Papua New Guinea Law Reports - 1986
[1986] PNGLR 91
SC314
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
PUBLIC PROSECUTOR
V
TARDREW
Waigani
Kidu CJ Bredmeyer Barnett JJ
2 April 1986
CRIMINAL LAW - Appeal against sentence - Appeal against leniency - Appeal against suspension of sentence - Principles applicable on appeal against sentence - Principles relative to suspension of sentence - Supreme Court Act (Ch No 37), s 24 - Criminal Code (Ch No 262), s 19(6).
CRIMINAL LAW - Sentencing - Suspension of sentence - Principles applicable - Criminal Code (Ch No 262), s 19(6).
CRIMINAL LAW - Appeal against sentence - Appeal against inadequacy - Forging and uttering - Head sentence of five years - Suspension of nine-tenths of sentence quashed - Criminal Code (Ch No 262), s 19(6).
Held
(1)      The principles governing an appeal against sentence by the Public Prosecutor under s 24 of the Supreme Court Act (Ch No 37) are correctly set out by Kearney J in Norris v The State [1979] PNGLR 605 at 612-613 and in Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 and in Cranssen v The King (1936) 55 CLR 509 at 519-520. There is no conflict between Norris and Konis Haha.
(2)      Suspension of part of a sentence under s 19(6) of the Criminal Code (Ch No 262) is, or may be appropriate, in three broad categories. The categories are not exhaustive:
(i)       Where suspension will promote the personal deterrence, reformation or rehabilitation of the offender.
(ii)      Where suspension will promote the repayment or restitution of stolen money or goods.
(iii)     Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or mental health.
(3)      Accordingly, on conviction for charges of forging and uttering where the total amount involved, being K82,202.73, had been recovered and the total head sentence imposed was five years imprisonment, suspension of nine-tenths of the sentence on the grounds of alleged ill health should be quashed because on the findings the respondent would not suffer special or excessive hardships in prison on account of his condition of health.
Cases Cited
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205.
Cranssen v The King (1936) 55 CLR 509.
Mauwe Antape v The State [1981] PNGLR 68.
Norris v The State [1979] PNGLR 605.
Public Prosecutor v Thomas Vola [1981] PNGLR 412.
Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
Appeal against Sentence
This was an appeal by the Public Prosecutor pursuant to the Supreme Court Act (Ch No 37), s 24, against the exercise of the trial judge’s discretion in suspending part of a head sentence.
Counsel
P Boyce and J Patterson, for the appellant.
D Roebuck and P Steele, for the respondent.
Cur adv vult
2 April 1986
KIDU CJ BREDMEYER BARNETT JJ: William Bruce Tardrew was convicted on 18 December 1985 of four counts of forging cheques for K26,887.41, K22,092.00, K13,211.32 and K20,012.00 and four counts of uttering the same cheques. The total sum involved was K82,202.73. He pleaded guilty and was sentenced to five years imprisonment for each count except the counts of forging and uttering the cheque for K13,211.32 for which counts he was sentenced to three years imprisonment. All sentences were made concurrent.
The trial judge directed that the prisoner serve six months of the sentence and the judge suspended the balance of four and a half years on the condition that the prisoner enter into a bond to keep the peace and be of good behaviour for a period of one year from his release from prison. The suspension of part of the sentence was done under s 19(6) of the Criminal Code (Ch No 262).
The offences arose in this way. Tardrew was Operations Manager of the National Computer Centre which printed government cheques for the Department of Finance. Another man Mark Payne was a Senior Technical Manager at the centre until November 1984. In October 1984 Tardrew or Payne stole four numbered government cheque forms from the National Computer Centre. In January 1985 Payne used a false drivers licence to open a cheque account at the ANZ Bank Waigani in the name of Ronald T Smith. Tardrew or Payne then typed in the name of Ronald T Smith as payee on the stolen cheques for the amounts mentioned above and forged the signatures of the two authorised government signatories. Tardrew deposited those four cheques in February and March 1985 in the Smith cheque account. Payne had earlier left the country. Tardrew using the name R T Smith signed as payee. Tardrew then used a false driving licence which he had obtained to open the cheque accounts in the name of Bob Moore — one at the South Pacific Bank, Boroko and one at Westpac Bank, Boroko. He then drew cheques for K11,000 and K10,500 on the Smith Account and deposited the K 11,000 cheque in the Moore Account at South Pacific Bank, and the K10,500 cheque, in the Moore Account at Westpac. He drew two cash cheques for K3,500 and K4,200 on the Smith Account and a cash cheque for K3,900 on the Moore Account at South Pacific Bank. On 22 March 1985 Detective Inspector Smythe was told that two of the stolen cheques had been deposited in the account of Ron Smith and he began his investigations. Tardrew meanwhile had finished his employment at the National Computer Centre and gone to live in Australia. On 2 April 1985 he sent a letter to Inspector Smythe enclosing drafts for K10,316 “being restitution of funds fraudulently obtained from the Department of Finance as follows...”. The typed letter was unsigned and was sent “On behalf of R Smith, B Moore”. The money left in the accounts was frozen. The restitution and the freezing of the accounts meant a total recovery of the stolen money.
Tardrew was extradited from Australia and pleaded guilty. His accomplice Payne committed suicide.
The appellant did not question the head sentences. The Acting Public Prosecutor considered them adequate. Professor Roebuck for the respondent agreed that the head sentences were not excessive. The appeal is against the exercise of the trial judge’s discretion in suspending part of the head sentence.
What are the principles governing an appeal against sentence by the Public Prosecutor under s 24 of the Supreme Court Act (Ch No 37)? Professor Roebuck, counsel for the respondent, argued that those principles are accurately set out in Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 and not as stated by Kearney J in the earlier case of Norris v The State [1979] PNGLR 605 at 612-613. We agree with the first proposition, that the principles are correctly set out in Konis Haha, but not with the second. We consider that there is no dichotomy or disagreement between those two cases and that Konis Haha affirms the view of Kearney J in Norris.
Kidu CJ, Andrew and Pratt JJ, in a joint judgment at 212 of Konis Haha refer to an appeal against sentence by the State and say:
“... this Court does not have an unfettered discretion to vary the sentence appealed against and will only do so where it is clearly shown that the trial judge has fallen into error in the exercise of his discretion. And the principles to be applied are the same as those applicable when the question arises of whether the sentence is excessive.”
And at 210 the same judges, dealing with the way an appellate court reviews the exercise of a discretion by a trial judge, quote with evident approval a passage from Cranssen v The King (1936) 55 CLR 509 at 519-520:
“The jurisdiction to revise such a discretion must be exercised in accordance with recognised principles. It is not enough that the members of the court would themselves have imposed a less or different sentence or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority.”
Two sentences later in their judgment Kidu CJ, Andrew and Pratt JJ, say:
“... the appellate court will not interfere with the primary judge’s own exercise of discretion unless it is shown that the judge has not exercised his discretion or unless he has done so under a clear mistake.”
In our view that sentence taken in isolation is not an accurate summary of the Supreme Court’s view of how an appellate court controls the exercise of a single judge’s discretion. It is not an accurate summary of the passage quoted from Cranssen v The King. Clearly the passage quoted from Cranssen says that an exercise of a discretion can be wrongful through an identifiable error, or, even if there is no identifiable error, by a sentence which is so unreasonable, either because it is too lenient or too severe, that the court says that there must have been an error in the exercise of the discretion. In our view the much quoted passage from Kearney J in Norris is saying exactly the same thing as in the passage from Cranssen so that Konis Haha does not disagree with Norris; rather it affirms that decision. Subsequent decisions of the Supreme Court support this view. For example in The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424 at 425, Kidu CJ said:
“An appellate court does not interfere in a case of exercise of discretion by a trial court unless it can be shown that the latter has made an error of law or fact. Such an error may be identifiable but if not identifiable the sentence may be shown to be, on the face of it, manifestly excessive or inadequate: See Norris v The State [1979] PNGLR 605; Mauwe Antape v The State [1981] PNGLR 68.”
We comment that Mauwe Antape v The State [1981] PNGLR 68 was decided a few months before Konis Haha but did affirm the view expressed in Norris. In Vangu’u Ame, Kaputin J quoted at great length from Konis Haha including the passage we have cited from Cranssen. The other member of the court, McDermott J, also cited the passage we have quoted from Cranssen and said that that passage was quoted and approved of in Konis Haha. He summarised the court’s powers at 434 in these words:
“For this court to interfere, it has to be shown that the sentencing judge was in error in acting on a wrong principle, or in misunderstanding or wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error.”
The trial judge fixed head sentences of five years on eight counts, three years on two others, all concurrent, a total of five years. There has been no appeal against those sentences. The Public Prosecutor’s appeal is only directed to the suspension of four-and-a half years. The respondent has not cross-appealed nor argued that the five years head sentence was excessive. So on the “pleadings”, as it were, this appeal is confined to the correctness, or otherwise, of the suspension.
We consider that suspension under s 19(6) of the Criminal Code is, or may be, appropriate in three broad categories. There may be other categories but these are the main ones:
(a)      Where suspension will promote the personal deterrence, reformation and/or rehabilitation of the offender. The suspension or part of a sentence on the condition that the offender keep the peace and be of good behaviour for a specified period may deter him from committing further crimes in that period. If he has committed a number of offences beforehand, the suspension may reform his lifestyle. His early release from prison because of the suspension may assist his rehabilitation back into the community. It would enable him, for example, to get a job and support himself and his family earlier than would otherwise be the case.
(b)      Where suspension will promote the repayment or restitution of stolen money or goods. Suspension is a useful device to secure this end.
(c)      Where imprisonment would cause an excessive degree of suffering to the particular offender, for example, because of his bad physical or mental health. Some general discussion of additional hardships which a particular offender may face in prison as a mitigating factor — not particularly in relation to suspension of part of a sentence — is found in D A Thomas, Principles of Sentencing (2nd ed 1979), at 215-216.
The learned trial judge clearly in our view took into account the prisoner’s medical condition in fixing the prisoner’s head sentences which totalled five (5) years. He spent one-and-a-half pages discussing the prisoner’s health and he began that discussion immediately after mentioning five other mitigating factors and before imposing the head sentences. The learned trial judge then used the prisoner’s ill health again in suspending nine-tenths of the gaol term. The practice of giving such a double discount was condemned in Public Prosecutor v Thomas Vola [1981] PNGLR 412 at 414, in the joint judgment of Kapi, Pratt and Miles JJ. As we interpret that judgment it was not simply the double use of the same mitigating factors which was criticised but that that double use produced a distorted wrong result: an effective sentence which was overly generous to the prisoner.
In this case the learned trial judge suspended nine-tenths of the sentence because of the prisoner’s ill health. The prisoner had been a polio victim in his childhood but had overcome his disability, played squash and became a champion yachtsman and swimmer. Then in 1985, after the offences but before his arrest and extradition from Australia, he had a Dunnes operation on his polio foot and had his leg in plaster for eight weeks. The learned trial judge went into the evidence on the prisoner’s medical condition in some detail and made findings of fact on it. Those findings are not particularly favourable to the prisoner. For example, at one point he said:
“There is no medical evidence before me to suggest that your imprisonment would affect your physical health.”
Later he said that the prisoner on his own evidence required physiotherapy and provision of pain-relievers, and the trial judge went on to say:
“It has not been seriously suggested that this treatment could not have been made available in Papua New Guinea.”
It had been argued for the prisoner that no orthopaedic surgeon was in fulltime residence in Papua New Guinea. The trial judge said that whilst the general surgeon, Mr Sharma, who gave evidence, was not an orthopaedic surgeon:
“I do not consider that he is incapable of providing the necessary treatment, or of directions for you to see a specialist”.
He went on to say that an orthopaedic surgeon would be arriving in March 1986 and would be available to the prisoner.
We consider that those findings of fact exclude the suspension of any part of the sentence because, on those findings, this respondent would not suffer special or excessive hardship in prison. There was clearly no other basis for suspension. The suspension was not likely to reform or deter the prisoner. Immediately after the offences he left Papua New Guinea permanently. He lived in Australia. He had no work in Papua New Guinea and, given the magnitude of the offences and the publicity they received, would be unlikely to get any employment in Papua New Guinea. The holding over his head of a twelve month suspended sentence from a Papua New Guinea court would have absolutely no effect on his conduct in Australia because it was unlikely to be enforced there. Clearly, too, the moneys had been repaid so suspension was not appropriate to secure the repayment of the stolen money.
Not only was suspension not appropriate on the medical evidence and that is an error of principle which justifies the allowing of this appeal, but the net result of five years head sentence with six months to serve was so inordinately low that it also justifies our intervention. We allow the appeal, affirm the head sentences given, quash the suspension of the sentences, and order the respondent to serve five years’ imprisonment with light labour less the six months he has already served.
Appeal allowed; Orders accordingly
Lawyer for the appellant: E Kariko, Acting Public Prosecutor.
Lawyer for the respondent: Steeles.