Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Bredmeyer J, Barnett J
• Judgment Date: 02 April 1986
• Court: Supreme Court
• Citation: [1986] PNGLR 91
• Year: 1986
• Judgement Number: SC314

Full Title: Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

Supreme Court: Kidu CJ, Bredmeyer J, Barnett J

Judgment Delivered: 2 April 1986

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 ne 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 stoln 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...