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State v Yugari [2018] PGNC 5; N7079 (1 February 2018)

N7079


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) 195 OF 2017


BETWEEN:
THE STATE


AND:
ROLYN YUGARI


Waigani: Salika, DCJ
2017: 21, 22, 27 & 28 September, 15 December
2018: 01 February


CRIMINAL LAW – Practice and Procedure – Charges of forgery – s.462(1) and (3)(f) – serious offence than a simple forgery – the forgery in this case enabled the Registrar of Titles to register a State Lease in the offenders name – sentence reflects the seriousness of offence – sentenced to 6 years imprisonment.


Cases cited:


Wellington Belawa v The State (1988-1989) PNGLR 496
The State v George Steven CR (FC) 184/14
The State v Rolannd Tom and Kalen Kopen
The State v Louise Paraka (2002) N2317


Counsel:


Ms H Roalakona, for the State
Mr E Sasingian, for the Defendant


SENTENCE


01 February, 2018


  1. SALIKA DCJ: INTRODUCTION: This court convicted Rolyn Yugari on two counts of forgery contravening Section 462(1) and (3)(f) of the Criminal Code Act.

FACTS


  1. The facts of the case are that Moses Kombuki was the sole owner of a State Lease Portion 2162, Volume 6, Folio 40 Granville. Port Moresby.
  2. This is a case of Moses Kombuki allowing James Yugari to rent a trade store which was located on Portion 2162 for K500 per month. James Yugari never paid the monthly rentals. James Yugari started to try and get Portion 2162 from Moses Kombuki. Earlier court records show Moses Kombuki trying to evict James Yugari from the premises for non payment of the monthly rentals.
  3. There were instances of court battles between James Yugari and Moses Kombuki until Moses Kombuki was found to have the dreaded HIV/AIDS virus and it was becoming inevitable he was going to die.
  4. Between 20 January 2004 and 23 January 2004 James Yugari, Rolyn Yugari, James Irabu and others conspired to forge Moses Kombuki’s signature on a Statutory Declaration and a Land Transfer Form. Moses Kombuki who was dying was put in a motor vehicle by James Yugari and Rolyn Yugari and told to make a public declaration to his relatives and friends as to who the property Portion 2162 should go to after his death. In that public declaration he told the gathering that the property would go to James and Rolyn Yugari. The problem with that was that Moses Kombuki was dying and he was in no state of mind to understand what he was saying or doing. But that was not all, James and Rolyn Yugari forged the signature of Moses Kombuki on the Statutory Declaration form and on the Department of Lands Land Transfer form. For those Rolyn Yugari was charged and is now convicted.
  5. As a result of those forgeries the Department of Lands through the Registrar of Titles was able to transfer ownership of Portion 2162 from Moses Kombuki to James and Rolyn Yugari. It was found by this court that the Department of Lands through the then Registrar of Titles acted on fraudulent documents to transfer title from Moses Kombuki to James and Rolyn Yugari. This means that the property title of Portion 2162 was fraudulently obtained from Moses Kombuki by James and Rolyn Yugari. The property title held by James and Rolyn Yugari is therefore invalid. The title held by Moses Kombuki is still good title. The Registrar of Titles is ordered to cancel the title obtained by James and Rolyn Yugari as being fraudulently obtained and restore the title to Portion 2162 to Moses Kombuki .
  6. This court found that both James and Rolyn Yugari were active participants in wrestling the title of Portion 2162 from Moses Kombuki to themselves. Rolyn Yugari defended the matter seeking to hold onto the ill-gotten title. Evidence was that Moses Kombuki wanted to have Portion 2162 to be shared by his relatives including James and Rolyn Yugari. However James and Rolyn Yugari wanted the entire Portion 2162 for themselves only. This was demonstrated later when Justin Kombuki wanted to build a house in the property but were stopped by Rolyn and her children who said the whole land belonged to them. This prompted Justin Kombuki to a title search of the subject property. That search confirmed the title belonged to James and Rolyn Yugari. Justin Kombuki searched the land file to find out how that happened and found that his cousin brother’s signatures were forged. Justin Kombuki should be commended for doing the searches himself and succeeding in uncovering the injustice caused to him and his other relatives.

ISSUE


  1. The issue for the court is to determine what sentence to impose on the offender.

THE LAW


  1. The prisoner was charged and convicted under s.462(1) and (3)(f) of the Criminal Code. Section 462(1) says:

Section 462(1)


(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.


(2) If the thing forged—

(a) purports to be, or is intended by the offender to be understood to be or to be used as—

(i) the National Seal; or

(ii) the great seal of the United Kingdom, or of Australia; or

(iii) the privy seal, or any privy signet of the Queen and Head of State; or

(iv) the royal sign manual of the Queen and Head of State; or

(v) the seal of the Head of State or the Governor-General; or

(vi) any public seal lawfully appointed to be used for authenticating an act of State in any part of Her Majesty's Dominions; or

(b) is a document having on it or affixed to it any such seal, signet or sign manual, or any thing that purports to be, or is intended by the offender to be understood to be, any such seal, signet or sign manual,

the offender is liable, subject to Section 19, to imprisonment for life.

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

(a) a document that is—

(i) evidence of title to—

(A) any portion of the public debt of any of Her Majesty's Dominions or of any foreign State; or

(B) any dividend or interest payable in respect of a debt referred to in Clause (A); or

(ii) a transfer or assignment of any document referred to in Subparagraph (i); or

(iii) a receipt or certificate for any interest or money payable or accruing on or in respect of a debt referred to in Subparagraph (i); or

(b) a transfer or assignment of—

(i) a share in any corporation, company or society, whether domestic or foreign; or

(ii) any share or interest in—

(A) the capital stock of any such corporation, company or society; or

(B) the debt of any such corporation, company or society; or

(c) a receipt or certificate for any interest or money payable or accruing on or in respect of any share, interest or debt referred to in Paragraph (b); or

(d) a document acknowledging or being evidence of the indebtedness of the Government or of the Government of any of Her Majesty's Dominions, or of any foreign Prince or State, to any person; or

(e) a document that by the law of Papua New Guinea or of any other country, is evidence of the title to any land or estate in land in Papua New Guinea or that other country, or an entry in any register or book that is such evidence; or

(f) a document that by law is required for procuring the registration of any title to any land or estate in land; or

(g) a testamentary instrument, whether the testator is living or dead, or a probate or letters of administration; or

(h) a bank note, bill of exchange or promissory note, or an acceptance, endorsement, or assignment of a bank note, bill of exchange or promissory note; or

(i) a deed bond or other written obligation, or a warrant, order or other security for—

(i) the payment of money; or

(ii) the delivery or transfer of a valuable security; or

(iii) procuring or giving credit, whether negotiable or not, or an endorsement or assignment of any such document; or

(j) an accountable receipt, or an acknowledgment of the deposit, receipt, payment or delivery of money or goods, or of any valuable security, or an endorsement or assignment of any such document; or

(k) a bill of lading, dock warrant, warehouse-keeper's certificate, warrant or order for the delivery of goods, or any other document used in the ordinary course of business—

(i) as proof of the possession or control of goods; or

(ii) as authorizing, or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transfer or receive the goods represented by the document, or an endorsement or assignment of any such document; or

(l) a charter party, or a shipping document accompanying a bill of lading, or an endorsement or assignment of a charter party or such a document; or

(m) a policy of insurance of any kind; or

(n) a power of attorney or other authority to execute any document referred to in the preceding provisions of this section; or

(o) the signature of a witness to any of the documents referred to in the preceding provisions of this section to which attestation is by law required; or

(p) a register of births, baptisms, marriages, deaths or burials authorized or required by law to be kept, or any entry in any such register; or

(q) a copy of any register or entry referred to in Paragraph (p), that is authorized or required by law to be given or sent to or by any person; or

(r) a seal used by a registrar appointed to keep any register referred to in this subsection, or the impression of any such seal, or the signature of any such registrar,

the offender is liable to imprisonment for a term not exceeding 14 years.

  1. Rolyn Yugari is therefore liable to imprisonment for a term not exceeding 14 years. However the court has a discretion to impose a sentence lower than the maximum prescribed pursuant to s,19 of the Criminal Code and the case authorities of Goli Golu v The State (1979) PNGLR 653 and Avia Aihi v The State (1983) PNGLR 92.

SENTENCING CONSIDERATIONS

  1. The following considerations were identified by the Supreme Court in Wellington Belawa v The State (1988-1989) PNGLR 496.
  2. I am however mindful that those considerations are for misappropriation cases. I am not dealing with a forgery case. While forgery is also a dishonesty offence the sentencing consideration identified by the Supreme Court in the Belawa case may be a little different to forgery cases. Considerations such as:-
  3. In this case the prisoner with her late husband James Yugari made up two false documents, one a false statutory declaration and the other a false land transfer document. They were false documents because they were forged. In forgery cases the relevant considerations are :-
    1. Why forge a document?

James & Rolyn Yugari were desperate to get the land from Moses Kombuki for themselves.


  1. How was the forgery perpetrated?

James and Rolyn Yugari got Moses Kombuki to make a public declaration as to who should get Portion 2162 after he passed on and Moses Kombuki named James and Rolyn Yugari to be the beneficiaries of the land portion 2162.


  1. What were the reasons for the forgery?

Same answers as in (a) and (b).


  1. Was the forgery planned?

Without a doubt it was planned.


  1. Was the purpose of the forgery achieved?

Yes, the statutory declaration and the Land Transfer forms were accepted by the Registrar of Titles to register the State Lease for Portion 2162 under the names of both James Yugari and Rolyn Yugari. It was mission accomplished so to speak.


  1. What was the effect on Moses Kombuki ‘s relatives?

Justin Kombuki, the cousin brother of Moses Kombuki felt betrayed by Moses Kombuki to pass on the land to James and Rolyn Yugari instead of passing it onto him and his close relatives.


  1. What was the effect of this on Rolyn Yugari?

She now realises that what her husband and herself did was wrong in that the method they used was wrong and unlawful.


SENTENCING TREND


  1. The sentencing trend is the higher ones position is in the community, the higher the sentence. In misappropriation cases the higher the amount stolen the higher the sentence. See Belawa v The State (supra) James Yugari and Rolyn Yugari were a missionary couple. They got themselves into a situation where they wanted more material things than do the work of the church and God. I have seen the several letters of reference attached to the pre-sentence report. I consider all of them irrelevant because the references tell me of someone else and not a down to earth person.
  2. James and Rolyn Yugari broke the laws of the country and of God to try and get more than what they needed. This case reminds me of the ungrateful servant story in the Bible. The servant owed his master a lot of money and the master wrote it off. Then the servant went and told another servant who owed him money and got him into prison for failing to pay his dues. The master heard of what he did and called for him. He sent him to prison because he took no pity on a fellow servant. Rolyn Yugari and James Yugari and Moses Kombuki went to court many times over unpaid rentals by them. In the end they ended up with everything, unpaid rentals written off and the property passing onto them. When Moses Kombuki’s relative Justin Kombuki and others wanted to build houses on the land they were stopped. Ungrateful servant of God. Should the ungrateful servant be put in prison is now the question.

CASE PRECEDENTS

  1. In the recent past I have dealt with the cases only on forgery charges and they are:-
    1. The State v George Steven CR(FC) 184/14 – The offender in that case forged the signature of the complainant who was his former wife to trust land and property to himself. He was found guilty and sentenced to 3 years imprisonment but suspended on the condition that he repays K30,000 to the person he sold the land and property to.Title to the land and property was restored to his former wife.
    2. The State v Rolannd Tom and Kalen Kopen. The two men forged a land transfer document and a Contract of Sale which the Register of Titles relied on to transfer land from The State to Roland Tom. They were found guilty after a trial. Each were sentenced to 5 years imprisonment. Title to the property was restored to Philip Kandes the original owner.
    1. The State v Louise Paraka (2002) N2317. The offender pleaded guilty to 2 counts of forgery and 2 counts of uttering. She had altered the amounts written on the cheques making the value of the cheques from K1,700 and K1,150 higher to K4,700.00 and K4,150.00. A sentence of 3 years was imposed but suspended upon restitution.
  2. Wikipeadia defines forgery as “the process of making, adapting or imitating objects, statistics or documents with the intent to deceive or the sake of altering public perception or to earn profit by selling the forged item”. Forgery is the faking of a signature without permission, making a false document or changing an existing document without authorisation. The actions of James Yugari and Rolyn Yugari in forging the signatures of Moses Kombuki on the statutory declaration and the Land Transfer Form were intended to deceive the Registrar of Titles to award them title to Portion 2162. Forgery is a criminal act and so the acions of the missionary couple were criminal acts calculated to deceive the Registrar of Titles.
  3. The pre-sentence report recommends a non custodial term for reasons that she is not a threat to the community and that she has a handicapped child to take care of. I have said many times that before anyone embarks on a project that is criminal in nature they should think of their families first and act. The prisoner herself in allocatus also said she looks after widows and homeless children. She cannot continue to do those things with ill gotten gains.
  4. The prisoner is now urged to do things that are right and proper. She must first pay for the crimes. If she is going to run a house to look after the widows and homeless children then she needs to know and practice the following:- “Home is where attitudes, character, discipline, values and manners are made, home is the heartbeat of the family, community and the nation. First she has to teach herself this before she reaches out to others.
  5. She and her husband caused a lot of anxiety and inconvenience to the relatives of Moses Kombuki. As the title issued to James Yugari and Rolyn Yugari was obtained by fraud, I order that the Registrar of Titles cancel the State Lease in relation to Portion 2162, Volume 6, Folio 40 Granville. Port Moresby granted to James Yugari and Rolyn Yugari on 4 February 2005 and entered on 7 February 2005. The consequential orders are that all other transactions entered into by Rolyn Yugari are null and void and of no effect.
  6. The end result is that Portion 2162, Volume 6, Folio 40 Granville. Port Moresby is to go back to the original owner Moses Kombuki. Moses Kombuki’s title is to be renewed and the Public Curator is to administer the property as Moses Kombuki died intestate. I refer to the decision of The State v George Steven and The State v Roland Tom and Kalen Kopen to lend support for which I have done in this case.
  7. As far as the prisoner is concerned the offences she and her late husband committed are very serious offences. Section 462(1) and (3)(f) of the Code prescribes the maximum sentence to be 14 years. The Yugaris and their families have had the property illegally for 13 years since 2005. That is a long time. They enjoyed the fruits of their crime for 13 years although they have lived there for a longer period. Considering the seriousness of this crime, I sentence Rolyn Yugari to 6 year imprisonment in hard labour for Count 1 and 6 years imprisonment in hard labour for Count 2. I suspend 3 years of that upon the prisoner entering into her own recognizance to be of good behaviour for 3 years. She will serve 3 years.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner


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