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State v Lohia [2018] PGNC 505; N7614 (23 November 2018)

N7614

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 165 OF 2018

THE STATE

V

MERCY LOHIA

Waigani: Berrigan, J
2018: 9, 30 October & 23 November

CRIMINAL LAW – Sentence – Forgery, Uttering and Misappropriation – Plea of guilty – No prior conviction – Suspension - Restitution and rehabilitation – Sections 462(1)(3)(h), 463(2) and 383A(1)(a)2(d) of the Criminal Code.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
The State v Alice Wilmot (2005) N2857
The State v Benson Likius (2004) N2518
The State v Doreen Liprin (2001) SC673
The State v Felix Kautete, unreported, CR (FC) 41 of 2018, 26 October 2018
The State v George Benson (2006) 4481
The State v Gibing Yawing (2017) N6836
The State v Imoi Maino, (2003) N2773
The State v Lawrence Pukali (2014) N5695
The State v Louise Paraka (2002) N2317
The State v Lukeson Olewale (2004) N2758
The State v Niso (No 2) (2005) N2930
The State v Tiensten (2014) N5563
The State v Tardrew [1986] PNGLR 91
The State v Tova (1997) N1522
Wellington Belawa v The State [1988-1989] PNGLR 496

Counsel:

Ms H. Roalakona, for the State
Mr E. Sasingian, for the Prisoner

DECISION ON SENTENCE

23^rd November, 2018

1. BERRIGAN J: INTRODUCTION: The prisoner, Mercy Lohia, pleaded guilty to one count of forgery, one count of uttering, and one count of misappropriation in the sum of K19,151.75, contrary to sections 462(1), 463(2) and 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (the Criminal Code), respectively.

Facts

2. The prisoner was an accounts officer with the Papua New Guinea Red Cross Society. On various occasions between 1 December 2017 and 31 March 2018 the prisoner forged the signature of the Society’s authorised signatories on 25 Bank of South Pacific (BSP) cheques belonging to the Red Cross Society and uttered those cheques at BSP to obtain K19,151.75 from its account which she dishonestly applied to her own use and the use of others.

Sentencing Considerations
3. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence involving dishonesty, including:

1. the amount taken;
2. the quality and degree of trust reposed in the offender;

100. the period over which the offence was perpetrated;

4. the impact of the offence on the public and public confidence;
5. the use to which the money was put;
6. the effect upon the victim;
7. whether any restitution has been made;
8. remorse;
9. the nature of the plea;
10. any prior record;
11. the effect on the offender; and

50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
    

Comparable Cases

4. In addition the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount involved is between:

13. K1 and K1000, a gaol term should rarely be imposed;
14. K1000 and K10,000 a gaol term of up to two years is appropriate;
15. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
16. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
    

5. Whilst the principles to be applied when determining sentence remain relevant and applicable, it is generally accepted that the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; The State v Tiensten (2014) N5563.

6. Both counsel referred me to cases in support of their respective submissions. The defence cited my earlier decision in The State v Felix Kautete, CR (FC) 41 of 2018, 26 October 2018, in which the prisoner was sentenced to 3 years’ imprisonment for misappropriation of K24,000 from his niece, wholly suspended on condition of restitution.

7. The State referred me to:

17. The State v Doreen Liprin (2001) SC673, in which a bank teller was found guilty of forging and uttering a bank withdrawal slip and misappropriating K6000 from her employer. The National Court sentenced her to 1 year each for forging and uttering and 3 years’ for misappropriation, to be served concurrently, wholly suspended on condition of restitution within 2 months. On appeal the sentence for misappropriation was varied to the 9 months’ already served, with further orders for restitution over 2 years with community service;
    
18. The State v Tova (1997) N1522, Batari AJ (as he then was), in which the prisoner pleaded guilty to misappropriating K22,100, the property of Allens Arthur Robinson Lawyers, his employer. He was sentenced to 3 years’, wholly suspended on condition of restitution;
    
19. The State v Imoi Maino (2003) N2773, in which the prisoner misappropriated K106,355.02 by drawing 16 cheques, 15 in favour of others, one in favour of herself, whilst a payroll clerk with the Department of Education. She was sentenced to 4 years’ imprisonment, of which 2 years was suspended on conditions; and
    
20. The State v Alice Wilmot (2005) N2857, Sevua J, in which the prisoner pleaded guilty to one count of misappropriating K19,960 systematically over a period of 17 months whilst a bank teller from her employer, ANZ. The prisoner failed to express remorse and was sentenced to 3 years’ imprisonment, 18 months of which was suspended upon full restitution. A further 6 months’ was suspended upon entering into her own recognizance with the balance of 12 months’ to serve.
    

8. I have also had regard to the following which may provide guidance in determining sentence:

21. The State v Louise Paraka (2002) N2317, Kandakasi J, in which the prisoner pleaded guilty to two counts of forgery and two counts of uttering. The prisoner was one of a number of landowners paid compensation by the State for the use of their land. He claimed K50,000 from the total payout but was given a cheque for only K1700, which he altered to read K4700. In the same way he altered another cheque payable to another person from K1150 to K4150. The cheques were presented to BSP for cashing which was done. He was sentenced to 3 years’ imprisonment wholly suspended on conditions including restitution made with the assistance of his family and relatives and with support from his community for rehabilitation;
    

5. The State v Benson Likius (2004) N2518 in which Lenalia J sentenced the prisoner to 5 years’ for misappropriating K68,674.06 the property of his employer, Lihir Management Company using a scheme applied over a period of more than 20 months. Three years of the sentence was suspended on conditions, including restitution;
   

23. The State v Lukeson Olewale (2004) N2758, David AJ (as he then was), in which the prisoner pleaded guilty to one count of uttering and one count of misappropriating a cheque for K40,000 against the account of the Fly River Provincial Government, his employer. The prisoner conspired with others including a bank manager and was sentenced to 4 years’ imprisonment, wholly suspended on conditions including restitution with assistance from his family;
    

10. The State v Raka Benson (2006) N4481, Cannings J, in which the prisoner, the Deputy Chairman of the Board of Governors of Sohano Primary School, Bougainville, forged the signature of the school principal on two cheques on two separate occasions and obtained K500 and K1500 cash, respectively as a result. He was sentenced to 18 months’ wholly suspended on conditions, including restitution;
    

25. The State v Lawrence Pukali (2014) N5695, Salika DCJ (as he then was), in which the prisoner was found guilty of one count of obtaining K405,600 by false pretence and one count of forging a BSP cheque in the sum of K170,000. The prisoner, a lawyer, obtained gold on the basis that the agreed price would be deposited to his account. It never was and upon insistence from the victim the prisoner forged a BSP cheque in the sum of K170,000 which was dishonoured. He was sentenced to 2 years’ and 5 years’ respectively, to be served concurrently in light labour due to his medical condition; and
    
26. The State v Gibing Yawing (2017) N6836 in which the prisoner was sentenced to 2 years’ imprisonment by Salika DCJ. The prisoner, an accountant, pleaded guilty to one count of misappropriating K14,955 from his employer, Simbu Farming and Marketing Ltd.
    

9. The sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. I will now consider the matters outlined in Wellington Belawa.
Nature and Circumstances of the Offence, including Matters of Aggravation

10. It is well established that in general terms, the greater the amount involved the more serious the offence. The offences involved a substantial amount of money, K19,151.75, and were committed over a 4 month period, involving multiple transactions, indicating planning and ongoing dishonesty. The offence also involved a significant breach of trust. As an accounts officer with the Red Cross Society the prisoner was one of the few entrusted with access to its limited funds. Funds she knew were intended to support those in need.

11. Despite the offences, the Red Cross Society remains concerned for the prisoner’s welfare. Whilst it have not sought to emphasise the point, I am satisfied that the impact of the offence on the Society has been significant. The Society is a charitable organisation which depends upon donations for its work. Of course the loss of the monies would have impacted on its ability to conduct its operations and help those in need. The offences also have the potential to deter others from donating in the future.

Personal Circumstances and Matters in Mitigation

12. The prisoner is 28 years of age and comes from Central Province. She has lived at Tubusere Village with her parents and extended family since 1996. She has three young children, aged 11, 8 and 5 years, from her first husband who passed away in 2017. Her two sons live with her and her new husband at Tubusere, whilst her daughter lives with her late husband’s parents.

13. The prisoner attended school up to Grade 12 at Port Moresby International in 2008. Her only employment has been with the Red Cross Society. She is currently unemployed.

14. In mitigation this is the prisoner’s first offence. She is previously of good character. The Village Court Magistrate in Tubusere described her as a good member of the community who has never been in trouble with the court. Her pastor, Reverend Kopi of the United Reform Church says that she is an active, committed and dedicated leader in her local church. She is a Sunday School Teacher and a Leader within the Youth Ministry. She regularly attends services, the women’s group and other activities.

15. I am sure that both she and her family will suffer humiliation and a loss of standing in her local community as a result of the offence. It is likely to be difficult for her to find employment in the future. The impact of any imprisonment on her husband and young children will of course be great.

16. The prisoner pleaded guilty at an early stage. On allocatus she expressed remorse, which I accept as genuine. According to the pre-sentence report she has also expressed remorse to her family and openly to her church. She saved the State the time and expense of a trial. She repaid K5000 towards restitution with support from her sister two days after her plea of guilty.

17. The defence has submitted that at the time of the offence the prisoner was under considerable strain following the loss of her husband. This view is supported by the Secretary General of the Red Cross Society, her family and Reverend Kopi. I do accept that she was under some considerable strain following the death of her husband and that the monies were used to support her family, particularly her young children. This does not excuse what she did and, of course, there were others for whom the money she took was intended.

Sentence

18. The prisoner has been convicted of one count each of forgery, uttering and misappropriation contrary to ss. 462(1), 463(2) and 383A(1)(a)(2)(d) of the Criminal Code. The maximum penalty for misappropriation pursuant to s. 383A(1)(a)(2)(d) is 10 years’ imprisonment. Submissions by both counsel proceeded on the basis that the maximum for each of the forging and uttering offences was 3 years’ imprisonment. As pointed out by His Honour Kandakasi J in The State v Paraka, supra, that is specifically subject to the proviso “if no other punishment is provided”. In this case the maximum penalty for forgery is 14 years’ pursuant to s. 462(3)(h) as the documents forged purported to be, or were intended by the offender to be used as “a bank note, bill of exchange, or promissory note”. In the circumstances the maximum penalty for the uttering offence pursuant to s. 463(2) is also 14 years’ imprisonment. Having raised this matter with the parties, I allowed counsel to address me briefly again before delivering sentence.

19. It is well established that the maximum penalty should usually be reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Whilst not applicable here, the offences in this case remain serious. The nature of the offences, the period of time over which they were committed, the breach of trust and the impact on the victim outweigh the mitigating factors in this case. Dishonesty offences are prevalent and this case calls for both general and specific deterrence.

20. Taking into account all of the matters outlined above, I impose sentences of 3 years’ imprisonment on each of the counts of forgery and uttering, and 3 years’ imprisonment on the count of misappropriation, all of which are to be served concurrently.

21. The prisoner has offered to make restitution and asked the court to suspend the sentences. As mentioned above, the prisoner has already restituted K5000 with the support of her sister. She intends to restitute the balance with her own savings and assistance from her family, who has pledged to do so.

22. Courts in this jurisdiction have made it clear that 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.

23. This is clearly such a case. I am of the view that suspension would not only promote restitution but also the rehabilitation of the offender. I accept from all the reports that the prisoner is genuinely remorseful. Both the Red Cross Society and her pastor have pleaded for her to be allowed to make restitution and continue to contribute to her community and care for her young family. On the basis of her admissions to the church, its teachers and other members, her pastor strongly believes that the prisoner is committed to and will play an important role as a church leader.

24. In those circumstances I order that the sentence of 3 years’ imprisonment be wholly suspended on the following conditions:

27. The prisoner shall repay the outstanding amount of K14,151.75 to the Red Cross Society within 2 years from today;
    
28. The Probation Service is to supervise the payment of restitution and provide 3 monthly reports;
    

0. The prisoner shall perform appropriately designed community work with the United Reform Church at Tubesera under the appropriate supervision of the Probation Service;
   

30. The appropriately recommended work and supervision regime is to be ascertained within 1 month from today and is to be undertaken for a period of one year on weekends; and
    
31. On completion of restitution the prisoner shall immediately enter into her own recognisance to keep the peace and be of good behaviour for the period of her sentence.
    

25. The Court orders accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner