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Harley, Regina v [1971-72] PNGLR 399 (2 September 1971)

[1971-72] PNGLR 399

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

HARLEY

Port Moresby
Frost SPJ Clarkson Kelly JJ

24-25 August 1971
2 September 1971

CRIMINAL LAW - Sentence - Inadequacy of - Appeal - Larceny by servant - Principles affecting sentence - Term of nine months imprisonment substituted for recognizance - Supreme Court (Full Court) Ordinance (1968), s. 29 (1)[cdxliv]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 of the trial judge but the court should not interfere with the sentence appealed against unless it is satisfied that the sentence should be altered.

Reg. v. Pia-Afu, [1971-72] P. & N.G.L.R. 393, referred to.

Relevant considerations discussed where respondent, a woman of previous good character, under heavy mental strain by reason of the illness and subsequent death of her husband pleaded guilty to stealing as a servant the sum of $9,568.76, and asked for two other offences to be taken into consideration, and sentence of nine months imprisonment substituted for recognizance of $1,000 to be of good behaviour for five years.

Cases Referred To

Reg. v. Coleman (1967), 51 Cr. App. R. 244; Reg. v. O’Keefe, [1959] Qd. R. 395; and Reg. v. Cuthbert (1967), 86 W.N. (Pt. 1) (N.S.W.) 272.

Appeal

The respondent on 26th March, 1971, before the Chief Justice pleaded guilty to an indictment whereby she was charged that between June and November 1970 in Papua being the servant of the Administration she stole cash and cheques to the value of $9,568.76 which had come into her possession on account of the Administration. The respondent also admitted and desired that the Court take into consideration two further offences, that is to say, that between 29th December, 1969, and 2nd May, 1970, being the servant of the RSSAILA Boroko Branch (which is referred to in the judgment as “the League”) she stole cash and cheques to the value of $1,820.26 the property of her employer, and that in or about March 1970 she being then acting in the capacity of servant of the League falsified an account with intent to defraud. For each of the three offences referred to, the Code provides a maximum penalty of seven years imprisonment. Having read the depositions and having heard various witnesses and also the respondent, on 29th March, 1971, the Chief Justice ordered that the respondent be discharged upon her own recognizance in the sum of $1,000 without sureties to be of good behaviour for five years and to keep the peace. The Secretary for Law appealed against the sentence.

Counsel

Greville-Smith, with him Roberts-Smith, for the appellant.
Pratt, for the respondent.
Cur. adv. vult.

2 September 1971

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

[The judgment set out the facts stated above and continued:]

The main ground of the appeal is that the sentence was and is inadequate, and in a number of respects the Crown also contends that the Chief Justice erred in principle and did not give sufficient weight to various considerations.

At the hearing the respondent was represented by experienced counsel who also appeared before this Court. At the time of the various offences the respondent was an accounts clerk employed by the Public Health Department. The duties of her employment required her to receive payment from individual in-patients and also to receive moneys directly from three other officers of the department whose duties were to receive money from respectively the specialist out-patients clinic, dental clinic and the public out-patients clinic. Two of these officers were expatriates. Her duties in relation to these moneys was in the case of the in-patients and moneys sent in by mail, to issue a receipt, and, in the case of those moneys and also of the other payments by the three collectors, to bank the money received, to make out a bank deposit slip and a collector’s statement.

At the hearing counsel for the respondent called a number of witnesses who fully explained to the Court the sequence of events that led to her downfall. This was a sad and indeed a tragic story. The respondent is a married woman with two children now ten years and seven years old respectively. She had come with her husband from Samarai in 1965 to Port Moresby when her husband was transferred in his employment, and she became employed at the Public Health Department. They were a respectable family of good reputation. Trouble struck them in July 1969 when the respondent’s husband became sick. When the sickness was diagnosed as cancer of the mouth, as she said, “We just felt as if the bottom had fallen out of everything”. She became unable to keep up with her work—she used just to sit at her desk and stare out of the window. She started to drink daily whereas before she had been only a social drinker. Her husband began to drink very heavily indeed. She started to bet and before long in twenty dollar bets. In spite of her domestic predicament—perhaps as possibly some relief from it —she accepted the position of treasurer of the women’s committee of the League but the moneys she received from various activities of the League she failed to bank and before long she was using it for her own purposes, about $200 being involved. At this stage, the respondent and her husband were living beyond their means with hire-purchase payments to meet on a car, and it was for things such as this rather than betting that the money was used. The precise nature of the document she falsified was not fully explained but it seems to have been a treasurer’s report. The discrepancy was in due course detected, but all of the League’s money not accounted for was repaid by the respondent early in May 1970. Unfortunately, she appears not to have learnt from this lesson. In July 1970 the husband had medical treatment and his illness was diagnosed as not malignant. This should have relieved her mind from worry and strain, but unfortunately he seemed to be going down-hill, and she could not feel any satisfaction that his health was improving. The respondent started to bet again and to drink more heavily. Her husband died in September 1970 from the effects of a fall. It was from June 1970 until almost the time when she went on leave on 21st November that she then from time to time took for her own purposes some of the hospital moneys. She had adopted the habit of taking home with her in a briefcase certain receipt books, moneys and documents which she had not attended to at the hospital during the day, but even at home she was unable to face up to doing the work. When she went on leave she had thus taken a considerable sum of money but this had not been detected by any of her superiors. What she did was to take with her in a bag a bundle of cheques, cash, hospital books and documents, she said, for the purpose of putting them in order. But the thefts were discovered soon after she left. In two interviews on 15th and 17th December, 1970, she was interviewed by a Territory police officer who journeyed to Sydney for the purpose. On the latter date she produced at the police station the bag containing the money and documents. It was found to contain $5,959.61 almost entirely in cheques. The deficiency was established eventually at the sum of $3,608.15. This sum she said before the Chief Justice, and there is no reason to doubt her, was money which she had taken from time to time in cash. On 17th December, 1970, in Sydney, she made a brief written statement, which she signed, as follows: “About June this year whilst employed at the Port Moresby Hospital, I started to use public moneys for my own use. We lived beyond our means and I started to gamble. My mind over the previous twelve months had not been completely clear through mental strain, I am very sorry for what I have done and I can honestly say that I can make full restitution.” In Sydney she offered a sum of $4,000, which she said would cover the sum missing, in restitution for the moneys taken. The missing amount of $3,608.15 was eventually accepted in Port Moresby prior to the hearing.

In addition to the evidence of previous good character established through a number of witnesses there was evidence also of the heavy mental strain caused by the respondent’s husband’s illness and her lapse into drinking. Dr. Burton-Bradley was called to give evidence as to her mental state during the period over which these offences were committed. He had known the respondent and had seen her from time to time at the Port Moresby Hospital. She had consulted him prior to the trial. Dr. Burton-Bradley considered that it was possible for her in her grief to act irrationally and in a manner in which she would not otherwise have acted and he confirmed also that in his opinion she was subject to great stress over a long period of time. The learned Chief Justice had the benefit of hearing these witnesses. He accepted their evidence and indeed it was not really challenged.

From his Honour’s judgment it is plain that he accepted the plea of guilty as extending to the full sum referred to in the indictment, and also in the charge which she desired to be taken into account, but in view of the appellant’s evidence that the sums taken for her own use were the lesser sums of $3,608 and $200 respectively and that the hospital cheques amounting to $5,959.61 were not negotiated, his Honour treated the thefts as involving for the purpose of sentence, those lesser sums and in the circumstances we consider he was justified in so doing.

In sentencing the respondent the learned Chief Justice referred to the circumstances of the respondent and then proceeded as follows: “Your offence is a serious one. The community looks for and is entitled to expect probity and honesty from its public servants. Unfortunately from the recent statistics put before me by Mr. Crown it seems that the class of offence of which you are guilty has been growing. I have been greatly troubled to know what to do in your case. I am fully conscious of the desirability of imposing a sentence which would serve to act as a deterrent to others. On the other hand, the law is not to be administered mercilessly. Your offence is one which would in most cases merit a substantial term of imprisonment. My difficulty has been in determining whether there is anything in the circumstances of your case to warrant a departure from the importance of deterrence. After anxious thought and not without some hesitation I think that there is. What you did has been completely out of character and perhaps has shown a weakness of character of which not even you yourself were aware. The strain under which you were placed and under which in part you placed yourself was I think well beyond the ordinary. I have been influenced too by the fact your two young children are fatherless and are at a stage where they need a mother’s care, particularly as they will have to now make their lives in a new environment.”

In determining this appeal, the first question is the proper construction of s. 29 (1) of the Supreme Court (Full Court) Ordinance 1968. This question was argued fully before us, and in the meantime also by counsel in the appeal by the Secretary for Law in the case of Reg. v. Pia-Afu[cdxlv]2. This Court’s decision upon the construction of s. 29 (1) will be found in the judgment in the latter case, which we shall deliver immediately after the present judgment. For the purposes of this case it is sufficient for us to state that in our judgment s. 29 (1) confers an unfettered discretion upon the Court but that the Court should not interfere with the sentence appealed against unless it is clearly satisfied that the sentence should be altered.

We turn to his Honour’s reasons for releasing the respondent upon recognizance which was, in effect, to impose no punishment at all. It is plain that there were extenuating circumstances strongly in favour of the respondent. But it is the misfortune of this Court that it is unable to agree with the learned Chief Justice that these circumstances warrant a departure from the importance of deterrence, as his Honour put it, or, we would add, from the normal treatment by the courts of offences of the gravity to which the respondent pleaded guilty and which would ordinarily merit a substantial term of imprisonment.

The previous good character and standing of the respondent is as has been pointed out by the Court of Appeal in England a usual feature in cases such as this. In the case of Reg. v. Coleman[cdxlvi]3 the Court of Appeal upheld a sentence imposing a substantial term of imprisonment in a case of breach of trusa servant. ant. The appellant was a young married man of excellent character for whom and his family the conviction had brought ruin. The court was sure that he would never offend again. The offence extended over a longer period, five or six years, than the offence which was committed in this case, but as the respondent’s offence was one of a systematic character over a period of months similar considerations apply. Davies L.J. said[cdxlvii]4: “If it were a question of preventing the appellant from doing anything like this again, it would not be necessary to pass any substantial sentence. But, as has been pointed out, nearly always when these cases occur with bank clerks and accountants the man or woman concerned is a person of the highest character, otherwise he or she, of course, would not have been put in the position of trust. But the courts always have to take a serious view of such cases as this of a gross breach of trust extending over, in this case, perhaps five or six years or so.”

There are other considerations to which we will now refer which have clearly satisfied us that the sentence is inadequate and should be altered. The additional offence of the theft over a period of about four months early in 1970 of money from the League cannot be overlooked. She was given the opportunity to repay the money and apparently at that stage no decision was made to prosecute her. She did not profit from this experience for very soon she embarked on the systematic thefts of hospital moneys which was also over a period of months from June to November which, on any view of the facts, amounted to the considerable sum of $3,608. This was a gross breach of trust reposed in her, particularly as her position was such that other officers, expatriate and indigenous, were accountable to her for moneys which they had collected. There is the consideration which is especially important in this country as it moves towards independence that in the public service, which is becoming increasingly localized, there should be established the highest standards of probity. To ensure that these standards are established, in our judgment requires the courts to take into account the deterrent element in imposing sentences for offences of this nature. The fact that this type of offence is becoming more prevalent as the Chief Justice stated must also be taken into account. The fact that full restitution has been made cannot itself enable the respondent to escape punishment. It can be treated as a guarantee of the respondent’s future intentions, but as Stanley J. said in Reg. v. O’Keefe[cdxlviii]5 withh we agwe agree: “Offenders cannot bargain with the Court and, in effect, hemselves out of sentences.nces.”

The Court is clearly satisfied that the sentence is inadequate and should be altered. We take into account that the learned Chief Justice had the benefit of hearing the witnesses and the respondent in assessing the subjective factors and the circumstances in which the respondent found herself, but the objective circumstances of the crime are set out in the depositions so that the trial judge’s advantage over an appellate court cannot be so great in such a case that it should prevail over the views of this Court: see Reg. v. Cuthbert[cdxlix]6. We consider that the learned Chief Justice gave too much weight to the subjective factors and too little weight to the gravity of the three offences committed and the need for a deterrent sentence.

As to the punishment to be imposed counsel submitted that a fine would meet the case, but we consider that a term of imprisonment is required. Because of the particular circumstances of the case the period we have in mind is considerably less than that which would normally be imposed for the offences involved. It is proper to take into account the heavy strain upon the respondent’s health due to her husband’s illness and death and also that she will be deprived of the company of her children now without a father’s care. Further, the respondent has had these proceedings upon her mind since the notice of appeal was given in April. The appropriate sentence we consider is a term of nine months imprisonment, which we impose in lieu of the order of the Chief Justice.

Before leaving this case we desire to draw attention to those concerned in proceedings taken under s. 29 (1) to the strong desirability that the proceedings be brought to hearing as promptly as possible, particularly in cases in which no term of imprisonment is imposed.

Appeal allowed. Sentence of nine months imprisonment substituted for that imposed by trial judge.

Solicitor for the appellant: P. J. Clay, Crown Solicitor.
Solicitors for the respondent: Craig Kirke & Pratt.

[cdxliv] Section 29 (1) provides: “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.”

[cdxlv] [1971-72] PNGLR. 393.
[cdxlvi] (1967) 51 Cr. App. R. 244.
[cdxlvii] (1967) 51 Cr. App. R. 244, at p. 246.
[cdxlviii] [1959] Qd. R. 395, at p. 400.
[cdxlix] (1967) 86 WN. (Pt. 1) (N.S.W.) 272, per Herron C.J., at p. 276.