SC 673
PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR NO 10 OF 2000

BETWEEN:

DOREEN LIPRIN
Appellant

AND:

THE STATE
Respondent

Waigani : Amet CJ, Kapi DCJ, Los J
2001 : 9 November

Counsel:
J B Nanei, for the Appellant.
P Kaluwin, for the Respondent.

9 November 2001

AMET CJ: The Appellant was convicted by the National Court on one count each of forgery uttering and misappropriation of K6,000.00 on 29 December, 1999. She was sentenced to 1 year each in relation to the count of forgery and uttering and 3 years for the count of misappropriation, all of which were to be served concurrently.

The sentences were suspended on the condition that she repay the K6,000.00 to the bank by 29 February 2000, a period of two months. The condition of the suspension of the sentences was that if by 29 February 2000 no money was paid she would be taken into custody to serve the sentences.

By the 29 February 2000 the Appellant had not paid any moneys and was ordered to be taken into custody to serve the sentences. She lodged a Notice of Appeal in person against both the convictions and the sentences, on 16 March 2000. Counsel was subsequently engaged to prosecute the appeal.

The first matter arises is that the appeal was filed on 16 March 2000 well beyond the forty days required to file a Notice of Appeal from the date of conviction being 29 December, 1999. It was submitted that for the purposes of this appeal the forty days should be counted from 29 February 2000, the day on which the sentence became effective following the failure of the Appellant to raise and repay the K6,000.00 misappropriated. Alternatively it was urged the Court to invoke the review power under s. 155(2)(b) of the Constitution. The basis for this was the circumstances of the suspension order by the learned trial Judge to enable the Appellant to raise the K6,000.00 to repay.

In the circumstances I consider that leave should be granted under s. 155(2)(b) to enable the Application for Review. The Appellant filed appeal in person and given the circumstances of the suspension order, and the possible confusion as to when the time period for filing appeal strictly ran, leave should be granted in any event to proceed with the Application for Review.

The principle ground of appeal was that the conviction was unsafe and unsatisfactory in that the evidence of the principle witness relied upon by the State was insufficient and was dangerous to rely upon to render the conviction safe. This witness was Ronny Thomas a teller with the bank as well. His evidence simply was that he processed the withdrawal of the K6,000.00 from the account that the Appellant had presented the withdrawal slip and passbook for, which had been signed and authorised by the Senior Team Leader. He did not consider it necessary to inquire but went ahead and accepted the withdrawal and gave the cash to the Appellant who said the customer was waiting at the Enquiry’s Counter. This was not normal procedure but a practice that is common for staff to process transactions on behalf of friends out of ten. There is practice allowed by the bank for staff to conduct their personal transactions before the bank opens for public business.

Because of the evidence that the witness had processed this transaction against policy and practice that his evidence ought not to be believed and it would thus be dangerous and unsafe to rely on his evidence. It was unusual and unlikely for the witness to have paid that large amount of money to a staff directly instead of to a customer over the counter. It was submitted therefore that the learned trial Judge fell into error in accepting the evidence of this witness as the evidence was unreasonable, unsafe and dangerous to convict the Appellant on.

I do not agree. I do not consider that the trial Judge erred in accepting the evidence of this witness together with other evidence to be satisfied beyond a reasonable doubt of the guilt of the Appellant. The fact that staff transact business out of normal procedure on behalf of friends and acquaintances does not follow that the evidence lacks credibility or is unreasonable or dangerous to rely upon. The issue is whether or not the transaction occurred in that way, however irregular it may be against bank policy. There is no reason to doubt that it did take place in the way described by the witness and accepted by the learned trial Judge. The Counsel for the Appellant could not point to any inconsistency or lack of credibility in the evidence of this witness such as to cause it to be unsafe and unsatisfactory to be relied upon.

In the end result we are not persuaded that the verdict of guilt was unsafe and unsatisfactory. We therefore dismiss the appeal against conviction and confirm the same.

The appeal against sentence is however not so straight forward. The Appellant contains that the learned trial Judge fell into error and caused a miscarriage of justice when he imposed a sentence of 3 years for misappropriating the amount of K6,000.00 by comparison to the average range of sentences for different amounts of money misappropriated. The case of Norris v. The State [1979] PNGLR, 605 was referred to for that proposition that in that case for misappropriating a sum of up to K10,000.00 the sentence imposed was two years, as against three years. In this case for K6,000.00.

In my view I consider that the learned trial Judge did fall into error in imposing a sentence of three years for the misappropriation of the amount of K6,000.00. I consider that the sentence is disproportionate to the gravity of the offence relative to the amount misappropriated.

It seems to me that the learned trial Judge did consider seriously a non-custodial option. He suspended the sentence to enable the Appellant the opportunity to secure the amount of K6,000.00 to pay to the Bank. She was allowed a period of two months only. If she was successful in raising the amount of money and paid it to the bank, she would not have had to go to prison to serve the sentence which would remain suspended. However as it transpired the period of two months enabled the Appellant was not adequate for her to raise the funds and consequently the sentence was self-executed upon the expiry of the two months on 29 February 2000.

I consider fundamentally that for this offence of misappropriation by an employee in industry or the public service, in circumstances such as in this case and involving an amount of this kind, does not warrant a sentence of imprisonment let alone three years. I do not believe that for misappropriating an amount of K6,000.00 a sentence of imprisonment is the appropriate penalty. To impose of three years manifest error in judgment and miscarriage of justice is also manifested.

I believe it is time to consider seriously whether offences of misappropriation of amounts of this kind warrants custodial sentences. I do not believe so. I believe the Court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment.

As the Court was initially disposed to imposing, and alternative to imprisonment opportunity for the Appellant to repay the money, the Court to have designed that as a substantive final order to accomplish the ends of punishment.

For instance if the Appellant were still employed, then a combination of alternatives that would enable her to continue working and to repay the full amount over an appropriate period of time in instalments. In that way the intention to impose a restitutionary order would be meaningful of attainment as well as a meaningful penalty upon the offender. Other social consequences are then accomplished in the process, that is that the offender would continue to be employed but pay her due to victims of the misappropriation and she could be further placed on additional supervised community work over a period of time as well. She would continue to be able to provide for and maintain her family and their need but be ordered to provide appropriately designed community work under supervision of Probation Officers, Church Pastors or other community based organisations such as the City Authority, the Red Cross, Saint Johns Ambulance Services and so on.

The offender is not a violent offender and not a threat to the community or society.

The converse implications of a sentence of imprisonment is, whilst the immediate effect is that of declaration of liberty and does a punishment, the cost to the State and community will exceed considerably the amount of money misappropriated. It would be of no benefit to society. The purpose of punishment can as easily be obtained in alternative orders to imprisonment. The offender is now threat to society.

I consider therefore that the sentence of three years should be varied to the period already served of the three years, which will be nine months from 29 February by 29 November 2000. Additionally I would order that she repay the amount of K6,000.00 to the bank over a period of two years from discharge on 29 November 2000. I would further order that she make diligent efforts to obtain employment and when she does she should report to the Court which would determine the appropriate amount of instalments to be repaid periodically during that period of two years or balance thereof depending on how much she is to be earning from that employment and how much moneys is still outstanding to be repaid at that point in time. Additionally I would order that she perform appropriately designed community work with either the Cheshire Homes, or the Saint Johns Ambulance or the Port Moresby General Hospital under appropriate supervision as may be determined under the principle supervision of the Probation Services and for the appropriately recommended work and supervision regime to be ascertain by the Probation Service and report it to the Court for endorsement within one month of the discharge date on 29 November 2000. The proposed community work I would order would be for a period of one year over the weekends Saturday and Sunday.

KAPI DCJ: The appellant filed an appeal in person against both conviction and sentence on three counts of forging, uttering a bank withdrawal slip and misappropriation of a sum of K6,000.00. The appeal was filed out of time and the matter came before us as a judicial review under s 155 (2) (b) of the Constitution.

However, the Chief Justice in a draft opinion concluded that the appeal is competent and proceeded to deal with the issues as an appeal. I hold the firm opinion that the matter before us is a judicial review under s 155 (2) (b) of the Constitution and not an appeal. The National Court convicted and sentenced the appellant on 29th December 1999 to one year each on charges of forgery and uttering and three years for misappropriation with the sentences to be served concurrently. The trial judge further ordered the suspension of the whole of the sentence on the condition that the appellant repays the amount of money misappropriated within two months of date of the sentence. Subsequently, the appellant did not repay the amount within the prescribed period and she was taken into custody to serve the imprisonment term. She filed the appeal on 16th March 2000 well outside 40 days limitation required by s 29 of the Supreme Court Act (Cap. 37). 

The law relating to competency of appeals in the Supreme Court is now well settled. The Supreme Court Act regulates the right of appeal and an appellant must exercise the right "within 40 days after the date of the conviction" (s 29 (1)) or within such further time as may be extended by the National Court "on application made within 40 days after the date of conviction" (s 29 (2)). The provision clearly computes the limitation period from "the date of conviction". The appellant was convicted and sentenced on 29th December 1999. This is the relevant date for calculating the limitation period in the present case. The appellant did not file an appeal or sought an extension of time "within 40 days after the date of conviction". I find that the appellant has effectively lost her right of appeal under the Supreme Court Act (see Avia Aihi v The State [1981] PNGLR 81). Therefore, I conclude that the appeal is incompetent.

In Avia Aihi v The State (supra) a person who has lost a right of appeal may seek a judicial review under s 155 (2) (b) of the Constitution. The Registry officials have rightly treated this matter as a judicial review when they designated it as such. The principles applicable to such a review are now well settled. In Avia Aihi v The State (No. 2) [1982] PNGLR 44 this Court said that this is a discretionary power and it will not exercise it as a matter of course. An applicant must (a) explain satisfactorily why the appeal was not filed within the limitation period and (b) so far as review of conviction is concerned, an applicant must demonstrate that at least there is "grave reason to apprehend that justice has actually miscarried, that is to say, that the conviction was contrary to the truth and justice of the case"; and so far as review of sentence is concerned, an applicant must demonstrate that legal grounds exist to show that the sentence imposed was unlawful or excessive.

On the first issue, the applicant has not provided any explanation why she allowed the 40 days to expire. The applicant has not discharged the onus in this regard.

Against conviction, counsel for the applicant submits that the conviction is unsafe and unsatisfactory. He submits that the trial judge relied on the evidence of the State key witness, Roney Thomas, who authorized the payment without verifying the authenticity of the withdrawal slip contrary to company policy and procedure. In my opinion, the breach of policy and procedure by this witness does not alter the fact that the applicant forged and uttered the withdrawal slip. There is no merit in this ground. Therefore, I conclude that there is no miscarriage of justice.

Is the sentence of 3 years in all the circumstances of this case excessive? The applicant must demonstrate that the trial judge made an error in exercising his sentencing discretion. This case involves two aggravating circumstances: (i) the property dishonestly applied is the property of the employer (s 383 A (2) (b), Criminal Code) and (ii) the property dishonestly applied exceeds the value of K2000.00 (s 383 A (2) (d), Criminal Code). Therefore, the maximum penalty for misappropriation in the present case is 10 years imprisonment. I do not need to refer to misappropriation cases in any great detail as each case is determined on its own facts. It is sufficient to refer to some cases that indicate the range of sentences for the category of offence now before us. In Lawi v The State [1987] PNGLR 183 the Supreme Court imposed 18 months for misappropriation of K6000.00 and three years for misappropriation of K10,000.00. In that case, Mr Lawi subsequently applied the K6000.00 for purposes for which the money was originally granted. In respect of the K10,000.00, he had the equivalent amount in his lawyer’s trust account and gave an undertaking to repay the money immediately. In Joseph Rokpa v The State [1994] PNGLR 535 the National Court imposed 3 years for misappropriating an amount of K5000.00. Sentences imposed by the National Court in other cases fall within this range for misappropriation of similar amounts of money. Having regard to the range of sentences and all the circumstances in the present case including the fact that this was a trial, I do not find that the trial judge committed any error in imposing the head sentence of 3 years imprisonment. 

The trial judge further considered the fact that this is a property offence and that the applicant should repay the money to the owner. Moreover, the trial judge fully took into account the interests of the applicant in that the sentence would be suspended if the applicant repays the money. The State has not appealed against this part of the decision and the applicant cannot point to any injustice resulting from this decision.

The question then arises; was the condition of repayment of the money within two months not sufficient and therefore unreasonable? In this regard, the applicant in her allocutus requested the trial judge to give her three weeks in which to arrange with her uncle who was resident in Goroka to help her pay back the money. Counsel representing the applicant at the trial also urged the trial judge to allow three weeks to repay the money as requested by the applicant. The trial judge accepted this submission and suspended the sentence and gave her until 29th February 2000 (a period of more than the three weeks) to repay the money. In the circumstances, the period of two months cannot be said to be insufficient.

I find that the trial judge fully considered all the relevant and competing considerations and came to an appropriate sentence. I cannot find any valid grounds for reviewing the sentence imposed by the trial judge.

Therefore, I conclude that the applicant has failed to satisfy me that valid grounds exist for reviewing the conviction and sentence under s 155 (2) (b) of the Constitution. The result: I dismiss the application for judicial review and confirm the conviction and sentence imposed by the National Court.

LOS, J: The facts and the background leading to the appeal have been sufficiently set out by the Chief Justice at the commencement of his view on this appeal. I will proceed to address only on the grounds of appeal or any issues that arise from any of the grounds of appeal.

The first issue is whether the appeal is out of time. The appellant was convicted on 29 December 1999 and sentences imposed on her were suspended for two months for her to repay the amount. However when she could not pay the amount she was taken to prison to serve the custodial sentence commencing from the 29 February 2000. She filed an appeal in person on 16 March 2000. She is out of time. Sometimes the nature and the way a court makes a decision may put an appellant on an awkward position. That is where a decision on conviction is made but sentencing is delayed for several months. Or in this case the sentence was imposed on the same day but it was suspended on a self-executing condition. A question may arise whether for the purpose of appeal; the 40-day period under Section 7 of the Supreme Court Act begins when sentence begins to take effect when suspension period has expired. This would have to be properly addressed at an appropriate time. But for the purpose of the appeal at hand, I consider that situation is relevant for the purpose of leave application under s 155(2)(b) of the Constitution.

I consider that the appeal was lodged out of time. I consider that this is an appropriate case for leave to be granted and I have given a reason earlier. The other reason is that this is an appeal by an appellant in person. It would seem she thought she could repay but she could not do so without any assistance within the two months period. There was no evidence of her ability was before the court. I grant the application therefore.

In relation to the appeal against conviction, in all the essential parts of the evidence produced against the appellant, I do not see any error at all made by the trial judge. The oral evidence, the documentary evidence, and the appellants own evidence supported the guilt of the appellant. I therefore dismiss this ground of appeal.

In relation to the appeal against sentence, the sentencing court must as a matter of broad policy weigh and consider the public policy i.e public concern over certain type of offences which to begin with would be reflected by the type and extent of penalty prescribed by the Criminal Code and the sentences that have been imposed by the courts. In this case the money was misappropriated from the bank, a financial institution which handles hundreds of customers money. The appellant, like others, are skilled employers or officers where one is in a position of trust. Various cases have alluded to these principles including Belawa v. The State (1988-89) PNGLR 496.

On the other hand a convicted person’s own abilities are relevant in that whether she originated perpetrated, and manoeuvred skilfully to commit the crime. The finding by the trial judge indicate from within the Bank she was the main player showing no signs of reluctance but managed so nicely by, metaphorically speaking, pulling a wool over all the work mates. So that in my view on both counts, three years sentence is not excessive at all.

Having said that I note the Chief Justice’s view on changing of focus of sentencing in this type of offences. While I do not agree that three years is excessive, the fact of suspension itself showed that the judge himself intended that the sentence be suspended. However, in my view he was unreasonable in the exercise of his discretion by giving only two months to pay when he did not state why the two months was necessary and sufficient.

I further agree that while a stern punishment is called for in such an offence, a stern punishment is not necessarily concerned with keeping someone in custody of the State where it would cost the State thousands of Kina to keep and feed. A penalty imposed could also be meaningful by sense of shame and humiliation under a non-custodial sentence such as that the Chief Justice suggests to impose. With respect therefore I adopt His Honour's proposal.
__________________________________________________________________
Lawyer for the Appellant	:	JB Nanei & Company Lawyers.
Lawyer for the State		:	Public Prosecutor.