Papua New Guinea Law Reports - 1984
[1984] PNGLR 62
N459(L)
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
MISEAL BUTEMO JIREGARI
Popondetta
Pratt J
4 April 1984
CRIMINAL LAW - Practice and procedure - Indictments - Circumstances of aggravation - Misappropriation - Maximum penalty where aggravation - Need to charge matters of aggravation - Criminal Code (Ch. No. 262), ss 395A(2),[i]1 528(2).
CRIMINAL LAW - Practice and procedure - Vacating sentence - Power to vary sentence before circuit closed.
Section 395a of the Criminal Code (Ch. No. 262) provides for the offence of misappropriation and s. 395a(2) provides:
“(2)    An offender guilty of the crime of misappropriation of property is liable to imprisonment for 5 years except in any of the following cases when he is liable to imprisonment for 10 years:
(a)      where the offender is a director of a company and the property dishonestly applied is company property;
(b)      where the offender is an employee and the property dishonestly applied is the property of his employer;
(c)      where the property dishonestly applied was subject to a trust, direction or condition;
(d)      where the property dishonestly applied is of a value of K2 000 or upwards.
...”
Section 528(2) of the Criminal Code provides that if any circumstance of aggravation is intended to be relied on it must be charged in the indictment.
On a charge of misappropriation under s. 395A circumstances of aggravation which were not charged in the indictment were proved and the trial judge imposed a sentence, after taking into account the ten year maximum period, of three years, to be suspended after two years on repayment of the moneys misappropriated.
On the prisoner being ordered to reappear at the request of the trial judge:
Held
(1)      The matters set forth in s. 395A(2)(a) to (d) of the Criminal Code (Ch. No. 262) are matters which constitute circumstances of aggravation within s. 528(2) of the Code and must be laid in the indictment where the prosecutor intends to rely upon them as a major matter raising the penalty from a maximum of five years to a maximum of ten years.
(2)      In the circumstances a sentence should be passed in the light of a five year maximum.
(3)      The court has power to reconsider and alter any sentence imposed by it before the sittings are closed.
The State v. Kaupa Ungi [1980] P.N.G.L.R. 199, applied.
(4)      In the circumstances the sentence should be vacated and a sentence imposed of two years and four months to be suspended after one year eight months on repayment of the moneys misappropriated.
Vacation of Sentence
The trial judge having sentenced the defendant ordered him to reappear before the court for the purpose of reconsidering the sentence and sought submissions thereon from counsel who had appeared.
Counsel
V. Noka, for the State.
D. Awaita, for the defendant.
4 April 1984
PRATT J: [After dealing with the facts which disclosed, inter alia, that the offence occurred while the prisoner had control over moneys by virtue of his position as Provincial Secretary, and having sentenced him to a period of three years, suspended after two years on repayment to the owner on the previous day, the court ordered the re-appearance of the prisoner and continued as follows]:
It seems to me, and it is on this matter which I wish to hear counsel, should they have any submissions to make later on in the day, that I was not entitled to impose my sentence under the ten year maximum period. The matters set forth in s. 359A(2)(c), of the Criminal Code (Ch. No. 262) to which I specifically adverted yesterday, that this money had been given to him on trust, and that during the existence of that trust he stole the money, seem to me to be a circumstance of special aggravation within the meaning of s. 528(2) of the Criminal Code. If that is so, then such circumstance must be laid in the indictment. Just as one has, for example, a break and enter a dwelling house as a crime, if the evidence supports the adding of “in the night time” this is a circumstance of aggravation which raises the maximum penalty from fourteen years to life imprisonment. Such circumstance must be set forth in the indictment before the person can be proceeded against under the heavier penalty. It seems to me, subject to submissions from counsel, the same argument applies here. Therefore, before I can proceed against someone and impose a penalty using the ten-year as the maximum period, the circumstance should be set out in the indictment, namely, that he dishonestly applied to his own use the sum of K1,000 the property of Oro Provincial Government, which said property was subject to a trust, or if the case fits, was subject to a direction, or was subject to a condition etc. I think probably the State should stipulate precisely which of those three areas govern the disposition of the money. At this stage I am merely indicating to counsel the error which I think I may have made. I propose to ask counsel to address me on this point at 1.30 p.m. this afternoon. I apologise to counsel for the shortness of time, but I think it is particularly important in a matter of this nature, that I do not delay when I have already passed sentence, as it may well be necessary for me to alter the sentence by way of reduction. I am not really asking for submissions on this aspect of reduction if the ten-year maximum is not applicable, but counsel can certainly direct their submissions to this area as well if they wish. There can be no argument however that the sentence must bear some relationship to the maximum which can be imposed by the court. However, as I say, these matters will be dealt with later on.
One final point, I do not require counsel to submit on whether or not I can alter the sentence. I have always held the belief that a court can reduce or increase its sentence in any matter passed by it during the sittings, until the sittings are closed. After that, of course, the judge is functus officio. This factor marks one of the differences between a court of oyer, terminer and gaol delivery, that is, a court of record, from a magistrate’s court. I do note however, that during his period as an Acting Justice, Mr Narokobi did hand down a judgment at Lae in which he amended a sentence, I think the day after he had passed it, after some further matter had been brought to his attention. So there has been a published judgment on the matter in this jurisdiction: see The State v. Kaupa Ungi [1980] P.N.G.L.R. 199.
That is all I wish to say at the moment.
In this matter I have asked that the prisoner be brought back before me and I have also asked for further submissions from counsel in relation to the sentence which I imposed on him yesterday, namely, a period of three years to be suspended after two years on repayment of a certain sum to the Provincial Government. I made it quite clear yesterday, as indeed I think I am required to do, that such sentence was imposed because in my view the offender had committed a breach of s. 295A(a)(c), that is, that he dishonestly applied property which was being held by him in trust for others. The significance of the matter of holding in trust of course, is this. If it is an ordinary misappropriation, then a maximum of five years’ imprisonment only is involved. If I could use the term, the offence is “aggravated” where it is the property of an employer, or of a company if you are a company director, or of somebody for whom you are holding the money in trust; in such cases you are liable to ten years’ maximum imprisonment. So there is a very significant difference.
I am grateful for counsels’ submissions in connection with the problem. I think they have highlighted the fact to my mind, that not only is it proper that the “aggravated” charge should be clearly laid in the indictment but it would be unfair for the charge not to be specifically set out. There is no distinction in my view between charging an offence under s. 395A and charging an offence under the various other sections of the Criminal Code where circumstances of aggravation may exist in certain situations. In those circumstances the Code makes it clear that they constitute an aggravation and thus shall be stated specifically in the indictment. Several of these have been referred by counsel. For example, s. 395, breaking and entering a dwelling which is now under the minimum penalties amendments, constitutes a crime and is liable to imprisonment for a term not exceeding fourteen years. Section 395(2) goes on to say, however, if the offence is committed in the night the offender is liable to imprisonment for life. Although the way in which s. 395a is set out is a little different from s. 395 that may of course be accounted for by the fact that it was brought in by amending Act No. 10 of 1981. If my memory serves me correctly it was some months before the revised laws commenced operating at the beginning of January 1982 and it may have rather followed the old style of drafting in the Code. Be that as it may I am firmly of the view that the matters set forth in s. 395a(2)(a) to (d) are matters which constitute circumstances of aggravation within the meaning of s. 528(2) of the Criminal Code. That being so, it then obviously follows that they must be laid in the indictment if the State intends to rely upon them. Mr Noka has quite properly pointed out that there are circumstances alluded to in the depositions which indicate quite clearly that this money was held on trust; but I do not think that that is sufficient by itself. I think there are two requirements before one can act under the part of the section which provides for the more serious penalty. Firstly, the evidence of course must be there. Secondly, the more serious circumstance must be stated in the body of the indictment.
As I have now come to this firm view, it is clear that the sentence which I imposed yesterday was incorrectly imposed, because I acted on wrong principles. Again, I acknowledge Mr Noka’s submission that the imposition of any sentence is still a discretionary matter. But I do not think this really takes us away from the main problem, namely, that I have settled on a sentence which works within the parameters of nought to ten years, whereas in fact I should have worked within the limitations imposed of a sentence of nought to five years. Dealing with the matter under the general principles of sentencing, it means that for the first offence, I would have to settle on a period which did not come towards the end of the scale.
Now, obviously the period of three years which I mentioned yesterday is nowhere near the end of the scale where there is a ten-years maximum. However I do not think for one instant that all I have to do is divide by two. I do not think such a procedure would achieve a just result. I think what I must do is approach the whole matter afresh, bearing in mind now that I am looking at a five-year maximum and not a ten-year maximum. I have done that. I have carried out that project and I have reviewed all the facts and submissions in the light of the five-year maximum penalty. I have now decided therefore, not only that I must vacate my previous judgment, but that in lieu thereof I should impose a sentence of two years and four months’ imprisonment with hard labour. I will suspend eight months of that period upon the prisoner entering into a recognizance in the sum of K50 without sureties to be of good behaviour for a period of three years and to repay to the Oro Provincial Government the sum of K1,000 on or before 4 March of 1985. That being so of course, it then remains for me to destroy the warrant which I wrote out yesterday.
By the way, gentlemen, there is one other matter arising from the sentence yesterday. Mr Noka mentioned in his submissions that facts disclosing a breach of trust did in fact exist in the depositions. I noted that in my book, but I do not think I commented upon it when handing down the sentence. The absence of a specific mention in the indictment does not mean that it is not a factor amongst a number of other factors which I take into account in assessing penalty under the five-year period. I think that the effect of what I said yesterday is simply this, that where the prosecution is going to allege a breach of trust as a major matter raising the penalty from a maximum of five years to a maximum of ten years they must set that forth in the indictment. Nevertheless a court cannot completely disregard this aspect if indeed it is a factor amongst a number which exist on the depositions or emerge during the trial even though the State has not specifically alleged it and thereby laid the more serious offence on the face of the indictment.
Orders accordingly.
Lawyer for the State: L. Gavara-Nanu, Public Prosecutor.
Lawyer for the defendant: D. Awaita.

[i] Editorial Note: Section 395a of the Criminal Code (Ch. No. 262) is now s. 383a.