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Acting Public Prosecutor v Yonnga [1981] PGLawRp 590; [1981] PNGLR 314 (4 August 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 314 - Acting Public Prosecutor v Andrew Amona Yonnga�

[1981] PNGLR 314

SC208

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE ACTING PUBLIC PROSECUTOR

V

ANDREW AMONA YONGGA

Waigani

Andrew Kapi Pratt JJ

27 June 1981

4 August 1981

CRIMINAL LAW - Sentencing - Taking other offences into account - Principles applicable - May lead to increase in sentence - Just over-all sentence - Criminal Code s. 615(2).

Section 615 of the Criminal Code provides that a sentence imposed by a trial judge should be no greater than the maximum permissible for the offence for which the convicted person has come before the court and s. 615(2) provides for the court to certify as to offences taken into account in passing sentence and as to which proceedings shall not be taken against that person.

The respondent who was charged on one indictment with receiving stolen property and pleaded guilty thereto, requested the trial judge to take into account eighteen other offences extending over a period of eighteen months and involving goods to the value of about K28,000.

On appeal against inadequacy of sentence.

Held

N1>(1)����� All pending charges of a similar nature (i.e. of the same or closely allied class) ought, as far as possible, be taken into account in sentencing;

Smith (1921) 15 Cr. App. R. 172 adopted.

N1>(2)����� Whether or not the trial judge takes into account other outstanding offences or charges is purely discretionary and can only be done with the consent of the State Prosecutor;

N1>(3)����� If outstanding offences or charges are to be taken into account the accused himself and not his counsel is to be asked by the trial judge whether he admits the matters and desires that they be taken into account;

R. v. Reiner (1974) 8 S.A.S.R. 102 at p. 116 adopted.

N1>(4)����� The taking of other offences into account may increase the penalty which would normally have been imposed had there been no request for other offences or charges to be taken into account: the absence of an indictment and conviction should not have any effect other than to alleviate the court from the necessity of examining each individual matter as a separate issue and then coming to a just over-all sentence which brings into account all the relevant factors including the confessed commission of other similar offences;

Anderson v. Director of Public Prosecutions [1978] 2 W.L.R. 994 at p. 997.

R. v. Jones [1978] TASStRp 14; [1978] Tas. S.R. 126 at p. 133.

Batchelor (1952) 36 Cr. App. R. 64, referred to.

N1>(5)����� The intention and effect of s. 615(2) of the Criminal Code is to permit the courts to punish without the formalities of a trial and conviction in those limited circumstances brought about at the accused person�s own request;

N1>(6)����� In the circumstances, accordingly, a sentence of three years imprisonment should be substituted.

Appeal

This was an appeal against sentence, on the ground of inadequacy pursuant to s. 23 of the Supreme Court Act 1975.

Counsel

L. Gavara-Nanu and K. Bona, for the appellant.

K. Wilson and N. Kirriwom, for respondent.

Cur. adv. vult.

4 August 1981

ANDREW PRATT JJ:� The respondent was convicted on his plea at Lae on 20th October, 1980, that on or about 3rd February, 1980, he received sixty spades which had then lately been stolen and that he then knew the said spades had been so stolen. On the following day he was sentenced to a period of two years imprisonment with hard labour to be suspended after serving twelve months on entering into a good behaviour bond for a period of two years. In considering sentence the trial judge was requested by the prisoner to take into account eighteen other offences, all involving similar offences of receiving, extending over a period from August 1978 to 1st February, 1980. Each of these other offences had been the subject of an information laid before the District Court but they did not constitute any part of the indictment, nor was the indictment presented to the trial judge as a �sample indictment� though the course of conduct engaged in may perhaps have warranted such course. He had spent a period of three weeks only in custody, and had no prior convictions.

The facts reveal that over a long period of time the prisoner had been involved in systematic pilfering of property from the Lae wharf in combination with several other persons who have yet to be dealt with. The prisoner�s activities seem to have occupied August/September of 1978, and almost every month of 1979. The value of the property received runs into many thousands of kina. It was a quite sophisticated crime involving misuse of company dockets, planning, and organization, in concert with other persons. It is clear that the items received were stolen and the prisoner knew they were stolen. Accordingly, the maximum penalty for each of his crimes of receiving is fourteen years imprisonment (s. 422(3) of the Criminal Code). All the items received were sold for cash.

The respondent�s counsel has laid great stress on the fact that only one count was charged in the indictment and consequently must have considerable influence on the amount of imprisonment which the trial judge could impose. The position may well have been otherwise had the prosecutor sought for example to put three counts in the indictment or have proceeded by way of a number of separate indictments each including multiple counts. It appears from the depositions however that the prisoner was committed on the charges contained in information number 1 and information number 19 only and committal proceedings have not been continued on the remaining seventeen informations. Even so, the State would still have been able to present an indictment containing two separate counts of receiving. The case may well have been an appropriate one for the State to employ the sample charge technique referred to for example in Archbold�s Criminal Pleading Evidence and Practice (39th ed., par. 634). The practice is also referred to by Wells J. in R. v. Reiner[dxli]¹�where his Honour says:

�... where a series of similar sexual offences against the same person ... is admitted by the prisoner, a practice (consistently maintained, to my knowledge, for a period of at least twenty-five years) has been adopted in accordance with which the Attorney-General lays an information containing two counts; the first represents the earliest of the offences (or, at all events, an early one), and the second the latest (or, at all events, a late one). Sometimes only one offence�the latest, or a late offence or a typical offence�is charged. But in each case the offence or offences charged is or are treated, with the consent and approval of all concerned, as representative�as a sample or samples� and dealt with accordingly. Of course, an offence can be so regarded only where the prisoner admits the facts:�

In Anderson v. Director of Public Prosecutions[dxlii]², Lord Diplock has the following comments to make on such sample offences:

�Nothing that I have said should be understood as discouraging the practice of limiting the charges in an indictment to a limited number of �sample� counts in cases where, as in the instant case, the accused has adopted a systematic dishonest practice. Your Lordships were told that, where sample counts are used, it is customary to provide the defence with a list of all the similar offences of which it is alleged that those selected as the subject of the counts contained in the indictment are samples. In appropriate cases it may be that evidence of all or some of these additional offences is led by the prosecution at the trial as evidence of �system��as was apparently done in the instant case. In other cases, the additional offences in the schedule are not referred to until after a verdict of guilty has been returned. The judge is then told of the total amount involved in the systematic offences of which those charged in the indictment have been selected by the prosecution as samples. Where sample counts are used it is, in my view, essential that the ordinary procedure should be followed for taking other offences into consideration in determining sentence. The accused should be given an opportunity after the verdict to consider the schedule of other offences which he is alleged by the prosecution to have committed and should be explicitly asked by the judge which of them he admits and whether he wishes them to be taken into consideration.�

It can be seen therefore that in one instance, that is where offences are taken into account, this is done at the instigation of the accused and at his request whereas in the other instance the State approaches the accused�s counsel and requests him to give consideration to whether or not his client will admit to the charges of which one or two samples only were laid in the indictment under which the conviction has been recorded.

It is a major part of the respondent�s case that the �sample� procedure was never suggested in the present matter. That must be so, as it was the prisoner�s counsel who approached the prosecution and requested the other matters to be taken into account. Because the State however has not approached this matter as one of a sample charge or placed more than one count before the court by way of indictment, respondent�s counsel submits that this considerably restricts the trial judge as to the total penalty which he may impose. It rather places him in the position where he must not add anything to the sentence which he would be inclined to impose on a first offender despite the other convictions taken into account but would simply use them in a rather negative way, that is, he would not mitigate the penalty because of the existence of these other offences. The submission gains some support from a judgment of Sir Alan Mann, in R. v. Emere Gabua[dxliii]³�to which we shall refer a little later, though one must remember that his Honour in this case was following the common law practice and did not have before him a specific section of the Criminal Code as a matter of interpretation.

The practice of taking other offences into account has been observed in this country for quite some years. The form in circulation is based on a New South Wales form extracted from an early 1960�s edition of Hamilton and Addison�s Criminal Law of New South Wales. When the revised Papua New Guinea Criminal Code was enacted in 1975, s. 615 was introduced to give statutory basis to a practice which had become established under the common law in England over a period of years. In the application of the section the common law authorities are still invaluable. Some aspects are not stipulated in the section but in our view it is clear for example that explicit enquiry as to whether or not the prisoner admits his guilt and does so without any pressure must be made, (Nelson[dxliv]⁴). In the case of Marquis[dxlv]⁵, it was suggested that the details of each offence need not in every case be put to the accused but he should be asked whether he had received the list of offences and signed it so that if need be, he may have the opportunity of correcting himself by saying that he does not admit the offences or that he admits some of them only. However the remarks of Lord Diplock in Anderson[dxlvi]⁶�might indicate that whilst a judge need not go through each individual offence one by one, the enquiry to be made by the trial judge as suggested in Marquis (supra) must be a very meticulous one.

It was long before decided under the common law that the sentence given by the trial judge must not be greater than the maximum permissible for the offence on which the prisoner has come before that court. See Hobson [dxlvii]⁷, Tremayne[dxlviii]⁸�and Nicholson [dxlix]⁹. This restriction is provided for specifically under our s. 615. All pending charges of a similar nature ought, as far as possible, to be taken into account by the court in sentencing so that one comprehensive term of imprisonment may be imposed, thereby giving a clean sheet to the prisoner and avoiding the undesirable spectacle of a prisoner being arrested at the prison gates after concluding his original period of sentence, Syres [dl]¹⁰, Nicholson (supra) and Anderson (supra). As in the common law, the fact of whether or not the trial judge does take into account other outstanding offences or charges is purely discretionary and can only be done with the consent of the State Prosecutor. We would agree with the court�s view in Smith[dli]¹¹�that it would not be proper to ask the trial judge to exercise his discretion in favour of an accused unless the offences are all of the same or closely allied class. Such may not be the case where the court is asked to consider a series of break and enters where a number of different households or owners are involved but we do not wish to say anything further on this point as the issue is not raised in this appeal. (See Wells J. in R. v. Reiner [dlii]¹²). We also consider the advice in Davis[dliii]¹³�should be followed by this Court, namely the prisoner himself and not his counsel should be asked by the judge whether he admits the matters and desires that they be taken into account.

An interesting variation of this problem may be found in a case dealt with by Frost J. (as he then was), R. v. Heroma Poia & Others[dliv]¹⁴�where the restrictions on the content of indictments existing at that time in pack rape charges meant that one offender only could be charged with rape, whilst the remainder could only be charged as aiders and abettors of that particular act of rape. Following the conclusion of the main trial leading to a conviction of the main offender, defence counsel then asked that the individual acts of rape by the remaining members of the gang should be taken into account.

An excellent resume of the principles and recent authorities applicable in those cases where other offences are asked to be taken into account together with references to academic writings on the matter appears in the judgment of Neasey J. in R. v. Jones [dlv]¹⁵. As is apparent from that case however, it is necessary to approach the Tasmanian views on this area with some care, for although the Tasmanian and Papua New Guinea sections are very similar, there is one important omission from the Tasmanian Act brought about because the Tasmanian sections setting forth the different offences do not as in Western Australia, Queensland and Papua New Guinea limit the maximum penalty which may be imposed in each case, except in certain specified offences. There is no counterpart in the Tasmanian equivalent of our s. 615 providing that �the sentence passed in any such case upon the person so convicted shall not exceed the maximum sentence that may be passed in respect of the offence of which he has been convicted�.

This then brings us to the main issue, namely whether or not the taking of other offences into account will increase the penalty which would normally have been imposed on the prisoner had he not asked for such matters to be taken into consideration. At p. 4 of his judgment in R. v. Emere Gabua[dlvi]¹⁶�Mann C.J. says:

�The procedure cannot always be adopted as appropriate as a matter of course, for the court cannot in any event impose more than the maximum penalty for the actual offence charged, and in some cases offences to be taken into account might well call for greater penalties. This does not mean that the maximum penalty may always be imposed, for I would think that principle goes further than this and requires that the accused be punished only for the offences in respect of which he is formally charged and convicted and that it would be contrary to principle for the penalty to be increased as a punishment for committing other offences. It has been clearly laid down in the Court of Criminal Appeal that the prisoner must not be punished for other things apart from the offence charged. For example he cannot be punished for having a bad criminal record. I think that on principle another offence which is admitted can only be taken into account in this way by the court imposing the penalty appropriate to the crime charged, without giving the accused the benefit of reductions which might be expected in the case of a person who had not committed the other offences, or had not been engaged in a course of conduct such as produced the series of additional offences which the court is asked to take into account. Thus it sometimes appears that the offences taken into account do not have a very marked effect upon the sentences being assessed. The effect is somewhat similar to that of prior convictions of the accused when taken into account.

In many cases the offence charged, without any mitigating circumstances, would not attract anything like the maximum sentence. In such cases, in considering whether or not it should accede to the prisoner�s request that the other offences be taken into account, the court must consider whether, if it were to do so, such a course would merely result in the prisoner being given a kind of free pardon which he might not deserve.�

With great respect to his Honour, there are several matters contained in these paragraphs with which we cannot agree. In our view it is erroneous to draw any comparison between a case where an accused has asked for other offences to be taken into account and one where he is punished for matters with which he has not been formally charged. It is to the accused�s advantage that these offences be considered and it is he who has specifically asked the court that they be accounted for. The absence of a mere formality in the nature of an indictment we do not think should have any effect other than to alleviate the court from the necessity of examining each individual matter as a separate issue and then coming to an over-all view of the appropriate total sentence. This aspect was undoubtedly in the mind of Lord Diplock in Anderson v. Director of Public Prosecutions[dlvii]¹⁷�where he says at the bottom of p. 997:

�The laudable object of the practice is to give to a convicted offender the opportunity when he has served his sentence to start with a clean sheet and not to be arrested at the prison gates for some other offences which he committed before the particular offence which was the cause of his conviction. In effect, this practice involves the convicted offender who has been convicted of one offence in being punished for other offences for which he has never been formally arraigned, tried or convicted and to which he has never formally pleaded guilty.�

There is no suggestion by Lord Diplock that such a failure to arraign and convict has the effect which Sir Alan Mann felt in the case just cited. Although the point was not argued, we do not consider any provision in the Constitution, especially in sub-div. B of Div. 3, inhibits the operation of s. 516 of the Criminal Code.

It seems also clear to us that if the result of taking other offences into account meant no increase in sentence could take place, the whole procedure would rather defeat the purpose. The procedure of course is not only for the benefit of the accused but also for the State. One of those benefits is that the prisoner may receive an adequate sentence for all the matters to which he has confessed. There is admittedly some lack of clarity as to whether or not the judge specifically awards a particular increased amount in terms of months in respect of those other offences or whether he simply looks at those matters generally, as a result of which the penalty which would normally have been imposed on the prisoner will be increased�not for each specific individual offence but for the over-all totality of offences including the one charged in the indictment. We agree with Neasey J. in R. v. Jones[dlviii]¹⁸�when referring to the decision of Bray C.J. and Wells J. in R. v. Reiner[dlix]¹⁹:

�It appears that the practice in that State (South Australia) is that part of the sentence may be referable specifically to the offences taken into consideration.�

Much however as this approach may afford some mathematical precision to the process of sentencing, we do not think that any great advantage is to be gained from specifically allotting part of the sentence to those other offences to be taken into account other than to say that the sentence will be increased. We consider it undesirable for a court to nominate specifically the period which it has allocated for the sentence before the court and another period for those offences which have to be taken into account. What the court must achieve is a just over-all sentence to bring into account all the factors including the confessed commission of other similar or kindred crimes (what has been termed a �comprehensive sentence� by Margrave-Jones in his article �Taking Other Offences Into Consideration�Conviction for �Considered� offence�[dlx]²⁰.

Our view that taking such offences into account will lead to an increase of penalty finds some support in the judgment of Goddard L.C.J. when delivering the judgment of the court in the case of Batchelor[dlxi]²¹�where he says at the bottom of p. 67:

�It is simply a convention under which, if a court is informed that there are outstanding charges against a prisoner who is before it for a particular offence, the court can, if the prisoner admits the offences and asks that they should be taken into account, take them into account, which means that the court can give a longer sentence than it would if it were dealing with him only on the charge mentioned in the indictment.�

Reference may also be made to R. v. Jones [dlxii]²².

If this were not so, there would seem to be little gained from engaging in the practice at all, and were the procedure to have the result suggested by Sir Alan Mann, we are of the view that it would tend to bring the practice into contempt. Admittedly the State must be careful in choosing the count which it brings before the court. We do not think however that in a case such as the present where one count covers a maximum period of eighteen months, it is necessary for the State to add a second count in order for the court to have greater flexibility in assessing the penalty which it must impose. Consequently we reject the respondent�s arguments on this aspect. The maximum penalty permitted under the section is fourteen years imprisonment, thus giving a very wide discretion to the sentencing authority. To have the spectacle of the court saying that in the circumstances of this particular case it imposes a particular penalty, that it will not increase such penalty despite the fact there are eighteen other similar offences which the prisoner has committed over a long period of months but that it will not reduce the penalty by any amount despite other mitigating factors because such other offences must be taken into account, to our mind has a certain air of illogicality which we would seek to avoid.

A further compelling reason for declining to follow the reasoning of Mann C.J. in Emere Gabua[dlxiii]²³�stems from the wording of s. 615 itself. As a pure matter of statutory interpretation, it seems to us that the legislature has specifically intended to permit the courts to punish without the formalities of a trial and conviction in those limited circumstances brought about at an accused person�s own request. This aspect has been fully considered by Kapi J. herein and we will not traverse the same ground. We adopt what his Honour has said in his judgment concerning the interpretation to be given to s. 615 and the practical effect thereof.

We agree with respondent�s counsel that the situation is not quite the same as taking prior convictions into account because as counsel points out, in such instance the court is then dealing with a person who has been brought before the courts on previous occasions. The use of the analogy of prior convictions we think is of some benefit however in the present instance. If for example the trial judge is faced with a prisoner who has just been convicted of break enter and steal from a dwelling house and it is then disclosed that in 1976 he was convicted for the first time of breaking and entering and given a good behaviour bond, in 1977 he was convicted a second time and given a suspended sentence, in 1978 he was convicted a third time and given a sentence�part of which was suspended �then in 1980 he was convicted a fourth time and sent to prison for twelve months, not only would the prisoner and the community expect that the fifth time would, because of the prior convictions, lead to a heavier penalty but logic itself would seem to demand it, all other factors being equal. Where other offences are taken into account it is clear the trial judge would come to a particular view where it was the only matter before the court and the prisoner had no prior convictions. The appellant�s specific offence involved property to the value of approximately K240 and although it was still serious, as evidenced by the maximum period of imprisonment imposed by the legislature for such offence, it represented one individual and isolated act which (with other factors) of itself would obviously have relevance to the sentence imposed. What the trial judge was faced with in the present case however was not only one act the subject of the charge, but eighteen other acts extending over a period of some eighteen months and evidencing a considerable amount of skill, organization and deception, involving property to the value of K28,000. We can see no good reason why such factors should not be used to increase the penalty which the judge would have imposed were he faced with only one count contained in the indictment.

On the principles set out herein, we are therefore of the view that his Honour the trial judge misdirected himself as to the law and acted on a wrong principle in the exercise of his discretion. Quite apart from that aspect, the sentence is manifestly inadequate for the matters placed before the court. In our opinion the appeal should be upheld, the sentence quashed and a sentence of three years imprisonment with hard labour substituted therefor.

KAPI J:� In this matter the respondent was indicted on one count of receiving sixty spades which had been stolen and which the said respondent knew to have been stolen. The respondent pleaded guilty to the charge and agreed to have another eighteen counts of receiving taken into account in sentence under s. 615 of the Criminal Code. It appears that the respondent was employed as a supervising clerk in a bond store at the Lae wharf and over a period of eighteen months he systematically received these goods and disposed of them through wholesale. The total amount of goods disposed of during this period is estimated to be about K28,000.

Before proceeding to consider the merits of this appeal, I shall first consider a matter of principle which has been raised by Mr. Wilson, counsel for the respondent. The matter of principle which has been raised is under s. 615 of the Criminal Code. The question is what is the practical effect of taking into account these other offences which the respondent has admitted under s. 615 as far as sentence is concerned. It is clear from s. 615 that there is a discretion in the court as to whether or not it should take into account the offences to which the respondent or the accused person admits. No argument has been raised in this case in relation to the exercise of this discretion and I therefore will not discuss the circumstances in which the court may exercise this discretion to take into account the offences to which the accused person admits.

Before the Criminal Code Act, 1974, which came into operation in November 1975, there was no such similar provision in the Queensland Criminal Code, as adopted.

The background to this section goes back to the English practice or procedure for taking other offences into consideration on sentence. Neasey J. in R. v. Jones[dlxiv]²⁴�extensively sets out the concept and the procedure of the English practice of taking into consideration other offences. It is significant to consider the reasons for this practice in England. In my view this will throw some light on the interpretation of s. 615.

As far as I can see there are two basic reasons for this practice in England. The first is to allow the convicted person the opportunity to admit other offences which are outstanding against him so that when he goes to prison, he comes out with a clean sheet. See Director of Public Prosecutions v. Anderson [dlxv]²⁵. The second reason is to shorten the procedure on trial of each count which results in a waste of public money and time. See Director of Public Prosecutions v. Anderson (supra) at p. 516.

It seems to me the very purpose of this practice was to do away with the process of a trial and conviction and not do away with the punishment for those offences to which the accused person admits. This is clear from what Lord Diplock says in Director of Public Prosecutions v. Anderson [dlxvi]²⁶:

�In effect, this practice involves the convicted offender who has been convicted of one offence in being punished for other offences for which he has never been formally arraigned, tried or convicted and to which he has never formally pleaded guilty.�

This is significant when interpreting the provisions of the Criminal Code. Section 615(2) of the Criminal Code provides the following:

�The court shall certify upon the document filed in court the offences specified in the list on the back thereof that have, in respect of the conviction of the person concerned, been taken into account in passing sentence upon that conviction, and thereafter proceedings or further proceedings upon those offences shall not be taken against that person:

Provided that such proceedings or futher proceedings may be taken where that conviction is quashed or set aside.�

This, in my view, is a significant provision when interpreting the practical effect of taking into account other offences. It is clear from this provision of the Criminal Code that offences which are taken into account under this provision may not be proceeded with. Having regard to this provision, I do not consider that the legislature intended that the accused person should not be punished for the offences which he had agreed to take into account in sentence, or that he should receive some less punishment than he would have received otherwise had he been properly indicted.

In my view punishment is intended for the offences taken into account. The technical difficulty is that the punishment relates to the offence upon which the accused is found guilty. In law this remains the case. However, to allow for punishment without conviction is the intention of this provision. For purposes of sentence, accused persons must be punished for the offences taken into account. In other words, a period of the sentence imposed must relate to the offences taken into account in addition to the proper sentence to be imposed on the offence to which the accused is found guilty. This seems to me to be the proper view, having regard to s. 615(2) of the Criminal Code.

I find it difficult to accept, in view of this provision, that an offence is taken into account without receiving any punishment or less punishment than he would have received had he been separately indicted and tried. To hold such a view is contrary to the purpose of this procedure and would discourage the Public Prosecutor from making use of the procedure. This would defeat the whole purpose of the procedure. Having come to this conclusion it follows that the mental approach to calculation of punishment for offences taken into account is no different from the imposition of punishment for the offence for which he has been found guilty. In other words, the court must consider the appropriate punishment for the �punishable act� in each offence taken into account. Whether or not the punishment calculated for the offence for which the accused is found guilty and that for the offences taken into account are made cumulative or concurrent upon one another, depends on the particular facts of each case. Such an approach should keep the sentencing discretion within proper bounds. In practice the court would only announce the over-all sentence.

There is a difficulty with the taking into account of procedure under s. 615 of the Criminal Code, because under this provision the punishment for the offences taken into account can only be allowed up to the maximum sentence for the offence upon which the accused is found guilty. There may also be difficulty where the offence for which the person is convicted attracts the maximum penalty: it would be difficult to allow for the punishment of the offences taken into account in such a situation. In such a situation the court should not exercise its discretion to take into account these offences. However, in most cases the maximum is rarely imposed. In the present case I do not consider that the offence for which the accused is found guilty attracts the maximum imprisonment.

Mr. Wilson further submitted that taking offences into account under this provision is less in terms of penalty compared to taking prior convictions into account. In principle I am unable to accept this submission. A prior conviction carries an appropriate penalty already imposed by another tribunal. A prior conviction only goes to show that the present offence with which the court is concerned is not an isolated incident. The taking into account of offences under this provision is for the purpose of punishment apart from showing that the offence for which a person is found guilty is not an isolated offence. These matters of principle were not fully argued before the trial judge. Had such principles been properly argued before him, he may well have imposed a much higher sentence.

Turning now to the facts of the present case. The respondent at the time of these offences was employed by M. & W. Chard Pty. Ltd. as a supervising clerk in the bond store. He was responsible for supervising and keeping records of goods that were kept in the bond store. The system was planned with two others who were stealing the goods from the wharf and delivering them to the respondent, who in turn was selling them to other people for cash. He did this over a period of eighteen months. The approximate total amount of money received as a result of disposing of goods in this way amounted to K28,000. None of this money was recovered. The offence of receiving has always been regarded as a very serious one. This is because the legislature has provided for a heavier penalty for receiving than that for stealing. See R. v. Barry Ilett[dlxvii]²⁷.

Having regard to the circumstances of this case, I would impose a sentence of three years in hard labour.

Appeal against sentence allowed.

Sentence of three years imprisonment substituted.

Solicitor for the appellant: L. Gavara-Nanu, Public Prosecutor.

Solicitor for the respondent: A. Amet, Public Solicitor.