases of serious and violent offences.
   

Submissions

Defence submission

8. Counsel for the offender submits for a non-custodial sentence of six months with conditions. He submits that in considering the factual circumstance of the case, a custodial sentence is inappropriate.
   
9. It was submitted that the Court consider the factors in Belawa v The State [1988]^[1] when determining an appropriating sentence. The factors being:
   

“(1) the amount taken;

(2) the quality and degree of trust reposed in the offender including his rank;

(3) the period over which the fraud or the thefts have been perpetrated;

(4) the use to which the money or property dishonestly taken was put;

(5) the effect upon the victim;

(6) the impact of the offences on the public and public confidence;

(7) the effect on fellow-employees or partners;

(8) the effect on the offender himself;

(9) the offender’s own history;

(10) restitution; and

(11) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.

10. It was further submitted that the Court consider the following factors: that the accused did not obtain the valuable security, that the shares were valued at K1.00 per share, the complainant paid no cash consideration, the shares are private property and so no public interest considerations apply, there was no breach of trust and that Larson Talian had abandoned the company.
    
11. An important consideration is that the offender has since written to the Registrar of Companies and copied Laron Talian, informing the Registrar to retract the forged documents.
    
12. The following comparable cases were submitted:
    
13. State v Kayak [2012]^[2], Toliken, AJ (as he then was): The offender pleaded guilty to two counts of obtaining by false pretence. The offender falsely pretended to the victim that he could obtain a loan. He received K10, 010 in the pretext of obtaining the said loan. On the second occasion, the offender forged a cancelled Provincial Government cheque and obtained medical drugs. He was sentenced to 1 year imprisonment for the first count and 2 years for the second count. The sentences were made concurrent, and no part was suspended.
    
14. State v Larry [2011]^[3], Cannings J: The offender pleaded guilty to obtaining monies by false promise. He had obtained K500 cash with the false promise to repay. He was sentenced to 2 years imprisonment. The sentence was suspended on conditions.
    
15. State v Benson Raka, CR 447-450/2006, Cannings, J: This is an unreported case. From the brief facts derived from State v Larry [2011]^[4], the offender was convicted of forgery and uttering. It was not stated whether the conviction followed from a plea or trial. The offender was a member of a school board. He forged the signature of an authorized signatory of the school’s account and obtained K2,000.00. He repaid most of the monies taken. He was sentenced to 18 months imprisonment which was wholly suspended with conditions.
    
16. State v Aaron Wai, Cr No 926/2005, Cannings J: This is an unreported case. From the brief facts derived from State v Larry [2011]^[5], the offender was convicted of forgery and uttering. It was not stated whether the conviction followed from a plea or trial. The offender was a store clerk. He falsified requisitions and obtained materials. The materials were later recovered. He was sentenced to 12 months imprisonment which was wholly suspended on conditions.
17. State v Eddie Apuai, CR No 1018/2005, Cannings, J: This is an unreported case. From the brief facts derived from State v Larry [2011]^[6], the offender was convicted of forgery and uttering. It was not stated whether the conviction followed from a plea or trial. The offender falsified company documents and obtained four tires and gave them to a friend. He was sentenced to 6 months imprisonment which was wholly suspended on conditions.
    
18. The cases of State v Larry [2011] and State v Kayak are of different offences than the present case. State v Larry involved no forgery but discussed the cases of State v Benson Raka, Aaron Wai and Eddie Apuai because they contained elements of dishonesty and the amounts taken were of similar value.
    
19. In State v Benson Raka, Aaron Wai, and Eddie Apuai, the offenders had obtained properties because of their acts of forgery and uttering. In the present case, the offender did not obtain the valuable security being the share certificate. There was also no evidence that the share register was altered to effect transfer of shares.

State’s submissions

20. The State submits a sentence of imprisonment between 1-2 years for the offence of forgery and 1-2 years for the offence of uttering.
    
21. In mitigation, it is submitted that the offender has no prior convictions and has expressed remorse and a willingness to resolve the differences between Larson Talian and himself.
    
22. Factors in aggravation are that the offender and Larson Talian are cousins and so there was a breach of trust and the prevalence of the offence.
    
23. The State relies on the case of State v Benson Raka and the following cases:
    
24. State v Pati [2018]^[7], Kaumi, AJ (as he then was): The offender pleaded guilty to obtaining by false pretence, forgery, and uttering. The offender and others falsely pretended that monies were deposited into a hire car company account. They then forged a cheque butt indicating that the deposit had been done. The cheque butt was given to the employees of the company and the vehicle was released. The vehicle was later sold, and the accused and others shared the proceeds of the sale. The accused was sentenced to 24 months for forgery and 24 months for uttering. The sentences along with the sentence for false pretence were made concurrent and the offender was sentenced to 3 years. 2 years of the sentence was suspended, and the balance was ordered to be served.
    
25. State v Max Karapen [2019]^[8], Salika CJ: The offender was convicted following a trial on three counts of forgery and one count of uttering. The offender lodged forms 13, 15 and 16 at the Investment Promotion Office. The forms contained false information which resulted in company records being changed to reflect the offender and others as directors and shareholders. The sole director and shareholder was removed. The offender further wrote a letter containing false particulars and attached the forms. The letter was sent to a lawyer firm. The offender was sentenced to 7 years imprisonment each for the forgery offences and 2 years for uttering. The sentences were made cumulative.
    
26. Liprin v The State [2001]^[9], the offender was convicted on misappropriation, forgery, and uttering. She was sentenced by the National Court to 1 year each for forgery and uttering and 3 years for misappropriation. The sentence was made concurrent. On appeal the sentence was reduced to time spent in custody and the balance was suspended with conditions of restitution.
    
27. The case that has far similar facts is that of State v Max Karapen [2019]. However, in that case, the offender was convicted under section 463 (1) (3) (b), which raised the penalty cap to 14 years. In this case, the accused was convicted on Forgery simpliciter.
    

Comparative Cases

28. Additionally, I have found the following comparable cases.
    
29. State v Tongayu [2021] N8975, Berrigan, J: The offender was convicted of two counts of forgery following a trial. The offender forged the signature of the Minister appointing him as the Chairman of the Securities Commission. The court was of the view that this was a serious case of forgery and sentenced the offender to 3 years imprisonment. 1 year was suspended and the balance was ordered to be served.
    
30. State v Kohuo [2019]^[10], Susame AJ: The offender pleaded guilty to forgery of a letter authorizing the change of directors of a company. The accused went to the Business and Development Service and informed them that he was removed as director and his shares were transferred. He was informed that in order for him to be reinstated, he needed a written authorization from a current director. The accused then had a letter written under the name of a director who was deceased. He signed the letter and lodged it. Following the lodgment changes were made to the composition of directorship and shareholding. The offender was 50 years old at the date of sentencing. The offender was placed on a good behavior bond for 12 months with cash surety of K500.00.

Sentencing Factors

31. Before proceeding on to determine sentence, I again remind myself that sentencing is not an exact science, it is an exercise of discretion which involves the balancing of various factors against the peculiar circumstance of an offender’s case.
    
32. Some important factors include the offender’s character, age, education, intellectual capacity, nature and seriousness of the offence, the criminal intent, degree and extent of an offender’s involvement, extent of the injury or harm, the complainant or victim’s views, the existence of aggravating or mitigating factors, prevalence of offence, assistance given to police, pleas of guilty and time spent in custody.

Personal Antecedents

33. The offender is 52 years old and from Wanois Village in the Wabag District of Enga Province. The offender has 14 children. Seven from his first marriage and 7 from his second marriage. He presently resides with his second wife and their seven children.
    
34. The offender completed Grade 10 at Wabag Provincial High School in 1988. He completed Grade 12 at Passam National High School in 1990. In 2007, he obtained a Bachelor’s degree in Commerce and Accounting from the University of Papua New Guinea.
    
35. He operates his own accounting firm called Ponto Chartered Accounts. He has worked with firms such as KPMG and Deloitte Touche Tohmatsu Limited.
    
36. He suffers from high blood pressure associated with an existing heart condition.
    
37. The offender informed the Probation Officer that he is community orientated and is involved with a lot of community activities.
    
38. Pastor Charles Tompo from the Agape Love Church stated that the offender is a God-fearing man who supports his church financially.
    
39. Mr. Henry Takalas a community leader at Gerehu Stage 6 stated that the offender helps those in need. The offender became his friend when he was in dire financial assistance and the offender stepped in to assist him. He observes the offender to be a contributing and meaningfully member of the community and has created employment through his companies.
    
40. The offender’s wife pleaded for leniency. She informs that her husband is the only bread winner. That his first wife is now deceased, and her husband supports all of them with the earnings from his business.
    
41. The victim only stated that he was suffering since he was removed but there were no further details.
    
42. The Probation Officer recommends that the offender is a suitable candidate for probation.

Allocutus

43. The offender in allocutus spoke of his family and contributions to his community. He states that he provides employment through his companies and pays for salaries of two pastors. He apologized to the victim and to the Court for his actions.
    
44. I accept his statement as genuine remorse.
    

Aggravating Factors

45. What appears to be aggravating in this case is that the accused abused a position of trust to remove the victim as a shareholder and director. It is also aggravating that the offender is highly educated and a member of a profession that is highly respected. As an accountant he is required to ensure compliance.

Mitigating Factors

46. The offender is a first-time offender. He has no prior convictions. He cooperated with the police.
47. I find that the offender expressed genuine remorse. He has taken steps to have the company’s records rectified. He has communicated with the victim and expressed his intentions to resolve their differences.

Consideration

48. This case involved a disagreement between two business partners. There is nothing in the materials before me that demonstrates that the victim suffered any form of monetary disadvantage. Also, there are no further details as to the effect on the victim other than the general statement that he has suffered. It was not disputed that he did not contribute any capital or that he had retained and subsequently disposed of his assets; that is, the company, and the offender did not take any money or assets away from him. There is nothing in the materials that demonstrates that the company suffered because of the actions of the offender. His personal history and background demonstrate a person who contributes to the community and supports people in need.
    
49. The facts in State v Kohuo and the charge are similar. A sentence of 12 months imprisonment is appropriate given the foregoing considerations.
    
50. The offender is sentenced to 12 months imprisonment for both charges.
    
51. As they both arise out of the same set of events, the sentence is made concurrent.

Suspension

52. In considering, whether the sentence should be suspended, I consider the following:
    
    • Suspension is not an act of leniency but is in the interest of the community and to promote rehabilitation and prevent recidivism: The State v Kagai [1987].^[11]
    • The community’s view must be obtained, if is intended that the offender be placed back into the community: Gima v Independent State of Papua New Guinea [2003]^[12], State v Winston [2003]^[13]and Public Prosecutor v Hale [1998]^[14]
    • Suspension pursuant to section 19 (6) of the Code should only be exercised in three broad categories, (1) promotes personal deterrence, reformation or rehabilitation of the offender, (2) encourages the repayment or restitution of stolen money or goods and (3) imprisonment would cause excessive degree of suffering, for example, because of bad physical and mental health: Public Prosecutor v Tardrew [1986]^[15].
    • that only in exceptional circumstances that personal factors may override a term of imprisonment for prevalent offences^[16] and that the same factors that were used in mitigation cannot be the same considerations for suspension.^[17]
53. In the present case, the offender is a contributing member of the community. Although the offence is prevalent, it is not a violent offence. Unlike the cases of forgery cited above, the offender in this case formed the company with the victim. It was agreed by the victim that it was the offender that contributed the initial working capital. This was a case where had both men put away their differences and using their familial bond reached some form of compromise, this court process would not have been necessitated. They now appear to have come to that stage after the conclusion of the trial. Imprisonment does not appear to be an appropriate penalty in that regard.
    
54. The sentence of 12 months imprisonment is wholly suspended, and he shall be placed on good behavior bond for 6 months with surety of K1000.00 to keep the peace.

Payment of fine to the State

55. As is demonstrated in the prevalence of the offence especially the case involving the filing of forged Company forms, I find that it is appropriate in this case, to order in addition to the imprisonment that the offender pays a fine to the State.
    

Orders

56. The Orders of the Court are as follows:
    

1. The offender is sentenced to 12 months imprisonment for forgery under section 462 (1) of the Criminal Code.

2. The offender is sentenced to 12 months imprisonment for uttering under section 463(2) of the Criminal Code.

3. The sentence is made concurrent, and the offender shall serve 12 months.

4. The 12 months imprisonment is wholly suspended, and the offender is placed on good behavior bond for 6 months with surety of K1000.00 to keep the peace and be of good behaviour.

5. Pursuant to section 19 (1) (b) of the Criminal Code, the Offender shall pay a fine to the State in the amount of K1000.00.

6. Part of the offender’s bail of K1000.00 is converted to the surety.

7. The balance of K1000 from the bail is converted to paying of the fine to the State.
________________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence

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^[1] supra
^[2] PGNC 339; N5176 (21 December 2012)
^[3]PGNC 166; N4455 (22 November 2011)
^[4] Refer to note 2
^[5] Refer to note 2
^[6] Refer to note 2
^[7] PGNC 113; N7186 (14 March 2018)
^[8] N7840
^[9] PGSC 11; SC673 (9 November 2001)
^[10] PGNC 336; N7946 (20 June 2019)
^[11] PNGLR 320 (12 October 1987).
^[12] PGSC 3; SC730 (3 October 2003)
^[13]PGNC 146; N2347 (13 March 2003)
^[14] PGSC 26; SC564 (27 August 1998)
^[15] PNGLR 91 (2 April 1986).
^[16] Public Prosecutor v Thomas Vola [1981] PNGLR 412
^[17] The Public Prosecutor v Sima Kone [1979] PNGLR 294.