[1971-72] PNGLR 393

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

PIA-AFU

Port Moresby
Frost SPJ Clarkson Kelly JJ

26 August 1971
2 September 1971

CRIMINAL LAW - Sentence - Inadequacy of - Appeal by Secretary of Law - Stealing as a servant - Term of six months imprisonment substituted for recognizance - Extent of Full Court’s discretion - Supreme Court (Full Court) Ordinance 1968, s. 29 (1).

On the hearing of an appeal against sentence pursuant to s. 29 (1) of the Supreme Court (Full Court) Ordinance 1968 the Full Court has an unfettered discretion to vary the sentence imposed by the trial judge.

Whittaker v. The King (1928), 41 C.L.R. 230, applied.

Although the Full Court has an unfettered discretion, it will not interfere with the sentence pronounced by the trial judge unless it is clearly satisfied that the sentence should be altered. It will give due weight to the opinion of the trial judge, and will recognize that the just sentence to be passed on an offender by a trial judge may depend on circumstances not apparent or available to the court of appeal.

Dictum of Macrossan S.P.J. in R. v. Beevers, [1942] Q.S.R. 230, adopted.

Relevant considerations discussed where the respondent was a local court magistrate who pleaded guilty to stealing amounts totalling $40 which he had collected as fines, and a sentence of six months imprisonment substituted for recognizance in the sum of $50 to be of good behaviour for three years.

The Following Additional Cases were Referred to in the Judgment

Seki Wanosa v. The Queen, [1971-72] P. & N.G.L.R. 90; House v. The King (1936), 55 C.L.R. 499; Reg. v. Taylor, [1958] V.R. 285; R. v. Cuthbert (1967), 86 W.N. (Pt. 1) (N.S.W.) 272; Lumsden v. Lumsden, [1964] V.R. 210; Skinner v. The King (1913), 16 C.L.R. 336; R. v. Geddes (1936), 36 S.R. (N.S.W.) 554; 57 W.N. 157.

Appeal

The respondent, Andrew Pia-Afu, had pleaded guilty to two counts, one of stealing $20 as a servant of the administration, and the other of stealing $20. The trial judge discharged the respondent upon his entering into a bond of $50 to keep the peace and be of good behaviour for three years and to repay the sum of $40 within four months. The Secretary for Law appealed to the Full Court against the sentence on the ground of its inadequacy or insufficiency. The arguments of counsel appear sufficiently in the judgment.

Counsel

Gajewicz, for the appellant.
Lalor, with him Andrew, for the respondent.
Cur. adv. vult.

2 September 1971

FROST SPJ CLARKSON KELLY JJ:  delivered the following written judgment:

This is an appeal by the Secretary for Law pursuant to s. 29 (1) of the Supreme Court (Full Court) Ordinance 1968 against the sentence imposed on the respondent. The grounds of appeal are that the sentence was inadequate and insufficient, and although counsel for the appellant submits that he is not required to go so far, alternatively, that it was manifestly so.

The respondent pleaded guilty to two counts, one of stealing $20 as a servant of the Administration and the other of stealing $20, the money in each case being the property of the Administration. The learned trial judge instead of passing sentence discharged the respondent upon his entering into his own recognizance, without sureties, in the sum of $50 to keep the peace and be of good behaviour for three years and to repay the sum of $40 to the Treasury of the Administration within four months. For the purpose of s. 29 (1) of the Supreme Court (Full Court) Ordinance, this order constituted a “sentence”.

At the time of the commission of the offences in November 1970 the respondent had been a Local Court Magistrate at Minj for more than two years. The money the subject of the charges was part of sums of money which he had collected from persons on whom he had imposed fines in his capacity as a magistrate at Nondugl and which he retained for his own use instead of paying it to a collector of public moneys. Some three months previously, in August 1970, the Assistant District Commissioner at Minj had instructed the respondent that he was not personally to collect from people whom he had fined the fines which he had imposed upon them.

The respondent is thirty years of age and is married with four young children. After a period of training in Australia for a religious order in the course of which he obtained the New South Wales Intermediate Certificate he spent one year at the Papuan Medical College and then trained as a malarial education assistant in which capacity he was employed for over two years. He then underwent a two year course of training as a magistrate, at the completion of which, after a short period as assistant magistrate, he was posted to Minj. In evidence given before the trial judge the respondent said that the accounting system in which he was trained was not observed at Minj and that the system there offered a degree of temptation, which was too great for him.

The jurisdiction of the Court upon this appeal depends on the proper interpretation of the Supreme Court (Full Court) Ordinance 1968, s. 29 (1). We have heard detailed argument on this matter both in this case and that of Reg. v. Harley[cdxxx]1 which preceded it. The section is as follows: “The Secretary for Law may appeal to the Full Court against any decision of a Judge, whether on appeal or sitting as a court of first instance, as to sentence, and the Court may in its discretion vary the sentence and impose such sentence as it thinks proper.”

The section considered in Whittaker v. The King[cdxxxi]2 was s. 5d of the Criminal Appeal Act of 1912 of New South Wales which provided that “the Attorney-General may appeal to the Court of Criminal Appeal against any sentence pronounced by the Supreme Court and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said Court may seem proper”. The High Court held that this provision confers an unfettered discretion upon the Court of Criminal Appeal to alter the sentence imposed by a trial judge. In a number of cases commencing with R. v. Beevers[cdxxxii]3 the Court of Criminal Appeal in Queensland followed Whittaker v. The King in determining the effect of s. 669a of The Criminal Code which is in substantially the same terms. The Territory section is also substantially in the same words as the New South Wales section.

In the judgment of this Court it should follow the construction given by the majority of the High Court to the New South Wales provision in Whittaker v. The King[cdxxxiii]4. The authority of this decision has never been questioned either by the High Court or the appellate court of any State. All the relevant authorities were considered by the Full Court in Seki Wanosa v. The Queen[cdxxxiv]5 and we agree with the distinction drawn by that Court between tween s. 29 (1) and s. 28 (4) in the course of determining the proper interpretation to be placed on s. 28 (4) of the Supreme Court (Full Court) Ordinance 1968. Having regard to the specific provisions contained in s. 29 (1), House v. The King[cdxxxv]6 does not assist us in its interpretation. Reg. v. Taylor[cdxxxvi]7 is clearly distinguishable because it is a decision upon statutory provisions in different terms and of different effect from our s. 28 (4). Counsel for the respondent also referred to Reg. v. Cuthbert[cdxxxvii]8; Lumsden v. Lumsden[cdxxxviii]9; Skinner v. The King[cdxxxix]10 and to passages in the dissenting judgment of Isaacs J. in Whittaker v. The King at pp. 244-259. A consideration of these authorities in no way alters the view which we have expressed.

We consider that the only elaboration necessary is contained in a passage from the judgment of Macrossan S.P.J. (as he then was) in R. v. Beevers[cdxl]11: “The language of s. 5d of The Criminal Appeal Act, 1912, New South Wales, which was under consideration by the High Court in Whittaker’s case is in all relevant respects the same as that of s. 669a of the Criminal Code. This, however, does not mean that this court should interfere with a sentence pronounced by a trial judge unless it is clearly satisfied that the sentence should be altered. In exercising its jurisdiction it is bound to give all due weight to the opinion of the trial judge and to recognise that the just sentence to be passed on an offender by a trial judge may depend on circumstances not apparent or available to the court of appeal. Where a trial has been held with a jury those circumstances of the trial which constitute what Isaacs J. compendiously called its ‘atmosphere’ may be very important, and it may be difficult if not impossible for a court of appeal to place itself in the position of the trial judge in weighing their importance. However, these advantages of the trial judge in assessing a sentence are not so great when there has been no trial but the prisoner has pleaded guilty to the offence with which he is charged.”

We prefer this statement rather than the wording of the test propounded by Jordan C.J. in R. v. Geddes[cdxli]12, our reason being that the former passage is framed in the light of and to express the different constructions given to the two statutory provisions by the Criminal Court of Appeal in Queensland which this Court has already adopted in Seki Wanosa v. The Queen[cdxlii]13 whereas R. v. Geddes[cdxliii]14 proceeded on the basis that no such difference existed.

Applying these principles, we are clearly satisfied that because of its inadequacy the sentence (using that term in the sense in which it is used in s. 29 of the Supreme Court (Full Court) Ordinance) should be altered and that in the circumstances of this case a sentence of imprisonment should be imposed.

In a case such as this in which a judicial officer has misappropriated public funds which he has caused to come into his hands it seems to us to be only too clear that if the requisite standard of probity is to be maintained punishment of appropriate severity is called for. It goes without saying that a very high standard is rightly to be expected in persons holding such an office and if they fall below that standard they must expect to suffer the consequences.

Ordinarily an offence of this nature would call for a longer period of imprisonment than that which we propose to impose in this case. However, in this instance there are two factors in particular which influence us to inflict a lesser punishment than we would otherwise feel obliged to order. One such factor is constituted by the circumstances in which the respondent was called upon to carry out the duties of that office without any assistance in the performance of administrative duties. Another factor which must be taken into account is the time which has elapsed since the respondent was first faced with these charges; it is now some nine months since he first came before the Court and whilst he has not been deprived of his liberty during that time he has had to endure the undoubted stress which accompanies a criminal charge which has not been finally disposed of.

We were not informed whether the restitution which had been ordered as a condition of the bond given by the trial judge had in fact been made. However, whatever may be the position as to this, we do not consider that this should influence our decision.

Taking all these matters into account we consider that the proper sentence to impose is one of imprisonment with hard labour for six months. We therefore allow the appeal and order that the sentence be substituted for that imposed by the trial judge.

Appeal allowed. Sentence of six months imprisonment substituted for order of trial judge.

Solicitor for the appellant: P. J. Clay, Crown Solicitor.
Solicitor for the respondent: W. A. Lalor, Public Solicitor.

[cdxxx][1971-72] PNGLR. 399.
[cdxxxi](1928) 41 CLR. 230.
[cdxxxii][1942] QSR. 230.
[cdxxxiii](1928) 41 CLR. 230.
[cdxxxiv][1971-72] PNGLR. 90.
[cdxxxv](1936) 55 CLR. 499.
[cdxxxvi][1958] VR. 285.
[cdxxxvii](1967) 86 WN. (Pt. 1) (N.S.W.) 272.
[cdxxxviii][1964] VR 210.
[cdxxxix](1913) 16 CLR. 336.
[cdxl][1942] QSR. 230.
[cdxli](1936) 36 SR. (N.S.W.) 554; 57 WN. 157.
[cdxlii][1971-72] PNGLR. 90.
[cdxliii](1936) 36 SR. (N.S.W.) 554; 57 WN. 157.