Tremellan v The Queen [1973] PGSC 49; [1973] PNGLR 116 (10 November 1972)

Papua New Guinea Law Reports - 1973

[1973] PNGLR 116 - Tremellan v The Queen

[1973] PNGLR 116

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TREMELLAN

V

THE QUEEN

Port Moresby

Minogue CJ Frost SPJ Clarkson J

27 October 1972

10 November 1972

CRIMINAL LAW - Appeal against sentence - Cumulative and concurrent sentences - When appropriate - Larceny as a servant - Falsification of books and account.

APPEAL - Appeal against sentence - Whether necessary to establish miscarriage of justice - Supreme Court (Full Court) Ordinance, 1968, s. 28[cix]1.

T. was sentenced for three convictions for stealing as a servant and four convictions for making false and fraudulent entries in books of account. In addition T. with the consent of the Crown asked the trial judge to take into account a further ten offences of stealing as a servant and a further twenty-one offences of false and fraudulent accounting. The offences occurred over a period of about six months and the amount stolen was $425.00. The trial judge sentenced T. to twelve months imprisonment on the first conviction for stealing and to twelve months imprisonment on the first conviction for false and fraudulent accounting and ordered that these two sentences be served cumulatively.

On appeal

Held

N1>(1)      (Per Minogue C.J. and Frost S.P.J., Clarkson J. not deciding) that s. 28 of the Supreme Court (Full Court) Ordinance, 1968 does not require the Full Court to give consideration to whether a miscarriage of justice has actually occurred on an appeal against sentence.

N1>(2)      Although it is neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent, sentences should generally speaking be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts.

Dictum of Hart J. in R. v. Phillips and Lawrence, [1967) Qd. R. 237 at p. 289, applied.

R. v. Melville (1956), 73 W.N. (N.S.W.) 579 and Wanosa v. The Queen, [1971-72] P. & N.G.L.R. 90, referred to.

N1>(3)      (Per Minogue C.J. and Frost S.P.J., Clarkson J, dissenting). In the circumstances the trial judge lacked material upon which to found a proper exercise of discretion and the overall sentence was manifestly excessive and should be varied by making the first two sentences concurrent and not cumulative.

Appeal

This was an appeal against sentence. The trial judge sentenced the appellant upon a count of stealing as a servant (taking into account ten admitted offences of stealing) to imprisonment with hard labour for one year, and upon a second count of making a false entry with intent thereby to defraud (taking into account twenty-one admitted offences of falsification of records) to imprisonment for one year, the latter sentences to be cumulative to those imposed on the first count. On each of five remaining counts of the indictment, which were two counts of stealing and three counts of falsification of records, the appellant was sentenced to one month’s imprisonment each such term to be served concurrently with the sentence on the first count of the indictment. The two main grounds of appeal were, firstly that taken together the two sentences were manifestly excessive for the total wrongdoing and, secondly that the trial judge erred in the application of the principles relating to cumulative sentences and in not making those sentences concurrent. Further facts appear in the reasons for judgment.

Counsel:

J. A. Griffin, for the appellant.

G. Gajewicz, for the respondent.

Cur. adv. vult.

10 November 1972

MINOGUE CJ FROST SPJ: The appellant pleaded guilty at Lae on 9th December 1971 to three counts of larceny as a servant and four counts of making false entries in the accounts of his employer with intent thereby to defraud. The appellant also asked to be taken into account in determining sentences other matters which were set out in four indictments upon the Court file. These indictments contained a total of ten counts of stealing as a servant and twenty-one counts of making false entries. There were thus thirteen charges of stealing as a servant and twenty-five charges of making false entries. The total sum involved in the ten counts of stealing was $425.00, and the offences were spread over a period of six months. The method adopted by the appellant, who was the office manager of the company from which the money was stolen, was to include in the pay record cards of employees, for which he was responsible, fictitious sums in respect of overtime. Having cashed a cheque made out by another employee on his own voucher, he then entered the correct amount of wages upon the pay advice slips and pocketed the balance. Upon some of the counts of stealing there were several false entries in respect of the money stolen. The falsification of the entries was thus necessary for the theft to be perpetrated.

The appellant was at the date of his conviction aged 42 years, married with three children aged 14, 12 and 9 years respectively. Character evidence was given by a Pastor of the Lutheran Church and by his then employer, who had engaged him in the knowledge of the matters which were before the Court and who testified that he had sufficient confidence to give the appellant another chance. The appellant had had an unhappy childhood. He does not know who his father was. When he was 12 years of age his mother died and also his stepfather by whom he had been badly treated. At about this time he was convicted of larceny and placed under the custody and control of the Children’s Welfare Board. He then lived in several foster homes in South Australia, but completed high school to the intermediate certificate. He was fined twice for larceny, first when aged 18 and again at the age of 22. However, since then he had settled down, married and raised a family and had not again come before a court until the present case. It was said to this Court on his behalf that he had been severely tempted because of heavy debts incurred as a result of the failure of a piggery business which he had conducted in South Australia before coming to Papua New Guinea in the year 1970. The facts concerning the appellant’s background were contained in two affidavits which in the exercise of our discretion we have admitted as evidence.

Taking into account ten admitted offences of stealing, the trial judge sentenced the appellant upon the first count of stealing as a servant to imprisonment with hard labour for one year, and on the second count of making a false entry with intent thereby to defraud, taking into account twenty-one admitted offences of falsification of records, to imprisonment for one year, the latter sentences to be cumulative to the sentences imposed on the first count. On each of the five remaining counts of the indictment, which were two counts of stealing and three counts of falsification of records, the appellant was sentenced to one month’s imprisonment each such term to be served concurrently with the sentence on the first count of the indictment.

A number of grounds of appeal were taken but in the end counsel for the appellant based his case on two main submissions: firstly, that taken together the two sentences were manifestly excessive for the total wrongdoing and, secondly, that the trial judge erred in the application of the principles relating to cumulative sentences and in not making these sentences concurrent. (No exception was of course taken to the short sentences imposed in respect of counts 3 to 7 of the indictment).

It cannot be said that the cases show any clearly discernible principle governing the making of sentences cumulative or concurrent. So much depends upon the facts of each particular case and the way in which the judge approaches the imposition of sentence. However, we feel that generally speaking sentences should be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts. This was the view taken by Hart J. in R. v. Phillips and Lawrence[cx]². At the same time that learned judge thought it neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent. Similarly, in R. v. Melville[cxi]³ the New South Wales Court of Appeal thought that two offences were both so connected that they could be regarded as part of the one incident and so merited the sentences being made concurrent. In this case, however, in effect there were thirteen separate offences of stealing spread over six months with twenty-five associated offences of falsification necessary to make the stealing possible. It could not be said that an over-all sentence of 12 months for the stealing offences was excessive whether such a sentence was imposed by way of a number of concurrent terms or by the addition of cumulative terms amounting in all to 12 months or thereabouts. The stealing was a calculated process albeit a not very clever one as it was bound to be detected on audit. On the other hand it was a process apparently borne of desperation and not done simply for the purpose of making easy money or to indulge in high living or expensive tastes. Had the falsifications been made not for the purpose of stealing but for some other unlawful purpose it might also be said that an over-all sentence of 12 months on those counts was beyond criticism. But in our view in this case each act of stealing and its attendant falsification or falsifications were so connected that they should be regarded as part of the one incident. It seems to us that the learned trial judge took the view that an over-all period of two years was necessary as a general deterrent against what he properly regarded as a prevalent offence. It would seem from a careful perusal of the appeal book that the circumstances of the appellant’s life and upbringing and the dire straits in which he found himself were inadequately put before him—if they were put at all. Consequently in our view he did not give sufficient weight (or as this Court put it in Seki Wanosa v. The Queen[cxii]⁴ “undervalued”) the particular circumstances in which these offences were committed. Further, it seems to us that the inseparable connection in this case of the two types of offences charged was overlooked. Had he had the benefit of the matters urged before us we consider that his discretion would have been exercised differently.

In the result we have come to the conclusion that the learned trial judge lacked material upon which to found a proper exercise of discretion and in the circumstances the over-all sentence was manifestly excessive. It was submitted by the Crown we should be satisfied that there had been a miscarriage of justice before we could allow this appeal. However, to us it is clear that s. 28 of the Supreme Court (Full Court) Ordinance, 1968 does not require the Full Court to give consideration to whether a miscarriage of justice has actually occurred on an appeal against sentence.

We would allow the appeal and vary the sentence by making the first two sentences concurrent and not cumulative.

We should add that reference to and analysis of a list of convictions for somewhat similar offences involving like amounts as in this case and penalties imposed therefor over a three-year period up to April 1971 indicates that the penalty in this case was considerably higher than previously. We join with our brother Clarkson in his warning that subject to all other proper considerations and regardless of the result of this appeal the time may well be approaching when heavier penalties for crimes of dishonesty will have to be imposed.

CLARKSON J: The relevant facts as presented to the trial judge are stated in the joint judgment of Minogue C.J. and Frost S.P.J. It should be added that at the hearing of the appeal and by consent the Court was referred to a list prepared by an officer of the Crown Law Department in April 1971 recording a number of cases since April 1968 in which convictions for offences somewhat similar to those now before us were recorded and showing also the penalties imposed. This information was first used in R. v. McGrath[cxiii]⁵.

N1>The appellant also sought leave to tender two affidavits, one by the appellant and the other by his wife. In my view the Court in its discretion may admit this additional evidence and should do so.

N1>The present case raises a problem relating to concurrent and cumulative (or consecutive) sentences. The first two paragraphs of s. 20 of the Criminal Code provide:

“When a person who is convicted of an offence is undergoing, or has been sentenced to undergo, for another offence, a sentence involving deprivation of liberty, the punishment to be inflicted upon him for the first-mentioned offence may be directed to take effect from the expiration of the deprivation of liberty for the last-mentioned offence.

Except as aforesaid, a sentence of imprisonment, with or without hard labour, upon a conviction on indictment takes effect from the first day of the Sittings of the Court at which the offender is convicted, and a sentence of imprisonment, with or without hard labour, upon a summary conviction takes effect from the commencement of the offender’s custody under the sentence.”

In the present case the trial judge was called upon to sentence the appellant for three convictions for stealing as a servant and for four convictions for making false and fraudulent entries in books of account. In addition, the appellant with the consent of the Crown asked the trial judge to take into account a further ten offences of stealing as a servant and a further twenty-one offences of false and fraudulent accounting. The offences occurred over a period of about six months and the amount stolen was $425.00.

The trial judge sentenced the appellant to twelve months’ imprisonment on the first conviction for stealing and to the same term on the first conviction for false and fraudulent accounting and ordered in effect that the sentences be served consecutively. The appellant’s case before us can be shortly stated as being that a total punishment of two years for all the offences is manifestly excessive and, alternatively, in a proper exercise of the judge’s discretion the two sentences of one year should have been ordered to be served concurrently.

I do not accept the first submission. I doubt whether two sentences to be served consecutively should be regarded as a sentence for the purpose of the relevant legislation, but in any event a punishment of two years’ imprisonment for a course of fraud and theft extending over six months by a sophisticated expatriate seems to me to be within the range within which opinions as to a proper punishment may vary. Having expressed that view I add that it is common knowledge that offences of the sort with which we are here concerned are occurring frequently in Papua New Guinea. Shortages of staff, inadequate supervision and lack of experience on the part of others seem to provide greater opportunity for the commission of crimes of dishonesty. This Court should make it clear that subject to all other proper considerations and regardless of the result of this appeal heavier penalties for crimes of dishonesty are likely.

There is not a great deal of authority to guide a judge in deciding whether sentences should be made cumulative or not and that I think is the real question here. The trial judge is called upon to exercise a judicial discretion, as indeed he does when fixing the term of a sentence, and the exercise of such a discretion should not lightly be interfered with. If it is assumed, as counsel for the appellant appeared to concede, that a sentence of twelve months’ imprisonment was a proper sentence for the thirteen stealing offences and that a sentence of the same period was proper for the twenty-five offences of false and fraudulent accounting, again I do not feel the decision by the trial judge in the exercise of his discretion to make the two terms cumulative should be disturbed. It was argued that the trial judge had erred in not following a principle said to have been applied in R. v. Melville[cxiv]⁶ and perhaps in R. v. Phillips and Lawrence[cxv]⁷ that where the offences arose out of the same enterprise or were so connected that they could be regarded as part of the one incident or were committed in the prosecution of a single purpose or arose out of the same or closely related facts the sentences should be concurrent.

N1>I am not satisfied that the present case falls within this description. In Melville’s case[cxvi]⁸ the first offence, that the appellant had in his possession in New South Wales property stolen in Victoria, was committed on entry into New South Wales, and the second offence of attempting to obtain money by false pretences was committed while attempting to sell the car “immediately upon arrival”[cxvii]⁹, per Street S.C.J., at p. 581. In Phillips and Lawrence[cxviii]¹⁰ the offences all took place in a matter of hours after midnight.

I find some difficulty in treating the present case in the same way. Thirty-eight offences committed over a period of six months on thirteen different paydays might, in one sense, be said to have been committed in the prosecution of a single purpose, namely the appellant’s enrichment by crime, but the same might be said of a series of separate offences of breaking and entering extending over any period of time. I think that, at the least, it was permissible for the trial judge to approach the problem on the basis that there were thirteen separate criminal enterprises undertaken by the appellant, one on each of thirteen fortnightly paydays, and that he was not therefore obliged to treat the totality of the offences over the period of six months as one criminal enterprise.

For these reasons I would dismiss the appeal.

Appeal allowed. Sentence varied by making the first two sentences concurrent and not cumulative.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.

Solicitors for the appellant: Gaden, Bowen & Stewart.

R>

[cix]Section 28 of the Supreme Court (Full Court) Ordinance 1968 is as follows:--

N2>28         (1) Subject to subsection (2) of this section, on an appeal against a conviction the Full Court shall allow the appeal if it thinks that—

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory;

(b) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal.

N2>(2) The Full Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

N2>(3) Subject to the provisions of this Ordinance, the Full Court shall, if it allows an appeal against conviction, quash the conviction and direct a verdict of acquittal to be entered.

N2>(4) On an appeal against sentence the Full Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass the other sentence in substitution therefor, and in any other case shall dismiss the appeal.

[cx] [1967] Qd. R. 237, at p. 289.

[cxi](1956) 73 W.N. (N.S.W.) 579.

[cxii][1971-72] P. & N.G.L.R. 90.

[cxiii][1971-72] P. & N.G.L.R. 247.

[cxiv] (1956) 73 W.N. (N.S.W.) 579.

[cxv][1967] Qd. R. 237.

[cxvi][1956] 73 W.N. (N.S.W.) 579.

[cxvii](1956) 73 W.N. (N.S.W.) 579.

[cxviii] [1967] Qd. R. 237.