Papua New Guinea Law Reports - 1977
[1977] PNGLR 226
SC119
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
THE PUBLIC PROSECUTOR
V
SAM NIMINO
Waigani
Frost CJ Williams Kearney JJ
25 July 1977
CRIMINAL LAW - Appeal against sentence - Inadequacy of sentence - Stealing - Circumstances of aggravation not taken into account - Sentences of twelve months’ imprisonment substituted for sentences of three months’ imprisonment - Criminal Code s. 384(4)(f).
On appeal against inadequacy of sentence in circumstances where the respondent pleaded guilty to and was convicted on two charges of stealing and sentenced to three months’ imprisonment on each count, the sentences to be served concurrently, the evidence disclosed that the accused was employed as a servant in the dwelling house of an employee of the Hotel Kwikila who had cause from time to time to keep cash from the hotel in a locked cupboard in his house. The respondent having acquired possession of the key to the cupboard from a wallet and whilst his employer was ill, opened the cupboard with the key and removed on two occasions sums of K800 of which approximately K860 was recovered.
Held
(1)      There being circumstances of aggravation pursuant to s. 384(4)(f) of the Criminal Code present, in that in order to commit the offence the respondent had acted in a premeditated manner in acquiring and using the key, it was clear from the sentences imposed that the trial judge had overlooked the legislative intention that the special cases set out in s. 384 of the Criminal Code require on increased sentence, and accordingly there should be substituted sentences of twelve months’ imprisonment on each count, to be served concurrently.
Appeal
There were appeals pursuant to s. 23 of the Supreme Court Act, 1975 against sentences on the ground of inadequacy.
Counsel
J. L. Cagney, for the appellant.
G. C. Lalor, for the respondent.
25 July 1977
FROST CJ WILLIAMS KEARNEY JJ: This is an appeal by the Public Prosecutor under the Supreme Court Act, 1975, s. 23, on the ground that sentences imposed on the respondent by the National Court are inadequate, and that this Court should in the exercise of its discretion substitute an increased period of imprisonment.
The respondent appeared on 31st May, 1977 before the National Court at Waigani upon indictment and pleaded guilty to two charges of stealing. He was charged on the first count that on or about 19th January, 1977 he stole K800 in cash, the property of Kwikila Hotel Pty. Limited, and in order to steal the same opened a locked cupboard by means of a key; and on the second count that on or about 28th January, 1977 he stole a further sum of K800 in cash, also the property of Kwikila Hotel Pty. Limited, and in order to steal the same opened a locked cupboard by means of a key. The sentence imposed by the Court was that the accused be sentenced to three months’ imprisonment on each count, the sentences to be served concurrently.
It is to be noted that upon each count circumstances of aggravation were included pursuant to the Criminal Code s. 384(4)(f), that is to say, that in order to commit the offence it was alleged that the offender had opened a locked cupboard by means of a key. The maximum period of sentence applicable was thus increased from 3 to 7 years, s. 384(4).
The facts are that the respondent, a single man aged 29, was employed as a domestic servant in the residence in Boroko of Mr. Hayward James Baker. In a locked cupboard in the house there was kept from time to time money which apparently came into the possession of Mr. Baker by reason of the hotel company’s cash operations. The key was normally kept in his possession, and indeed on his deposition it was removed from his wallet during a period of several days’ incapacity on his part from sickness. After the theft was discovered suspicion fell on the respondent when he told Mr. Baker that he was going to the Highlands for Easter and his wantok would do the work whilst he was away. When the police were then called in to investigate the matter, the respondent co-operated with them, and told them that some of the money was being held for him by his relatives. However, on the respondent’s account, the key was discovered by him on the table where he said it had been left by Mr. Baker. During the interval he hid it in the toilet cistern. Eventually approximately K860.00 was recovered, most of it in the form of cash, and the balance being the value of the unused air ticket out of Port Moresby and a new watch bought by the respondent with the money he had taken.
The case put by counsel on behalf of the Public Prosecutor is that the only inference open from the sentence is that the trial judge omitted to take into account the circumstances of aggravation, the degree of premeditation shown by the respondent — the case was plainly not one of the respondent succumbing to the temptation of money being left lying around — and that, despite the fact that portion of the proceeds of the theft was recovered, a substantial sum remained unaccounted for. It was also submitted that although they were not included in the indictment as circumstances of aggravation, the trial judge should have also taken into account the accused’s breach of trust as a servant and the fact that the money was kept in a dwelling house.
For the respondent it was submitted that having regard to other sentences in the court it was not shown that the sentence was below the range normally imposed.
In all the circumstances of the case we consider that the trial judge did overlook the legislative intention that the special cases set out in s. 384 require an increased sentence. The facts of this case go well beyond the usual case of stealing by a domestic. In our opinion the sentence on each count is inadequate and a sentence of 12 months’ imprisonment including hard labour, to be served concurrently, should be substituted for the sentence imposed by the trial judge. Taking into account the four months in custody preceding trial, this means an effective sentence of 16 months.
Order accordingly.
Solicitor for the appellant: K. B. Egan, Public Prosecutor.
Solicitor for the respondent: W. J. Andrew, Acting Public Solicitor.