Ross v The State [1999] PGSC 10; SC605 (30 April 1999)

Unreported Supreme Court Decisions

SC605

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA NO. 100 OF 1998
BETWEEN: SEO ROSS
APPELLANT
AND: THE STATE
RESPONDENT

Waigani

Kapi DCJ Sevua Kirriwom JJ
28 April 1999
30 April 1999

APPEAL – Sentence – Appeal against imposition of custodial punishment – Sentence not excessive – No identifiable error – Appeal dismissed.

Counsel

Mr J. Pambel, for the Respondent

Appellant in Person

30 April 1999

KAPI DCJ SEVUA KIRRIWOM JJ: The appellant Seo Ross was convicted and sentenced by the National Court on two counts of stealing under s.372(5) of the Criminal Code. Under this section the maximum penalty is seven years imprisonment. On 18 November 1998, the appellant pleaded guilty to both counts and after hearing submissions in mitigation the trial judge sentenced him to two years imprisonment on each count and ordered the sentences to be served cumulatively. Allowance was made for time spent in custody.

The appeal is against sentence only. The appellant is contending that the trial Judge should have imposed a non-custodial sentence on him because he pleaded guilty, he is a first offender, all monies stolen have been recovered, he has a large family which is dependent on him and that he is so sorry for what he had done. These are factors in mitigation that were in fact placed before the trial Judge who clearly took them into consideration before passing sentence on the appellant. (See AB 36)

Before this Court can interfere with the sentences imposed by the National Court, the appellant must show that the trial Judge had made an error in his approach on sentencing. It is not enough for the appellant to plead that he ought to have been given a non-custodial sentence instead of imprisonment. He has to demonstrate where the trial Judge had gone wrong by imposing a custodial sentence. His Honour found that the aggravating factors far out-weighed those matters pleaded on his behalf and he resolved that custodial sentences were appropriate. We cannot interfere with the trial Judge’s exercise of his sentencing discretion as we are not convinced that the sentences are manifestly excessive, nor did the appellant point to any error on the face of the sentence itself. Both sentences were properly made cumulative as the incidents were distinct and separate and the combined effect of the two sentences does not offend against the totality principle.

We agree with the trial Judge that this is a serious offence because it involves breach of trust. Business houses must be able to trust security firms that provide escort services to them at considerable expense. This is not done free. It is not correct for the appellant to victimise the employer’s client when his grievance was with his employer. The trial Judge noted the prevalence of this kind of offence. This is not a simple stealing offence or one-off incident. It was becoming to be a scheme until discovered.

We find no errors on the part of the trial Judge. Consequently we dismiss the appeal, and reaffirm the sentence.

Lawyer for the respondent: Public Prosecutor

Appellant appeared in person