The State v Raka Benson (2006) N4481

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 17 August 2006
• Citation: (2006) N4481
• Docket Number: CR NOS 447-450 of 2006
• Court: National Court
• Year: 2006
• Judgement Number: N4481

Full Title: CR NOS 447-450 of 2006; The State v Raka Benson (2006) N4481

National Court: Cannings J

Judgment Delivered: 17 August 2006

N4481

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 447-450 0F 2006

THE STATE

V

RAKA BENSON

Buka : Cannings J

2006: 10, 11, 16, 17 August

SENTENCE

CRIMINAL LAW – sentences – forging and uttering bank withdrawal slips for K500.00 and K1,500.00 – sentence on plea of guilty – four offences – total sentence 18 months imprisonment, suspended on conditions.

A man pleaded guilty to two counts of forgery and two counts of uttering. He forged the signature of the authorised signatory on a bank withdrawal slip, then presented it at the bank and withdrew K500.00. He later forged the same signature on another bank withdrawal slip, presented it at the bank and withdrew K1,500.00. The bank account belonged to a school and the accused was deputy governor of the school’s controlling board. By the time of the trial he had repaid most of the money.

Held:

(1) The starting point for sentencing for forging and uttering, without circumstances of aggravation, is 18 months for each offence.

(2) Each offence was allotted a notional sentence: count 1, 6 months; count 2, 6 months; count 3, 12 months and count 4, 12 months; a total of 36 months.

(3) Counts 1 and 2 should be served concurrently, as should counts 3 and 4. However, counts 3 and 4 involved different transactions at different times to counts 1 and 2, and therefore should be cumulative.

(4) The total sentence of 18 months is not excessive.

(5) The offender, having already spent four days in custody, had the balance of his sentence suspended, subject to various conditions including that he resign from and not hold any positions of trust, especially those that give him access to other people’s money, for the period of the sentence.

Cases cited

The following cases are cited in the judgment:

Doreen Liprin v The State (2004) SC673

Kali Mari v The State (1980) SC175

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

The State v A Juvenile, “TAA” (2006) N3017

The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919

The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801

Tom Longman Yaul v The State (2005) SC803

Wellington Belawa v The State [1988-89] PNGLR 496

Abbreviations

The following abbreviations appear in the judgment:

ARB – Autonomous Region of Bougainville

BSP – Bank South Pacific

CID – Criminal Investigation Division

CJ – Chief Justice

CR – Criminal

DCJ – Deputy Chief Justice

J – Justice

K – Kina

N – National Court judgment

No – number

PNGLR – Papua New Guinea Law Reports

SC – Supreme Court judgment

SCRA – Supreme Court Criminal Appeal

SDA – Seventh Day Adventist

v – versus

PLEA

A man pleaded guilty to forging and uttering and the following reasons for sentence were given.

Counsel

R Luman, for the State

P Kaluwin, for the accused

1. CANNINGS J: INTRODUCTION: This is a decision on the sentence for a man who pleaded guilty to two counts of forging and two counts of uttering.

INDICTMENT

2. The indictment was framed as follows:

· Count 1 – forgery – forging signature on withdrawal slip;

· Count 2 – uttering – presenting withdrawal slip and obtaining K500.00;

· Count 3 – forgery – forging signature on withdrawal slip;

· Count 4 – uttering – presenting withdrawal slip and obtaining K1,500.00.

ALLEGATIONS

3. The accused was deputy chairman of the board of governors of Sohano Primary School, Bougainville.

4. On 6 February 2006 he forged the signature of one of the authorised signatories, the school principal, on a BSP withdrawal slip, for K500.00, presented it at BSP Buka and received K500.00 cash.

5. On 15 February 2006 he did the same thing – forged the same signature on a BSP withdrawal slip and presented it to the bank – except on this occasion the amount was K1,500.00.

CONVICTION

6. The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the offender.

7. He was convicted on two counts of forgery (by putting a false signature on two withdrawal slips) and two counts of uttering (by using the false slips to withdraw cash, ie circulating them).

ANTECEDENTS

8. The offender has no prior convictions.

ALLOCUTUS

9. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I committed these offences out of frustration. The K500.00 was used to repair a school house. Of the K1,500.00, I have given back K1,350.00 to the CID and I applied K150.00 to my personal use.

I met with the school board on 6 August 2006 and reconciled with them.

OTHER MATTERS OF FACT

10. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, (Jalina J, Mogish J, Cannings J)).

Depositions

· In his police interview the offender explained why he committed the offences. First, the school had not paid him for maintenance work he did on a school house. Secondly, when he was away the school authorities had lied to his wife that he had given the OK for them to use his personal tools; and then did not pay him anything for them. Thirdly, he wanted to make the school board realise that the school has a lot of outstanding credits. Fourthly, the board chairman had told him not to sign on the school account.

· He used the K500.00 to buy materials to repair a school house.

· He made admissions to the police and co-operated fully.

Allocutus

· He used the first K500.00 to buy materials for repair of a school house.

· He gave K1,350.00 to the CID.

· He applied only K150.00 of the K2,000.00 to his personal use.

· He has reconciled with the school board.

Matters disclosed by defence counsel

· The offender deposited K150.00 in the school bank account on 11 July 2006.

· The K1,350.00 that was in the possession of the CID was deposited into the school bank account on 11 August 2006 (during the course of the proceedings, at the direction of the court).

· The offender deposited K100.00 in the school account on 15 August 2006.

· The school is therefore out of pocket by only K400.00; and the offender is willing to apply his bail money of K400.00 for the repayment of that amount.

· The school actually owes him and another person K746.00 for work done on a school house.

PERSONAL PARTICULARS

11. The offender is aged 43, married with four children. He is a member of the SDA Church. As well as being Deputy Governor of Sohano Primary School, he holds a number of other community positions. He is: youth co-ordinator of the Buka Atolls District; adult literacy co-ordinator; chairman of Chebu Elementary School; clerk for the council of chiefs; Village Court magistrate for Sohano Island; clerk of community policing; youth leader, Sohano; secretary of Sohano Community Policing; and chairman of the National Alliance Party, Sohano Island.

12. He also holds two positions in the Bougainville government: treasurer of the Bougainville Autonomous Sports Foundation and admin clerk in the Bougainville Sports Office.

SUBMISSIONS BY DEFENCE COUNSEL

13. Mr Kaluwin highlighted the following mitigating factors: the offender pleaded guilty; he made admissions freely to the police; he has not personally benefited from what he did.

14. He should be given a suspended sentence, Mr Kaluwin submitted.

SUBMISSIONS BY THE STATE

15. Mr Luman, for the State, agreed that a suspended sentence would be appropriate.

DECISION MAKING PROCESS

16. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what other sentences have been imposed recently for equivalent offences?

· step 4: what considerations should be taken into account in determining the head sentence, in terms of years?

· step 5: what is the head sentence for each offence?

· step 6: should the sentences be served concurrently or cumulatively?

· step 7: what is the effect of the totality principle?

· step 8: should the pre-sentence period in custody be deducted from the term of imprisonment?

· step 9: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

17. The offender has been convicted of two offences under Sections 462(1) and Section 463(2) of the Criminal Code.

18. Section 462(1) (forgery in general:...