[1973] PNGLR 228

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SECRETARY FOR LAW

V

DAVID MARTIN MALUM AND OTHERS

Port Moresby
Minogue CJ Clarkson J Prentice J

7 March 1973
6 April 1973

CRIMINAL LAW - Punishment - Whether two or more sentences may be made cumulative - Whether sentences imposed at same time may be made cumulative - Criminal Code (Queensland adopted), s. 20[ccxl]1.

Section 20 of the Criminal Code (Queensland adopted) is to be construed as authorizing the imposition of more than two sentences to be served cumulatively, and as authorizing sentences imposed at the same time to be served cumulatively.

Dicta in R. v. Anderson, [1967] Qd. R. 599, and R. v. Phillips and Lawrence, [1967] Qd. R. 237 adopted. R. v. Blow, [1963] Q.W.N. 1. not followed.

Appeal

On 9th August, 1972, the three respondents and another were convicted on pleas of guilty to charges of breaking entering and stealing from a shop. At the time of conviction the respondent David Martin Malum and another were already serving sentences of four months imprisonment for escaping from custody, and in addition in relation to the respondent David Martin Malum and one other the trial judge was asked to take into account another offence of breaking and entering an hotel. After entering a verdict, the trial judge with the consent of counsel, deferred sentence until a further indictment on a charge of stealing with violence in company was presented against the respondent David Martin Malum and two others. A plea of guilty on this charge was accepted in respect of each of the three accused (respondents) and they were remanded for sentence. The trial judge holding that he had no power under s. 20 of the Criminal Code to impose cumulative sentences, refrained from doing so, except in the case of the respondent David Martin Malum and the other respondent each then serving sentence for escaping from custody. The Crown appealed pursuant to s. 29 of the Supreme Court (Full Court) Ordinance.

Counsel

L. Roberts-Smith, for the appellant (Crown).
K. Los, for the respondents (accused).
Cur. adv. vult.

6 April 1973

MINOGUE CJ: I agree with the conclusion of my brothers that the learned trial judge was in error, and generally with their reasons therefor.

Section 20 of the Criminal Code is not without its difficulties (as was realized in Western Australia where its counterpart has long ago undergone clarification, apparently in such a satisfactory way that the aid of no court seems to have been sought to pronounce upon it). However, it seems to me that as a matter of construction the first paragraph of the section is directed to enlarge the discretion which the sentencing court exercises at the time of the infliction of punishment. It is at that time that it is called upon to exercise such discretion as it possesses. It is only at that time that it has all the material before it upon which a proper exercise of discretion can be based. The words “who is convicted of an offence” are apt to describe the person who can be punished or, put in another way, to set out the necessary prerequisite for punishment, i.e. conviction. To read the words as being equivalent to “who at the time of conviction for an offence” would in my view be to strain their meaning. Where a person at the one sittings pleads guilty to a number of offences disparate in character, time and place, such a construction could for example tend to divert the sentencing authority from the real task of sentencing into a maze of procedural niceties—a result which I cannot think could have been intended by the legislature.

I only wish to add in relation to R. v. Blow[ccxli]2 that in that case neither at the time of the prisoner’s conviction of nor sentence for the offence committed in 1961 was he undergoing or sentenced to undergo a sentence involving deprivation of liberty. Consequently at the time of sentence there was no call for consideration of s. 20. I would have thought that when his situation came to be considered a year later when Blow was undergoing sentence of imprisonment for three subsequent convictions a better analysis of the situation when the judge came to consider what should happen to him consequent upon his breach of recognizance is that he did not come before the judge in the character of a person who was convicted of an offence but of one who had breached a recognizance. True it was that the conduct constituting that breach also amounted to a criminal offence but that offence was only evidentiary of the breach and the judge was not sentencing him upon a conviction nor was s. 20 applicable in such circumstances.

It follows that the appeal should be allowed.

There remains to consider what course this court should follow. The learned trial judge stated that had he felt he had power to do so he would certainly have imposed cumulative sentences, but naturally enough he did not go on to say what those sentences would have been if he were exercising such a power.

Section 29 of the Supreme Court (Full Court) Ordinance empowers this court in its discretion to vary the sentences and impose such sentences as it thinks proper. I agree with the learned trial judge’s view that this is a case calling for cumulative sentences and I regard the sentences imposed for stealing with violence in company as being adequate and proper for the offence committed. However, I differ from the learned trial judge in his view (as expressed in his sentences) of the comparative seriousness of the two offences with which he was concerned. Further, when making sentences cumulative the court in my opinion should be careful to see that the over-all term of imprisonment imposed is in the circumstances not a crushing one.

I would vary the sentences imposed for the offence of breaking entering and stealing from a shop by substituting therefor the following:

David Martin Malum 	 18 months	
Robin Lamasa 	 9 months	
James Diemes Tukat	10 months	

In the result in my opinion the Orders of the Court should be:

(1)      Allow appeal.

(2)      Vary the sentences imposed by substituting for those in respect of breaking entering and stealing from a shop the following:

David Martin Malum 	18 months	
Robin Lamasa 	9 months	
James Diemes Tukat	10 months	

(3)      Direct that these sentences take effect  from the expiration of the sentences imposed on 10th August, 1972, on each of the respondents in respect of the offence of stealing with violence in company.

CLARKSON AND PRENTICE JJ: At the criminal sittings of this court in Rabaul in August 1972, Kelly J. on 9th August, 1972, convicted the three respondents and another on pleas of guilty to charges of, on 14th June, 1972, breaking entering and stealing from a shop. At the time of conviction two of them, David and Robin, were already serving sentences of four months’ imprisonment with hard labour for escaping from custody.

At the time of plea his Honour was asked to take into account another offence of breaking and entering the Cosmopolitan Hotel on 10th June, 1972, by David and James. After entering a verdict his Honour, with the consent of counsel, deferred sentence until a further indictment on a charge of stealing with violence in company on 15th June, 1972, was presented against David, Robin and James. A plea of guilty on this charge was accepted in respect of each of the three accused and the prisoners were remanded for sentence.

On 10th August, 1972, the judge imposed the following sentences:

for breaking entering and stealing:

David 	2 years	
Robin 	15 months	
James	16 months	

for stealing with violence in company:

David 	2 years and 6 months	
Robin 	2 years	
James	2 years	

His Honour stated that if able he would certainly have imposed cumulative sentences but felt himself unable to do so, considering himself bound by the decision of R. v. Blow[ccxlii]3 to hold that he had no power under s. 20 of the Criminal Code to do so. However, he made each sentence of David and Robin cumulative upon the sentence each was then serving for escaping from custody.

The Crown appeals, maintaining his Honour to have been wrong in finding his powers of sentence so restricted under s. 20. It contends that for each of the respondents the sentence for robbery should have been made cumulative on the sentence for breaking entering and stealing which, for two respondents, was properly made cumulative upon the sentence for escaping from custody.

The relevant provision is s. 20 of the Criminal Code which reads as follows:

“20.    When a person who is convicted of an offence is undergoing, or has been sentenced to undergo, for another offence, a sentence involving deprivation of liberty, the punishment to be inflicted upon him for the first-mentioned offence may be directed to take effect from the expiration of the deprivation of liberty for the last-mentioned offence.

Except as aforesaid, a sentence of imprisonment, with or without hard labour, upon a conviction on indictment takes effect from the first day of the sittings of the court at which the offender is convicted, and a sentence of imprisonment, with or without hard labour, upon a summary conviction takes effect from the commencement of the offender’s custody under the sentence.

A person who escapes from lawful custody while undergoing a sentence involving deprivation of liberty is liable upon recapture to undergo the punishment which he was undergoing at the time of his escape, for a term equal to that during which he was absent from prison, after the escape and before the expiration of the term of his original sentence, whether at the time of his recapture the term of that sentence has or has not expired.”

In the comments which follow we take as an example the case of David.

The trial judge deferred the commencement of both of the sentences imposed so as to commence at the expiration of the term already being served and neither the Crown nor the appellant suggest that the trial judge was not able so to defer the commencement of one or both of the sentences.

However, the trial judge took the view that the two convictions of 9th August, 1972, having both occurred before the appellant was sentenced upon either of them he was then unable to order that the two sentences as between themselves should be served consecutively or cumulatively. It is this proposition or at least part of it which the Crown challenges. But it is necessary to define the problem further.

When the respondent appeared for sentence upon the two convictions the sentences were imposed at virtually the same time but there were two sentences and not one imposed.

Further we assume without considering the point that the trial judge in his discretion might have first imposed sentence in respect to whichever conviction he selected and that he was not bound first to impose sentence upon the conviction first in time or upon the conviction selected by the Crown or by the respondent. But we think it is quite clear, and no one contended otherwise, that when the first sentence was imposed its commencement could not have been deferred by reference to the expiration of another sentence not yet imposed. We make the point for better definition of the problem, which is whether in the circumstances the trial judge had the power to defer the commencement of the second sentence imposed until the expiration of the first sentence imposed.

On the arguments and authorities it is said here there are two reasons why he could not: firstly, because a later sentence may only be made cumulative upon an earlier sentence if the earlier sentence had already been imposed at the time of the conviction in respect of which the later sentence is imposed and, secondly, because no more than two sentences may be made cumulative, which we take to mean that while a second sentence may be made cumulative on the first, no further sentence can be made cumulative on the second.

Section 18 of the Code provides that one of the punishments which may be inflicted under the Code is imprisonment with hard labour and s. 19 (1) that a person liable to imprisonment with hard labour for any period may be sentenced to imprisonment for any shorter term. Section 20 which we have already set out then deals with, amongst other things, the point in time at which a sentence of imprisonment takes effect. Here we note two points. The first is that although the sidenote refers to cumulative sentences the text of the section does not contain either the word cumulative or the word consecutive, and the second is that whilst it must necessarily be that an offence precedes conviction and sentence for it, the dates and times which are relevant are those of conviction and sentence but not the date of the offence.

The opening words of the section are: “When a person who is convicted of an offence is undergoing . . .” Put briefly, the question is whether this provision should be construed as meaning in effect “. . . is at the time of that conviction undergoing . . .” or “. . . is at the time of sentence upon that conviction undergoing . . .”

There have been a number of cases in this jurisdiction in which a person having been convicted at the same sittings of two offences but not at the time of the second conviction having been sentenced to a term of imprisonment has been sentenced to two consecutive terms of imprisonment upon those two convictions. This has also been done by courts of summary jurisdiction in Papua New Guinea.

The same practice has been followed on a number of occasions in Queensland. (See Mack C.J. in R. v. Phillips and Lawrence[ccxliii]4).

Originally, s. 20 of the Western Australia Code was in the same form as that under consideration. In 1920 the relevant part was rewritten to read:

“When a person who is convicted of an offence is, at the time when he appears to receive judgment, undergoing or under sentence to undergo, for one or more other offences, a sentence or sentences involving deprivation of liberty, the punishment to be inflicted upon him for the first-mentioned offence may be directed to take effect from the expiration of the deprivation of liberty for the other offence or offences.

Judgments involving deprivation of liberty pronounced upon any convicted person on the same occasion may be directed to take effect concurrently or cumulatively.”

That s. 20 might contain difficulties was apparently recognized in Queensland by 1907. Macleod’s Queensland Criminal Code Supplement (1915 ed.) contains the following note on s. 20:

“There is no power to order a term of imprisonment to commence at the expiration of another term to which a prisoner has been sentenced in pursuance of a later conviction. Justices were circularised to this effect on 14th January, 1907.”

In Laird v. Mitchell[ccxliv]5 Macrossen S.P.J. speaking of s. 20 said obiter:

“. . . and a sentence to operate cumulatively must be in respect of a conviction subsequent to that for which the offender has already been sentenced . . .”

Both these statements seem to suggest there are circumstances where the order in which the convictions occur and not only the order in which the sentences are imposed may prevent the imposition of a cumulative sentence.

In R. v. Blow[ccxlv]6 the Queensland Court of Criminal Appeal was concerned with problems arising under ss. 19 and 20 of the Code. The applicant had been convicted of an indictable offence in March 1961. He was sentenced to two years’ imprisonment but twenty-one months of this term was suspended on the applicant entering into a recognizance under s. 19 (7).

In early 1962 the applicant was convicted of further offences and sentenced to concurrent terms of imprisonment for twelve months which he was still serving when brought before the court pursuant to s. 19 (7). The court estreated his recognizance and ordered imprisonment for twenty-one months, being the suspended portion of the sentence imposed in 1961, to be cumulative with one of the concurrent sentences imposed in March 1962. Gibbs J. for the court said:

“The second question that arises is whether there was power to order that the imprisonment be cumulative upon the sentence imposed on the 13th March, 1962. Section 20 of The Criminal Code provides, inter alia:

(he then sets out the first paragraph of s. 20 and goes on)

It is apparent that the words of this section do not apply to the present case. One sentence may only be directed to be cumulative upon another, if the latter sentence had already been imposed when the offender was convicted of the offence in respect of which the former sentence is passed. As has already been pointed out, on 28th June, 1962, the applicant received judgment in respect of the service of portion of the sentence imposed on his conviction on 13th March, 1961. When the applicant was convicted of the offence in respect of which the order in question was made, that is on 13th March, 1961, he was not undergoing and had not been sentenced to undergo, for another offence, a sentence involving deprivation of liberty. The sentence imposed on 13th March, 1962, was in respect of a conviction subsequent to that in respect of which the order was made on 28th June, 1962. The provisions of s. 20 therefore did not empower the learned judge to order that the portion of the sentence imposed on 13th March, 1961, which had been suspended, but which the applicant was required to undergo by the order of 28th June, 1962, should be cumulative upon the sentence imposed on 13th March, 1962. There is no other provision of The Criminal Code that gave the learned judge power to make such an order. When a judge commits to prison an offender who has broken a recognizance entered into under the proviso to s. 19 (7), the suspended sentence recommences to run and the judge has no power to postpone the commencement of its operation.

If in the present case the applicant had been committed to prison under the proviso to s. 19 (7) on proof of his convictions on 17th January and 28th February, 1962, before he was convicted and sentenced on the charges of breaking entering and stealing that were in fact dealt with on 13th March, 1962, there would have been power to make the sentences imposed on the latter date cumulative upon that which had recommenced to run under s. 19 (7). However, the fact that the consequences might have been different if a different procedure had been followed is not relevant to the construction of the provisions of The Criminal Code.”

The statement that one sentence may only be directed to be cumulative upon another if the latter sentence had already been imposed when the offender was convicted of the offence in respect of which the former sentence is passed is that on which the trial judge relied in the present case when ruling that he could not make the two sentences cumulative.

In R. v. Blow[ccxlvi]7, the sentence of twenty-one months which it was sought to make cumulative was part of a sentence which preceded both the sentence of twelve months upon which it was to be cumulative and the conviction upon which the sentence of twelve months was imposed. If one treats the suspended part of the sentence in this way and not as a fresh sentence then to justify the decision of the Court of Criminal Appeal it is unnecessary to say more than that while the operation of the first sentence may be suspended under s. 19 (7) it cannot under s. 20 be further deferred by reference to a second sentence which had not been imposed when the first sentence was imposed.

The statements in R. v. Blow[ccxlvii]8, which we have quoted above do not appear to have been approved in any subsequent case in Queensland.

In R. v. Phillips and Lawrence[ccxlviii]9, Lawrence was convicted of three offences by the same jury and sentenced by the trial judge to three terms of imprisonment which were made cumulative.

The effect of the argument was, firstly, that the first conviction and sentence thereon must precede the second conviction before the second sentence can be made cumulative on the first sentence and, secondly, that not more than two sentences can be made cumulative. (See the description of the argument given by Hart J. at pp. 286-287). Since the court upset one of Phillips’ three convictions it became unnecessary to decide the second point although members of the court commented on it.

The first argument was impliedly rejected by Mack C.J. (at pp. 250-251) and by Hanger J. (at p. 266) and was expressly rejected by Hart J. (at p. 289).

As to the second argument the court appears to have divided, Mack C.J. being against the contention (p. 251) Hanger J. considering it might be correct (p. 266) and Hart J. expressing no opinion.

The only reference to R. v. Blow[ccxlix]10, is made by Hanger J. who says at p. 266: “I think that, under s. 20, two terms of imprisonment may be made cumulative in the circumstances in the instant case. I share the doubt, expressed in Laird v. Mitchell [1930] St.R.Qd. 38 by Macrossan S.P.J. whether more than two may be made cumulative. The decision in R. v. Blow [1963] Q.W.N. 1 contains nothing, when the judgment is read with reference to the facts the court was dealing with, which is inconsistent with these views.”

In R. v. Anderson[ccl]11, decided in the same year as but later than Phillips and Lawrence[ccli]12, a differently constituted Court of Criminal Appeal adopted a similar view.

The appellant therein, already sentenced to two cumulative sentences for failure to pay maintenance, was convicted of an indictable offence and sentenced to a term of two years’ imprisonment which was also made cumulative.

It will be seen that on the facts the first argument in R. v. Phillips and Lawrence[cclii]13, was not open to the appellant, because the conviction for the indictable offence had in fact followed the imposition of the first two sentences.

As to the argument that s. 20 does not authorize more than two sentences to be made cumulative Mack C.J. said at p. 601:

“The other question argued was whether s. 20 allows more than two sentences of imprisonment to be served cumulatively. This argument was raised by Mr. Nolan in R. v. Phillips and Lawrence [1967] Qd. R. 237. No further reason was advanced to cause me to alter the opinion that I expressed in that case. I refer also to what I said in R. v. Gassman [1961] Qd. R. 381, at pp. 383, 384 as to the Court of Criminal Appeal being bound by its previous decisions.”

Hoare J. (with whom Stable J. agreed) said at p. 603:

“I now deal with the second point argued. Whatever may be said in favour of a construction of s. 20 of The Criminal Code which would restrict its application to a person who is currently serving one sentence only (so that in effect no more than two sentences of imprisonment should be ordered to be served cumulatively), I see no reason to adopt a construction of s. 20 at variance with that which appears to have been adopted in Queensland for upwards of sixty years. As Mack C.J. demonstrated in R. v. Phillips and Lawrence [1967] Qd. R. 237, s. 20 of The Criminal Code has been consistently construed as authorising the imposition of more than two sentences to be served cumulatively. I adopt His Honour’s words ‘where a section of the Code has been interpreted in a particular way over a period of many years by numerous judges it should not now be given a different interpretation.’ ”

On both the questions raised by this appeal we prefer the view generally adopted by the judges of the Queensland Court of Criminal Appeal, and we express shortly our reasons for doing so.

We refer first to the argument that the sentence imposed on David for robbery cannot be made cumulative on the sentence for breaking and entering because the conviction for robbery occurred before the imposition of the sentence for breaking and entering.

Reverting to the compendious expressions of first and second convictions, as referring to the order in which sentences in respect of those convictions are imposed, we note that the first paragraph of s. 20 requires that before the sentence on the second conviction can be made cumulative on the first sentence it must appear that at an unspecified point in time the person (a) is convicted of the second offence and (b) is undergoing or has been sentenced to undergo for the first offence a term of imprisonment.

The paragraph is silent as to when these conditions must exist and there is a choice to be exercised by reference to the ordinary rules of statutory construction. The choice is between the time of the second conviction or the time of the second sentence.

The thrust of the paragraph is not directed to conviction; it is concerned with the commencing date of a sentence and it seems to us natural that it should refer to criteria existing at the time of sentence, namely, that the person is convicted and is undergoing or has been sentenced to undergo for another offence a term of imprisonment.

We prefer this construction which for many cases makes any question of deferring the commencement of a sentence one proper for the consideration of the judge at the time of sentence rather than the construction which leaves that question to be determined, not by any discernible principle but by the chance that the second conviction occurred before the imposition of the first sentence.

The second argument for a restrictive construction of s. 20 was not presented in any detail although it arises clearly enough from the authorities referred to earlier.

Again in this country, especially in courts of summary jurisdiction, it is not unusual to see more than two cumulative sentences imposed. The second sentence is made cumulative on the first and the third on the second.

It seems to us that if the words of the first paragraph of s. 20 are apt to describe the offender at the time the second sentence is imposed they are equally apt to describe him when the third sentence is imposed. The third sentence would be made cumulative upon the second sentence not upon the first sentence. When the third sentence is imposed, the offender by reference to the second sentence either “has been sentenced to undergo for another offence a sentence” or “is undergoing for another offence a sentence”.

We are content to say we adopt the view of s. 20 of the Code taken by the Queensland Court of Criminal Appeal in R. v. Anderson[ccliii]14. To what extent the court should in its discretion limit the number of sentences to be served consecutively is of course a different consideration.

It follows in our respectful view that the trial judge was in error when he concluded that in respect of the two sentences imposed on 10th August, 1972, he was not able at law to make the second sentence cumulative on the first sentence. Having reached that conclusion, the matter of sentence falls to be dealt with under the discretion conferred on the full court by s. 29 of the Supreme Court (Full Court) Ordinance.

We agree with the orders proposed by the Chief Justice.

(1)      Allow appeal.

(2)      Vary the sentences imposed by substituting for those in respect of breaking entering and stealing from a shop the following:

David Martin Malum 	18 months	
Robin Lamasa 	9 months	
James Diemes Tukat	10 months.	

(3)      Direct that these sentences take effect from the expiration of the sentences imposed on 10th August 1972 on each of the respondents in respect of the offence of stealing with violence in company.

Solicitor for the appellant (Crown): P. J. Clay, Crown Solicitor.
Solicitor for the respondents: W. A. Lalor, Public Solicitor.

[ccxl]Infra p. 231.
[ccxli][1963] QWN. 1.
[ccxlii][1963] QWN. 1.
[ccxliii][1967] Qd.R. 237, at p. 251.
[ccxliv][1930] St.R.Qd. 38, at p. 48.
[ccxlv][1963] QWN. 1.
[ccxlvi][1963] QWN. 1.
[ccxlvii][1963] QWN. 1.
[ccxlviii][1967] Qd.R. 237.
[ccxlix][1963] QWN. 1.
[ccl][1967] Qd.R. 599.
[ccli][1967] Qd.R. 237.
[cclii][1967] Qd.R. 237.
[ccliii][1967] Qd.R. 599.