Miriva v The State [1981] PGSC 2; SC197 (7 May 1981)

Unreported Supreme Court Decisions

SC197

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.A. NO. 22 OF 1980
BETWEEN: URA FRANCIS MIRIVA
APPLICANT
AND: THE STATE
RESPONDENT

Waigani

Kearney DCJ Andrew Miles JJ
24 February 1981
26 March 1981
7 May 1981

CRIMINAL LAW - Code s. 481 (a) offence - - sentence of 5 months IHL - application for leave to appeal against sentence.

Held

There was no identifiable error and the sentence was not manifestly excessive.

Per Kearney DCJ: Where conclusions of fact turn upon witness credibility, an applicant must show that the rejection of testimony favourable to him, and the drawing of inferences adverse to him, flowed from some fundamental misconception of the evidence by the trial Judge, or from his failure to take properly into account the evidence as a whole.

Per Miles J:

(1) Findings of fact upon conviction cannot be canvassed upon sentence, or on a sentence appeal.

(2) Concept of the “tariff”, discussed.

Cases Referred To

Reg. v. Bertrand (1867) L.R. 1 P.C. 520

The State v. Leo Aitsi Bera (Unreported) National Court Judgment N257(L) dated 22nd September 1980

Brian John Lewis v. The Independent State of Papua New Guinea (Unreported) Supreme Court Judgment SC178 dated 29th August 1980

Wahgi Savings and Loan Society Limited v. Bank of South Pacific Limited (Unreported) Supreme Court Judgment SC185 dated 25th November 1980

Director of Public Prosecutions v. Ottewell (1970) A.C. 642 at 647

Order of the Court

Application for leave to appeal, refused.

KEARNEY DCJ: Mr. Miriva stood his trial in October 1980 on a charge under Code s. 481, of signing a document without lawful authority and with intent to defraud. The document was a requisition on Government Stores. He was convicted, and sentenced to five months imprisonment with hard labour. He now applies for leave to appeal against the severity of that sentence.

The circumstances of the offence were as follows.

In August 1979 Mr. Miriva was, as District Manager, the officer in charge of the 4-Mile Vehicle Depot of the plant and Transport Branch of the Department of Works and Supply. He had 200 or so officers under his control. He was responsible for the efficient running and allocation of Government vehicles in Port Moresby.

He wanted a refrigerator for his Housing Commission home. He was not entitled to a Government issue of a refrigerator. Nevertheless, he typed out and signed as Financial Delegate, a requisition on Government Stores for a refrigerator.

The requisition did not state that the refrigerator was for his own use; rather, that it was required for the Plant and Transport Branch, at Boroko. Mr. Miriva had authority to requisition Government property for the use of his Branch; he had no authority to requisition property for use in his own home.

He took the requisition to Mr. Ila, a subordinate officer who worked in his Accounts Section. He told Mr. Ila, openly, that the refrigerator was for his own personal use. He asked Mr. Ila to charge the cost, (K206.44), against Trust Account No. 19/34; and he told Mr. Ila that he would pay for the refrigerator later, by instalments. In other words, he was buying the refrigerator, not simply having it allocated to his use. Mr. Ila duly committed (charged) K206.44 against the Account.

It should be said at this stage that this was quite wrong; as every public officer must know, Government property cannot be purchased from Government Stores for private ownership, under any arrangements.

Mr. Miriva also spoke to another subordinate officer Mr. Penrose about the refrigerator. According to Mr. Penrose he was told by Mr. Miriva that he (Mr. Miriva) had the approval of the Branch’s Accounts Section to use a Branch account number to purchase a refrigerator and pay it off by fortnightly instalments. Mr. Miriva told the court that he knew that Mr. Ila could not give such an authority. The account number, 19/34, was one which fell within Mr. Penrose’s sphere of immediate control. Mr. Penrose had no objection to the transaction, on the basis that it had been approved by the Accounts people. Mr. Miriva gave a slightly different account, saying that he had asked Mr. Penrose if he could use the account to buy the refrigerator; and that Mr. Penrose had agreed, but had told him to be sure he repaid the amount to the account. The learned trial judge accepted Mr. Penrose’s account of that conversation; it was open to him to do so.

In the same month, August 1979, Mr. Miriva told another officer, Mr. Peruka, that he wanted any old working refrigerator from the Branch (which needed to be replaced) to replace the one in his house, which was not working. This of course did not occur; the new refrigerator went from Government Stores to Mr. Miriva’s home.

Another of his subordinate officers, Mr. Lahui, took the requisition to Government Stores, collected a new refrigerator and brought it back to the office. It was then taken to Mr. Miriva’s house at Tokarara, on his instructions, as he later told the Police.

Mr. Labi testified that Mr. Miriva started to pay some money to the Government after it had come out that he had taken the refrigerator. A Debit Note was made out - quite wrongly, but in good faith - to Mr. Miriva by an accounts clerk in his Branch in November 1979, for the value of the refrigerator, K206.44. According to Mr. Warpin of the Accounts Section, Mr. Miriva paid a first instalment of K50 on 7 November 1979.

It appears he eventually paid about K80; and this has since been refunded to him.

Mr. Miriva was interviewed by the Police on 7 May 1980. He told the Police that in doing what he had done, he was merely following what had been done before, viz:

“Previous Financial delegate had done the same way, when he requires something from the Government Store, he raised the requisition himself.”

He explained to the Police that:

“The reason for getting the freeze is for personal use, as I have applied for the Government house and never got it ...”

It is to be noted that he referred to “use”; the Debit Note describes the transaction as a “purchase”; and the receipt for the K50 he paid describes it as “payment for external hire”. He told the Police that he realized he was not entitled to the refrigerator and that he had misused his Department’s funds; but explained that he had promised to pay the money back.

The personal circumstances of the applicant are as follows.

Mr. Miriva is about 42 years of age. He is well educated, holding the Public Service Higher Certificate. He appeared to have entered Government service some 27 years ago, in 1954, and has remained in that employment ever since. During that time he rose from driver to the position he occupied at the time of the offence, officer in charge of a large pool of vehicles.

He is a married man, with 7 children, ranging in age from about 3 years to 16 years.

He has had no prior convictions.

On sentence the learned trial Judge found that when Mr. Miriva signed the requisition, he did not intend to pay for the refrigerator. His Honour considered that at the time Mr. Miriva “felt a sense of grievance, possibly not without cause”. His Honour took into account the “long service - unblemished record etc”.

The grounds of the application for leave are that the sentence of 5 months imprisonment is manifestly excessive in that:

1. insufficient weight was given to:

(a) Mr. Miriva’s previous good work record and character;

(b) the punitive effect of his losing his job;

(c) his family position; and

(d) the element of retribution;

and:

2. the learned trial Judge erred in that he incorrectly inferred from the evidence that Mr. Miriva:

(i) did not intend to pay for the refrigerator;

(ii) told John Penrose that he had permission from Accounts Section to do what he proposed to do and did so, and that there was also evidence from which the court might reasonably be satisfied that this was not true.

As to grounds 1. (a) - (d) inclusive, it appears from the trial Judge’s Report (made at this court’s request because of the late addition of certain grounds of appeal) that his Honour bore all of these matters in mind when sentencing. His Honour said in the Report that he gave these matters “appropriate weight”. However, I do not think that these statements can properly be taken into account by this court; an appeal against sentence must be decided upon what was actually said by a trial Judge, at the time of sentencing. A sentencing Judge is not required to refer to every possible element of punishment, indicating the weight he gives to it; but an appeal court is limited to what was said at the time of sentence, and any omission at that time to mention some factor which the appeal court considers to be important to the sentence, may lead it to conclude that the factor was not given sufficient weight.

Whether the weight given to grounds 1.(a) - (d) was insufficient, is something which may really only appear if, in all the circumstances, the sentence is considered by this court to be manifestly excessive; however, in that event, it is irrelevant to seek the cause, the “manifestly excessive” quality being sufficient for the application to succeed. Mr. Amet’s submissions are that on the basis of the material relied on under grounds 1. (a) - (d), no custodial sentence at all was warranted; and, if it was, the sentence of 5 months imprisonment (effectively 5 months and 11 days) was manifestly excessive. I will deal with that aspect after considering the grounds of specific factual error which were advanced.

Ground 2 (i) relates to a finding at the time of sentencing which his Honour described in his Report as “the basis” for the sentence imposed. For the reasons mentioned earlier, I consider that that statement cannot be taken into account by this court. It is correct that there was evidence from which his Honour could have concluded that Mr. Miriva did genuinely intend from the beginning to pay for the refrigerator by instalments. He told Messrs. Penrose and Ila, before securing the refrigerator, that he intended to pay for it; and in November 1979 and April 1980 he paid 2 “instalments”, totaling K80. But his Honour did not accept that evidence at face value, and concluded that:

“his talk of doing so (i.e. paying) was part of a plan to preserve a fall-back position if his taking of the refrigerator was queried.”

And further, that he had paid the 2 instalments because he “got wind that everything was not going to be all right”.

Mr. Amet submits that the evidence did not warrant these 2 inferences. I am unable to accept that submission.

There was the evidence of the applicant himself:

“I let Penrose know because we were working together. I went to him so that I could say if asked about it “that I told Penrose about it”.”

And:

“They would not give me a house so I thought I would take a refrigerator and pay for it.”

As Mr. Roddenby pointed out, the last few words “... and pay for it”, are incongruous in the context. The applicant never put a purchase proposal to any officer in a position senior to him. The applicant gave a quite different account to Mr. Peruka, who was not cross-examined; this goes to the applicant’s credibility. The evidence is unclear as to when exactly his superiors discovered what he had done, but it cannot be said that there was no evidence to warrant the inference drawn by the trial Judge that he only paid when he “got wind”.

I consider that there was material to warrant his Honour drawing the inferences he drew. In considerable part, his Honour’s conclusion turned upon the credibility of the applicant, and of the other witnesses. His Honour was generally impressed with the applicant and considered that “he found it hard to tell such untruths as he told”. In a case where a trial Judge’s conclusions of fact turn upon witness credibility, I think that an applicant must show that the rejection of testimony favourable to him, and the drawing of inferences adverse to him, flowed from some fundamental misconception of the evidence by the trial Judge, or from his failure to take properly into account the evidence as a whole. I do not consider that the applicant has shown that this occurred here.

It is not to the point, in such a case, to consider whether the appellate court would itself draw those inferences. An appellate court is not in the same position of advantage as is a trial Judge; it is restricted to his Honour’s note of the evidence; as to this, as the Privy Council said in Reg. v. BertrandSC197.html#_edn73" title="">[lxxiii]¹:

“The most careful note must often fail to convey the evidence fully in some of its most important elements - those for which the open oral examination of the witness in the presence of the Prisoner, Judge, and jury, is so justly prized. It cannot give the look or manner of the witness: his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration; it cannot give the manner of the Prisoner, when that has been important, upon the statement of anything of particular moment; nor could the Judge properly take on him to supply any of these defects; ... it is, in short, or it may be, the dead body of the evidence, without its spirit; which is supplied, when given openly and orally, by the ear and eye of those who receive it.”

Accordingly, I consider there is no substance in ground 2(i).

As to 2. (ii), his Honour found as a fact at the time of conviction, and confirmed in his Report, that he accepted the evidence of Mr. Penrose on this point. Further, in his Report, his Honour states that “this facet of the matter, namely what the accused had represented to Penrose, was not present to my mind as something in itself of significance related to sentence”. For the reasons indicated earlier, I consider that the latter statement can be taken into account by this court. It was open to his Honour to accept the evidence of Mr. Penrose and also to conclude that what the applicant said was not true. Questions of witness credibility are involved, and the approach I mentioned earlier to such questions should apply; there is accordingly no substance in this ground of appeal.

There being no identifiable error that I can detect, I return to Mr. Amet’s submissions on whether nevertheless in all the circumstances a custodial sentence was warranted, and if it was, whether the sentence imposed is manifestly excessive.

The learned trial Judge was clearly very impressed with the applicant’s record and personal qualities, but concluded when sentencing that:

“... he was a high officer who committed a breach of trust. There must be a custodial sentence to deter others.”

Mr. Roddenby submitted that the guiding principle for sentencing in offences of this type is the “tariff” approach and that an aggravating feature in this case was the fact that the applicant occupied a position of responsibility within his Department. His Honour took that into account - see the reference to “high officer”. It is true that the National Court usually adopts a “tariff” approach to offences of this type because a major aim of punishment in such offences is deterrence, particularly the deterring of potential offenders in positions of trust from breaking the law. These are not usually “spur of the moment” offences, committed in hot blood or while under the influence but planned and premeditated, as here; and deterrent sentences may very well reduce the incidence of such cases. Abuse of a position in the public service must be deterred.

In my opinion, it cannot be said that a custodial sentence was not warranted in the circumstances of this case, bearing in mind the personal circumstances of the applicant; in such offences, it frequently appears, as here, that the offender has an excellent background.

Nor in my opinion is the sentence of 5 months imprisonment manifestly excessive; in fact, it clearly reflects the strong mitigating factors which his Honour considered were present. The offence carries a maximum punishment of 7 years imprisonment; the usual run of sentences for this sort of offence is in excess of 5 months. Justice is another aim of punishment, in the sense that similar criminal conduct should receive similar punishment.

A short sentence in a case like this also serves the purposes of personal deterrence and rehabilitation; with a man like the applicant, of good character and excellent background, it is the humiliation of being imprisoned, not the length of the imprisonment, which is likely to keep him from offending again.

I consider that this sentence also accords with the general principle that any sentence of immediate imprisonment should be as short as possible, consistent only with protecting public interests, and punishing and deterring the criminal.

As I do not consider that a custodial sentence was wrong in principle, or that the sentence imposed was manifestly excessive, I would refuse the application for leave to appeal, and direct that the applicant now be taken into custody to serve the remainder of his term under the Warrant of Commitment of 14th October 1980.

ANDREW J: In this matter I have had the advantage of reading and considering the reasons for judgment prepared by the Deputy Chief Justice and by Miles, J. I agree entirely with their conclusion and the reasons they express. I find no reason to add anything to what they have written.

In my opinion, the appeal should be dismissed.

MILES J: The applicant was convicted of a charge on indictment laid in the following terms:

“That he on the 28th day of August 1979 without lawful authority or excuse signed a document purporting to be a requisition for stores Number 252747 addressed to the Department of Works and Supply, Plant and Transport Branch, Boroko with intent thereby to defraud.”

To the indictment the applicant pleaded not guilty and the trial proceeded as on a charge under s.481 of the Criminal Code. This section provides as follows:

“481. MAKING DOCUMENTS WITHOUT AUTHORITY

Any person who, with intent to defraud:

(a) without lawful authority or excuse, makes, signs, or executes, for or in the name or on account of another person, whether by procuration or otherwise, any document or writing; or

(b) knowingly utters any document or writing so made, signed or executed, by another person,

is guilty of a crime, and is liable to imprisonment with hard labour for seven years.”

It is apparent that the charge was laid under paragraph (a) of s.481. It is also apparent, to me at any rate, that the indictment fails to allege one essential ingredient of the offence, namely that the person signing the document did so “for or in the name or on account of another person”. However this point was not taken before the trial judge and the appeal against conviction has been withdrawn. For the purpose of the application for leave to appeal, I assume that it is conceded on behalf of the applicant that he signed the requisition not on his own behalf but for or in the name or on account of some other person, presumably the State. See judgment of Kearney D.C.J. in The State v. Leo AitsiBeraSC197.html#_edn74" title="">[lxxiv]².

The case against the applicant was simply that he used such authority as he had within the Plant and Transport Branch to requisition for delivery to him at the Branch a refrigerator which was intended at all times for his own illicit private purposes. The trial judge found this proved to the requisite standard. In particular he found that the signing of the requisition was without lawful authority because it was outside the scope of the applicant’s authority, that is to say I take it that the signing coupled with the intent to use the refrigerator for unauthorised purposes meant that the signing itself was unauthorised. On the question of intent to defraud, His Honour said when giving his reasons for conviction:

“His signing of the requisition was without lawful authority because it was outside the scope of his authority.

I also find he signed the document with intent to defraud - one purpose being to make the person to whom the requisition was delivered, think it was for the Department.

The intention of the accused was to deceive the senior persons in the Department by disguising his activities. One can deceive by non-disclosure when there is a duty to disclose.

I find he told Penrose he had received permission when he had not.”

Upon these findings of fact the applicant was convicted. In my opinion he cannot canvass those findings of fact upon an appeal against sentence anymore than he could have canvassed them when addressing on sentence.

When it came to sentence it is clear from the notes of His Honour’s judgment at the time and from his report subsequently, that he found as a fact, for the purpose of sentencing, that the applicant did not at the relevant time intend to pay for the refrigerator if he could with safety avoid doing so and that his talk of paying was part of a plan to preserve a fall-back position if his taking of the refrigerator was queried. As this finding did not form part of the findings upon which the conviction was based, it is in my view open to the applicant to challenge it in any appeal against sentence. In order to succeed in the challenge he has to persuade this Court to come to a finding of fact different from that of the judge at first instance.

The circumstances in which a judge’s findings of fact will be disturbed by an appellate court are becoming reasonably well known and have been recently analysed and reiterated in this Court in Brian John Lewis v. The Independent State of Papua New GuineaSC197.html#_edn75" title="">[lxxv]³ and in Wahgi Savings and Loan Society Limited v. Bank of South Pacific LimitedSC197.html#_edn76" title="">[lxxvi]⁴. The appellate court will rarely interfere with findings as to primary or evidentiary facts particularly where such findings depend upon the observation and demeanour of witnesses. Where inferences are to be drawn from such primary facts, the appellate court is usually in as good a position as the trial judge but the appellate court may not substitute its own inferences without giving due weight to the conclusions of the trial judge. The appellate court may more easily substitute its own inferences where the trial judge has not given reasons as to how he arrived at the inferences he himself drew.

The applicant submits that it was not open to the trial judge to infer that the applicant told the man John Penrose that he had permission from Accounts Section to do what he proposed. As I have already indicated, this was a finding upon which the issue of guilt was decided and cannot be canvassed on the question of sentence. In any event the finding seems open to me on the rest of the evidence.

The applicant further submits that it was not open to the trial judge to infer from the evidence that the applicant “did not intend to pay for the refrigerator”. What the trial judge in fact found was that the applicant had a qualified intent to pay, that he intended to pay if and only if it appeared to him that his acquisition of the refrigerator was queried. His Honour found that such payments as were made were made when the applicant “got wind that everything was not going to be all right”.

On the contrary, so the applicant submits, the inference should be drawn that the applicant intended at all times to pay for the refrigerator. I have read the decision in draft of Kearney D.C.J. and agree for the reasons therein stated that this Court should not interfere with the findings of the trial judge on this matter of the applicant’s intention to pay.

As the applicant has not been able to show that this Court should draw inferences of fact contrary to those drawn by the trial judge, it has not been shown that the sentence was excessive because it was based on some erroneous conclusion of fact. It remains to be seen whether the sentence is manifestly excessive, that for whatever reason, it was out of all proportion to the offence. I think it was conceded by counsel for the applicant that the term of five months imprisonment was well within the range ordinarily awarded for this type of offence, the maximum being seven years imprisonment. I use the words “this type of offence” advisedly because I myself do not know of any previous conviction under s.481 either in Papua New Guinea or under similar provisions in the Australian Code States. The elements of the charge are like those of forgery but the facts of the case are more analogous to a charge of fraudulent conversion or stealing under s.384(6) for which the maximum penalty when committed by a public servant is also seven years.

It was put on behalf of both parties that this was something of a test case. Mr Roddenby for the State submitted that the Court would have to choose between a “tariff” approach and an “individualist” approach, these being the terms used by D. A. Thomas in his book “Principles of Sentencing” (London, 1970) which has had a good deal of influence here as well as overseas and partly at least because of the absence of texts of similar quality on the subject. However those terms are the terms of the author rather than of the courts and as far as I am able to glean, the courts do not consciously choose and do not have to choose between the two approaches. Whether in any judgment a court has tended to stress one approach rather than the other is a matter upon which writers and others are perfectly free to comment should they find it of interest or benefit to do so. An example of the rare use of the word “tariff” in a reported judgment is contained in the speech of Lord Reid in Director of Public Prosecutions v. OttewellSC197.html#_edn77" title="">[lxxvii]⁵:

“It was rather tentatively suggested by the learned Attorney-General that there is a ‘tariff’ for each kind of offence which is varied upwards or downwards according to the circumstances of the offence and the character of the accused. But offences of a particular kind vary so vastly in gravity that there cannot and should not be any ‘normal’ sentence and there is no workable standard by which to judge whether any particular sentence is extended beyond what is ‘normal’.”

These words with which I respectfully agree are not inappropriate to the circumstances of Papua New Guinea as I see them. We were not told of any local circumstances which justify the application of a simplified tariff system of sentencing. That is not to say however that a sentencing court should not take into account the customary range and pattern of sentences that are currently being imposed. Justice to be even handed requires some degree of consistency in sentencing practices.

When public servants are convicted of dishonesty the courts of this country have consistently held that a custodial sentence is appropriate as a deterrent to others. If this is regarded as a “tariff” so be it but I think that the essential point is the principle that sentences are most likely to have deterrent effect when they are widely known among potential offenders who constitute a particular group in the community. Public servants constitute such a group. The fact that the offence is committed by an officer of many years standing with a good record of service does not usually mean that particular leniency will be extended, because it is often the very position of trust attained which gives the officer the opportunity and means to commit the offence. The greater the trust the greater the breach.

So it was with the present applicant. He used his authority to enable him to obtain the refrigerator, something his subordinates were unable to do. He placed them in the invidious position of having to choose whether to obey his instructions when they were likely to know that what he was doing was wrong.

It has been put on behalf of the applicant that to impose upon him a custodial sentence in addition to the punishment be has sustained by loss of his position and his superannuation benefits, after so many years service, is a crushing burden and an unjust one. It is certainly true that he has suffered greatly, regardless of what this Court might do. The trial judge, who has had great experience, was very well aware of this and stressed the previous good character of the applicant. The submissions made before this Court on behalf of the applicant went so far as to suggest that if this was not a case for a good behaviour bond, then no case was.

Decisions in appeals on sentence should not in my view be regarded in this way. A judge in the National Court has to exercise his discretion in sentencing always within the parameters of legal principle laid down by the Supreme Court but always according to the merits of the particular case as he sees them. It is trite but true to repeat that the merits vary according to the circumstances in each individual case.

The offence under consideration in this appeal was not committed upon impulse or a momentary lapse after a lifetime of honesty. It was conceived as a plan over a period of time with, as His Honour found and was entitled to find, the applicant reserving to himself a “fallback” position if his actions came under suspicion. The fact that the applicant felt some sort of justification for what he did, that he had had a raw deal from his Department and that he had known others to have got away with similar actions, afford some explanation for the offence and whilst possibly attracting some personal sympathy for the applicant (as was shown by the trial judge), are of marginal relevance to the severity of sentence. It may be that in some cases of dishonesty by a public servant a non-custodial sentence may be appropriate but in the circumstances of the present case it has not been shown that a custodial sentence is so cut of proportion to the offence as to be manifestly excessive. There was no suggestion in argument that if a custodial sentence was imposed then the term of five months imprisonment was too long. In my view it has not been shown that it was too long. I agree that the application should be dismissed.

Solicitor for the Applicant: A Amet Public Solicitor

Counsel: A. Amet C. Bruce

Solicitor for the Respondent: L. Gavara-Nanu Public Prosecutor

Counsel: K. Roddenby

SC197.html#_ednref73" title="">[lxxiii]^{(1867) L.R. 1 P.C. 520 at p. 535}

SC197.html#_ednref74" title="">[lxxiv]^{(Unreported) National Court Judgment N257(L) dated 22nd September 1980}

SC197.html#_ednref75" title="">[lxxv]^{(Unreported) Supreme Court Judgment SC178 dated 29th August 1980}

SC197.html#_ednref76" title="">[lxxvi]^{(Unreported) Supreme Court Judgment SC185 dated 25th November 1980}

SC197.html#_ednref77" title="">[lxxvii] ^{(1970) A.C. 642 at 647}