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State v Berenyi [2009] PGNC 179; N3813 (7 November 2009)

N3813

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 87 of 2007
CR 88-91 of 2007

THE STATE

V

JANOS BERENYI
IRENE BERENYI

Kavieng: Ellis J
2009: 7 November

JUDGMENT ON SENTENCE

CRIMINAL LAW - Particular offence – Uttering forged K50 notes – Separate purchases at local stores, twice by husband and four times by wife, using forged notes for purchases and change – Plea of not guilty - First offenders – Importance of secure currency – Deterrence considered – Greater role of husband – Greater effect of imprisonment on wife, especially with 4 young children – Husband sentenced to 3 years imprisonment with hard labour – Wife sentenced to 2 years imprisonment - Criminal Code, section 159

Cases cited:

No cases are cited in the judgment.

Counsel:

Mr F Popeu, for the State
Mr P Nuben, for both Accused

7 November, 2009

1. ELLIS, J: The offenders have been found guilty of charges of uttering forged K50 notes, charges brought under section 159 of the Criminal Code for which the maximum penalty is imprisonment for 14 years.

2. The findings of fact made against the first offender, Janos Berenyi, in the judgment delivered following the trial were as follows:

(1) On 23 August 2006, at Islands Store supermarket, Janos Berenyi used a K50 note to obtain 8 Vita juice drinks, costing K16, and K34 change.

(2) On 23 August 2006, Janos Berenyi used two K50 notes to obtain a bottle of Negrita, costing K56.90 and K43.10 change.

(3) At the time of those purchases, Janos Berenyi knew that each of those three K50 notes was forged.

(4) Janos Berenyi made both those purchases with the intent of fraud in that he sought to obtain goods and cash worth a total of K150 with three forged K50 notes which were worthless.

3 The findings of fact made against the second offender, Irene Berenyi, in the judgment delivered following the trial were as follows:

(1) On 23 August 2006, at Island Store supermarket, Irene Berenyi used a K50 note to obtain a can of drink, costing K2, and K48 change.

(2) On 23 August 2006, at Burasera Trading, Irene Berenyi used a K50 note to obtain a two hooks used for making bilums and some toilet paper and change which had a total value of K50.

(3) On 23 August 2006, at Namatanai Supermarket, Irene Berenyi used a K50 note to obtain a packet of plaster band-aids, costing K3.50, and K46.50 change.

(4) On 23 August 2006, at Brentvino Trading, Irene Berenyi used a K50 note to obtain a can of soft drink, costing K2.20, and K47.80 change.

(5) At the time of those purchases, Irene Berenyi knew that each of those four K50 notes was forged.

(6) Irene Berenyi made both those purchases with the intent of fraud in that she sought to obtain goods and cash worth a total of K200 with four forged K50 notes which were worthless.

3. The offenders, aged in their early 30’s, are married to each other and have four young children, three attending school and one not yet of school age. It appears that neither of them have any prior convictions.

4. When provided with an opportunity to address the court after being found guilty of these offences, the first offender asked for leniency while the second offender did not say anything.

5. It is often suggested that an absence of prior convictions is a mitigating factor. A consideration of guideline judgments of the Supreme Court for various offences suggests that the starting point is that the person being sentenced is a first offender and that any prior convictions constitute an aggravating factor.

6. There do not appear to be any aggravating factors here. The evidence does not suggest that either of the offenders manufactured the forged notes.

7. It was submitted that compensation payments have been made. I am unable to accept, for the purposes of sentencing, evidence which I rejected in the course of the trial as to do so would involve a manifest inconsistency. Even if restitution had been made I do not think that would warrant something other than a custodial sentence in view of the need for deterrence in relation to offences of this nature.

8. On behalf of the offenders, Mr Nuben suggested that the convictions would produce a change in attitude. I accept that is likely and it seems to me that this is a case where the fact that a custodial sentence is imposed will have a significant effect. However, as Mr Nuben rightly conceded, deterrence is a significant factor for this offence.

9. I do not think the fact that Mr Berenyi engaged in two transactions and obtained a benefit of K150 and that Mrs Berenyi engaged in four transactions and obtained a benefit of K200 is a sufficiently significant difference to warrant any difference in their sentences.

10. Fortunately, this kind of offence is not common. That has the consequence that there are not many other sentences for this offence which can be used to provide some guidance as to what is appropriate in this case. There are five reasons which lie behind the sentence which I consider should be imposed in this case.

11. First, it might be thought that this offence is a form of stealing in that it is used to fraudulently obtain goods and cash from stores. While a number of stealing offences carry a maximum sentence of imprisonment for 7 years, this offence carries a maximum penalty of 14 years which suggests that Parliament regards it as a more serious offence, doubtless in order to preserve confidence in the country’s currency. I also note that misappropriation carries lesser penalties: a maximum penalty of 5 years imprisonment or 10 years’ imprisonment, depending on whether certain factors are present. Thus, the maximum penalty denotes that this offence has to be treated very seriously.

12. Secondly, as I have already indicated, deterrence is of high importance in this kind of offence. At the risk of stating the obvious, if unduly lenient sentences are imposed then there will be no deterrence and confidence in this country’s currency will be eroded and that is a most serious consequence.

13. Thirdly, it appears that the role of the husband in this case is greater than that of the wife in that the forged notes she used were obtained from him. It seems to me that warrants a lesser sentence in the case of the wife.

14. Fourthly, there can be no doubt that a term of imprisonment weighs more heavily on the mother of young children and that is another reason which has led me to impose a lesser sentence in the case of the wife in this instance.

15. Fifthly, without losing sight of the need for deterrence, I do not think that a longer sentence will serve any useful purpose in this case in that the imposition of a custodial sentence is likely to result in the offenders learning the lesson they need to learn. Unduly penalising both parents of a family with young children would appear to me in this case to go beyond punishing the parents to the point of punishing the children. I do not mean to suggest that having a young family should be taken as a mitigating factor since the reality of life in Papua New Guinea, where fathers are not infrequently sentenced to imprisonment for causing the death of their wives through blows which cause a ruptured spleen, is that young children are commonly cared for by either grandparents, close relatives or others in the local village.

16. In arriving at what I consider to be the appropriate sentence, I have had regard to both the objective factors (ie the circumstances of the offences) and the subjective factors (ie the circumstances of the offenders)

Remarks to the offenders on sentence

17. What you did had the same effect as if you walked into those stores and stole those items and that amount of money. When people in this country say they would like to make some money, this is not how they should go about it. Making money legally will not come with the worry of being caught and the risk of a term of imprisonment.

18. The consequences of what you did went beyond the loss of a total of K350 to those store owners. To start with, a number of employees got into trouble from their bosses or supervisors for not noticing that the K50 notes they received were forged. More importantly, what you did serves to reduce confidence in the currency of Papua New Guinea. People should be entitled to assume that when they receive a K50 note it is a genuine K50 note and not have to conduct checks to see if that note is forged. Improvements in technology, particularly in relation to colour printers, have made it much easier for forged or counterfeit notes to be produced. Fortunately, Papua New Guinea has been transferring to plastic notes which are much harder to forge. The main reason why a term of imprisonment needs to be imposed in this case is so that people will be deterred from trying to make and use forged bank notes so that confidence in the currency is maintained.

20. What you have done has not only resulted in a conviction being recorded against each of your names and a term of imprisonment being imposed, it has set a bad example to your children and will result in them being deprived of your presence in some of the early years of their lives and that is time which cannot be replaced.

21. Janos Berenyi, I sentence you to 3 years’ imprisonment with hard labour. Irene Berenyi, I sentence you to 2 years’ imprisonment with light labour. As you do not appear to have spent any time in custody in respect of these offences prior to today, those sentences are to be served, starting from today.

22. You have no doubt read or heard of recent escapes from prisons in this country. It is only fair that you should be warned that escaping from a prison is the only remaining offence in this country which carries a minimum penalty and that penalty is five years.

Sentenced accordingly.

____________________________________

Public Prosecutor: Lawyer for the State
Mane Isana Lawyers: Lawyer for both Accused