Goliath v Nemil [1976] PNGLR 522 (19 November 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 522 - Samuel Goliath v Vincent Nemil 

[1976] PNGLR 522

N72

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SAMUEL GOLIATH

V

VINCENT NEMIL

Rabaul

Prentice DCJ

19 November 1976

APPEAL - Inferior courts - Stealing offences - Separate sentences - Accumulation of sentences - Offences during overlapping periods - Second sentence greater for lesser amount stolen - Second sentence excessive in circumstances.

The appellant was convicted on 5th April, 1976, of stealing K925.00 in his activities as a ticketing clerk during the period from 3rd July, 1975 to 12th February, 1976, and sentenced to five months’ imprisonment with hard labour; he was then convicted on 28th April, 1976, of stealing K536 in similar activities during the period from 19th July, 1975, to 9th March, 1976 and sentenced to six months imprisonment with hard labour cumulative upon the first sentence. The appellant appealed against these sentences.

Held

(1)      Although desirable that both cases should have been dealt with together, the magistrate had not erred in his sentencing procedure;

(2)      The accumulation of sentences was not improper for the totality of the moneys stolen.

(3)      There was no justification, however, for the imposition of a greater penalty in respect of the second and lesser amount stolen.

(4)      In view of the circumstances, and arrangements made by the appellant for repayment of the moneys stolen, there would be a substantial miscarriage of justice within the meaning of s. 236(2) of the District Courts Act 1963 if the second sentence were to stand.

(5)      The appeal should be allowed on the ground of excessive sentence in respect of the second offence, and a sentence of four months imprisonment with hard labour substituted for the sentence of six months, and to be cumulative upon the sentence of five months imprisonment imposed in respect of the first offence.

Appeal

This was an appeal against sentences imposed in respect of two charges of stealing, on the ground that the sentences imposed were in the circumstances excessive.

Counsel

RG Day for the appellant

BB Sakora for the respondent

Cur. adv. vult.

19 November 1976

PRENTICE DCJ: The appellant was convicted on 5th April, 1976 of stealing K925.00 in his activities as a ticketing clerk during the period 3rd July, 1975 to 12th February, 1976. He was sentenced to five months imprisonment with hard labour. He was again convicted on 28th April, 1976 of stealing K536.00 during the period 19th July, 1975 to 9th March, 1976 and sentenced to a further six months imprisonment cumulative upon the first. This was again in respect of ticketing offences which apparently occurred during the same period. The reason why two informations were laid on 2nd April and 28th April, 1976 respectively does not appear.

It is claimed that there has been an unjust accumulation in that all the offences occurred during the one period. Aid is sought from my decision in Puis Embari v. Wangiwa[dlxii]¹.

It was possible of course for the appellant, when charged with several stealing offences, to have indicated that there were others outstanding, and to have asked the magistrate to take appropriate action to allow him to have all the matters dealt with. He did not do so. If the second lot of offences had been brought to the learned magistrate’s attention on the first occasion, then no doubt he would have sent all the matters on to be dealt with as indictable offences. Subject to the rules as to multiple counts on indictments, they no doubt would have been dealt with in one sentencing process. If such had been done, in view of the amounts involved, I would have been surprised if the court had imposed a sentence of less than 12 months’ imprisonment. It could well have been considerably more, considering the prevalence of such thefts by clerks.

To my mind the procedures here were quite different to those in Puis Embari’s case[dlxiii]², where the magistrate by a series of cumulative sentences on 43 counts imposed a total of 2 years four months — including the maximum punishment of six months in each of 4 cases.

Though the course the cases took was not to my mind altogether desirable — all should have been dealt with together — I doubt that the learned magistrate in the present case has fallen into error in his sentencing procedure. Nor do I think the accumulation of sentence improper for the totality of moneys stolen.

However, in view of the fact that the first sentence in respect of K925 stolen was for five months, I can find no justification in the court file for the imposition of a greater penalty of six months in respect of the second (lesser) amount of moneys K536.00.

In view of the circumstances and that the appellant made arrangements for the repayment of the moneys stolen, I think it could be held that a substantial miscarriage of justice within the meaning of s. 236 (2) District Courts Act would occur if I let the second sentence stand. It is, I think, implicit in the ground of appeal that complaint is made as to excess of sentence in respect of the second charge.

I allow the appeal on the ground of excess of sentence. I vary the penalty imposed by substituting a sentence of four months’ imprisonment with hard labour which was, and is, to be cumulative upon that of five months imposed on 5th April, 1976. As the accused was released on expiry of that sentence of five months; he is now to serve four months. I direct he surrender himself to custody immediately.

Appeal allowed.

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

Solicitor for the respondent: K. B. Egan, Acting Public Prosecutor.

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[dlxii] Unreported No. 751 of 19th July, 1973.

[dlxiii] Unreported No. 751 of 19th July, 1973.