Mari v The State [1980] PGSC 1; SC175 (30 May 1980)

Unreported Supreme Court Decisions

SC175

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.A. 5 OF 1980
KALI MARI
V
THE STATE

Waigani

Kearney DCJ Andrew Pratt JJ
27 May 1980
30 May 1980

CRIMINAL LAW - appeal against sentence - plea to uttering - whether identifiable error - excessive weight on aggravating factor - insufficient weight on mitigating factor - prevalence of offence - whether sentence manifestly excessive.

Cases Referred To

R v. Sidlow (1907-08) 24 T.L.R. 754

Skinner v. The King (1912-13) 16 C.L.R. 336

House v. The King (1936) 55 C.L.R. 499

Wanosa & ors. v. The Queen (1971-72 PNGLR 90

R v. McGrath (1971-72) PNGLR 247

R v. Gabai Vagi and ors. (1973) PNGLR 30

Warren v. Coombes [1979] HCA 9; (1979) 53 A.L.J.R. 293

William Norris v. The State (Unreported) Judgment SC 171 of 7 Dec. 1979.

Order of the Court

Leave granted to appeal against sentence. Appeal allowed. Sentence of 18 months imprisonment with hard labour, quashed. In substitution, a sentence of 12 months imprisonment with hard labour, imposed.

KEARNEY DCJ: Three painters at Kieta had a joint savings bank account. The appellant was one of them. He held the passbook. On 13th November 1979, K1000 was paid in to this account. As a result, the credit balance was K1698.28.

On 16th November all three signed a withdrawal form. It may have been signed in blank or in the sum of K1200. At any rate K1200 was at some stage written in; it does not matter by whom, or when.

On the night of 18th November the appellant altered the figure “1” in the passbook to the figure “2”, so that it appeared that K2000 had been deposited on 13th November, and that the credit balance was K2698.28. He did not however alter the words recording the deposit of 13th November, from “one thousand” to “two thousand”. So in the passbook entry the words did not square with the figures.

Next morning he went to the bank and presented the passbook and the withdrawal form for K1200. The bank officers checked their own ledgers, and noticed the discrepancy and the alterations; the appellant was promptly arrested, and quickly confessed.

In due course he was committed for trial. In March this year he was indicted for both forging and uttering. He pleaded guilty to the charge of uttering false writing in the passbook with intent to defraud the bank. That plea was accepted in full discharge of the indictment. He was sentenced to 18 months imprisonment with hard labour.

The appellant now seeks leave to appeal against that sentence. He says it was manifestly excessive; he wants to have it reduced.

This Court has had the benefit of a report by the learned trial judge. It reads as follows:

“In this case the accused pleaded guilty to a charge of uttering a false document, namely a Bank of New South Wales Savings Account passbook, in which the balance figure had been altered from a true balance figure of K1,698.28t to a false balance figure of K2,698.28t, an increase of K1,000. The passbook was uttered by presenting it to a bank teller with a withdrawal slip in an amount of K1,200, which amount, of course, the customer was entitled to withdraw because it did not exceed the true balance. I was satisfied from the circumstances, however, that the presentation on this occasion was a test (with no doubt an attempt to secure impunity at that stage if suspicions were aroused) to see if the alteration in the passbook would pass without detection and also to obtain an entry in the passbook, still inflated by K1,000 which was an entry of the bank itself, the end purpose being to defraud, later on, the bank of K1,000. Devices of such a sort are not infrequently met with in this jurisdiction, where forging and uttering in connection with Savings Bank accounts by bank customers and others are all too prevalent, so that most onerous and costly precautions now have to be continuously taken by all banks.

The foregoing conclusions I stated tentatively to experienced Defence Counsel who did not attempt to gainsay them and did not seek to place evidence or argument before the court ‘contra’

Defence Counsel submitted that a heavy fine would suffice, and stated that an amount equivalent to the true balance in the account was available. In my opinion a custodial sentence was called for with a substantial personal and general deterrent element.

It was a premeditated and cunning plan by a mature, reasonably sophisticated offender, though a first offender, and, with an eye to all other relevant matters the sentence was framed accordingly.”

The following personal circumstances of the appellant were before His Honour. The appellant is about 25 years of age. He was educated to Standard 6, in 1966. In 1969 he went to work at Panguna, and transferred in 1975 to the employment he held until sentenced. He is a married man with 4 children, aged 5, 3 and 2 1/2 years, and 2 months respectively.

I turn to the appellant’s contentions.

Mr. Amet submitted first that what the appellant had done amounted only to a “technical” uttering, because in fact there was more than K1200 to the credit of the account. No one would have suffered loss, if the withdrawal had been effected. That argument, however, takes no account of the appellant’s fraudulent plan of which that withdrawal was a first step, as His Honour found.

Mr. Amet next submitted that the learned trial judge had made three errors, which went to sentence.

The first was that His Honour had wrongly taken into account facts referred to in the committal materials constituting criminal conduct for which the appellant had not been tried, and which his plea did not admit. In substance, this submission was that His Honour had treated the appellant as being a forger as well as an utterer. To have done so would have been wrong. The plea of guilty admitted only the essential ingredients of the uttering - see the authorities cited in R. v. Gabai Vagi and ors.SC175.html#_edn27" title="">[xxvii]¹. In my opinion, however, there is nothing in this case to show that the learned trial judge took such an approach; the focus of His Honour’s attention was the fraudulent plan involved in the uttering alone.

The second error alleged was that too much weight had been placed on the aggravating factor of a “premeditated and cunning plan”.

The third error alleged was that a number of mitigating factors were in evidence, of which His Honour made no mention, and on which insufficient weight was placed. I see no error in failing to detail various matters to which His Honour referred in general terms, but I consider that insufficient weight was given to the substantial mitigating effect of co-operation with the Police, and the plea.

It is unnecessary for me to deal with Mr. Amet’s alternative argument that an unidentified error must have occurred which led to the imposition of a sentence out of reasonable proportion to the circumstances of the crime.

It is unnecessary to set out Mr. Maino-Aoae’s useful submissions; it suffices to say that following an analysis of the law and the facts, it was submitted that no identifiable error (of the types mentioned in William Norris v. The StateSC175.html#_edn28" title="">[xxviii]² was disclosed nor, in the light of the prevalence of this type of offence and the aggravating factor of “cunning plan”, was the sentence out of reasonable proportion to the particular crime.

I respectfully endorse His Honour’s view that in light of the prevalence of this offence “a custodial sentence was called for with a substantial personal and general deterrence element”. I note that this type of uttering carries 14 years.

I consider that a sentence of 18 months imprisonment is within the general range for this type of uttering, but in practice punishment at that level is reserved for an offender who displays qualities such as system, skill and determination, or where the actual offence involves factors of aggravation. In the present case there are two aspects which require consideration.

First, it is clear that when arrested the appellant immediately co-operated with the Police; and he pleaded guilty at his trial. These are matters of undisputed fact which go to substantial mitigation of sentence. See R. v. McGrathSC175.html#_edn29" title="">[xxix]³. They do not appear to have been given the weight they merited.

Second, His Honour referred to the appellant’s “premeditated and cunning plan”. In so far as it involved a “try on” or “test” of the type His Honour found it to be, a certain amount of cunning was revealed. But in other respects, what was done is better categorized as naive: banks in this country always check the passbook balance against the balance in their ledgers before paying out any substantial sum, and the alterations and obvious internal discrepancy in the passbook would then spring immediately to the eye. Detection was a virtual certainty; the appellant had little chance of success in his criminal enterprise. Indeed, his plan showed that he lacked elementary knowledge of banking practice. I am unable to find any intelligent planning or premeditation. The alteration was made the night before approaching the bank, and resulted in a discrepancy obvious to the eye between words and figures. I consider that this Court is in as good a position as was the National Court, to draw the proper inferences from the committal materials; see Warren v. CoombesSC175.html#_edn30" title="">[xxx]⁴. There was not the advantage of a trial “atmosphere”, which a trial judge enjoys. I consider, with respect, that on this aspect His Honour inferred a level of culpability which was higher than the materials before him warranted.

In the result, I consider that identifiable error has been established, involving excessive weight on a factor of aggravation, and insufficient weight on a factor of mitigation. The question remains, whether a different sentence should have been imposed. The nature of the error in this case points to the answer: a lesser sentence should have been imposed. I consider that bearing in mind all relevant matters, the proper sentence was one of 12 months imprisonment with hard labour, and the sentence imposed was manifestly excessive.

In my opinion, leave to appeal should be granted; the appeal allowed; the sentence of 18 months imprisonment quashed; and in substitution for that sentence this Court should now impose upon the appellant a sentence of 12 months imprisonment with hard labour.

ANDREW J: I have had the advantage of reading the reasons for judgment of the Deputy Chief Justice. I agree with those reasons and the conclusion.

I would only wish to add that upon an appeal against sentence by the convicted person, the sentence imposed by the trial judge should not be disturbed unless it is shown to be manifestly inadequate or manifestly excessive because, for instance, the trial judge has acted on a wrong principle, or has clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence. See Wanosa and others v. The QueenSC175.html#_edn31" title="">[xxxi]⁵.

In my view there was an overestimation of the decree of cunning involved on the appellant’s part. Whilst he altered the figures in the pass book he failed to alter the words. The offence was bound to have been detected. I agree that in many respects the whole enterprise was naive. I find that this overestimating is of sufficient consequence to amount to an identifiable error.

I further agree that in the light of the prevalence of this offence a custodial sentence was called for with a substantial personal and general deterrence element. With that in mind, and considering all other relevant factors such as the appellant’s prior good background and work record, the fact that he is a married man with four children and that nobody has been defrauded as a result of his action; I agree that the appropriate sentence is one of 12 months’ imprisonment with hard labour.

PRATT J: It has been submitted by appellant’s counsel that the learned trial judge erred in principle on one or more of the factors which he took into account in assessing penalty. Two main grounds were pursued: (a) that His Honour punished for an offence with which the prisoner was not charged and (b) that too much emphasis was laid on the “cunning plan” hatched by the prisoner and the fact that he was “trying on” the bank in the hope that they would themselves perpetuate the error which he had introduced. I am not impressed by either of these submissions.

However counsel also relies on the well established principle set out in House v. The KingSC175.html#_edn32" title="">[xxxii]⁶ especially at p.505, accepted by the pre-Independence Supreme Court in Regina v. Rodger Vincent McGrath (supra)SC175.html#_edn33" title="">[xxxiii]⁷, namely that the sentence is so manifestly excessive that of itself, it demonstrates a procedure on wrong principle. It was accepted that this principle must be taken in conjunction with the corollary pronounced in Skinner v. The KingSC175.html#_edn34" title="">[xxxiv]⁸ approved in Wanosa and others v. The Queen (supra)SC175.html#_edn35" title="">[xxxv]⁹. I refer especially to Isaacs, J. at p.342 of Skinner where he adopts the expression of opinion in R. v. SidlowSC175.html#_edn36" title="">[xxxvi]¹⁰ “... but it was not possible to allow appeals because members of this Court might have inflicted a different sentence more or less severe”. At p.340 Barton A.C.J. in the same case says, that the Appeal Court “will not interfere unless the sentence is manifestly excessive. If the sentence is not merely arguably insufficient or excessive, but obviously so, because, for instance, the Judge has acted on a wrong principle ...”, the court of appeal will review the sentence. In short it is not the task of the court of appeal to substitute its own view for that of the trial judge, even accepting counsel’s submission that because this matter arose out of a guilty plea, the trial judge and ourselves are much in the same boat.

Certainly the sentence is a heavy one; heavier than I myself would have imposed in the circumstances. However I do not consider that it is “manifestly” excessive bearing in mind the age of the prisoner, his comparative sophistication, the method of execution, and the trouble and expense which this type of offence occasions to the business community and hence, in the ultimate, to the citizen. As I am of the view that His Honour did not “act on wrong principle, or has clearly overlooked, or misunderstood, some salient feature of the evidence” (Skinner v. The King (supra)SC175.html#_edn37" title="">[xxxvii]¹¹ at p.340), I therefore decline to interfere with the sentence imposed. I refuse leave and dismiss the appeal.

Solicitor for the Appellant: D.J. McDermott, A/Public Solicitor

Counsel: A.K. Amet

Solicitor for the Respondent: C. Maino-Aoae, Public Prosecutor

Counsel: C. Maino-Aoae.

SC175.html#_ednref27" title="">[xxvii]^{(1973) PNGLR 30 at p. 31}

SC175.html#_ednref28" title="">[xxviii]^{Unreported SC 171, of 7th December 1979, at pp. 8, 9}

SC175.html#_ednref29" title="">[xxix]^{(1971-72) PNGLR 247}

SC175.html#_ednref30" title="">[xxx]^{[1979] HCA 9; (1979) 53 ALJR 293}

SC175.html#_ednref31" title="">[xxxi]^{(1971-72) P. & N.G.L.R. 90}

SC175.html#_ednref32" title="">[xxxii]^{55 C.L.R. 499}

SC175.html#_ednref33" title="">[xxxiii]^{(1971-72) P.& N.G.L.R. 247}

SC175.html#_ednref34" title="">[xxxiv]^{16 C.L.R. 336}

SC175.html#_ednref35" title="">[xxxv]^{(1971-72) P.& N.G.L.R. 90}

SC175.html#_ednref36" title="">[xxxvi] ^{24 T.L.R. 754 at p.755}

SC175.html#_ednref37" title="">[xxxvii]^{16 C.L.R. 336}