Secretary for Law v Linhardt [1975] PNGLR 132 (31 July 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 132 - Secretary for Law v Linhardt

[1975] PNGLR 132

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SECRETARY FOR LAW

V

LINHARDT

Port Moresby

Prentice SPJ Raine Saldanha JJ

28-29 July 1975

31 July 1975

CRIMINAL LAW - Sentences - Inadequacy of - Stealing as servant - Total amount involved $16,500 over two year period - Necessity for deterrent - Sentence of 3 years 3 months imprisonment substituted for sentence of two years imprisonment.

A company director was convicted on a plea of guilty on two counts of stealing his company’s cheques and two paired counts of falsifying entries in cheque books, and sentenced to a total of two years’ imprisonment. (The court taking into account 64 other kindred offences committed over a two year period and involving a total sum of approximately $16,500).

On appeal against sentence by the Secretary for Law,

Held

That the sentence of two years imprisonment was insufficient and there should be substituted sentences of three years three months on each count, the sentences to be served concurrently.

Appeal

This was an appeal by the Secretary for Law brought without leave under s. 29 (1) of the Supreme Court (Full Court) Act 1968, on the ground of insufficiency of sentence.

Counsel

K. B. Egan, for the appellant.

W. J Andrew, for the respondent.

Cur. adv. vult.

31 July 1975

PRENTICE SPJ RAINE SALDANHA JJ: This is an appeal by the Secretary for Law brought without leave under s. 29 (1) of the Supreme Court (Full Court) Act, on the ground of insufficiency of sentence. The accused was convicted on pleading guilty to two counts of, as a Director, stealing his Company’s cheques. The sums involved were $1452.00 and $1270.00 respectively. He pleaded guilty to two paired counts of falsifying entries on respective cheque book butts of the Company.

On arraignment he asked that 64 other kindred offences be taken into account, 60 of these being the stealing of cheques and four of them paired counts of making false book entries.

The total amount involved, and for which no restitution has been made, is $16,488.21. A certain amount of goods was recovered. The offences were committed over a period from August 1972 to May 1974; they began within two months of the respondent’s assuming the position of Managing Director in Papua New Guinea of S. E. Tatham (P.N.G.) Pty. Ltd., a company of which he originally held 49% of the shares.

The learned trial judge sentenced the respondent to a total of two years’ imprisonment — setting out various factors which he regarded as being in mitigation. The maximum punishment for an offence under s. 398 (vii) and (ix) is seven years’ imprisonment; the maximum punishment under s. 441 is also seven years’ imprisonment.

The Court has had regard to the matters of extenuation set out by his Honour the trial judge; but nevertheless is of the opinion that the punishment awarded is clearly insufficient. It has had regard to the prevalence of this offence in Papua New Guinea, the warnings since 1971 that punishment for this kind of offence would increase, the sentences in other similar cases, the large amount of monies involved herein, the systematic indulgence in theft over a long period — some 21 months, the fact that the stealing and deceit were effected by a person in a position of trust, the large number of offences that are to be taken into account, and the necessity that a stern deterrent be issued by the sentence on this offender to others who may be like-minded.

The opinion of the Court is that the appropriate sentence is one of three years and three months’ imprisonment on each of the four counts to which pleas were entered; and that the sentences should be served concurrently.

There will be an order accordingly allowing the appeal, and substituting for the sentence of the trial judge sentence of three years 3 months’ on each count — the sentences to be served concurrently.

Appeal allowed. Sentences of three years 3 months’ imprisonment on each count substituted for sentence of trial judge, and sentences to be served concurrently.

Solicitor for the appellant: B. W. Kidu, Crown Solicitor.

Solicitor for the respondent: N. H. Pratt, Acting Public Solicitor.