Kali Mari v The State

• Jurisdiction: Papua New Guinea
• Judge: Pratt J:
• Judgment Date: 30 May 1980
• Citation: (1980) SC175
• Court: Supreme Court
• Year: 1980
• Judgement Number: SC175

Supreme Court: Kearney DCJ, Andrew J, Pratt J

Judgment Delivered: 30 May 1980

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.A. 5 OF 1980

KALI MARI

V

THE STATE

Waigani

Kearney DCJ Andrew Pratt JJ

27 May 1980

30 May 1980

CRIMINAL LAW — appeal against sentence — plea to uttering — whether identifiable error — excessive weight on aggravating factor — insufficient weight on mitigating factor — prevalence of offence — whether sentence manifestly excessive.

Cases Referred To

R v. Sidlow (1907-08) 24 T.L.R. 754

Skinner v. The King (1912-13) 16 C.L.R. 336

House v. The King (1936) 55 C.L.R. 499

Wanosa & ors. v. The Queen (1971-72 PNGLR 90

R v. McGrath (1971-72) PNGLR 247

R v. Gabai Vagi and ors. (1973) PNGLR 30

Warren v. Coombes (1979) 53 A.L.J.R. 293

William Norris v. The State (Unreported) Judgment SC 171 of 7 Dec. 1979.

Order of the Court

Leave granted to appeal against sentence. Appeal allowed. Sentence of 18 months imprisonment with hard labour, quashed. In substitution, a sentence of 12 months imprisonment with hard labour, imposed.

KEARNEY DCJ: Three painters at Kieta had a joint savings bank account. The appellant was one of them. He held the passbook. On 13th November 1979, K1000 was paid in to this account. As a result, the credit balance was K1698.28.

On 16th November all three signed a withdrawal form. It may have been signed in blank or in the sum of K1200. At any rate K1200 was at some stage written in; it does not matter by whom, or when.

On the night of 18th November the appellant altered the figure "1" in the passbook to the figure "2", so that it appeared that K2000 had been deposited on 13th November, and that the credit balance was K2698.28. He did not however alter the words recording the deposit of 13th November, from "one thousand" to "two thousand". So in the passbook entry the words did not square with the figures.

Next morning he went to the bank and presented the passbook and the withdrawal form for K1200. The bank officers checked their own ledgers, and noticed the discrepancy and the alterations; the appellant was promptly arrested, and quickly confessed.

In due course he was committed for trial. In March this year he was indicted for both forging and uttering. He pleaded guilty to the charge of uttering false writing in the passbook with intent to defraud the bank. That plea was accepted in full discharge of the indictment. He was sentenced to 18 months imprisonment with hard labour.

The appellant now seeks leave to appeal against that sentence. He says it was manifestly excessive; he wants to have it reduced.

This Court has had the benefit of a report by the learned trial judge. It reads as follows:

"In this case the accused pleaded guilty to a charge of uttering a false document, namely a Bank of New South Wales Savings Account passbook, in which the balance figure had been altered from a true balance figure of K1,698.28t to a false balance figure of K2,698.28t, an increase of K1,000. The passbook was uttered by presenting it to a bank teller with a withdrawal slip in an amount of K1,200, which amount, of course, the customer was entitled to withdraw because it did not exceed the true balance. I was satisfied from the circumstances, however, that the presentation on this occasion was a test (with no doubt an attempt to secure impunity at that stage if suspicions were aroused) to see if the alteration in the passbook would pass without detection and also to obtain an entry in the passbook, still inflated by K1,000 which was an entry of the bank itself, the end purpose being to defraud, later on, the bank of K1,000. Devices of such a sort are not infrequently met with in this jurisdiction, where forging ad uttering in connection with Savings Bank accounts by bank customers and others are all too prevalent, so that most onerous and costly precautions now have to be continuously taken by all banks.

The foregoing conclusions I stated tentatively to experienced Defence Counsel who did not attempt to gainsay them and did not seek to place evidence or argument before the court 'contra'

Defence Counsel submitted that a heavy fine would suffice, and stated that an amount equivalent to the true balance in the account was available. In my opinion a custodial sentence was called for with a substantial personal and general deterrent element.

It was a premeditated and cunning plan by a mature, reasonably sophisticated offender, though a first offender, and, with an eye to all other relevant matters the sentence was framed accordingly."

The following personal circumstances of the appellant were before His Honour. The appellant is about 25 years of age. He was educated to Standard 6, in 1966. In 1969 he went to work at Panguna, and transferred in 1975 to the employment he held until sentenced. He is a married man with 4 children, aged 5, 3 and 2 1/2 years, and 2 months respectively.

I turn to the appellant's contentions.

Mr. Amet submitted first that what the appellant had done amounted only to a "technical" uttering, because in fact there was more than K1200 to the credit of the account. No one would have suffered loss, if the withdrawal had been effected. That argument, however, takes no account of the appellant's fraudulent plan of which that withdrawal was a first step, as His Honour found.

Mr. Amet next submitted that the learned trial judge had made three errors, which went to...