State v Waimbra [2023] PGNC 388; N10542 (27 October 2023)

N10542

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 214, 217, 218, 219 OF 2023

BETWEEN
THE STATE

AND
KULI WAIMBRA

Mt. Hagen: Toliken, J
2023: 27^th October

CRIMINAL LAW – Sentence – False Declaration – Personation – Forgery – Uttering - Guilty pleas – fraud committed to extinguish interest of deceased tenant in common and make prisoner sole owner of freehold land – Criminal Code Ch. 262, ss 197(1), 462(1), 463(2), 488(1).

FREEHOLD LAND – tenants in common – law on tenancy in common discussed– interest of deceased tenant in common to pass to his estate – no right of survivorship.

FREEHOLD LAND – land converted to freehold under Land (Tenure Conversion) Act 1963 – process of devolution of deceased’s interest in converted freehold land discussed – Land (Tenure Conversion) Act 1963, s 27.

SENTENCE – aggravating and mitigating factors considered – prisoner’s motive considered – ignorance of the law and process and failure to seek legal advice in respect of tenancy in common and devolution process of deceased interest to converted freehold land – harm to deceased estate not irreparable – Certificate of Title can be cancelled, corrected and restored administratively by Registrar of Titles – Land Act 1996, ss 160, 161, 162.

SENTENCE – not a worst case - sentencing options considered – sentencing discretion under s 19 of the Criminal Code considered and invoked – appropriate sentence – fines totaling K4000.00 – Criminal Code Ch. 262, s 19 (1)(b) (c)(ii)(2).

Cases Cited:
Avia Aihi v The State (No. 3) [1982] PNGLR 92
Belawa v The State [1988-89] PNGLR 496
Goli Golu v The State [1979] PNGLR 653
Ure Hane v The State [1984] PNGLR 105
Lawrence Simbe v The State [1994] PNGLR 38
Saperus Yalibakut v The State (2006) SC890
The State v Kenny (2022) N9762

Counsel:
J Kesan, for the State
F Timbi, for the prisoner

SENTENCE

27^th October 2023

1. TOLIKEN J: The prisoner Kuli Waimbra and John Kuk are cousin brothers. They were tenants in common to property described as Portion 1586C, Mt. Hagen, Western Highlands Province. John Kuk died in 2014. In April 2022, the prisoner made a Statutory Declaration wherein he falsely personated his deceased cousin brother John Kuk by declaring that they had agreed to have John Kuk removed from the Certificate of Title so that he (Kuli) will become the sole registered proprietor. Armed with this forged document he went down to Port Moresby where he uttered the document to the Office of the Registrar of Titles. A replacement title was issued to the prisoner as the sole proprietor of the demised property as a result of those utterings, representations, and the false Statutory Declaration.
   
2. On these facts the prisoner was indicted for one count of making a false declaration, one count of personation, one count of forgery, and one count of uttering. These charges are as follows –
   

COUNT 1: On 07^th April 2022 at Mt. Hagen he knowingly made a solemn declaration by virtue of the Oaths, Affirmations and Statutory Declarations Act, which was to his knowledge false in a material particular contrary to Section 197 (1) of the Criminal Code.

COUNT 2: And also, between 07^th day of April 2022 and 10^th May 2022 at Mt Hagen with intent to defraud a land title, falsely represented himself to a Commissioner for Oaths, that he was one John Kuk, a person named in the title contrary to Section 488 (1) of the Criminal Code.

COUNT 3: Furthermore, between 07^th April 2022 and 10^th May 2022, at Mt Hagen he forged a document purporting to be a land title of Portion 1586C, Mt Hagen, by removing the name of John Kuk and registered himself as the sole title holder of the said land contrary to Section 462 (1) of the Criminal Code.

COUNT 4: And, between 07^th April 2022 and 10^th May 2022, at Mt Hagen he knowing and fraudulent uttered a false document purporting to be a land title of Portion 1586C with intent thereby then to defraud contrary to Section 463 (2) of the Criminal Code.

3. The prisoner pleaded guilty to each count.
   
4. The maximum penalties prescribed for these offences are –
   

OFFENCE	MAXIMUM PENALTY
Making false Declaration (s 197(1))	Imprisonment for a term not exceeding 3 years
Personation (s 488(1)	Imprisonment for a term not exceeding 3 years
Forgery (s 462(1))	Imprisonment for a term not exceeding 3 years
Uttering (s 463(2))	Imprisonment for a term not exceeding 3 years

5. It must be noted that the Criminal Code actually provides for higher penalties for the offences of forgery, uttering, and personation where circumstances of aggravation exist. For instance, if the document forged is by law one that is required for procuring the registration of any title to land or estate in land an offender is liable to be imprisoned to a term not exceeding 14 years. (s 462(3)(f)). And a person who knowingly and fraudulently utters such a document will be similarly liable to the same penalty (14 years) as if he forged the document. (s 463(2). Personation with intent to obtain property also will attract a term of imprisonment not exceeding 14 years. (s 488(2))
   
6. These circumstances of aggravation were, however, not pleaded in the indictment. If they were then the prisoner would be looking down on very stiff sentences. To his advantage, whether by design or inadvertence, the State opted merely to indict on simple personation, forgery, and uttering.
   
7. Be that as it may, the prisoner is liable to be sentenced to a maximum of 3 years for each offence only. Of course, whether he will get the maximum penalty depends on whether his offending falls on the worst side. Furthermore, his sentence must be considered against the facts and circumstance under which he committed the offence(s) so that he gets a sentence that fits his offending. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105); Lawrence Simbe v The State [1994] PNGLR 38)
   
8. I must therefore determine an appropriate sentence for him for each count.
   
9. The prisoner is 68 years old and comes from Kimininga Village, Mt. Hagen, Western Highlands Province. He had two wives, but one has since left him. He has 7 children from his two wives and 11 grandchildren. He lives a subsistence life but receives monthly income from Vodafone for the use of his land where their communication tower stands.
   
10. The prisoner dropped out of Grade 6 way back in the 60s. Hence, he can speak pidgin and a bit of English. He has some medical issues. He has some festering issues from a neck injury he suffered when he was young thus preventing him from lifting heavy loads or doing heavy manual work. He has had 3 surgeries for appendicitis and currently suffers from hypertension. He smokes and chews betelnut but does not drink alcohol. He is a first-time offender.
    
11. On allocutus, the prisoner said that the land belonged to him and his cousin brother John Kuk. They had the land surveyed and registered. This portion was to have been registered under his name only, but things got mixed up and they were both registered as co-owners or tenants in common. In 1995 they agreed to separate the title and so they instructed Mr. William Duma of Blake Dawson Lawyers. They filled out and signed a Statutory Declaration to that effect, but it was not notarized or signed by a Commissioner for Oaths. They made three attempts to have the title changed in 2009 and 2012. In the process John Kuk passed away. The prisoner said he never developed his portion of the land but in 2022 when a company came (Vodafone most probably) and wanted to lease the land but insisted on a title he went to Department of Lands and made the changes. He did not have any intention to cheat but simply wanted to enjoy his part of the land.
    
12. I pointed out to Mr. Timbi that the prisoner appeared to be denying that he had fraudulent intentions which would render his plea equivocal. I then adjourned briefly for Mr. Timbi to consult the prisoner. After we resumed Mr. Timbi advised the Court that the prisoner insisted on maintaining his guilty plea. The prisoner then apologized for his offence saying he is a first-time offender and advanced in years. He finally pleaded for mercy.
    
13. Mr. Kesan submitted on behalf of the State that while the offence may appear to be simple, they are not. This is because the ownership of property in question – worth millions – had fraudulently been changed. This places the seriousness of the prisoner’s offending at near the top. The offence is aggravated by the fact that the prisoner defrauded his own close relative of property worth several millions of Kina. This is the gravest aggravating factor.
    
14. Another aggravating factor is that the complainant was forced to incur substantial costs in pursuing this matter between Hagen and Port Moresby until he exposed the prisoner’s fraudulent acts resulting in his arrest.
    
15. Furthermore, the prisoner did not as much as inform the complainant as the person to whom John Kuk’s interest in the land is to devolve that he was honestly trying to make arrangements in respect of the land the way he eventually did so they would have arrived at a settlement.
    
16. Finally, fraudulent transfer of land titles is becoming prevalent resulting in landowners and title holders being deprived of the land.
    
17. Mr. Kesan acknowledged that the prisoner pleaded guilty, is a first-time offender and old and sick.
    
18. Mr. Kesan urged the Court to impose a sentence like that imposed in The State v Kenny (2022) N9762 by Rei AJ. The offender there forged and uttered Local Land Court records and awarded the customary ownership of a portion of customary land to himself. After trial the offender was served a rather lenient sentence of 1 year for each count which was then wholly suspended, counsel submitted.
    
19. Counsel suggested that because of the seriousness of the offending, a sentence of 2 years would be appropriate.
    
20. The State filed a Victim Impact Statement which appears to have been compiled by the complainant himself. It does nothing to enlighten the Court on the impact of the complainant. Rather it is more like a submission on the principles and considerations that obtain to cases of dishonestly per Belawa v The State [1988 – 89] PNGLR 496.
    
21. Mr. Timbi for the prisoner submitted that this is not a worst case. There are also factors in mitigation such as the prisoners’ early guilty plea, early admissions and co-operation with the police, nil prior convictions, expression of remorse and advanced age. Counsel did concede though that this type of offence is prevalent, the land in question is of substantial value and there was a breach of trust.
    
22. Mr. Timbi submitted that this was a case where the prisoner and his cousin brother Late John Kuk were tenants in common. After John Kuk died the prisoner had to change the title after a company wanted to lease the land from the prisoner providing that he had a title. This prompted him to do what he did. However, since the prisoner and the complainant are related, things would not have taken this turn had they come to some compromise. Nonetheless an appropriate sentence ought to be 1 year for each count. And since the criminal acts were essentially part of a single transaction these sentences ought to be served concurrently. This may then be suspended.
    
23. I agree with Mr. Kesan that this is not a trivial matter. It is in fact very serious not only because of the value of the land but most importantly because it involved the fraudulent transfer of a title to land, and the subsequent extinguishment of an interest to the land for those to whom the Late John Kuk’s interest would by law devolve.
    
24. The materials before the Court show that what is involved here is a Freehold Title issued through the land tenure conversion process under the Land (Tenure Conversion) Act 1963. The prisoner and the Late John Kuk were the tenants in common in equal and undivided shares of an estate in fee simple. The owners may between themselves apportion the land in equal or unequal portions, or percentage which they may then individually manage and control for commercial or residential purposes. Each owner can also individually sell or borrow against their share of the land. However, a fundamental characteristic of this type of ownership is that when one of the owners dies, his share passes to his estate, where an heir or beneficiary may be named in a will, and not to the surviving co-owner as happens in a joint tenancy. In other words, there is no right of survivorship.
    
25. That being the case, when John Kuk died his interest or share in the property devolved to his estate and to whoever he bequeathed his share to if he had a will, and not to the prisoner. The prisoner therefore had no right to interfere with what happens to John Kuk’s share of the land. Moreso, he has absolutely no right to extinguish John Kuk’s legal interest therein. Only John Kuk had that right when he was still alive, in which case he would have done an inter vivos transfer of his interest or share in the land to the prisoner.
    
26. The prisoner said that that is what they had intended to do but did not come around to doing when John Kuk died. Even if that were the case, John Kuk’s share did not pass to the prisoner because he simply did not have any legal right to the legal estate vested in John Kuk as tenant in common. John Kuk’s share in the property is now vested in his Estate and will be distributed to his named beneficiary according to his will if he had one. If he did not have a will then his Estate will be administered by the Public Curator under the provisions of the Wills, Probate and Administration Act 1966.
    
27. As a matter of interest, where a co-owner of converted freehold land leaves behind several beneficiaries, then the procedure under the Land (Tenure Conversion) Act 1963, s. 27, will apply, in the absence of an agreement between them as to whom the owner’s share in the property will devolve. This will require the Land Titles Commission (now the Land Commission) to select a successor by ballot. This is a procedure that is unique to a converted freehold Certificate of Title under the Land (Tenure Conversion) Act.
    
28. There is no question that what the prisoner did here was unlawful and fraudulent. However, it was done obviously without the benefit of legal advice or counsel and with a very high degree of ignorance of the relevant legal processes.
    
29. If it is true, as the prisoner said in his allocutus and Presentence Report, that the whole purpose of doing what he did was to enable him to lease a part of his portion of the land to that company (unnamed) then there was absolutely nothing legally stopping him from doing that. As we have seen, that is perfectly legal. John Kuk’s estate or successors would not have had any right to dispute what he does on and whom he brings on to his portion of the land, and the converse is equally true.
    
30. The prisoner in the end employed an unlawful and fraudulent scheme to achieve what otherwise was a legitimate desire and ended up extinguishing John Kuk’s legal interest or estate in the property they owned in common.
    
31. The prisoner’s entanglement with criminal law should teach everyone an important lesson - always seek legal counsel and advice when dealing with alienated land, be it leasehold land from the State or freehold.
    
32. I accept that there was a breach of trust and that fraudulent dealings in land, especially alienated land is now prevalent.
    
33. There are, however, good mitigating factors which both counsel have submitted to the Court, which I accept. I must also add that the prisoner, who is almost 70 years old and appears to have led a quiet and meaningful life. Community leaders interviewed for his Presentence Report in fact spoke well of him. Therefore, he was of prior good character.
    
34. I have thought long and hard about what sentence I should impose on this prisoner. I have considered the cases cited to me by both Mr. Kesan and Mr. Timbe. The State v Kenny (supra) is quite like this case. The offender forged court orders and awarded himself the ownership of certain customary land. I venture say that the offender’s culpability was very high there. His conduct was not only contemptuous but also an upfront to the rule of law and the Constitution.
    
35. The facts there can, however, be easily distinguished from the present. Here the prisoner was tenant in common to the land described as Portion 1586C, Mt. Hagen with his now deceased cousin brother John Kuk. He was ignorant of his legal rights under a tenancy in common. It appears that he and John Kuk had apportioned the land between themselves and had been enjoying the use of their respective portions. They may have agreed sometime back as the prisoner said for him to take sole ownership of the land and took the initial steps to that end before John Kuk’s demise. The State has not negatived this assertion in any way so this may be applied to the prisoner’s benefit. (Saperus Yalibakut v The State (2006) SC890).
    
36. The prisoner had a legitimate desire to benefit financially from his part of the land and his opportunity came when that unnamed company expressed their intention to lease the land from him. Of course, by that time John Kuk had already passed away. And so instead of seeking proper legal advice he put into motion an illegal scheme to get the title of the land registered under him as sole owner which has now landed him in legal trouble. He did not need to do that as I have said above because he would have been well within his legal right to lease his portion of the land or a part of it. He did not need permission from John Kuk’s estate or his beneficiaries for that matter.
    
37. I am of the considered view therefore that despite the negative consequences of his behavior, his culpability is not as high as that of Steven Kenny. And so, his sentence should appropriately reflect this.
    
38. I have a couple of options available to me. I can impose a custodial sentence in the range submitted by counsel and partially or wholly suspend the sentence on condition. Another option is to exercise my sentencing discretion under Section 19 (1)(b) of the Criminal Code and impose a fine not exceeding K2000.00 in addition to, or instead of imprisonment.
    
39. I intend to take the second option and I have several reasons for doing so. First, the offender is well along in years and is not of the best of health. Second, the offences were committed against his close relatives to whom he must make amends and reconcile with to restore their damaged relationship. Third, the prisoner acted in ignorance of the law and legal process in respect of freehold title and tenancy in common and without legal advice. Fourth, the consequence of his fraudulent and illegal scheme is not irreparable. The Certificate of Title issued to him on the basis of his fraudulent representations, can be administratively cancelled, corrected and restored by the Registrar of Titles pursuant to the powers vested in the Registrar under PART XVII – POWERS OF REGISTRAR AND DEPUTY REGISTRAR of the Land Act 1996 - particularly by Section 160 (Production of Instruments wrongly issued etc.), Section 161 (Cancellation and correction of instruments and entries) and Section 162 (Replacement of instrument of title). There is no need for aggrieved persons to file proceedings in the National Court to void the title.
    
40. Pursuant to Section 19 (1)(b) (c)(ii) and (2) of the Code the prisoner is therefore sentenced as follows:
    
    1. Count 1 (False declaration)

The prisoner is ordered to pay a fine of K1000.00 by 3.00p.m today.

2. Count 2. (Personation)

The prisoner is ordered to pay a fine of K1000.00 by 3.00p.m. today.

3. COUNT 3: (Forgery)

The prisoner is ordered to pay a fine of K1000.00 by 3.00p.m today.

4. COUNT 4: (Uttering)

The prisoner is ordered to pay a fine of K1000.00 by 3.00p.m.

5. The prisoner shall pay a total fine of K4000.00 by 3.00p.m today in default of which he shall be imprisoned for 1 year unless the said fine is sooner paid.
   
6. The prisoner’s bail of K1000.00 shall be converted as part payment of his court fine.
   
7. Any sureties paid by his guarantors shall be refunded to them.
   
41. The prisoner has the right to appeal to the Supreme Court within 40 days if he is aggrieved by his sentence.
    

Ordered accordingly.
________________________________________________________________
P. Kaluwin, Public Prosecutor: Lawyer for the State
B. L. Mamu, Public Solicitor: Lawyer for the Prisoner