Harris v R (1954) 90 CLR 652; 28 ALJ 402; No47 [19/1954]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Webb J:
• Judgment Date: 12 October 1954
• Citation: (1954) 90 CLR 652; 28 ALJ 402; No47 [19/1954]
• Year: 1954

High Court: Dixon CJ, Webb J, Fullagar J, Kitto J, Taylor J

Judgment Delivered: 12 October 1954

1 High Court—Appellate jurisdiction—Supreme Court of the Territory of Papua and New Guinea—Appeal against sentence—Principles governing—Papua and New Guinea Act 1949–1950 (No. 9 of 1949—No. 80 of 1950), s64(1).

2

___________________________

Two Judgments Choose best

___________________________

PRIOR–HISTORY: APPLICATION for leave to appeal from the Supreme Court of the Territory of Papua and New Guinea.

Edward Norman Harris appeared, upon indictment, at the criminal sittings of the Supreme Court of the Territory of Papua and New Guinea which commenced at Port Moresby before his Honour the Chief Judge, Mr Justice F.B. Phillips on 2 December 1953, charged with that, between 31st May 1952 and 13th October 1953, in the Territory of Papua, he stole several sums of money, the property of Kenneth Roy Wenke and others, amounting, in all, to 3,620 pounds 13s. 0d. being the amount of a general deficiency in respect of divers sums of money which had come into his possession for, and in the name, and on account, of the said Kenneth Roy Wenke and others. The accused pleaded guilty and on 7th December 1953 was sentenced to imprisonment with hard labour for four years.

From this sentence the accused sought leave to appeal to the High Court.

SUMMARY: While the High Court has jurisdiction under s64(1) of the Papua and New Guinea Act 1949–1950 to "hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Court of the Territory", nevertheless before it will interfere with a sentence of imprisonment imposed, it must be satisfied that the discretion exercised by the court imposing the sentence miscarried or was unsound or unreasonable in its exercise. It is not sufficient to show that the sentence is substantially greater than would have been imposed by a court sitting in Australia or by the High Court.

Cranssen v R (1936) 55 CLR 509, at 519–520 applied.

Application for leave to appeal from the Supreme Court of the Territory of Papua and New Guinea (F.B. Phillips CJ) refused.

COUNSEL: Solicitors for the applicant, John W. & Frank Galbally. Solicitor for the respondent, D.D. Bell, Crown Solicitor for the Commonwealth of Australia. R.D.B.

JUDGES:

DIXON CJ, FULLAGAR, KITTO AND TAYLOR JJ. This is an application pursuant to s12 of the Supreme Court Act 1949 of Papua and New Guinea for leave to appeal from a sentence of imprisonment imposed by the Supreme Court of that Territory. The applicant pleaded guilty before the Supreme Court on 2 December 1953 to an indictment charging him with stealing between 31st May 1952 and 13th October 1953 sums of money amounting to 3,620 pounds 13s. 0d. being the amount of a general deficiency. The property in the money was laid in certain persons who no doubt were office–bearers or members of a social club called the Aviat Club. On 7th December 1953 the Chief Judge, who presided, sentenced the applicant to imprisonment with hard labour for four years. After the sentence the applicant was held in Bomala prison near Port Moresby until he was sent to Long Bay gaol in New South Wales, where he was received as a prisoner on 7th May 1954. (at p653)

2. It appears that the applicant was an officer of the Department of Civil Aviation, which he joined in February 1947 after serving during the war in the Navy. He was stationed at Port Moresby and had a wife and a young child who lived in Australia. At the time he was sentenced he was thirty–three years of age. His salary was for most of the period mentioned in the indictment 20 pounds a week, although it afterwards rose by 2 pounds or 3 pounds. From his salary he supplied his wife and child with 10 pounds a week. In February 1952 he was requested to take up the position of Honorary Treasurer at the Aviat Club. At the time he appears to have been in debt, and two or three months after taking that office he took 10 pounds of the club's money, as he says, to pay a creditor. He went on taking moneys of the club to pay debts and cover living expenses. He made fruitless journeys to Australia to raise money to recoup what he had taken and at length in a vain attempt to recoup his position he used large sums of the club's money in betting on horses. In the end he informed the president of the club of what had occurred. The committee of the club took a merciful view of his conduct and were unwilling to prosecute. However, the charge was laid by the authorities. After he had been sentenced the members of the club resolved that they should take no action to recover the money and would not accept the applicant's right to long service pay, superannuation or life assurance which he had offered to make over. During his incarceration at Bomala apparently he became ill with malaria and was for a short period in hospital. Otherwise he was the only white person confined at Bomala. (at p654)

3. In supporting his application for leave to appeal the applicant's counsel submitted that the sentence was excessive and that it should be reviewed. He contended that the learned judge had paid insufficient attention to the fact that up to the commission and discovery of the offence the applicant possessed a good character and an unsullied record and was a first offender. No consideration, counsel said, had been given to the circumstance that the applicant after sentence would necessarily be detained in gaol in New Guinea before being transferred to Australia and to the hardship that involved. Counsel also suggested that the views of the Aviat Club and its officers as to the applicant should have been taken into consideration because they were in a position to understand all the circumstances and to form an estimate of the prisoner's character. He also contended that the six months which the prisoner spent in the Bomala gaol and the consequences to his health should be considered by this Court. The maximum sentence under the law of New Guinea for the offence to which he pleaded guilty is seven years and that was fixed under the Queensland Criminal Code. (at p654)

4. The learned judge in pronouncing the sentence explained the nature of the offence and his reasons for fixing four years' imprisonment. His Honour concluded with the following observations:—"In my opinion, a short term of imprisonment in this case would be futile. A longer term is called for and will, in the long run, benefit you, I believe, and help you to rehabilitate yourself. When I say that, I have this in mind:—It is possible, that you may experience difficulty, at a future date, in obtaining a position of trust or clerical work involving the handling of money, and I suggest that you would be wise to acquire a 'second string', so to speak, by learning, when in prison, a trade that may ensure you a livelihood afterwards, should you not be able to get the clerical work you have been used to heretofore". Counsel contended that this consideration was not well founded and, in any case ought not to have been taken into account in fixing a sentence. (at p655)

5. The jurisdiction of this Court to entertain the appeal arises, if not under the Constitution, at all events under s64 of the Papua and New Guinea Act 1949–1950. Subsection (1) of that section provides that the High Court shall have jurisdiction, with such exceptions and subject to such conditions as are provided by ordinance, to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Court of the Territory. The language of the provision follows s73 of the Constitution and in this respect is not identical with that of s24 of the former Judiciary Act 1921–1938 of New Guinea, where the words are "grant leave to appeal…from any conviction, sentence, decree or order of the Supreme Court". In Cranssen v R (1936) 55 CLR 509, the manner in which under that ordinance this Court should exercise its powers upon appeal with respect to sentences of imprisonment was discussed. The following observations were made:—" S24 of the Judiciary Act 1921–1927 expressly mentions convictions and sentences among the judicial orders from which an appeal by leave shall lie to this court. It is evident that these words refer to convictions on indictment and sentences of imprisonment or other punishment. This court is thus specifically given a jurisdiction to hear appeals from sentences of the Supreme Court of the territory. But, although this consideration may distinguish the power it is called upon to exercise from the general appellate power invoked in House v R (1936) 55 CLR 499, it remains true that the appeal is from a discretionary act...