Regina v Pitamama [2017] SBMC 4; Criminal Case 267 of 2016 (7 March 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Criminal Case No. 267 OF 2016

REGINA

-V-

TONY NORMAN PITAMAMA

Date of Hearing: February 20, 2017
Date of Decision: February 27, 2017
Date of Written Sentence: March 7, 2017

Mr. Abe for prosecution
Mr. Kwalai for defendant

SENTENCE

The charge

1. Tony Norman Pitamama (“accused”) pleaded guilty to one count of forgery contrary to section 341 (1) of the Penal Code. The accused was employed as an Accounts Officer for his employer, the complainant, David Field, when he forged a cheque in the amount of $7,500.00. That cheque was the property of David Field.
   
2. This took place on 12^th of August 2016 inside the Sullivan’s (SI) Limited building at Point Cruz, Honiara.
   

Summary of facts

3. In the afternoon of 12^th of August 2015, the accused entered David Field’s office at the Sullivans (SI) Limited, Point Cruz, Honiara. When he was reached David Field’s table, he took a cheque book owned by David Field and removed a cheque leaflet. He then wrote $7,500.0 [SBD] and signed that cheque by forging Field’s signature. All these were done without the permission of David Field.
   
4. The accused went to the Bank of South Pacific (“BSP”) that same afternoon and cashed that cheque. He used all of the money and never repaid it to David Field. After it was discovered that the cheque was cashed, BSP then refunded the money to David Field.
   

Aggravating feature

5. I consider this as the only aggravating feature:
   
   • The accused was employed as an Accounts officer for the complainant when he committed the offence. By virtue of his position, he was permitted to have access to properties pertaining to finances of the complainant. When he forged the cheque and cashed it without the permission of his employer, he had breached the trust and confidence that is bestowed on him as the employee of that entity.
     

Mitigating and personal factors

6. From the submission put forward by learned counsel for the accused, these are the main considerations that would serve as his mitigating and personal factors:

First, his early guilty pleas to the charge undoubtedly saved time for the court.

Second, he was very remorseful for his action. His guilty plea reflected he was sorry for the wrong he committed. I have observed his demeanour in court and his behaviour is reflective of a person who fully regretted what he had done and will take steps to see it will not be repeated in future. Ordinarily people learn from their mistake and the accused is no exception.

Third, the accused is a first time offender and should be given the benefit of not treating him as a repeated offender. As a conventional practice, those who commit an offence for the first time in their lives should not be severely punished as repeated offenders. The accused should be given this benefit for this case.

Fourth, the accused and the complainant had already settled this case. The complainant even wanted to withdraw this case following refund of his money by BSP bank.

Fifth, he is a married man and currently a student at Solomon Islands National University. He is now anxious to further his education uninterruptedly. He now reformed his behaviour by attending education which will certainly help him to achieve his aim in future.

Reasons for sentence

7. A number of case laws were submitted to me for consideration. These were the case of R v Malasa,^[1] Lauta v R^[2] and Tingolo v R^[3]. The sentences imposed in these cases ranged from 2 years suspension sentence to 4 years imprisonment. These cases involved forgery of significant sum of money exceeding the money forged and cashed by the accused in the present case. Also, the owners of the properties being forged had suffered financially from the loss of their properties. Therefore, those cases have to be distinguished from the present one.
   
8. The most compelling mitigating factor of this case is; the complainant has been financially restored for the loss he suffered as a result of the accused act of forging the cheque and the eventual cashing of the money. There is no real grievance from him anymore. He even wanted to withdraw this case against the accused following refund of his money. In his own words he said that he “see no point in pursuing the matter any further.”
   
9. Whilst the court’s duty is to administer justice and ensure this type of offending is deterred, the overwhelming mitigating factors of this case clearly outweighs the possibility of a custodial sentence.
   
10. This is a misdemeanor offence and is punishable with imprisonment of a term not exceeding two years or with a fine or with both.^[4] When all the factors I’ve narrated are considered on whether or not a custodial sentence is warranted, it is my view that to incarcerate a person in light of the complainant’s request to withdraw the matter combined with the fact that the complainant has been financially restituted would be a harsh form of penalty.
    

SENTENCING ORDERS OF THE COURT

11. I sentenced the accused, Tony Norman Pitamama, as follows:
    
    • 12 months imprisonment fully suspended for a period of 12 months as of date, on the condition that the accused will not reoffend during the suspension period.
      
    • Any aggrieved party may appeal this sentence within 14 days as of date.
      

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] [2010] SBHC 8
^[2] [2004] SBHC 100
^[3] [2010] SBHC 6
^[4] Section 41 of the Penal Code