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Cutmore v State [2025] PGSC 4; SC2684 (15 January 2025)

SC2684

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]


SCRA NO. 60 OF 2023


DAVID JOHN CUTMORE
Appellant


V


THE STATE
Respondent


Waigani: Salika CJ, Kariko J, Narokobi J
25 September 2024; 15 January 2025


CRIMINAL LAW – appeal against sentence after conviction on plea of guilty – money laundering, s 508B(1)(3)(g) Criminal Code -– attempting to transport to Australia by plane cocaine received in PNG– whether medical condition of appellant properly considered – whether sentence manifestly excessive


CRIMINAL LAW - appeal against sentence after conviction on a plea of guilty - money laundering, s 508B(1)(3)(g) Criminal Code – whether conviction safe or correct on the charged facts – what constitutes money laundering – meaning of the terms “criminal property”, “criminal conduct” and “asset”- inherent power of court to amend notice of appeal to include appeal against conviction


After pleading guilty to the offence of money laundering under s 508B(1)(3)(g) of the Criminal Code, the appellant was sentenced to 18 years in prison, which he appealed against. In the hearing of the appeal, the safeness or correctness of the conviction was queried.


Held:


Per Salika CJ and Narokobi J (the majority):


(1) The trial Judge did not err in her consideration of the appellant’s medical condition.

(2) The sentence of 18 years was not excessive in the circumstances.

(1) The appellant failed to identify an error which has the effect of vitiating the trial Judge’s use of sentencing discretion.

(3) The appeal against sentence is dismissed and the sentence of 18 years in light labour is confirmed.

Per Salika CJ:


(1) The use of the country as a transit point for drug trafficking and the use of PNG nationals as “drug mules” must be strongly opposed with stiff penalties.

Per Kariko J (dissenting):


(1) Money laundering is understood to refer to the process of dealing with illegally obtained money to disguise its origin and make it look to have originated from a legitimate source, and the facts did not appear to be consistent with this process.

(2) It is arguable:

(3) It is manifest on the face of the records (the trial judgment) that there is an arguable or prima facie case the trial Judge may have erred in accepting the guilty plea and convicting the appellant - whether the conviction was safe or correct.

(4) Section 37(4) of the Constitution mandates that a person charged with an offence shall only be found guilty according to law.

(5) The National Court does not have the power to review or reconsider a National Court conviction not appealed after an appeal or review of sentence has been decided.

(6) Special circumstances exist which makes the case an exceptional one, thereby warranting the grant of leave by the Court acting pursuant to s155(4) of the Constitution for the appellant to amend the notice of appeal to include an appeal against conviction.

(7) The appeal on sentence should be deferred until after the appeal against conviction is determined.

Per Narokobi J:


(1) The Appellant may file a fresh proceeding under s 155(2)(b) of the Constitution seeking leave to appeal conviction out of time.

(2) Balancing the various objectives of sentencing and taking into account the National Goals and Directive Principles, and the Preamble of the Constitution, the circumstances of the case warranted a quantum leap in the sentence for public interest considerations, to achieve the sentencing objective of deterrence.

By majority (Salika CJ, Narokobi J; Kariko J dissenting):


(1) The appeal against sentence is dismissed and the sentence of 18 years in light labour is confirmed.

Cases cited:
Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510
Aihi v The State (No 2) [1982] PNGLR 44
Charles Ombusu v The State [1996] PNGLR 335
Goli Golu v The State [1979] PNGLR 653
Hariki v The State (2007) SC1320
Independent State of Papua New Guinea v Siune (2021) SC2070
Kaman v State (2022) SC2329
Lawrence Simbe v The State [1994] PNGLR 38
Marus v The State; SCRev No. 12 of 2014 (Unreported judgement dated 15 July 2014)
Papua New Guinea Law Society v Cooper (2017) SC1585
Setep v The State (2002) SC666
State v Cutmore (2022) N10001
State v Kairo [2020] PGNC 277; N8610
The State v Edward Bae (2019) N8029
William Norris v The State [1979] PNGLR 605


Counsel:
N Hukula for the appellant
T Kametan and M Mirou for the respondent


  1. SALIKA CJ: I have had the benefit of reading the drafts by Kariko J and Narokobi J. I have my own views on the matter.
  2. The appellant pleaded guilty to a charge of money laundering, under s. 508B(1)(3)(a) of the Criminal Code. The indictment reads:

“David John Cutmore of Melbourne, Victoria, Australia, stands charged that he on the 26th day of July 2020, at Papa – Lealea village, Kairuku, Hiri District, Central Province in Papua New Guinea, received criminal property being twenty eight bags of cocaine weighing at 611.1 kilograms, when he knew or ought reasonably to have known that it was criminal property, contrary to section 508B (1) (3) (g) of the Criminal Code (Money laundering and Terrorist Financing) (Amendment) Act 2016.”


  1. He is said to have “received” criminal property being 28 bags of cocaine weighing 611.1 kilograms. While the charge is referred to as a charge for money laundering, it is in reality a charge for receiving criminal property which is a money laundering offence. The criminal property being the cocaine in the 28 bags. Criminal Property is described under s. 508A of the Criminal Code to mean: “property that is, in whole or in part and whether directly or indirectly, derived from, obtained or used in connection with criminal conduct and includes any interest or dividend, or other income on or value accruing from or generated by such properties, regardless of who carried out the criminal conduct or who benefitted from it.” The appellant knew the cocaine was criminal property but “received it” anyway from two Papua New Guineans and when he received it, he loaded it onto his aircraft. He was to airlift them to Australia, but his aircraft crashed at the Lealea airstrip. The appellant admitted receiving the cocaine bags and pleaded guilty to receiving the criminal property which is a money laundering offence.
  2. Section 508B was specifically amended for the purpose of including money laundering under the Criminal Code as an offence. Berrigan J in The State v Edward Bae (2019) N8029 said:

“In order to establish the offence of money laundering, the State must prove that an accused dealt with “criminal property”. It is not necessary, however, for the purposes of s. 508B of the Criminal Code, for the State to establish who committed the criminal conduct in relation to the property; or, that there is a charge or a conviction relating to the criminal conduct: s. 508(F)(a)(i) and (ii), respectively. It follows from the definition of criminal property contained in s. 508A and the terms of s. 508(F)(a)(i) that it is possible for a person to launder criminal property generated from their own criminal conduct or that of another person.”


Nor must the State prove that the property was derived from particular criminal conduct, but “must prove either the general type or types of criminal conduct from which the property was derived”, or “that the circumstances in which the property is handled are such as to give rise to the inference that it can only be derived from criminal conduct”: s.508(F)(b)(i) and (ii) of the Criminal Code.


Nevertheless, it is my view, having regard to the above, that the State must establish for the purposes of s.508B past or completed criminal conduct, such that, an offence has already been “constituted” or committed from which the property has been “derived”, whether or not the particular criminal conduct is proved: s.508A read together with s.508F of the Criminal Code. This is sometimes referred to in other jurisdictions as the “predicate” or “underlying” offence, the proceeds of which form the subject of the money laundering offence.”


  1. With respect, I agree with her Honour’s statements and adopt it in this case.
  2. The criminal property is capable of being converted into cash which amounts to a money laundering offence. That did not happen in this case because circumstances beyond Mr Cutmore’s expectation intervened and prevented the criminal property being cashed. Counsel was unable to prepare any submission for the benefit of the Court on conviction because first of all the appeal is not against conviction and secondly, they were only prepared for submissions on sentence. In that regard, I have no issue with the conviction of the appellant.
  3. The appellant did not appeal his conviction. The time for filing an appeal has long lapsed. I will leave that aspect to him.

APPEAL ON SENTENCE


  1. I now turn to the appeal against sentence. The maximum penalty under s. 508B(1)(g), of the Criminal Code is 25 years imprisonment. The appellant was sentenced to 18 years imprisonment, which is not the maximum and is 7 years below the maximum. Two years 3 months were deducted for time in custody and that was in October 2022. Two years have gone by since the sentence was imposed. By now he has served four years of his sentence.
  2. At the time of the hearing of the appeal, the appellant and his lawyers did not provide an update of his medical condition or his general condition, as to how he is doing under PNG Correctional Services conditions at Bomana and whether his condition is stable or has deteriorated such that this Court might be concerned about his safety and well being at the Bomana Jail.
  3. The learned trial Judge did not impose the maximum penalty. She could have imposed a sentence from 20 years to 25 years maximum, because to me with respect, this was a very serious offence considering the factual circumstances of the case and the daring way it was committed. She adhered to the Goli Golu v The State (1979) PNGLR 653 principle and imposed a sentence of 18 years, not the maximum. Her honour may have been persuaded to think that this offence was not the worst offence of its type. With respect, I hold a view that this was a blatant invasion of PNGs national and territorial sovereignty to fly in, come and commit a variety of serious crimes here. Secondly, the criminal conduct the appellant was involved in was a complicated plan. While not the architect of the entire plan, he was party to the elaborate plan and played his role to the letter of the plan to perfection, at least by coming to PNG undetected. The plan to flout PNG laws, that is the Migration Laws, the Civil Aviation laws, the PNG Customs laws, PNG Criminal laws and breaches of other possible PNG Laws is a serious matter. The appellant made a deliberate choice to be engaged in the rather dangerous and hazardous journey. He would be compensated if he undertook the journey and played his part. His flight plan route to PNG is not in evidence. The trial judge said his journey started in Mareeba Airport, Cairns Australia. Did he fly direct from Mareeba to Lealea or did he stop in other places on his way here to refuel? This is because it is such a long way for a light aircraft to fly that long distance. The point I am making is that he was determined to complete his part in this illegal activity and would go all the way regardless of the risks involved for which he has instead landed him in jail. I agree, all his efforts ended up in vain.
  4. This incident is the first of its kind and the trial Judge said it will not be the last, but in my opinion, it should be the first and the last, and the Court has played its part by imposing a heavy penalty. At the trial, the learned trial Judge agreed with the defence counsel that this case goes to show that well planned and orchestrated drug trafficking is already happening in PNG, and Papua New Guineans are already involved in cocaine trafficking in a big way. In my opinion, this activity must be met with stiff opposition by way of heavy penalties.
  5. I am mindful of the facts of this case in that the cocaine was only on transit in PNG. But PNG should not allow itself and its people to be used as a transit point for drug trafficking or to use PNG nationals as “drug mules”. Again, such activity in this Country must be met with stiff opposition with stiff penalties.
  6. I agree each case must be determined on its own peculiar facts and circumstances. See Lawrence Simbe v The State (1994) PNGLR 38. The criminal conduct of the appellant in this instance is such that he is paving the way for PNG to be used as a drug trafficking point. It was easy navigating his aircraft to land at a small airstrip in Lealea. If he could do it so easily what is stopping others. He should be the first and I hope to be the last. The PNG authorities need to wake up to this looming danger.
  7. That said, I restate the William Norris v The State (1979) PNGLR 605 principle, which is that the appellant has the onus to show to this Court that the learned trial Judge made an error in law or in fact, which has the effect of vitiating the trial Judge’s discretion on sentence. The question now is: has the appellant identified an error, identifiable or unidentifiable, which has the effect of vitiating the trial Judge’s use of sentencing discretion? No error identifiable or unidentifiable has been identified by the appellant and his lawyers. The learned trial Judge did consider the appellant’s medical condition and took it into account in imposing the final penalty. He pleads that the learned trial Judge failed to consider his medical status and his age. With respect the learned trial Judge did.
  8. In relation to this offence, this is the first offence of its type and the National Court has started by imposing a heavy penalty. There is no leap over other precedent cases on sentence. It is the only one of its type and the peculiar circumstances of this case warrants such a sentence to be imposed. In other words, I am happy with the 18 years sentence imposed by the learned trial Judge.
  9. My proposed orders are:
  10. KARIKO J: The appellant David John Cutmore was convicted of one count of money laundering, an offence contrary to s 508B(1)(3)(g) of the Criminal Code upon pleading guilty, and he was sentenced on 28 October 2022 to 18 years imprisonment without hard labour, less time already spent in custody. See State v Cutmore (2022) N10001.

THE APPEAL


  1. Aggrieved by the sentence, the appellant filed for leave to appeal which was granted on 15 August 2023
  2. The appeal raises two grounds:

THE CONVICTION


  1. The facts upon which the appellant pleaded guilty and was convicted are found at [4] of the judgement:

On 26 July 2020 an aircraft, Cessna 402C, flown by the offender travelled from Mareeba Airport, Cairns, Australia, to Papua New Guinea. It landed at an airstrip outside of Port Moresby near Lealea Village, Central Province. The offender was the pilot of the aircraft and travelled alone. He entered Papua New Guinea illegally and for the purpose of collecting the cocaine and transporting it to Australia. Upon landing, the offender received from some locals whom he knew as “Commander” and “Jungle Boy” 611.1 kgs of cocaine, being dangerous drugs contrary to s 1 and s 3 of the Dangerous Drugs Act, 1952, which were loaded onto the aircraft. The offender attempted to take off from the airstrip but his aircraft crashed into the trees at the end of the runway. The drugs were intended for Australia and had an estimated street value of AUD $141,164,100.00.

(Emphasis added)


  1. The indictment charged that the appellant:

... received criminal property being Twenty-Eight bags of Cocaine weighing at 611.1 kilograms, when he knew or ought to have reasonably known that it was criminal property, contrary to section 508B(1)(3)(b) of the Criminal Code.

(Emphasis added)


SAFENESS OF CONVCTION?


  1. Upon reading the appeal book and taking particular note of the cited facts and the charge, it immediately struck me that the conviction might not be correct in law. I thought this because money laundering is understood to refer to the process of dealing with illegally obtained money to disguise its origin and make it look to have originated from a legitimate source, and the facts did not appear to be consistent with this process.
  2. This caused me to pose to counsel during submissions what they appreciated as the meaning of “money laundering” and whether the charged facts reflect their understanding.
  3. As counsel had only prepared to argue appeal against sentence, they were naturally caught off-guard and were not in positions to fully answer the questions.
  4. I acknowledge the conviction was based on a guilty plea and the appeal only challenged sentence, but I raised the questions because the charged facts suggested to my mind a drug offence such as possession, smuggling or trafficking of drugs and even conspiracy to traffic drugs, rather than money laundering which is a financial crime.
  5. Interestingly, the trial Judge remarked at [7] of the judgement:

On the facts described one might have expected the offender to have been charged with a drug related offence...


and at [8] that:


... money laundering is generally understood to concern the processing of monies so as to conceal their criminal origin...


  1. Her Honour was nevertheless satisfied that the terms of s 508B are sufficiently broad to make out the offence of money laundering from the facts.
  2. The offence is stated in these terms (emphasis added):

(1) A person who deals with property that is criminal property and who knows or reasonably ought to know that the property is criminal property is guilty of an offence.


  1. The trial Judge discussed the definitions accorded in s 508B(3) to the terms “deals with”, “property” and “criminal property” contained in s 508B(1) and concluded that cocaine is an “asset” which comes within the definition of “criminal property”. As s 508B(3)(g) provides that "deals with property" includes receiving property, her Honour found the appellant dealt with criminal property that he knew was criminal property.
  2. Her Honour reasoned that the cocaine was criminal property because it was obtained from a criminal conduct, being possession by “Commander” and “Jungle Boy” of a dangerous drug (cocaine) under s 3(1)(d) of the Dangerous Drugs Act 1952 (DDA). The term “criminal conduct” appears to be what is usually termed a predicate crime in discussing money laundering – a crime that generates funds or assets that are laundered to hide their illegal source. It is arguable that mere possession of cocaine is conduct that generates funds or assets.
  3. One might logically view that the text of s 508B(1) should be read in terms consistent with the offence of money laundering as commonly known and understood. It is indeed arguable that contextualized, the offence targets persons who participate in the process of money laundering where the proceeds of crime (mainly cash) are converted to assets.
  4. The Bank of PNG who with the Department of the Attorney General have been largely responsible for a set of legislations addressing the global issues of money laundering and financing of terrorism (including the Criminal Code (Money Laundering and Terrorist Financing) (Amendment) Act 2015 which introduced s 508B), refers to money laundering in these terms on their website:

Money Laundering is the process of making criminal assets or earnings of crime (cash and non-cash assets) appear legitimate. Or in other words “cleaning dirty money or assets”. This is done by conducting one or more legitimate financial and commercial transactions so that the assets obtained at the end of the process looks clean or legitimate.

(Emphasis added)


  1. The Explanatory Notes in UK’s Proceeds of Crimes Act, define money laundering as (with emphasis added) “the process by which the proceeds of crime are converted into assets which appear to have a legitimate origin, so that they can be retained permanently or recycled into further criminal enterprises”.
  2. An “asset” is defined by the Oxford Dictionary of English as “an item of property owned by a person or company, regarded as having value and available to meet debts, commitments and legacies”. Cocaine is an illicit drug that is produced from the coca plant. It is questionable whether the drug should be properly regarded as an “asset” or simply a “product” which the same Dictionary defines as “an article or substance that is manufactured or refined for sale”.
  3. The process of money laundering is explained to consist of three stages. Wikipedia describes them in these terms (emphasis added):

The first involves introducing cash into the financial system by some means ("placement"); the second involves carrying out complex financial transactions to camouflage the illegal source of the cash ("layering"); and finally, acquiring wealth generated from the transactions of the illicit funds ("integration").


  1. There have been many cases in this country of persons arrested while trying to domestically transport marijuana or cannabis (also a dangerous drug under the DDA) received from local growers of the drug. These persons have been traditionally charged and convicted of possession of a dangerous drug under the DDA. However, according to the appealed judgement, they would be guilty of money laundering.
  2. In drug related offences, particularly drug trafficking, which is often associated with money laundering, it is the dealing of the proceeds of the crime, mostly money, that concerns the offence of money laundering. In this case and the analogous cannabis example, there seems to be no proceeds of crime, and no “placement”.
  3. As I noted earlier, the court did not have the benefit of full and proper argument from counsel given the appeal was only against sentence.
  4. Notwithstanding, it is always a serious concern where a person’s liberty is at stake. The appellant is undergoing a lengthy prison sentence in circumstances where manifest on the face of the records alone (the trial judgment), is an arguable or prima facie case that the trial Judge may have erred in accepting the guilty plea and convicting the appellant. It begs the question whether the conviction was safe or correct.
  5. The concern is exacerbated by the fact that if the appeal as filed is determined, the appellant will have no other lawful recourse to have his conviction scrutinised. The criminal process would have been exhausted as the Supreme Court is the final court of appeal.
  6. Money laundering is an offence recently added to the Criminal Code and the present case appears to be the first drug related case concerning s 508B. It is therefore an important precedent. The only other reported case on this offence is The State v Edward Bae (2019) N8029, a judgement also by the trial Judge and which her Honour referred to in deciding sentence. The facts of that case however are vastly different, and I do not consider the judgment helpful to the issues in discussion now. There, a bank officer transferred money from two of the bank’s accounts into a relative’s account and then withdrew from that account and used the money. He was also convicted upon pleading guilty.
  7. As the trial Judge noted at [7] of the judgment in the present case, the appropriate offences to have charged the appellant are found in the Controlled Substances Act 2021 (CSA) but the Act was not in force when the appellant was charged. However, that legislation is now in operation having come into effect on 7 February 2022. In all certainty, a similar factual case since that date would not attract a criminal charge of money laundering. Instead, the CSA which lists cocaine as a controlled substance in Schedule 1 would be referred to, and appropriate offences considered including dealing with controlled substance (s 62), possession of controlled substance (s 63), smuggling controlled substance (s 67) and trafficking controlled substance (s 68).
  8. In her sentencing remarks at [50]-[51] of the judgment, the trial Judge restated that the offence charged was money laundering and not a drug related offence, and added that “... this was a deliberate, well-planned offence of international scope, conducted for profit and concerning criminal property of enormous value to organised criminals. The fact that the property received was cocaine only makes those matters more stark. The offender played a critical role and well understood the nature of the criminal property and its ultimate purpose”. These are very appropriate comments, but it remains that s 37(4) of the Constitution mandates that a person charged with an offence shall only be found guilty according to law.

CONSIDERATION


  1. In the criminal process, a person is sentenced after he is lawfully convicted. Subject to appeal or review, the sentencing ends the criminal proceedings: Independent State of Papua New Guinea v Siune (2021) SC2070. Subject to slip application, the determination of an appeal or review brings finality to those proceedings: Kaman v State (2022) SC2329.
  2. If this appeal is determined as it is, the chances of the arguable points of law regarding the conviction ever being examined by the Supreme Court would be nil.
  3. The Supreme Court in Independent State of Papua New Guinea v Siune quashed the decision of the National Court which granted a human rights application to allow the early release of a prisoner from her prison sentence which was not appealed. The Supreme Court held that the National Court did not have the power to do so. Consistent with that reasoning, the National Court would not have the power to review or reconsider a National Court conviction not appealed after an appeal or review of sentence has been decided.
  4. The Supreme Court is the final court of appeal: s 155(2)(a) of the Constitution. It has inherent jurisdiction under s 155(2) to review any judicial decisions of the National Court. In exercising its inherent supervisory jurisdiction, the Supreme Court may under s 155(4) of the Constitution make such orders as are necessary to do justice in the circumstances of a case. The Court has even applied this power to consider and determine an appeal on a point of law not directly raised in the grounds of appeal: Papua New Guinea Law Society v Cooper (2017) SC1585.
  5. The Supreme Court in Hariki v The State (2007) SC1320 held that a notice of appeal can be amended even during the hearing of the appeal with the leave of the court. The Court applied Charles Ombusu v The State [1996] PNGLR 335 and confirmed that the test to apply in a criminal appeal when deciding the required leave is whether special circumstances exist which makes the case an exceptional case that warrants the grant of leave.
  6. Those cases involved the appellant seeking leave to amend the notice of appeal, but I consider this an appropriate case where the court can exercise its inherent jurisdiction under s 155(4) of the Constitution and on its own initiative grant the leave. While it cannot be said that the appealed decision is plainly wrong as was the case in Marus v The State; SCRev No. 12 of 2014 (Unreported judgement dated 15 July 2014) where the Supreme Court on its own initiative reviewed and quashed a National Court decision that sentenced a civil contemnor to 23 years imprisonment, there exists in the present case an arguable or prima facie case that the trial judge may have been wrong in convicting the appellant.
  7. From the foregoing discussion and considering the factors stressed in [37]-[44], it is my respectful opinion that special circumstances exist which makes the case an exceptional one, thereby warranting the grant of leave to amend the notice of appeal to include an appeal against conviction. It is in the interest of justice to do so, and the State will not be prejudiced by this course.
  8. It necessarily follows that the hearing of the appeal against sentence should be deferred until appeal against conviction is determined.

ORDER


  1. The orders I propose are that:
  2. NAROKOBI J: The Appellant pleaded guilty to a charge of money laundering under s 508B(1)(3)(b) of the Criminal Code and was sentenced to 18 years in light labour.

APPEAL GROUNDS


  1. The facts of the case, and its background are well stated by my brother Justice Kariko. In the interest of brevity and clarity, I wish not to repeat them, and rely on them.
  2. The appeal is against sentence only on the grounds that the trial judge did not consider the Appellant’s medical condition, and that the sentence was excessive in the circumstances.

PRELIMINARY ISSUE


  1. During submissions my brother Justice Kariko raised the question of whether the conviction was safe as the facts suggest that all the elements of the offence were not satisfied. This was not a classic case of money laundering.
  2. I deal with this issue first. Although conviction is not appealed, I accept that the Supreme Court can in the interests of justice (Constitution, s 158(1)), consider the issue, and under s 155(4) of the Constitution, make appropriate orders to do justice in the circumstances. However, after further reflection on the issue, I do not believe that the issue has been fully argued for me to reach a position. I would suggest that the Appellant file a fresh proceeding under s 155(2)(b) of the Constitution seeking leave to appeal conviction out of time, relying on the principles in Aihi v The State (No 2) [1982] PNGLR 44.

PRINCIPLES OF APPEALS AGAINST SENTENCE


  1. The power of the Supreme Court to determine an appropriate sentence on appeal is provided for under s 23(4) of the Supreme Court Act 1975, Chapter 37:

(4) On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.


  1. As to the appeal grounds, I apply the principles in William Norris v The State [1979] PNGLR 605 [at p162]:

The principle is that the appellant has the onus of showing to this Court that the learned trial judge has made an error in law or fact, which has the effect of vitiating the trial judge’s discretion on sentence.


  1. In Vali v State [2007] PGSC 31; SCRA 61 of 2004 the Supreme Court following William Norris v The State and Gimble v The State [1988-89] PNGLR 271 held that even if no error can be identified, if the sentence is out of all proportion to the crime, error will be inferred.
  2. Where an appeal ground is that certain matters in mitigation were not taken into account in the sentence, an appellate court may presume that a trial judge had taken into account all matters urged in mitigation. This presumption operates unless the appellant can show that this did not occur or that some error was made in the process (Aihi v The State (No 3) [1982] PNGLR 92 [headnotes]).
  3. Ultimately, sentencing is an exercising of the Court’s discretion. Supreme Court in considering an appeal against sentence is usually slow to interfere with the primary judge’s exercise of discretion unless an error can be shown to disturb the discretion. Many cases in the Supreme Court confirm this approach such as Konia v State (2020) SC2122 [at 11].

WHETHER THE APPELLANT’S MEDICAL CONDITION WAS TAKEN INTO ACCOUNT


  1. I am not satisfied that the trial judge incorrectly exercised her discretion on sentence on the first ground of appeal. I have read the trial judge’s decision on sentence, and it is apparent that she considered the medical needs of the Appellant and decided that it would be best attended to by the Correctional Services. The Appellant was also sentenced to light labour. I see no error in the trial judge’s exercise of discretion on the first ground of appeal.

WHETHER THE SENTENCE WAS A QUANTUM LEAP


  1. On the second ground, I have initially taken the view that the sentence was a quantum leap but after having read the Chief Justice draft judgment I am persuaded to agree with him, but offer my own comments. Offences under s 508B(1) of the Criminal Code carries a fine not exceeding K500,000.00 or imprisonment for a term not exceeding 25 years or both for natural persons.
  2. Section 19 of the Criminal Code confers on the court wide discretion, on the punishment to be imposed on an offender. The maximum penalty is reserved for the most serious instances of the offence (Goli Golu v The State [1979] PNGLR 653). In my view, whilst the nature of the offence is serious the offender is entitled to a fair punishment, balanced against the interests of society. Lawrence Simbe v The State [1994] PNGLR 38 is the authority for the proposition that each offender is entitled to be punished according to the unique facts and circumstances of their case.
  3. Due to the lack of jurisprudence in this area of the law, the primary judge relied on the principles in The State v Bae (2019) N8029 and sentenced the appellant to 18 years in light labour. I have attempted to locate cases with similar facts, to get an appreciation of the range of sentence for similar offences but have not been able to find any reported cases. I therefore revert to the principles discussed in The State v Bae. In that case the prisoner was an employee of a bank. He transferred K72,380.30 from two of the bank’s income accounts to his brother-in-law’s bank account without approval. The prisoner then spent the money for his personal use. He was sentenced to four (4) years in hard labour.
  4. The Appellant is charged under s 508B(1) of the Criminal Code, and he is to be sentenced under that provision and the principles developed therein. I accept what the Court stated in The State v Bae as relevant considerations for this kind of offence [from the headnotes]:

(8) The following matters may be relevant when considering the objective seriousness of a money laundering offence: a) the amount or value of the criminal property involved; b) the source of the criminal property dealt with or the seriousness of the criminal conduct from which the property derived; c) the period over which the offence was perpetrated and the number of transactions involved; d) the sophisticated nature of the offence and the extent of planning involved; e) the role of the offender, or the authority with which he acted; f) the nature of the dealing or the use to which the money was put, including the extent to which the offender personally benefited; g) the state of mind of the offender, or the extent to which he knew the property was criminal property; h) the extent to which the offender abused a position of power or trust; and i) the impact of the offence on the public and public confidence.


(9) A sentence for money laundering should normally reflect the need for general deterrence to a very significant degree because of the serious nature of, and the potential risks posed to the economy and society by, the offence.


  1. A sentence of 18 years, from the first reported case where an offender was convicted and sentenced to four (4) years under s 508B(1) appears to be a quantum leap in the sentences on money laundering and the court gave much weigh to public interest consideration as over an individual’s right to a fair punishment. I adopt what the court said in Setep v The State (2002) SC666 that there must be a progressive increase in the sentence imposed. Are there special circumstances that warrant this quantum leap?
  2. In the case of State v Kairo (2020) N8610, this is what I observed [from the headnotes]:

(2) The punishment should be in proportion to the harm inflicted and the level of responsibility of the offender. Although society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction should not be too severe or too lenient.


  1. Having said all this, the question I am left with is whether there are extenuating circumstances that warrant a quantum leap. I began with the view that the trial judge gave much weight to public interest considerations over the right of an individual to a fair punishment. I was prepared to reduce the sentence and impose the sentence that the State submitted before the primary judge, that is that the appellant should receive 12 years. But after reading the opinion of the Chief Justice, I have given further thought to my position. His honour’s views reminded me of National Goal No 2 on National Sovereignty and Self Reliance and the duty of governmental bodies to implement it, where it can reasonably be able to do so (Constitution, s 25(3) (albeit non-justiciable as it is)). The primary issue for me, again, I restate, is whether there are extenuating circumstances that warrant a quantum leap?
  2. Sentencing is not an exact science. Speaking for myself, when I decide sentence of an offender, I usually ask which sentencing objective the facts of the case suggest I should apply. These sentencing objectives, were well stated by Kapi J in Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510:

Deterrence is one of the most frequently used purposes in sentencing under this theory, if the sentence so acts upon the accused as to produce lack of repetition of criminal behaviour, the sentence will have achieved its purpose, namely to promote the peace and safety of the community by discouraging subsequent criminal behaviour of the accused. The other desired effect of a deterrent sentence is to warn others and cause them to refrain from the same criminal activity because if they do not they will be punished in the same way.


The second purpose of sentencing is what may be called the separation of the criminal from the society. This theory of sentencing is considered appropriate in crimes which involve grave risk to the personal peace and safety of the members of the community, such as murder, robbery, rape, etc. Emphasis is placed on the protection of the community rather than the offender.


The third theory of sentencing is that of rehabilitation. The emphasis in this theory is on the offender. The theory behind rehabilitation is that the offender should receive correctional treatment so that when he completes his sentence he becomes a useful member of the community, that is, he will obey the law rather than disobey it. In many of the developed countries, like Japan, special correctional have been built for this purpose. In others they have introduced probation services for releasing the offender into the community under special supervision. In this regard, we are far too behind in developing our institutions and programmes to effectively carry out this purpose of sentencing. Legislation for probation is now under consideration. Until these programmes are developed in this country, many offenders who would be considered under this theory of sentencing will not receive what many other offenders receive in other countries.


The fourth purpose of sentencing is retribution. This theory of sentencing may be referred to as vengeance. This conveys the notion that the person who commits a crime must pay for it, or deserves it. This purpose of sentence is not foreign to the cultures of the people of this country. This is what is normally referred to as payback. This notion grew out of many years of tradition in the village. A person who broke the rules or customs of the village deserved punishment.”


  1. This is a case where the court must carefully weigh the interests of the individual as against the interests of the public. Without restating them, I remind myself again of the specific facts of this case, which the offender pleaded guilty to. To effectively carry out this delicate balancing exercise, I address my mind to the considerations in The State v Bae to assist me:
  2. These considerations suggest the existence of extenuating circumstances. This view is strengthened when seen with the eyes of the preamble of the Constitution which profoundly imposes a duty on Papua New Guineans to “...guard with our lives our national identity, integrity and self respect.” The effect of this crime calls into question the integrity and self-respect of Papua New Guinea and Papua New Guineans amongst ourselves, and the community of civilised nations who abide by the rule of law. All this has led to the view that the primary judge was correct to give much weight to public interest. Deterrence is a key objective in sentencing to protect the public over an individual offender’s interest, where the primary judge correctly observed [at 59]:

Moreover, the public interest in this case is paramount. The danger of the offence lies in the fact that it sought to use Papua New Guinea as a reception point for criminal property destined for lucrative markets in another jurisdiction.


  1. As the Chief Justice commented in his opinion, the rights of the appellant to a fair punishment is catered for by the fact that the primary judge did not impose the maximum sentence of 25 years or a sentence close in years to it. Additionally, the sentence is to be served in light labour. The sentence of the trial court balances these two competing interests well.

CONCLUSION


  1. My conclusion from my discussions is that there is no identifiable error in the primary judge’s sentence. The medical needs of the appellant were considered. Given the peculiar circumstances of this case, the sentence was not excessive. In my respectful view, the appeal should be dismissed.

ORDER


  1. My proposed order is that the appeal against sentence is dismissed and the sentence of 18 years in light labour is confirmed.

ORDER OF THE COURT


  1. By majority (Salika CJ, Narokobi J; Kariko J dissenting):

__________________________________________________________________
Lawyer for the appellant: Public Solicitor
Lawyer for the respondent: Public Prosecutor

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