Papua New Guinea Law Reports - 1985
[1985] PNGLR 238
SC299
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SUPREME COURT RESERVATION NO 1 OF 1985
INAKAMBI SINGOROM
V
JOHN KALAUT
Waigani
Kidu CJ Woods Los JJ
30 June 1985
9 August 1985
INFANTS AND CHILDREN - Crimes and offences by children - Sentence - Minimum penalty provision - Court exercising powers of Children’s Court - Exemption from applying minimum penalties legislation - Child Welfare Act (Ch No 276), s 32(6).
CRIMINAL LAW - Sentence - Minimum penalty provision - Offender between sixteen and twenty-one years - Court exercising powers of Children’s Court - Exemption from applying minimum penalties legislation - Child Welfare Act (Ch No 276), s 32(6).
Held
Where a court is not a Children’s Court duly constituted under the establishment provisions of the Child Welfare Act (Ch No 276) but is a court authorised under s 32 of the Act to exercise the powers of a Children’s Court, then that court is included within the term “Children’s Court” in s 32(6) of the Act and is not bound by a minimum penalty prescribed for an offence dealt with by it and may disregard the provisions of the minimum penalties legislation in imposing penalties.
The State v Rapi [1985] PNGLR 23, approved.
Worofang v Wallace [1984] PNGLR 144, disapproved.
PLAR No 1 of 1980 [1980] PNGLR 326, considered and applied.
Cases Cited
House v The King (1936) 55 CLR 499.
Laho Kerekere v Robin Miria [1983] PNGLR 277.
PLAR No 1 of 1980 [1980] PNGLR 326.
SCR No 6 of 1984; Re Provocation [1985] PNGLR 31.
State, The v Danny Sunu [1983] PNGLR 396.
State, The v Rapi [1985] PNGLR 23.
Tuk, Henry v Gori [1983] PNGLR 420.
Worofang v Wallace [1984] PNGLR 144.
Reference
This was a reference to the Supreme Court of a question reserved by a judge of the National Court on the question of the applicability of the Child Welfare Act (Ch No 276), s 32, to defendants aged between sixteen and twenty-one years and charged with offences to which the minimum penalties legislation applied.
Counsel
S Lupalrea, for the affirmative.
G Salika, for the negative.
Cur adv vult
9 August 1985
KIDU CJ: The court is asked to answer the following question:
“Where a court is not a Children’s Court duly constituted under the establishment provisions of the Child Welfare Act (Ch No 276) but is a court authorised under s 32 of the said Act to exercise the powers of a Children’s Court, then, is such court included within the term ‘Children’s Court’ referred to in s 32(6) of the said Act?”
The Child Welfare Act (Ch No 276), s 32(6) (the Act) was enacted in 1983 (the year minimum penalties were introduced in the criminal justice system) to ensure that these minimum penalties did not apply to children dealt with in the Children’s Courts. Unfortunately the Legislature did not specifically include courts exercising powers of the Children’s Courts pursuant to s 32(4) and (5) of the Act in the enactment and consequently two judges of the National Court have given opposing views; one saying that courts exercising Children’s Courts’ powers are not exempted from imposing minimum penalties and the other saying such courts were indeed included in the amendment. The former view was expressed by Bredmeyer J in Worofang v Wallace [1984] PNGLR 144 and the latter view was expressed by Pratt J in The State v Rapi [1985] PNGLR 23.
The relevant provisions of s 32 are subss (2), (4), (5) and (6):
“(2)    Where a Children’s Court deals summarily with an offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a child, the Court may:
(a)      impose a penalty of:
(i)       a fine not exceeding K100.00; or
(ii)      imprisonment for a term not exceeding six months, and,
in addition to or instead of any penalty imposed under sub-paragraph (i) or (ii) make an order in respect of the child as if the child had been declared to be an incorrigible or uncontrollable child under this Act; or
(b)      without proceeding to conviction:
(i)       if the child is under the age of 14 years, and it appears to the Court that punishment inflicted by a guardian of the child, or some other person, would be the most suitable penalty in the circumstances — adjourn the hearing for that purpose; or
(ii)      order a guardian or the guardians of the child to give security for the good behaviour of the child until the child attains the age of 16 years, or during such shorter period as the Court thinks sufficient; or
(iii)     adjourn the hearing for such period as the Court thinks proper to enable the child:
(a)      to do such acts or things for the purpose of remedying or diminishing any damage done or injury or loss caused by the child; or
(b)      to undergo such discipline or instruction for the purpose of his reform or rehabilitation,
as the Court, on the recommendation of a welfare officer, sees fit to order, and on being satisfied that suitable punishment has been inflicted, or the security has been given or the acts or things have been performed, or the discipline or instruction has been undergone, as the case may be, dismiss the charge and give a certificate or dismissal.
...
(4)      Where a court other than a Children’s Court deals with an offence (other than homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a child, that court may exercise the powers of a Children’s Court under subsection (2), and an order made in the exercise of those powers has effect as if it were an order of a Children’s Court.
(5)      Where a court other than a Children’s Court deals with an offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a person over the age of 16 years but under the age of 21 years, the court may, where it thinks it for any reason desirable —
(a)      treat the person as a child for the purposes of this Act; and
(b)      exercise in relation to him, the powers of a Children’s Court under subsection (2) and an order made in the exercise of those powers has effect as if it were an order of the Children’s Court.
(6)      A Children’s Court is not bound by a minimum penalty prescribed for an offence dealt with by it and may disregard the minimum penalty prescribed in imposing a penalty.”
Bredmeyer J’s view (at 146) is as follows:
“... However, the offence under s 395(1) is a minimum penalty offence and I consider that s 35(6) of the Child Welfare Act means that when the District Court deals with a minimum penalty offence and the defendant is aged sixteen to twenty-one, it has no alternative but to impose the minimum penalty. That is so because of the application of the expressio unius personae vel rei, est exclusio alterius rule (the express mention of one person or thing is the exclusion of another). The express mention in subs (6) of a Children’s Court and the failure to mention other courts referred to in subs (5) means that these other courts are bound to apply the minimum penalties to youths aged sixteen to twenty-one. I consider that when the District Court (or National Court) is dealing with an offender aged sixteen to twenty-one and the offence is a minimum penalty and, it is required to impose the minimum penalty subject to s 138 of the District Courts Act”.
The opposite view expressed by Pratt J (at 27):
“... Where, however, the legislative draftsman refers to a Children’s Court in subs (6) there is no need to refer to courts other than a Children’s Court because the draftsman is referring to the court’s power of sentencing, and both a Children’s Court and other courts have the same powers under subs (2). Consequently, if the additional power in subs (6) flows through to the Children’s Court exercising its powers under subs (2), that being the only source of its original powers, then ergo it follows that such a similar power may be exercised by any court other than a Children’s Court which is exercising the power of a Children’s Court under subs (2). In short, whereas the very content of subss (4) and (5) dictate the necessity to distinguish between Children’s Courts and other courts, such necessity does not arise in subs (6). It would be tautologous.
His Honour [Bredmeyer J] relies entirely on the application of the maxim of legal interpretation expressio unius. I have always followed the advice that such rule though a valuable servant can be a dangerous master: per Lopes LJ in Colquhoun v Brooks (1888) 21 QBD 52 at 65. In Dean v Wiesengrund [1955] 2 QB 120 at 137 the Court of Appeal acknowledged the danger and in fact rejected the doctrine in the case before them. I have found much greater assistance in Lord Wensleydale’s golden rule that the ordinary words should be given their ordinary meaning.
I believe I am fortified in my interpretation of subs (6) by examining a neighbouring subsection which was not brought to the attention of Bredmeyer J. Section 33(3) reads as follows:
‘Where no Children’s Court has been established to exercise jurisdiction under this Act over a particular area, a District Court may exercise in that area the jurisdiction of the Children’s Court under this Act as if it were a Children’s Court.’ ”
Rules or maxims of interpretation of statutes are only guides and must not be thought of as substantive law. They are not inflexible rules to be applied without question. In this jurisdiction these rules are subject to two very important constitutional provisions: (a) fair and liberal interpretation (Sch 1.5(2)) and (b) the paramountcy of justice (s 158(2)). Schedule 1.5(2), I know, relates to the interpretation of constitutional laws, but if constitutional laws, which are higher laws than Acts of Parliament, must be given their fair and liberal meaning, it is my view that that means that ordinary laws must be given their “fair and liberal meaning”. Section 158(2) says that in interpreting laws the courts must “give paramount consideration to the dispensation of justice”.
Whatever the rules or maxims of statutory interpretation say, one thing must not be lost sight of and that is that a clear parliamentary intention in legislation cannot be ignored or overruled by the courts. The courts cannot and must not frustrate clear parliamentary intention in any legislation so long as such legislation is constitutionally valid. For Parliament is empowered by the Constitution, s 100, to exercise the legislative power of the people and not the courts. In fact Parliament’s legislative power, subject to the Constitution, is unfettered (the Constitution, s 109(1)), and laws made by Parliament “shall receive such fair, large and liberal construction and interpretation as will best ensure that attainment of the object of the law according to its true intent, meaning and spirit” (s 109(4)). I have said the above to emphasise that a court cannot go beyond its powers by using maxims of interpretation or rules of interpretation to over-ride clear and explicit parliamentary intent in legislation. This is not saying that I support “the strict literal and grammatical construction of the words, heedless of the consequences” approach to statutory interpretation: see PLAR No 1 of 1980 [1980] PNGLR 326.
The “purposive” rule of interpretation urged by Wilson J and Andrew J in PLAR No 1 of 1980 must not be used by the courts to nullify laws which are clearly constitutional and which clearly and unambiguously state the intentions of the legislature. What I am saying can be stated simply this way: Where Parliament says in an Act that “dogs” are to be registered if they are pets, a court cannot say that “dogs” means “pigs” simply because pigs are sometimes raised as pets.
I have already stated that s 32(6) is not clear, not because the term “Children’s Court should be read to include “National Court” or “District Court” as there can be no doubt “Children’s Court” therein means “Children’s Court”, but whether the exemption or non-applicability of minimum sentences to Children’s Courts apply to courts exercising powers of a Children’s Court.
In deciding the question it is important to remember the main reason for the existence of the Child Welfare Act — it provides for the welfare of children and ensures that they are treated as children. Section 32 of the Act ensures that children who breach the criminal law are specially treated by Children’s Courts. It also enables other courts to do the same and in appropriate cases to treat those sixteen years old but under twenty-one as children. It must be assumed that when Parliament enacted subs (6) of s 32 of the Act, it had not ignored the main purpose of the Act. It is also to be assumed that when Parliament enacted subs (6) it was aware that in certain parts of the country no Children’s Courts had been established and that in such places the District Court deals with children. The reason for pointing this out is that if Bredmeyer J’s interpretation is correct such children would be subject to the harsh realities of minimum penalties.
The “purposive” interpretation approach, especially in cases where parliamentary intention is not clearly stated, is sanctioned by s 158(2), Sch 1.5(2) and s 109(4) of the Constitution: see PLAR No 1 of 1980 [1980] PNGLR 326. Applying the purposive interpretation rule to s 32(6), it is without doubt that Parliament did not mean to exclude courts mentioned in s 32(4) and (5) from provisions of s 32(6).
I would answer the questions in the affirmative.
WOODS J.: This is a reservation from a judge of the National Court for an opinion on the applicability of the Child Welfare Act (Ch No 276), s 32, to defendants charged with offences under the minimum penalty legislation and who at the time of the commission of the offence are aged between sixteen and twenty-one years. The question referred is:
“Where a court is not a Children’s Court duly constituted under the establishment provisions of the Child Welfare Act (Ch No 276) but is a court authorised under s 32 of the said Act to exercise the powers of a Children’s Court, then, is such court included within the term ‘Children’s Court’ referred to in s 32(6) of the said Act?”
Briefly, the situation that led up to this referral was that a person aged sixteen years was convicted of breaking, entering and stealing and sentenced to the minimum of five years in hard labour. However, a co-defendant aged seventeen years had been dealt with by a grade 5 magistrate and sentenced to six months in hard labour pursuant to the Child Welfare Act, s 32.
This situation highlighted the fact that there are conflicting decisions on this point by the National Court. The Child Welfare Act, s 32, sets out the powers of a Children’s Court and specifically in subs 1(b) provides that where a child is charged with an indictable offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) a Children’s Court may hear and determine the charge in a summary manner. The penalty that may be imposed by a Children’s Court when it deals summarily with an offence is set out in subs (2) of s 32 and briefly provides for a penalty not exceeding K100 or imprisonment not exceeding six months, and/or orders as if the child had been declared incorrigible or uncontrollable, or alternatively the court may not proceed to conviction but order the guardian or parents to provide security or discipline and enable the child to remedy or diminish any damage or similar orders.
For the purpose of this question on reservation from the National Court, subss (4), (5) and (6) of s 32 are important and they state as follows:
“(4)    Where a court other than a Children’s Court deals with an offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a child, that court may exercise the powers of a Children’s Court under subsection (2), and an order made in the exercise of those powers has effect as if it were an order of a Children’s Court.
(5)      Where a court other than a Children’s Court deals with an offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a person over the age of 16 years but under the age of 21 years, the court may, where it thinks it for any reason desirable —
(a)      treat the person as a child for the purposes of this Act; and
(b)      exercise in relation to him, the powers of a Children’s Court under subsection (2), and an order made in the exercise of those powers has effect as if it were an order of the Children’s Court.
(6)      A Children’s Court is not bound by a minimum penalty prescribed for an offence dealt with by it and may disregard the minimum penalty prescribed in imposing a penalty.”
Does the term “Children’s Court” in subs (6) include a court exercising the powers of a Children’s Court as referred to in subss (4) and (5)? If the words “Children’s Court” in subs (6) were meant by Parliament to be interpreted strictly to mean only those courts formally established under s 28, then capricious anomalies would result. For example, it is often the case that a Children’s Court is not able to act in relation to a specific matter and a District Court magistrate acts instead by virtue of the Child Welfare Act, s 29(5), and also the National Court may deal with a child.
In such cases, s 32(4) specifically provides that such magistrates and National Court judges can apply the penalties provided for in s 32(2). However, a strict interpretation of subs (6) could mean that with two fifteen-year-olds convicted of committing the same or a similar offence for which the penalty is a minimum penalty, if one was dealt with by a properly established Children’s Court, he would only be liable for the penalty provided for in s 32(2); and if the other was dealt with by a District Court magistrate under s 29(5) or by a National Court judge, he would have to receive the minimum penalty. Thus, in the facts leading up to this reference one would receive six months, the other five years.
It cannot be envisaged that Parliament intended such an anomalous situation. Quite obviously Parliament intended children, namely persons under the age of sixteen years to be not caught up by minimum penalties. Section 32(4) clearly envisages children being dealt with by courts other than a Children’s Court but provides that such courts may exercise the powers of a Children’s Court and any orders so made have effect as if they were an order of a Children’s Court. Parliament’s concern must extend to cover courts exercising Children’s Courts’ powers in s 32(4). Whilst it may be a little harder to interpret Parliament’s intention to those sixteen but under twenty-one years old, that may be dealt with under s 32(5) once s 32(6) has been interpreted to cover those other courts referred to in s 32(4), such an interpretation must extend to the discretion provided for in s 32(5).
I do feel that s 32(6) could have been interpreted with a bit more particularity vis-a-vis subss (4) and (5), but for the present, to avoid absurd and capricious results, the words “Children’s Court” in subs (6) must include a court not duly constituted as a Children’s Court but being a court authorised under the Child Welfare Act, s 32, to exercise the powers of a Children’s Court.
I would answer the question referred, “Yes”.
LOS J.: A question was reserved by Pratt J for an opinion on the applicability of the Child Welfare Act (Ch No 276), s 32, to persons charged with offences under the minimum penalty legislation and who at the time of the commission of the offence are aged between sixteen and twenty-one years. The question is:
“Where a court is not a Children’s Court duly constituted under the establishment provisions of the Child Welfare Act (Ch No 276) but is a court authorised under s 32 of the said Act to exercise the powers of a Children’s Court, then, is such court included within the term ‘Children’s Court’ referred to in s 32(6) of the said Act.”
Section 32 of the Child Welfare Act was amended by an addition of a new subsection, that is, subs (6) (Act No 33 of 1983):
“A Children’s Court is not bound by a minimum penalty prescribed for an offence dealt with by it and may disregard the minimum penalty prescribed in imposing a penalty.”
The application of this subsection in view of the minimum penalties legislation has caused a divergence of opinion. The divergence results from the interpretation put upon “Children’s Court” in the subsection. Bredmeyer J’s view in Worofang v Wallace [1984] PNGLR 144, is that the “Children’s Court” in subs (6) does not include other courts that exercise the powers of the Children’s Court. He says this is so because of the application of the expressio unius personae vel rei, est exclusio alterius rule. Pratt J in The State v Rapi [1985] PNGLR 23 expressed a view that the “Children’s Court” in subs (6) includes other courts. His Honour’s reason (at 26-27) quite apart from pointing out a danger in the use of the expressio unius rule, is that:
“... if the court other than the Children’s Court is exercising all the powers of the Children’s Court under subs (2) and when the Children’s Court in exercising that power under subs (2) is told in subs (6) that it is not bound by the minimum penalties legislation, it seems reasonable ... that such ‘power’ coming via subs (2) ... must be taken in conjunction with the power under subs (6) to disregard the minimum penalty.”
Great care should be taken when applying the expressio unius rule. This is fully discussed in PLAR No 1 of 1980 [1980] PNGLR 326 and more recently in SCR No 6 of 1984; Re Provocation [1985] PNGLR 31 so I do not intend citing the principles here. The strict application of that rule in interpreting subs (6) would mean a different treatment would be accorded to the persons between the ages of sixteen and twenty-one depending upon whether they appeared before the Children’s Court per se established under the Child Welfare Act, s 28, or other courts having the authority to exercise Children’s Court powers by virtue of s 32(4) and (5) or even by virtue of s 33(3). Indeed this kind of anomaly did occur and lead to this reference. A person aged sixteen years who was convicted for breaking, entering and stealing was sentenced to five years in hard labour (minimum penalty). A co-defendant however aged seventeen years who was convicted by a grade 5 magistrate was sentenced to six months in hard labour under the Child Welfare Act, s 32.
What is the intention of the Parliament? That the legislature was forced by popular demand to introduce harsher penalties is no question. This has been the object of the Legislature since mid-1983 (Criminal Code (Minimum Penalties) (Amendment) Act 1983, (No 10 of 1983)). The courts on the other hand have tried to ascertain what discretion, if any, they have; hence Amet J’s decision in Laho Kerekere v Robin Miria [1983] PNGLR 277 and Pratt J in Henry Tuk v Gori [1983] PNGLR 420. All these culminated in a reference before the Supreme Court constituting five judges in The State v Danny Sunu [1983] PNGLR 396. Soon after this judgment the Legislature put a final touch or purported to have sealed off the remaining part of the courts’ discretion by the Criminal Code (Amendment) Act (No 29 of 1983). Now, in view of the Legislature’s object since mid-1983, why would it suddenly bring in an amendment such as the Child Welfare Act, s 32(6). Is there a change in the wind? A more likely reason in my view is that the Legislature had overlooked the operations of the Children’s Courts established in the Child Welfare Act, Pt VI, and the sentencing powers given to other courts. A large number of urban crimes are committed by persons within the category of ages sixteen to twenty-one. This information must be before the Parliament. I do not think therefore that subs (6) is meant as a way out for offenders of serious crimes even if their ages fall in between sixteen and twenty-one. In my view subs (6) restores the status quo which would have been otherwise eroded by the introduction of the minimum penalties.
Subsections (4), (5) and (6) which give other courts powers are not in mandatory terms:
“(4)    Where a court other than a Children’s Court deals with an offence ..., that court may exercise the powers of a Children’s Court under subsection 2 ....
(5)      Where a court other than a Children’s Court deals with an offence ... committed by a person over the age of 16 years but under the age of 21 years, the court may, where it thinks it for any reason desirable ....
(6)      A Children’s Court ... may disregard the minimum penalty prescribed in imposing a penalty.” [My emphasis.]
Just because an offender falls into the age bracket of sixteen to twenty-one does not mean that he has to be treated as a child. In view of the object of the minimum penalties legislation, I do not think that the Parliament intended for example that a hard core criminal can get out easily under the provisions of the Child Welfare Act. The three subsections, that is, (4), (5) and (6), grant discretions but the courts are aware that the discretions have to be exercised in accordance with the established principles: House v The King (1936) 55 CLR 499 at 503. For instance, I think it is within reason that one of the factors that may have a bearing on a court’s decision to treat an offender as a child is whether treatment under the District Courts Act 1963, s 38, could properly reflect the nature of the offence committed by the person concerned. It might just be a technical offence where a person who is just beginning his life should not spend a minimum period in prison. A shorter custodial sentence imposed pursuant to the Child Welfare Act, s 32, upon a “child” might prove to be more effective than imposition of a minimum custodial sentence. Otherwise the discretion under the District Courts Act 1963, s 138, may be unreasonably stressed.
As obvious from what I have said, my answer to the question is in the affirmative.
Question answered, “Yes”
Lawyer for the appellant: N Kirriwom, Public Solicitor.
Lawyer for the respondent: E Kariko, Acting Public Prosecutor.