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State v Karapen [2019] PGNC 145; N7840 (9 May 2019)

N7840

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 17 of 2017

BETWEEN:
THE STATE

AND
MAX KARAPEN

Waigani: Salika, CJ
2017: 25^th & 31^st May
2018: 8^th February & 23^rd April
2019: 9^th May

CRIMINAL LAW – Practice and Procedure – Charge of Forgery – S 462 of the Criminal Code – Charge of Uttering - S 463(2) of the Criminal Code – What is the appropriate sentence – Co - accused sentence to 7 years imprisonment.

Cases Cited:

Avia Aihi v The State (1983) PNGLR 92
Goli Golu v The State (1978) PNGLR 653
The State v George Steven CR/FC 184 of 2014 Unreported and Unnumbered National Court decision
The State v Roland Tom and Kalen Kopen CR/FC 2017 Unreported and Unnumbered National Court decision.
The State v Louise Raka (2002) N2317
The State v Lapan Mesa Pati (2018) N7186
Wellington Belawa v The State (1988 – 89) PNGLR 496

Counsel:

Ms. S.Osembo, for the State
Mr. E. Sasingian, for the Defense

SENTENCE

9^th May, 2019

1. SALIKA CJ: INTRODUCTION: The Prisoner after a trial on 3 counts of Forgery and 1 count of Uttering was found guilty of those charges by the Court. The respective charges were laid under S.462 (1) (3) (b) and S.463(2) of the Criminal Code Act.

FACTS

2. On 24 June 2013, the prisoner lodged forms 13, 15 and 16 at the Investment Promotion Authority office. The forms contained false information which purported to remove Mek Onguglo as the sole shareholder and director of Moitaka Development Corporation Limited and purportedly appointed the Prisoner and four others to be shareholders and directors of Moitaka Development Corporation. The IPA registry records were updated to effect the changes.

3. Sometime later the Prisoner wrote a letter dated 3 June 2013 to Young and Williams Lawyers, the lawyers representing Moitaka Development Corporation Limited in the civil proceedings in WS 305 of 2011 against the Department of Education.

4. The proceeding was a result of a claim by Moitaka Development Corporation Limited to the Education Department for the use of the land where the Moitaka Primary School is built. That piece of land is owned by Moitaka Development Corporation Limited of which Mek Onguglo is the sole shareholder and director.

5. The letter to Young and Williams Lawyers was received on 4 July 2013. In the letter the Prisoner made false representations that:-

1. He was the new chairman of the Board of Directors for Moitaka Development Corporation Limited.
   
2. A resolution was passed by the Board of Directors for Moitaka Development Corporation Limited on 2 July 2013 to terminate and withdraw instructions to Young and Williams Lawyers to cease acting for Moitaka Development Corporation Limited in proceedings WS 305 of 2011.
   

100. Based on that resolution, Moitaka Development Corporation Limited will withdraw the proceedings WS 305 of 2011 and will not pursue the matter further.
     

4. Mex Onguglo as the previous director of Moitaka Development Corporation limited was the subject of a joint fraud investigation by the Police and other relevant government agencies.
   
5. Young and Williams Lawyers are instructed to take steps to comply by filling the appropriate notice at the National Court Registry.
   

6. The State proved that the Prisoner forged IPA forms 13, 15, and 16 when he lodged this forms on 24 June 2014.

7. The State also proved that the Prisoner uttered the IPA company extracts when he attached the extract to his letter of 3 June 2013 to Young and Williams Lawyers and made several false statements in that letter.

ISSUE

8. The Prisoner was found guilty of the 3 counts of Forgery and 1 count of Uttering respectively and the issue is what should be the appropriate sentence to impose on the Prisoner.

THE LAW

FORGERY

9. The sentence for forgery under Section 462 (1) and (3)(b) of the Criminal Code provides is as follows:

S.462. Forgery in general: punishment in special cases.

1. A person who forges any document, writing or seal is guilty of an offence that, unless otherwise stated, is a crime.

Penalty: if no other punishment is provided – imprisonment for a term not exceeding three years.

3) If the thing forged purports to be, or is intended by the offender to understood or to be used as-

1. A document that is –
   1. Evidence of title to –
2. A transfer or assignment of –
   1. A share in any corporation, company or society, whether domestic or foreign; or
   2. Any share or interest in –
      1. The capital stock of any such corporation, company or society; or
      2. The debt of any such corporation, company or society; or
         

UTTERING

10. The fourth count for which the Prisoner was convicted for is Uttering.

11. Section 463(2) of the Criminal Code Act provides:

S.463. Uttering false documents and counterfeit seals.

1. In this section , “fraudulently “means with an intention –
   1. That the thing in question shall be used or acted on as genuine, whether in Papua New Guinea or elsewhere, to the prejudice of some person, whether a particular person or not; or
   2. That some person, whether a particular person or not, will, in the belief that the thing in question is genuine, be induced to do or refrain from doing some act, whether in Papua New Guinea or elsewhere.
2. A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing question.
3. It immaterial whether the false document or writing, or counterfeit seal, was made Papua New Guinea. Or elsewhere.
   

12. The maximum penalty prescribed under section 462 (1) of the Criminal Code is a term of imprisonment for forgery and is 3 years in the absence of any other specified punishment. Section 462 (3) prescribes the maximum at 14 years imprisonment. In this case the prisoner and others changed the shareholders and directorship of a company, thus the charge under S 462(3)(b) of the Code. In relation to section 463 (2) and in this case the offence of uttering as committed by the Prisoner attracts the maximum prescribed penalty of 3 years imprisonment.

13. Pursuant to section 19 of the Criminal Code, the Court has a discretion to impose a sentence lesser than the maximum penalty prescribed by law.

14. The Courts have however said in many case precedents that the maximum penalty should be reserved for the worst types of offences in that category of cases. The case authorities of Goli Golu v The State (1979) PNGLR 653 and Avia Aihi vs. The State (1983) PNGLR 92 are the leading cases on point in our jurisdiction.

SENTENCING PRINCIPLES

15. In determining the appropriate sentence in misappropriation and other dishonesty offences, the Courts have been guided by the principles as outlined in the much celebrated case of Wellington Belawa v The State (1988-89) PNGLR 496, where the Supreme Court held that in offences involving dishonesty certain matters should be considered:

− The amount taken
− The quality and degree of trust held by the prisoner
− The period over which the offence was committed
− The use of which the money was put
− The effect on the victim
− Whether restitution was made

16. The Court in that case devised a scale that has been usefully accepted as a base that is adjusted either upwards or downwards taking into account the factors used above to determine the appropriate sentence. The sentencing guidelines in Belawa are now outdated but the factors considered in that case are still relevant considerations especially in misappropriation cases. However in forgery and uttering cases they may not all be relevant.

SENTENCING PRECEDENTS

17. In most instances the court relies on case precedents as a guide to assist in determining the appropriate range of sentence for the Prisoner.

Cases

18. In the case of The State v Lapan Mesa Pati (2018) PGNC 113, N7186 (14 March 2018), in determining sentence Kaumi, AJ considered a range of cases on sentencing for the offences of forgery and uttering between 1980 – 2017 at paragraph 21 of his decision. The sentences considered have varying figures over the years taking into account the totality principle. In arriving at the head sentence for each offence his Honour used the mid points of each of the penalties prescribed by law as a starting point.

19. In The State v George Steven CR/FC 184 of 2014, the Prisoner was convicted of forging his wife’s signature to transfer property to himself. The Court sentenced the prisoner to 3 years imprisonment with suspension on the condition that K30, 000.00 be repaid to the person the property was sold to. The title of the property was restored to the former wife.

20. In the State v Roland Tom and Kalen Kopen both prisoners were convicted after trial for forging a land transfer document and contract of sale which resulted in the transfer of land to Roland Tom. This court sentenced each Prisoner to 5 years imprisonment and the title was restored to the original owner.

21. In the State v Louise Paraka (2002) N2317, the Prisoner pleaded guilty to 2 counts of uttering in relation to 2 separate cheques where the amount on the cheques were altered and increased to higher amounts. The Prisoner was sentenced to 3 years imprisonment and further ordered for suspended sentence upon restitution.

Mitigating Factors

22. Being a first offender is the only mitigating factor in the Prisoner’s favour.

AGGRAVATING FACTORS

23. The following are the aggravating factors:

− The Prisoner is an elder and leader in his community.
− This is a prevalent offence.

SENTENCE

24. In this contemporary modern day Papua New Guinea this type of dishonesty offences have become a norm that is eating into the very fabrics of our society and becoming culturally rooted.

25. What is more alarming is that these types of dishonesty cases are being committed by people or offenders who are highly educated. This case is one classic example.

26. You have University qualification and a leader in your own right in your community at 8 mile/Moitaka. Many people respect you, listen to you and do what you tell them to do.

27. They do this because they respect you and believe that whatever you do and say is the correct thing. This is because you have leadership qualities.

28. However, you have failed your community of 8Mile / Moitaka when you decided to take the law into your own hands.

29. What you did at the IPA was wrong in law and as if that was not enough you wrote a letter to Young and Williams Lawyers making false representation to them.

30. As a leader you must be very careful of your actions and of what you say because the people/ community will simply follow what you do.

31. If one wants to be a leader in his or her community, he or she must lead by example and conduct themselves in a manner that is respectable, acceptable and lawful in the community and society. Be it conduct, ways or “pasin”, what you do must all be above par. That is how leaders behave.

32. Given your level of education, you ought to have known better that what you were doing was wrong and unlawful.

33. The sentence the courts impose is discretion for the Courts. The case precedents mentioned above helps the Court to reach a sentence that is fair.

34. This Court notes that your co-accused Robin Kane was sentenced to 7 years imprisonment by Justice Manuhu on 13^th December 2018.

35. To render consistency and fairness, I proposed to deal with you this way.

36. You are sentenced to :

− Forgery Count 1 - 7 years IHL
− Forgery Count 2 - 7 years IHL
− Forgery Count 3 - 7 years IHL
− Uttering Count 4 - 2 years IHL

If you have spent time in custody awaiting trial that will be taken off.

37. Both sentences are to be served concurrently with each other.

38. In total the prisoner is to serve 7 years in hard labour.

39. Bail monies of the Prisoner are to be refunded forthwith.

Orders Accordingly,
________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner