Tremellan v The Queen [1973] PNGLR 116

• Jurisdiction: Papua New Guinea
• Judge: Minogue CJ, Frost SPJ, Clarkson J
• Judgment Date: 10 November 1972
• Court: Supreme Court
• Citation: [1973] PNGLR 116
• Year: 1973
• Judgement Number: FC39

Full Title: Tremellan v The Queen [1973] PNGLR 116

Full Court: Minogue CJ, Frost SPJ, Clarkson J

Judgment Delivered: 10 November 1972

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TREMELLAN

V

THE QUEEN

Port Moresby

Minogue CJ Frost SPJ Clarkson J

27 October 1972

10 November 1972

CRIMINAL LAW — Appeal against sentence — Cumulative and concurrent sentences — When appropriate — Larceny as a servant — Falsification of books and account.

APPEAL — Appeal against sentence — Whether necessary to establish miscarriage of justice — Supreme Court (Full Court) Ordinance, 1968, s. 28

Section 28 of the Supreme Court (Full Court) Ordinance 1968 is as follows:--

28 (1) Subject to subsection (2) of this section, on an appeal against a conviction the Full Court shall allow the appeal if it thinks that —

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory;

(b) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal.

(2) The Full Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.

(3) Subject to the provisions of this Ordinance, the Full Court shall, if it allows an appeal against conviction, quash the conviction and direct a verdict of acquittal to be entered.

(4) On an appeal against sentence the Full Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass the other sentence in substitution therefor, and in any other case shall dismiss the appeal.1.

T. was sentenced for three convictions for stealing as a servant and four convictions for making false and fraudulent entries in books of account. In addition T. with the consent of the Crown asked the trial judge to take into account a further ten offences of stealing as a servant and a further twenty-one offences of false and fraudulent accounting. The offences occurred over a period of about six months and the amount stolen was $425.00. The trial judge sentenced T. to twelve months imprisonment on the first conviction for stealing and to twelve months imprisonment on the first conviction for false and fraudulent accounting and ordered that these two sentences be served cumulatively.

On appeal

Held

(1) (Per Minogue C.J. and Frost S.P.J., Clarkson J. not deciding) that s. 28 of the Supreme Court (Full Court) Ordinance, 1968 does not require the Full Court to give consideration to whether a miscarriage of justice has actually occurred on an appeal against sentence.

(2) Although it is neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent, sentences should generally speaking be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts.

Dictum of Hart J. in R. v. Phillips and Lawrence, [1967) Qd. R. 237 at p. 289, applied.

R. v. Melville (1956), 73 W.N. (N.S.W.) 579 and Wanosa v. The Queen, [1971-72] P. & N.G.L.R. 90, referred to.

(3) (Per Minogue C.J. and Frost S.P.J., Clarkson J, dissenting). In the circumstances the trial judge lacked material upon which to found a proper exercise of discretion and the overall sentence was manifestly excessive and should be varied by making the first two sentences concurrent and not cumulative.

Appeal

This was an appeal against sentence. The trial judge sentenced the appellant upon a count of stealing as a servant (taking into account ten admitted offences of stealing) to imprisonment with hard labour for one year, and upon a second count of making a false entry with intent thereby to defraud (taking into account twenty-one admitted offences of falsification of records) to imprisonment for one year, the latter sentences to be cumulative to those imposed on the first count. On each of five remaining counts of the indictment, which were two counts of stealing and three counts of falsification of records, the appellant was sentenced to one month's imprisonment each such term to be served concurrently with the sentence on the first count of the indictment. The two main grounds of appeal were, firstly that taken together the two sentences were manifestly excessive for the total wrongdoing and, secondly that the trial judge erred in the application of the principles relating to cumulative sentences and in not maing those sentences concurrent. Further facts appear in the reasons for judgment.

Counsel:

J. A. Griffin, for the appellant.

G. Gajewicz, for the respondent.

Cur. adv. vult.

10 November 1972

MINOGUE CJ FROST SPJ: The appellant pleaded guilty at Lae on 9th December 1971 to three counts of larceny as a servant and four counts of making false entries in the accounts of his employer with intent thereby to defraud. The appellant also asked to be taken into account in determining sentences other matters which were set out in four indictments upon the Court file. These indictments contained a total of ten counts of stealing as a servant and twenty-one counts of making false entries. There were thus thirteen charges of stealing as a servant and twenty-five charges of making false entries. The total sum involved in the ten counts of stealing was $425.00, and the offences were spread over a period of six months. The method adopted by the appellant, who was the office manager of the company from which the money was stolen, was to include in the pay record cards of employees, for which he was responsible, fictitious sums in respect of overtime. Having cashed a cheque made out by another employee on his own vucher, he then entered...