The State v Mercy Lohia

• Jurisdiction: Papua New Guinea
• Judge: Berrigan, J
• Judgment Date: 23 November 2018
• Citation: (2018) N7614
• Court: National Court
• Year: 2018
• Judgement Number: N7614

Full : CR (FC) 165 OF 2018; The State v Mercy Lohia (2018) N7614

National Court: Berrigan, J

Judgment Delivered: 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

23rd 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:

a. the amount taken;

b. the quality and degree of trust reposed in the offender;

c. the period over which the offence was perpetrated;

d. the impact of the offence on the public and public confidence;

e. the use to which the money was put;

f. the effect upon the victim;

g. whether any restitution has been made;

h. remorse;

i. the nature of the plea;

j. any prior record;

k. the effect on the offender; and

l. 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:

m. K1 and K1000, a gaol term should rarely be imposed;

n. K1000 and K10,000 a gaol term of up to two years is appropriate;

o. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and

p. 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:

q. 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;

r. 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;

s. 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

t. 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:

u. 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;

v. 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;

w. 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;

x. 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;

y. 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

z. 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...