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Secretary for Law v Suares [1974] PGSC 34; [1974] PNGLR 288 (28 November 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 288 - Secretary for Law v Suares

[1974] PNGLR 288

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SECRETARY FOR LAW

V

SUARES

Port Moresby

Prentice Lalor JJ Denton AJ

26 November 1974

28 November 1974

CRIMINAL LAW AND PROCEDURE - Appeal against sentence - False pretences - Collation of offences - Totality of sentences not exceeding maximum for crime - Considerations generally.

The respondent was convicted on four charges of false pretences under s. 428 of the Criminal Code (Queensland adopted) involving $35,920 and sentenced to four consecutive terms of imprisonment totalling in all two years and six months. Each charge carried a maximum sentence of three years� imprisonment. Fifty-six other charges of making false entries as a servant were taken into account. On appeal against inadequacy of sentence,

Held

N1>(1)����� That the totality of the sentence must be looked at and considered collectively. The four offences were not such as necessarily to demand a totality of sentence in excess of the maximum of three years for any one offence and should stand.

Observations on the desirability for concurrent sentences of relatively substantial length being imposed in similar circumstances, rather than a series of minor sentences.

Per curiam: Although all factors personal to a prisoner should be taken into account on sentencing, the inability of an expatriate prisoner to receive visits from a family in Australia is not an appropriate factor calling for leniency.

Appeal

This was an appeal by the Secretary for Law against the inadequacy of sentence on four convictions for false pretences inducing the production of cheques (s. 428 of the Criminal Code (Queensland adopted)). The trial judge after taking into account fifty-six other charges of making false entries as a servant imposed consecutive sentences of six months, six months, twelve months and six months. Each charge carried a maximum sentence of three years� imprisonment.

Counsel

L. W. Roberts-Smith and B. M. Ryan, for the appellant (Secretary for Law).

L. K. Young, for the respondent.

Cur. adv. vult.

28 November 1974

PRENTICE J: Appeal is brought herein against the inadequacy of sentence on four convictions for by false pretences inducing the production of cheques (s. 428 of the Criminal Code (Queensland adopted)) whereby the respondent obtained improperly a total of $35,920. His Honour the trial judge imposed consecutive sentences of six months, six months, twelve months and six months totalling in all two years and six months. Each charge carried a maximum sentence of three years� imprisonment. Restitution to the extent of $16,500 was made.

Fifty-six other charges of making false entries as a servant (s. 441), each of which would have carried a maximum sentence of seven years� imprisonment, were taken into account. It is not clear why the Crown elected to proceed on those charges available to it which carried the lesser penalty. But the appellant now contends that each of the individual sentences imposed is inadequate to the particular offence, that the totality of two and a half years is inadequate to the collation of false pretences offences, and that the two and a half years� totality is rendered more inadequate on consideration of fifty-six further offences under s. 441.

Though it was no doubt a proper course for these fifty-six offences to be �cleared from the slate�, it does not appear to me that by bringing them into consideration further punishment was called for upon the s. 428 offences. They appear to be of the nature of �paired counts� which should be regarded for purposes of sentencing as alternative and not cumulative. Reg. v. Brown[ccclxxxiii]¹. This I consider would follow from the fact that these fifty-six offences were constituted by acts which formed part of the scheme of false pretences whereby the money actually gained, was obtained.

Neither counsel was able to point to cases other than R. v. Blake [ccclxxxiv]², where on a series of offences of a like kind, a totality of sentences were imposed in excess of the maximum available on each. It may be that to work such a cumulation of sentences, though permissible, would be exceptional. We have since recollected the case in New South Wales of Reg. v. Huxley [ccclxxxv]³. In comparing the totality of sentence in this case with that in at least one other case in the Supreme Court, Reg. v. Phipps[ccclxxxvi]⁴�Williams J., in which a number of five-year sentences were imposed concurrently for a series of offences involving amounts of a total comparable in magnitude to that involved here, but on other charges carrying each a seven years� maximum, the total sentence of two and a half years herein may seem light. But it is close to the maximum for any one of the four offences. I do not find myself persuaded that considered collectively, the four offences were such as necessarily to demand a totality of sentence in excess of three years. I might myself have felt disposed to produce a result of three years� imprisonment, but I do not think that one of two and a half years ought to be altered by this Court. I would not myself have dealt with the four individual offences in the way in which his Honour the trial judge has done. The result gives the impression to my mind that perhaps an inadequate sentence has been imposed on each of the counts. It appears that the practice of imposing a multiplicity of short sentences which tot up to a substantial sentence in respect of a number of similar offences forming a series of convictions, has been disapproved by the Courts, Reg. v. Brown [ccclxxxvii]⁵. I myself should have preferred to impose perhaps eighteen months� imprisonment on the charge involving the largest amount of money, twelve months on each of the other charges and to have made one of those cumulative on that of eighteen months.

In the circumstances herein, of pleas of guilty which have not been sought to be withdrawn, I do not consider that his Honour has produced an error by proceeding differently and yet producing a totality of two and a half years.

I consider that his Honour was entitled to consider all the factors involved in imprisonment in the light of the circumstances of the respondent, the facts of the case, and the necessities of deterrence to this prisoner and to others. No doubt the nature and types of confinement available are matters relevant to the selection of an appropriate punishment (Reg. v. Morris)[ccclxxxviii]⁶. But I do not consider the inability of an expatriate prisoner to receive visits from a family in Australia an appropriate factor� as being something special to this prisoner� to be considered as calling for leniency. From my observation, inability to receive visits from relatives could well obtain in a majority of the cases which come before the Supreme Court� a large number of which involve convictions of indigenes in areas hundreds of miles from and inaccessible to their home villages.

His Honour has purported to rely on such a factor but for the reasons I have advanced above, I do not think the overall result is such as calls for the interference of this Court and I would dismiss the appeal.

LALOR J: I agree that this appeal fails for the reasons generally given by my brothers.

DENTON AJ: The facts of this case are stated in the judgment of Prentice J. and need not be repeated.

The maximum statutory penalty provided for the subsidiary offences which were taken into account here is seven years, whereas the penalty provided under s. 428 is a maximum of three years. The Crown laid its indictment under s. 428, clearly an appropriate course where the major issue involved is a false pretence and the other offences are machinery enabling the false pretence to be carried out. This is not to say that it would not have been appropriate to indict the accused under s. 441 and treat the false pretences charges as charges to be taken into account. With the procedure which has been followed the possibility of the respondent having been sentenced to a longer term if other procedure had been followed cannot influence sentence in this case, the charges taken into account being in effect an alternative. As to the proper approach where there are alternatives see Reg. v. Brown [ccclxxxix]⁷.

The decision of the Full Court in Tremellan v. The Queen[cccxc]⁸�referred to the principles, so far as any are established, which underlie the imposition of concurrent as compared with cumulative sentences in cases of this nature. The denunciatory nature of a sentence is more apparent, at least to persons other than the prisoner, if concurrent sentences of relatively substantial length are imposed rather than a series of minor sentences. Reg. v. Brown[cccxci]⁹�is an illustration of this, and in many cases in this jurisdiction such a procedure has been followed. In some cases one of a number of sentences may be made cumulative, but not necessarily so. It is, it appears, unusual for the totality of sentence to exceed the maximum for the crime, although there may be cases when this is appropriate. An illustration would be, for example, if in the present case the respondent had been charged with other false pretences of a different nature in other fields altogether than his employment.

In my view the totality of sentence must be looked at. On the basis I have stated, this case not having the features which the worst type of false pretence might have, such, for example, as impoverishment of the victims, or lacked mitigating features, for example no payment of restitution, or a bad record, although the amount involved is very large, a proper sentence is something below the maximum. Thus the period of punishment in the present case is in my view, appropriate. Inadequateness of the statutory penalty where such large sums are involved, which may be the case, is something which the Courts cannot regard as a ground for increasing penalty by the making of orders which would otherwise be unjustified. The sentences which were appropriate may well have been concurrent sentences of two and a half years or thereabouts on all counts. As this makes no difference to the actual punishment awarded there is no ground for interference by this Court.

I add my agreement with Prentice J. that all factors personal to a prisoner should be taken into account.

However, whether a sufficient factual basis as to visits from relatives or as to policy in treatment of types of prisoners was present seems doubtful on the material before us.

Notwithstanding this, the sentence, for the reasons given above, does not, in my opinion, produce a wrong result. I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: P. J. Clay, Crown Solicitor.

Solicitors for the respondent: White, Reitano & Young.