Tremellan v The Queen [1973] PNGLR 116

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: [1973] PNGLR 116
• Date: 10 November 1972
• Year: 1973

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

Full Court: Minogue CJ, Frost SPJ, Clarkson J

Judgment Delivered: 10 November 1972

1 Criminal law—false accounting; Miscarriage of justice; Sentence—cumulative

2 Sentence reduced to 1 year; concurrent instead of cumulative; general rule—concurrent for acts for single purpose or arising out of same or clearly related facts; finding of miscarriage of justice not required

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

4 APPEAL—Appeal against sentence—Whether necessary to establish miscarriage of justice—Supreme Court (Full Court) Act 1968, s28.

Tremellan 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 Tremellan 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 Tremellan 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 CJ and Frost SPJ, Clarkson J not deciding) that s28 of the Supreme Court (Full Court) Act 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 289, applied.

R v Melville (1956) 73 WN (NSW) 579 and Wanosa v R [1971–72] PNGLR 90, referred to.

(3) (Per Minogue CJ and Frost SPJ, 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...