McGrath, Regina v [1971-72] PNGLR 247 (2 July 1971)

[1971-72] PNGLR 247

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V.

RODGER VINCENT MCGRATH

Port Moresby
Minogue CJ Prentice Raine JJ

28-29 June 1971
2 July 1971

CRIMINAL LAW - Appeal against sentence - Application to reduce granted - Stealing as a servant - Prevalence of offence - Plea of guilty - Three years.

M. was indicted on a charge of stealing as a servant the sum of $5644; he pleaded guilty and was sentenced to four years’ imprisonment with hard labour, against which sentence he appealed to the Full Court.

Held:

(By Minogue C.J. and Raine J; Prentice J. dissenting) that whilst the learned trial judge did not act on any wrong principle the sentence was in the circumstances manifestly excessive, and should be reduced to three years with hard labour. Skinner v. Regina (1913), 16 C.L.R. 336, House v. The King (1936), 55 C.L.R. 499, at p. 505, followed.

Per Raine J:

The fact that when apprehended, the accused cooperated with the police and pleaded guilty at his trial should tell in his favour on sentence. Dictum of Edmund Davies L.J. in R. v. de Haan, [1968] 2 Q.B. 108; [1967] 3 All E.R. 618 and R. v. Perry, [1969] Q.W.N. 17 approved.

Cases referred to:

Skinner v. The King (1913) 16 C.L.R. 336; Seki Wanosa v. The Queen (unreported); R. v. Cuthbert (1967) 86 W.N. (Pt 1) (N.S.W.) 272; House v. The King (1936), 55 C.L.R. 499; R. v. Donaldson (1968), 87 W.N. (Pt. 1) (N.S.W.) 501; R. v. de Haan, [1968] 2 Q.B. 108, [1967] 3 All E.R. 618; R. v. Harper (unreported); R. v. Perry [1969] Q.W.N. 17; R. v. Taylor, [1969] N.Z.L.R. 981; R. v. Newman (1913) 9 Cr. App. R. 134; R. v. Quinn (1932), 23 Cr. App. R. 196; R. v. Smith (1946), 63 W.N. (N.S.W.) 231.

Appeal.

The accused was indicted on a charge that between 25th February, 1970, and 14th August, 1970, being then employed in the public service of the Territory of Papua New Guinea he stole $5,644. When apprehended by the police, the accused co-operated with them and at his trial he pleaded guilty to the charge.

The trial judge convicted him and sentenced him to a term of imprisonment of four years with hard labour. In his judgment on sentence the trial judge said:

“You have pleaded guilty to stealing as a servant a substantial sum of over $5,600. I am satisfied that you fully appreciate the extent of your wrong doing and that no purpose would be served by my lecturing you.

“In determining your sentence I have taken into account that you are young and have no previous record. You appear to regret what you have done and appear anxious to make amends. I note also that you were co-operative in the investigation which followed the discovery of your wrong.

“At the same time, I cannot overlook that as a receiver of public moneys you were in a position of great trust and that the honest and proper administration of such funds must be beyond question. It must be accepted that anyone doing what you have done will receive a substantial punishment.

“Because of your responsible position, you were able to squander over five and a half thousand dollars of public funds for nothing more than to avoid becoming a betting defaulter. This shows a degree of irresponsibility and immaturity and a degree of dishonesty which merits substantial punishment.

“Sentence: Four years’ imprisonment with hard labour.”

The underlined words refer to the fact that the appellant’s employer held a sum of $1,600 for the appellant, being leave pay, which the appellant was prepared to use in reparation.

The accused sought leave to appeal against that sentence.

Counsel:

E. Pratt for the appellant.
Gajewicz, with him Bradshaw, for the Crown.
Cur. adv. vult.

2 July 1971

MINOGUE CJ: [Hiour aftr after referring to the facts given above continued:] The applicant at the time that he stole was a young man of 24 years who had had a good upbringing and had led a blameless life. It was said that he was brought to Port Moresby because of his football prowess and he obtained employment in the Taxation Department as a Receiver of Public Moneys, and in that capacity it appears that he received quite large sums of money. Unfortunately for him he began to bet and to lose amounts far beyond his capacity to pay. The criminal calendars are studded with examples of men in his position. With a false sense of the necessity of preserving his reputation amongst bookmaking circles and a moral disregard of the necessity of honesty, particularly in public office, he succumbed to the temptation of the ready cash at hand and stole a number of amounts in the period I have set out, to satisfy his betting debts.

His Honour in sentencing him stressed that he was in a position of great trust and that the honest and proper administration of public funds must be beyond question. He properly stressed, too, the degree of irresponsibility, immaturity and dishonesty which the applicant had displayed.

Previously I have joined with this Court in stating that the principles set out by Barton A.C.J. in Skinner v. The King[cclxxx]1 are tho be o be applied in this Court. I cannot find any wrong application of those principles by His Honour on the material before him. But there is one matter which as far as I can see was not before His Honour and which could well have had an effect on his sentence. From an affidavit which was filed on behalf of the Crown it appeared that over the last three years there have been thirty-six cases of stealing as a servant before this Court. In just on 40 per cent of those cases prisoners have been released on their recognizance to be of good behaviour and the highest sentence so far imposed has been one of two years six months. The majority of sentences have been of a much less order. It is true that there was also material before us showing that there has been an increase in defalcations within the Public Service but it is impossible to say whether that increase is constant.

There is a further consideration which seems not to have been stressed before His Honour but which to me is of some importance. The monies stolen were stolen over a period of some six months, but between the middle of August and the end of October when this offence was detected there had been no further defalcations and it seems to me clear that the accused fully aware of the enormity of his offence was desperately considering ways and means of replacing what he had taken.

This case has troubled me greatly but I cannot avoid the feeling that in the light of the additional considerations which I have briefly set out that the sentence was manifestly excessive. Reluctant as I am to disturb the sentence I cannot see that additional degree of criminality in this case which justifies the imposition of a sentence so far above those that have been previously imposed in this Court, and accordingly I would grant the application for leave to appeal, allow the appeal and substitute a sentence of three years for that imposed.

This is not to say that there are not circumstances in which a sentence of four years or even more would not be justified and it may be that if this Court is furnished with sufficient material to show that there is a marked increase in the crime of stealing as a servant that heavier deterrent sentences will have to be imposed.

PRENTICE J: This is an application for leave to appeal on the ground that a sentence of imprisonment was manifestly exve. The sene sentence, by Clarkson J., was for four years imprisonment with hard labour in respect of the crime of stealing as a servant $5,644.60 between the 25th February, 1970, and 14th August, 1970. At the time of the commission of the offence the accused was employed as a cashier in the Treasury in Port Moresby.

On 28th April, 1971, in the case of Seki Wanosa v. The Queen[cclxxxi]2 this Court decided that in an appeal of this character it should be guided by the principles outlined by Barton A.C.J. in Skinner v. R.[cclxxxii]3. I understand the Full Court then to have deliberately elected to choose to follow the Queensland stream of authority rather than the interpretation given to a comparable criminal appeal provision in New South Wales. I understand it to have announced that it does not regard its power to substitute a lesser punishment as being an unfettered discretion to do as it thinks fit.

Mr. Eric Pratt, for the prisoner, has argued initially that this Court should in effect depart from its abovementioned decision. I would not be prepared to make such a departure.

Mr. Pratt’s principal submission in support of a reduction of sentence is that the trial judge gave insufficient weight to the character and behaviour hitherto of the accused, his youth and probable future life and conduct. At the outset I may say that the argument directed to youthfulness, does not appear to me to be strongly founded in the case of a man of twenty-five as he now is. In any event I bear in mind the many recent pronouncements in Australian courts as to “youth” suggesting, that in these days of sophistication and youthful privilege, youth has to some extent ceased to be a satisfactory answer to crime (see R. v. Cuthbert[cclxxxiii]4). I am unable to see that His Honour has failed to take account of any relevant particular, or has admitted consideration of extraneous matter, or has proceeded on any wrong principle. I am left to consider whether his sentence is so manifestly excessive as of itself to indicate that he must have proceeded on a wrong principle (House v. The King[cclxxxiv]5).

The harnessing of pejoratives or adverbial modifications generally, to adjectival legal tests, is a notorious cause of difficulty. “Clearly”, “unarguably”, “demonstrably”, “merely”, are all modifications which cause interpretation troubles. “Manifestly” appears to join such a category. The courts have repeatedly evoked the phrase “manifestly excessive” to differentiate from “excessive” simply stated. Barton A.C.J., in the classic text above referred to, distinguishes between a “manifestly excessive” and an “arguably excessive” sentence. This Court is not free to substitute such sentence as it thinks fit merely because its assessment of a proper term is less than that of the trial judge. On an initial viewing of the material in the appeal book I was unable to come to any conclusion more favourable to the accused than that it was possible to argue that the sentence was excessive. I did not at once find myself struck by a disparity between facts and sentence. After consideration of the matters urged by Mr. Pratt I find myself in the same position. I might myself have imposed a lesser sentence. But this does not, I consider, warrant my adjudging that this Court should interfere with the trial judge’s discretion.

Affidavits have been filed in this Court by the Crown in support of the sentence, which indicate that numerous sentences have been imposed which could be said to be quite strong sentences, in relation to thefts of amounts of a few hundred dollars. An analysis by the Acting Senior Treasury Inspector tendered, shows that reported thefts, frauds and defalcations of public moneys have increased in the last twelve months to a figure of four in the month of April 1971. The affidavit evidence supports my hitherto held impression and one which I have no doubt His Honour, the trial judge held that stealing as a servant is a prevalent offence in this community—one which calls for a stern approach by the courts, though due regard must always continue to be paid to the special circumstances of each case. It seems to me that there is currently an area of criminal activity, namely the stealing of public moneys and stealing as a servant, where the sentencing policy of the court might clearly be dominated by the need to emphasize that certain kinds of conduct will be met with heavy sentences (cf. R. v. Donaldson[cclxxxv]6). It is evident that public confidence in the reception and use of public monies by officials must be safeguarded by a stern discouragement of such thefts as here transpired. I take note that this was a systematic embezzlement over a period.

It seems to me to be quite important that the trial judge retain and exercise a discretion as to the punishment which should be awarded in the light of the prevailing apparent social circumstances. He must be allowed to assess the general moral sense of the community (R. v. Donaldson[cclxxxvi]7). I am not satisfied that His Honour has in any way failed to exercise his discretion properly. I am not satisfied that the sentence which he imposed is manifestly excessive. I would therefore dismiss the appeal.

RAINE J: [His Honour after referring to the facts given above continued:] It appears to me, with grespect, that His Honour toor took into account in the accused’s favour, all that could be taken into account. I can see no error in principle. In House v. The King[cclxxxvii]8 in the joint judgment of Dixon J., Evatt J. and McTiernan J., their Honours say:

In my opinion the appellant cannot point to any of these matters.

But their Honours go on to say:

“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonably or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has occurred.”

On 28th April, 1971, this Court, in Seki Wanosa v. The Queen[cclxxxviii]9, decided that a sentence should not be disturbed at the instance of the convicted person unless shown to be wrong when tested in the light of the considerations outlined by Barton A.C.J. in Skinner v. The King[cclxxxix]10. I apply the same principles here. Thus, as I can see no error in principle on the part of Clarkson J., and cannot find any of the other matters referred to in the first quotation above from House v. The King[ccxc]11 I am ofion nion that the sentence imposed here can only be reviewed if it was manifestly excessive.

The appellant will be 25 years of age in a couple of weeks. He had, until coming here, led a blameless existence. In fact, everything points to his having been an excellent young man. But he had weak qualities. He got into serious trouble gambling. He says no pressure was put upon him to repay the money he lost betting. Of course, had he not been weak, he would have confronted the bookmakers, told them he could not pay, and come to an arrangement with them. Instead he stole public money and apparently used it to try to “get square”. It is not the first time this has happened and it will not be last.

Having taken some money, and got further behind, the appellant obviously allowed himself to slide into a worse and worse position.

However, when caught at last, he co-operated with the police and pleaded guilty at his trial. While these factors are not decisive Mr. Pratt has referred us to R. v. de Haan[ccxci]12. Edmund Davies L.J., in delivering the judgment of the Court, said: “It is undoubtedly right that a confession of guilt should tell in favour of an accused person, for that is clearly in the public interest”. See also the editorial note and reference on p. 619 to the unreported case of R. v. Harper[ccxcii]13. I would add that De Haan’s case[ccxciii]14 wasowed in d in R. v. Perry[ccxciv]15 also R. v. TayloTaylor[ccxcv]16. In the converse situation it is not correct to give a heavier sentence to an accused man who brazens it out, R. v. Newman[ccxcvi]17 or to a convicted accused who has committed perjury when giving evidence, R. v. Quinn[ccxcvii]18 and R. v. Smith[ccxcviii]19.

I hesitate to differ fro learned tred trial judge, but have, after anxious consideration, come to the view that his sentence was excessive. Whilst I would be the first to agree that breaches of trust by public officers deserve a stern punishment, I believe that this sentence was too stern, viewed in the light of this appellant’s age, his contrition, his previous good character and his willingness to make some amends. In addition, I do not think he is likely to offend again. I also take into account my past experience in cases like this which stem from gambling. Without exception I have found that this class of offender gets on to a sort of slippery slide. The offender loses control and plunges hopelessly on. Without excusing such weakness, stupidity and dishonesty, I put these cases in a slightly different category than I do cases of theft for theft’s sake.

I would grant leave to appeal and substitute a sentence of three years’ imprisonment with hard labour.

I think I should add that the statistics placed before us, which the trial judge did not have the advantage of seeing, indicated that his sentence was much higher than sentences in similar cases in recent times. But the statistics also reveal that the crime is indeed a prevalent one. Thus, offences of this kind committed hereafter are most likely to attract heavy sentences. Similar offenders hereafter should not regard three years’ imprisonment as the probable “tariff”.

Leave to appeal against sentence granted.

Appeal allowed and sentence reduced to a term of imprisonment with hard labour for three years.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.
Solicitors for the applicant: Craig Kirke & Pratt.

[cclxxx](1913) 16 CLR. 336, at p. 339-340.
[cclxxxi]Unreported Full Court judgment FC. 15.
[cclxxxii](1913) 16 CLR. 336.
[cclxxxiii](1967) 86 WN. (Pt. 1) (N.S.W.) 272, at p. 277.
[cclxxxiv](1936) 55 CLR. 499, at p. 505.
[cclxxxv](1968) 87 WN. (Pt. 1) (N.S.W.) 501.
[cclxxxvi](1968) 87 WN. (Pt. 1) (N.S.W.) 501.
[cclxxxvii](1936) 55 CLR. 499, at p. 505.
[cclxxxviii]Unreported Full Court judgment FC. 15.
[cclxxxix](1913) 16 CLR. 336.
[ccxc](1936) 55 CLR. 499, at p. 505.
[ccxci] [1967] 3 All ER. 618, at p. 619.
[ccxcii](Unreported.)
[ccxciii] [1967] 3 All ER. 618.
[ccxciv] [1969] QWN. 17.
[ccxcv] [1968] NZLR. 981.
[ccxcvi] (1913) 9 Cr. App. R. 134.
[ccxcvii] (1932) 23 Cr. App. R. 196.
[ccxcviii] (1946) 63 WN. (N.S.W.) 231.