Rakatani v The State [1979] PGLawRp 691; [1979] PNGLR 556 (2 November 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 556 - Henry Rakatani v The State 

[1979] PNGLR 556

SC166

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

HENRY RAKATANI

V

THE STATE

Waigani

Prentice CJ Raine DCJ Andrew J

30 October 1979

2 November 1979

CRIMINAL LAW - Appeal against sentence - Youthful first offenders - Relevant considerations - Surrounding circumstances - What evidence available - Stealing as public servant - Severe public deterrent called for - Sentence of two years’ imprisonment confirmed.

On appeal against severity of a sentence of two years’ imprisonment with hard labour imposed on a young person aged nineteen years with a good record, on conviction for stealing K1263.49 Government monies while employed as a public servant, where it appeared that the theft arose out of a computer print-out error in the pay section, of which the appellant took advantage;

Held

N1>(1)      In deciding upon an appropriate punishment for a particular offence, the trial judge is entitled to consider surrounding circumstances and pursuant to s. 608 of the Criminal Code to receive for that purpose “such evidence as he sees fit”;

N1>(2)      The trial judge was accordingly entitled to consider and draw appropriate conclusions from material contained in the record of interview and in the unchallenged auditor’s report;

N1>(3)      Youthful offenders should not receive special treatment especially where the offence charged is prevalent;

Paulus Mandatititip v. The State, [1978] P.N.G.L.R. 128, followed.

N1>(4)      The offence of stealing as a servant calls for a severe public deterrent as well as a marked deterrent against repetition by the offender.

N1>(5)      In the circumstances the sentence of two years’ imprisonment with hard labour should be confirmed.

Appeal

This was an appeal against severity of a sentence of two years’ imprisonment imposed on a young offender for stealing K1263.49 as a public servant.

Counsel

D. E. Rea, for the appellant.

K. B. Egan, for the respondent.

Cur. adv. vult.

2 November 1979

PRENTICE CJ RAINE DCJ ANDREW J: The appellant who pleaded guilty in June this year, to the charge of stealing K1263.49 Government monies while employed as a public servant, for which he was sentenced to two years’ imprisonment with hard labour, seeks a reduction of his sentence. It is submitted on his behalf that the learned trial judge’s sentence was manifestly excessive and that his Honour misled himself as to surrounding facts; and failed to consider some matters.

It was put that in saying “Your admitted actions of giving your pay-master K15 and your superior K30 are proof of the fact that this over-payment to you was something you all agreed to benefit from, and the fact that it was paid to you on the day before payday also demonstrates that”, the judge fell into error. Now undoubtedly, on sentence a trial judge is entitled to consider surrounding circumstances in deciding upon appropriate punishment; and s. 608 of the Criminal Code allows him to receive on that issue “such evidence as he sees fit”. We consider that the material contained in the record of interview, and in the section auditor’s report which was before his Honour unchallenged, plainly lend themselves to the inference drawn by the judge and we can see no error involved.

Secondly, in support of the argument as to excess of sentence, the appellant’s youthful age of nineteen was pointed to, and the submission made that this was an exceptional case, which did not involve the setting up of a system of theft, and that restitution of most of the monies was made. It is material to the last mentioned to note that this was probably because of the prompt action by the section audit.

That the accused was a young offender (he was nineteen), appeared in several places in the material before the National Court, must have been evident from sight of his person, and was again emphasised by his counsel Mr. Wilson (a senior officer in the Public Solicitor’s Office). But as was pointed out in Paulus Mandatititip v. The State[dclxxxvii]¹ by this Court, and many times by the National Court, youthfulness cannot any longer be considered a forceful contention towards leniency, especially in cases such as this, which are so prevalent.

The facts were presented and accepted as having involved a computer print-out error, of which the appellant, obviously with the knowledge of his associate employees, decided to take advantage. It was pointed out that employees in a pay section who have access to their own pay records (some of which they might destroy) could contrive a happening to look like an error. It is clear that thefts of this kind clearly call for a severe public deterrent as well as a marked deterrent against repetition to the appellant himself.

We have studied the appeal book closely and considered the material put before his Honour and the arguments put before us. While it is possible that one or more of us sitting as a judge of the National Court might have imposed punishment a little below that actually given; we are unable to say that his Honour has failed to take into account any material fact, or has taken into account any extraneous fact, and we remain unpersuaded that the sentence was excessive in the circumstances of the appellant’s good record, youth, family position, and of the theft itself. Accordingly, though we granted leave to argue the appeal, we would dismiss it and confirm the conviction and sentence.

Leave granted to appeal. Appeal dismissed. Conviction and sentence confirmed.

Solicitor for the appellant: D. E. Rea.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.

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[dclxxxvii] 1978 P.N.G.L.R. 128.