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Regina v Pia [1971] PGLawRp 33; [1971] PNGLR 393 (2 September 1971)

[1971-72] PNGLR 393

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

PIA-AFU

Port Moresby
Frost SPJ Clarkson Kelly JJ

26 August 1971
2 September 1971

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

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

Whittaker v. The King [1928] HCA 28; (1928), 41 C.L.R. 230, applied.

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

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

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

The Following Additional Cases were Referred to in the Judgment

Seki Wanosa v. The Queen, [1971-72] P. & N.G.L.R. 90; House v. The King (1936), 55 C.L.R. 499; Reg. v. Taylor, [1958] VicRp 46; [1958] V.R. 285; R. v. Cuthbert (1967), 86 W.N. (Pt. 1) (N.S.W.) 272; Lumsden v. Lumsden, [1964] VicRp 30; [1964] V.R. 210; Skinner v. The King (1913), 16 C.L.R. 336; R. v. Geddes [1936] NSWStRp 35; (1936), 36 S.R. (N.S.W.) 554; 57 W.N. 157.

Appeal

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

Counsel

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

2 September 1971

FROST SPJ CLARKSON KELLY JJ: delivered the fong writtenitten judgment:

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

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

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

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

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

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

In the judgment of this Court it should follow the construction given by the majority of the High Court to the New South Wales provision in Whittaker v. The King[cdxxxiii]4. The authority of this decision has never been questioned either by the High Court or the appellate court of any State. All the relevant authorities were considered by the Full Court in Seki Wanosa v. The Queen[cdxxxiv]5 and ree with the distinctionction drawn by that Court between tween s. 29 (1) and s. 28 (4) in the course of determining the proper pretation to be placed on s. 28 (4) of the Supreme Court (Full Court) Ordi>Ordinance 1968. Having regard to the specific provisions contained in s. 29 (1), House v. The King[cdxxxv]6 does nsist us in its interpnterpretation. Reg. v. Taylor[cdxxxvi]7 is clearly distihableuse itse it is a decision upon statutory provisions in different terms and of differenferent effect from our s. 28 (4). Counsel he respondent also referred to Reg. v. Cuthbert[c[cdxxxvii]8; Lumsden v. Lumsden[cdxxxviii]9; Skinner v. The King[cdxxxix]10 and to passages in theentinenting judgment of Isaacs J. in Whittaker v. The King at pp. 244-259. A consideration of these authorities in no way alters the view which we have expressed.