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Robert v State [2022] PGSC 146; SC2370 (29 April 2022)
SC2370
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA 28 OF 2020
GIDEON ROBERT
Appellant
V
THE STATE
Respondent
Lae: Kangwia J, Toliken J, Gora J
2022: 26th & 29th April
CRIMINAL LAW – appeal – appeal against sentence of 6 years – stealing – circumstance of aggravation –
amount more than K1000.00 – whether sentence manifestly excessive – need to demonstrate identifiable error in sentencing
judge’s exercise of discretion – no manifest or obvious error shown – sentence out of reasonable proportion to
circumstances of offending – unidentifiable error inferred from – Appeal upheld – Sentence quashed and substituted.
APPEAL – law reform – recommendation for – recent amendment to Criminal Code for stealing – increased penalties
for stealing monies totalling K1,000,000.00 and K10,000,000.00 – no corresponding or consequential amendments to existing penalty
provisions – absurdity created – need for legislative reform.
Cases Cited:
The following cases are cited in the judgment:
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92
Lawrence Simbe v The State [1994] PNGLR 94
William Norris v The State [1979] PNGLR 605
Belawa v The State [1988-89] PNGLR 496
Michael Mikoro v The State (2015) SC1424
Thress Kumbamong v The State (2008) SC1017
The State v Salle (No.2) (2015) N6148
The State v Paul [2015] N6132
The State v Gaumior (No.2) (2015) N6141
The State v Simbiri (2012) N5161
Jessie Kaia v The State (2022) SC2369
Counsel:
J Guri and J Unua, for the Appellant
R Luman, for the Respondent
JUDGMENT
29th April, 2022
- BY THE COURT: On 16 August 2019, the appellant pleaded guilty before Pitpit J, to one count of stealing a total of K6000.00 from one Liksen Mandali contrary to Section
372(1)(10) of the Criminal Code (the Code). He was sentenced on 22 September 2020 to 6 years imprisonment.
- The appellant appealed against his sentence only for which leave is required pursuant to Section 22(d) of the Supreme Court Act. Such leave was granted by Cannings J on 17 March 2022.
Background
- The background facts are as follows; On 13 January 2016, the complainant, Liksen Mandali (Mandali), attended the National Housing
Corporation (NHC) in Lae to enquire about the prospect of buying a portion of land described as Section 322, Allotment 04, Four Mile,
Lae City. The appellant was at that relevant time employed by NHC as an Assets Clerk. The appellant advised Mandali that the land
was on sale for K6000.00 and received from Mandali K1000.00 as first instalment without issuing a receipt. Mandali returned the next
day with the balance of K5000,00. He asked for a receipt and was advised by the appellant to return the next day to collect the receipt.
He returned the next day, but the appellant was not in the office. Thereafter Mandali attempted to take possession of the land, but
could not as it had been sold to someone else, and of course he did not get a refund.
Grounds
- The appellant advanced three grounds of appeal:
- The trial judge erred in law by imposing an excessive sentence when the appellant had already repaid the stolen money in full and
served 3 years imprisonment.
- The trial judge erred in law by placing too little or no weight to the mitigating factor that appellant pleaded guilty, saving court’s
time and resources to run trial.
- The sentencing judge erred by refusing to take into account the fraudulent action by the appellant of a sentence that was in the circumstances
too excessive.
- We note that the appellant partly abandoned his assertion in Ground 1 that he had fully repaid K6000.00 conceding instead that he
repaid K500.00 only whilst still contending that the sentence was excessive.
Relief
- The applicant sought the following orders:
- The appeal be allowed.
ii. The sentence of 6 years imprisonment be quashed and substituted with a term of 4 years imprisonment.
iii. The pre-trial custody and post-sentence periods be deducted from the new term of sentence imposed, and
iv. Other orders the Honourable Court deems fit.
The Law
- A sentencing judge has wide discretion. In an appeal against sentence, the appellant must necessarily demonstrate that the judge made
an identifiable error, whether in law or fact, which has the effect of vitiating the sentence. But even where no error is identifiable,
an unidentifiable error can be inferred if the sentence is out of all reasonable proportion to the crime. (William Norris v The State [1979] PNGLR 605; Michael Mikoro v The State (2015) SC 1424).
- To fully appreciate what is required of an appellant to convince this Court to disturb a sentence, it is appropriate to quote fully
from what Kearney J relevantly stated in William Norris (supra):
“... the question in practice on a sentence appeal is usually this - has the appellant shown that an error occurred which has
the effect of vitiating the trial judge’s discretion on sentencing? Such an error may be identifiable: thus, the trial judge
may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not
have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough
weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts
and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably)
excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of
the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise
of the sentencing discretion.
Where an identifiable error is relied on as a ground of appeal it should be set out in the notice of appeal, with particulars. An
appellant relying upon identifiable error will usually have to show as well that the sentence was manifestly excessive, because otherwise
he is unlikely to persuade this Court (as he must, to comply with s. 22 (4) of the Supreme Court Act 1975), that a different sentence should have been passed; this is because there is no precise sentencing tariff.
To state in a notice of appeal as the only ground of appeal, that a sentence is manifestly excessive, when what in truth is relied
on is an identifiable error, conceals the question which this Court will be asked to determine.”
- In our judgment in Jessie Kaia v The State (2022) SC2369 which we delivered this morning, we expounded on what the Court said there in William Norris (supra) where a sentence is alleged to be manifestly excessive. We said:
Where it is contended that a sentence is manifestly excessive, the real question for the Court to determine is whether an identifiable
error has been shown. (William Norris) (supra) per Kearney DCJ)
In other words, a finding of a manifestly excessive sentence naturally results from an identifiable error, whether in law or fact,
by the sentencing Judge being demonstrated. It cannot stand alone as a ground of appeal against sentence. It is not an end to itself,
as it were.
- At this juncture we pause to mention that the appellant was charged for stealing with a circumstance of aggravation under Section
372 (10) as opposed to stealing simpliciter under Section 372 (1). As such the penalties defer. Section 372(1) and (10) relevantly stipulate:
STEALING.
(1) Any person who steals anything capable of being stolen is guilty of a crime.
Penalty: Subject to this section, imprisonment for a term not exceeding three years.
...
(10) If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding
seven years.
- So, did the primary judge commit identifiable errors that had the effect of vitiating his sentencing discretion as contended by the
appellant here? And was the sentence of 6 years manifestly excessive in the circumstances?
- We now move on to consider the grounds of appeal.
Ground (a)
- The appellant contends that the primary Judge erred by not considering that he had paid K500.00 already towards restitution.
- Mr. Guri submitted that the complainant confirmed receiving K500.00 from the appellant. This was placed before His Honour, both in
allocutus and in the appellant’s pre-sentence report, where the appellant also expressed his willingness to make full restitution by
way of instalments, notwithstanding that this offer was rejected by the complainant who wanted a one-off payment in full. Defence
counsel, in fact had submitted at trial that the appellant was willing to make 8 fortnightly instalments of K500.00 and taken together
with his bail cash surety of K1500.00 and the K500.00 he had already paid, the amount would be fully repaid. Had His Honour properly
took this into account, Mr. Guri submitted, he would have imposed a more appropriate sentence.
- Mr. Luman submitted for the respondent that this ground has no merit and should be dismissed. Counsel submitted that the appellant
failed himself by not proposing a repayment schedule in his pre-sentence report. But even if he did, the complainant wanted a one-off
full payment.
- So, has the appellant shown that the primary Judge erred in his treatment of the appellant’s request for restitution by instalments?
- This ground has no merit. The supporting argument is flawed. It is premised on a lack of understanding of the sentencing process.
Simply put, the question of restitution, suspension, and deduction for time in custody, among others, are incidental to the task
of determining what an appropriate head sentence ought to be in a particular case. These are considered at the very end of the sentencing
process. And that was what the primary Judge did once he fixed the appellant’s head sentence by allowing for a partial suspension
upon full restitution being made.
- Granted, expressions of remorse, restitution or offers thereof and compensation, may be considered as mitigating the offending and
may result in a reduced sentence. Whether or not they in fact do is, however, a matter of discretion for the sentencing judge, who
must weigh these against any aggravating factors as well as the general punitive/retributive, deterrent, denunciatory and rehabilitative
objects of sentencing. It may be that the aggravating factors significantly outweigh the mitigating and even extenuating factors
thus warranting a higher sentence. But of course, the converse is also true. A lower sentence may be justified because of significant
mitigating and extenuating factors which outweigh the aggravating factors.
- And so, if the appellant contends that the primary judge erred in exercising his sentencing discretion, it is incumbent upon him to
show and convince this Court what the error was and how it vitiated or impaired the primary judge’s sentencing discretion.
- In our view, the appellant has not shown how the primary Judge erred, either in law or in fact, in exercising his sentencing discretion
to support this ground. This ground must fail and is dismissed.
Ground (b)
- Under this ground the appellant contends that the primary Judge erred in law by placing too little or no weight to the mitigating
factor that appellant pleaded guilty, saving court’s time and resources had it ran a trial.
- Mr. Guri submitted that His Honour placed too much weight on the position of trust and authority reposed in public servants and the
effect of the breach of trust thereof. This, it is said affected His Honour’s discretion in imposing a sentence of 6 years
which was excessive in the circumstances. It was a “quantum leap” and out of proportion from the prevailing trend where
sentences were normally less than 6 years.
- Counsel cited several cases to demonstrate his point.
- These are:
The State v Salle (No.2) (2015) N6148: the offender was employed by the Nationwide Microbank in Wewak as its Branch Manager. Over a period of time, he systematically stole
a total of K61, 902.30 from his employer. He had, however, repaid K9000.00 before his sentence. He was sentenced to 4 years imprisonment.
He was ordered to serve 12 months while the balance was suspended on condition that he repays the balance owing to the bank.
The State v Paul (2015) N6132: the prisoner pleaded guilty to stealing goods worth K9, 969.70. He was sentenced to 3 years. One year was suspended for prisoner
to repay the amount stolen.
The State v Gaumior (No.2) (2015) N6141: the offender was convicted after trial for stealing K31,680.00 from his employer, Sepik Savings & Loans Society. He was sentenced
to 4 years imprisonment, of which 2 years were to be suspended upon full restitution.
The State v Simbiri (2012) N5161: The offender, the Headmaster of a Primary School pleaded guilty for stealing K10,400.00 from the school’s account together
with unindicted co-conspirators who were board members of the school. He was sentenced to 2 years imprisonment one year of which
was suspended on condition that he repays the amount which he said he personally benefitted from.
- Mr. Guri submitted that had the primary Judge properly weighed and considered the circumstances of the case and took into account
the prevailing sentencing trend, he would not have arrived at a sentence of 6 years, which is excessive in the circumstances. Counsel
submitted that a more appropriate sentence would have been below 6 years – that is 4 years.
- Mr. Luman submitted that this ground has no merit and must be dismissed. Counsel argued that the primary Judge in fact accepted the
appellant’s guilty plea, that he was a first-time offender and was remorseful.
- We agree with Mr. Luman. We reject the appellant’s argument that the primary Judge placed little or no weight on his guilty
plea. A guilty plea is only one factor that a sentencing judge considers in the onerous task of sentencing. A guilty plea does not
automatically result in a significantly low sentence. It may not even carry any weight at all if the offending is adjudged to be
of the worst kind which would call for the imposition of the maximum penalty. And as we have alluded to above, a guilty plea, and
any other mitigating or extenuating factors for that matter, must be weighed against aggravating factors and the well settled objectives
of sentencing.
- We also reject the appellants contention that His Honour unduly placed too much weight and emphasis on breach of trust, to the extent
that it affected or vitiated his sentencing discretion.
- Again, we agree with Mr. Luman that His Honour was justified in emphasising the high degree of trust that was reposed in the appellant
as a public servant. His Honour referred to and applied the principles in Belawa v The State [1988 – 89] PNGLR 496, while lamenting that the tariffs suggested there are outdated by some 30 years. His Honour considered
the impact of the appellant’s offence on the victim, the appellant’s employer NHC, the Public Service and public servants
generally, and of course on the appellant himself.
- Yes, we do accept that His Honour spoke at great length on the degree and level of trust placed on the appellant and public servants
generally but that was not without basis. As his Honour correctly pointed out, corruption and bribery in the Public Service and among
public servants has become so rampant and prevalent that the public has simply lost confidence and trust in the Public Service, public
servants and public institutions including the NHC.
- His Honour was mindful of the suggested tariff in Belawa of 2 years imprisonment for amounts between K1000 – K10,000, but correctly opined that those tariffs were set some 30 years
ago and now outdated. He was of the view therefore that the time has come for the courts to be “sterner and more realistic
with the kind of punishment we should impose.”
- His Honour accepted that the appellant was a first-time offender, pleaded guilty and was remorseful as we previously said. However,
he was occupying a position of trust and authority as Assets Officer with the NHC, and he used his position for personal gain. Because
of his conduct the public has lost trust and confidence in the NHC, the public service and public servants, government departments
and instrumentalities. These, His Honour correctly held, seriously aggravated the appellant’s offending.
- While acknowledging that the offence was not necessarily the worst, it was nonetheless very serious and must warrant a near maximum
penalty. His Honour therefore imposed a sentence of 6 years.
- We accept that the sentence of 6 years does indeed appear to be out of proportion with the current sentencing trend and that it does
exceed the suggested tariff in Belawa. However, did the primary Judge commit an identifiable error. What was the error? Was it the failure to follow precedence or to maintain
consistency in sentencing for this offence?
- That may very well be. However, it must be borne in mind that a sentencing judge has wide discretion, and in sentencing offenders,
each case must be considered on its own peculiar facts and circumstances so that proportionality between the offending and the punishment
is achieved. Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Lawrence Simbe v The State [1994] PNGLR 94)
- Furthermore, sentencing guidelines and tariffs are exactly what they are – guidelines - to ensure that there is consistency
in sentencing so that like cases receive similar sentences. They are meant to promote consistency and not to curtail or remove the
sentencing court’s discretion under section 19 of the Code. Only Parliament can remove that discretion through legislation. (Thress Kumbamong v The State (2008) SC1017)
- Having said that, we find no identifiable or obvious error in the manner in which the primary judge exercised his sentencing discretion,
in particular his departure from the current sentencing trend and the prevailing guideline tariffs in Belawa. This ground is dismissed.
Ground (c)
- We agree with the respondent that this ground makes no sense, is misconceived and hence must fail. It is also dismissed.
Conclusion
- We have reached the conclusion that the primary Judge did not commit any errors that demonstrate that the sentence is manifestly or
obviously excessive. Ordinarily, this should result in the dismissal of the appeal.
- However, we do agree with Mr. Luman that given that the maximum penalty for this type of stealing is 7 years and the relatively small
amount of money involved, it does appear that the sentence is excessive.
- This is the type of situation contemplated by this Court in William Norris (supra) where it can be inferred that an error was made which had a vitiating effect on the primary Judge’s sentencing discretion,
notwithstanding that no error was identifiable, let alone obvious.
- There, the Court pertinently said that “...if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified,
this Court will infer that some error must have occurred in the exercise of the sentencing discretion.”
- For the reasons given, we will infer that an error was made as the sentence of 6 years was out of reasonable proportion to the circumstances
of the appellant’s offending. In this regard we agree with the appellant that appropriate sentence in the circumstances ought
to have been 4 years.
- Therefore, pursuant to the Courts powers under Section 23(4) of the Supreme Court Act, we shall quash the sentence of 6 years and substitute it with a term of 4 years. Any pre-trial and post-sentence detention periods
shall be deducted from the sentence.
- The complainant in this matter has lost financially and will not benefit personally from the appellant’s incarceration. He must
be recompensed for his loss. We see no error, lesser still no harm in suspending the balance of the appellant’s sentence (as
the primary judge did), if this will facilitate full restitution to the complainant for his loss. We propose therefore to wholly
suspend the balance of the sentence if the appellant fully pays the sum of K5500.00 only since he had paid K500.00 already to the
complainant.
- Before we conclude, we would like to touch on something in passing that Mr. Luman raised during submissions. This is regarding the
recent amendments to Section 372 of the Code by Criminal Code (Amendment) Act No.6 of 2013, s 5. Section 5 added new subsections (1A) and (1B) to Section 372 in the following terms:
5. STEALING (AMENDMENT OF SECTION 372).
Section 372 of the Principal Act is amended by adding after Subsection (1) the following new subsections:
"(1A) If the thing stolen is money exceeding K1 million and does not exceed K10 million an offender is liable to imprisonment for
a term of 50 years without remission and without parole.
"(1B) If the thing stolen is money exceeds K10 million, the penalty shall be life imprisonment.".
- What concerns us is that while Parliament in its wisdom has increased the penalties for cases involving such large sums of monies,
it made no corresponding or consequential amendments to existing provisos under Section 372 which similarly deal with circumstances
of aggravation such as subsection (10) which is addressed at stealing monies over K1000.00. The maximum penalty there remains at
7 years.
- This, in our respectful view has given rise to an absurdity in the law. Because the threshold has been raised so high, as it were,
persons stealing very substantial sums of monies of less than K1,000,000.00 and K10,000,000.00 will only ever be liable to 7 years
imprisonment. Only those few who are fortunate enough to steal or embezzle such large sums of money can ever be served the penalties
provided by these amendments.
- If the mischief intended to be cured by these amendments was the surge in corruption and kleptocracy within State institutions, and
the corporate world, where such huge sums of monies circulate and are transacted, we respectfully would opine that it will do nothing
to stem or arrest stealing from the public or corporate purse. This is because the great majority of cases involve sums lesser than
K1,000,000.00 and K10,000,000.00.
- And so, the question is – did Parliament really intend that persons who steal large sums of monies of less than the thresholds
of K1,000,000.00 and K10,000,000.00 can be liable only to 7 years imprisonment?
- We think not, and for this reason we respectfully recommend – and that is all we can do - that corrective legislative measures
are taken to correct this mischief or absurdity. Whether that will happen is beyond our control, but if this situation remains unaddressed,
people who steal large sum of monies below those thresholds will continue to steal, knowing that they will be incarcerated for relatively
short periods after which they will be free to enjoy their loot or ill-gotten gains.
Orders
- Be that as it may, we make the following orders:
- The appeal is upheld in part.
- The sentence of 6 years imprisonment imposed by the National Court on 22 September 2020 is quashed and substituted with a term of
4 years imprisonment.
- The time spent in pre-trial and post-sentence shall be deducted from the sentence of 4 years.
- The resultant sentence shall be wholly suspended upon the appellant making full restitution to the complainant Mr. Liksen Madali for
the sum of K5500.00. Failing that the appellant shall serve the whole portion of his resultant sentence.
Ordered accordingly.
________________________________________________________________
The Public Solicitor: Lawyers the Appellant
The Public Prosecutor: Lawyers the State
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