Unreported National Court Decisions
N153
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
APPEAL NO. 111 OF 1978
BILLY KARI
V
GEORGE KOGIA AND ORS
Wewak
Kearney J
13 July 1978
APPEALS - convictions by District Courts - jurisdictional challenge should be by application for certiorari, not appeal.
COURTS - jurisdiction - Child Welfare Act 1961 - Children’s Courts when established have exclusive jurisdiction to hear charges of summary offences by persons under 16 years of age.
SENTENCE - considerations relevant to imposition of maximum statutory punishments - extended range of punishment of District Courts as regards persons aged 16-21 years.
STATUTE - Child Welfare Act 1961, ss. 36(1)(a), 37.
KEARNEY J:  This is an appeal by 6 young men who pleaded guilty and were convicted before the District Court at Wewak on 4th May, 1978, upon charges under s.22(1) of the Summary Offences Act 1977 of escaping from lawful custody.
They are all wards of the Director of Child Welfare, in the custody of the authorities at Boys Town, Wewak, an approved institution under the Child Welfare Act 1961 (herein called, the Act). They ran away together on 3rd May, and for that escape they were each charged, and convicted and sentenced by the District Court to 6 months imprisonment, the maximum punishment. They also appeal against the severity of that punishment.
The first ground of appeal is that the District Court at Wewak had no jurisdiction to hear the charges against them. Mr. Hannan argues that:
(a)      each appellant at the time of the escape was a “child” within the meaning of the Act;
(b)      there is a Children’s Court for Wewak and its environs. For its establishment and where it sits, see Gazette No. 4 of 17th January 1963, page 78; for its current membership, see Gazettes Nos. 33 of 18th April, 1973, page 11 and Gazette 43 of 3rd June, 1976, page 8; and
(c)      when a Children’s Court has been established in and for an area, only that Court may hear charges of summary offences by children within that area.
Now the evidence is that 4 of the 6 appellants were under the age of 16 years at 3rd May; it is therefore clear that each of those 4 is within the definition of “child” in s.5(1) of the Act. It is conceded that there has been a Children’s Court for Wewak and its environs for the last 15 years. It is, in my opinion, crystal clear from ss37 and 36(1)(a) of the Act that an established Children’s Court has exclusive jurisdiction to hear charges against children of summary offences committed within the geographical area for which it is established. I am satisfied that Boys Town at Wewak is within the geographical area for which the Wewak Children’s Court is established.
It follows that, as regards the appellants under the age of 16 years - George Kogia, Michael Morilomo, John Mongi and Rex John - the first ground of appeal is upheld.
There has been a substantial miscarriage of justice. That is a condition precedent to an appeal being allowed; see s.236(2) of the District Courts Act 1963. However, it is not an apposite condition, nor is an appeal the appropriate procedure, where the challenge is to jurisdiction, the contention being that the decision is a nullity. The proper means of challenging jurisdiction is by way of application for certiorari. In the circumstances, pursuant to Constitution s.155(4), and following Maumau v. Maragili[cvii]1 I treat this appeal as an application for certiorari, direct an order nisi issue to bring up the convictions, returnable instanter, make the order absolute for the issue of the writ, and direct that the 4 convictions be quashed, and the sentences imposed set aside.
The 4 appellants must be brought before the Wewak Children’s Court for the charges against them to be heard and determined; that means the present charge of escaping and indeed, any other charges which arise from their conduct after their escape.
As to the other 2 appellants - Kore Sevese and John Malbag - they were both 16 years of age at the time of the escape; therefore neither was a “child” within the meaning, of the Act, and the Children’s Court has no jurisdiction to hear charges against them. They were properly charged before the District Court, and their convictions stand. The first ground of appeal fails, as far as they are concerned.
I turn to the second ground of appeal - that the sentences were too severe - as regards these 2.
Mr. Hannan argues that while sentencing is a discretionary matter, the maximum sentence fixed by an Act should only be imposed for the worst type of that particular offence, or where the prisoner has a previous record of committing offences of that type. The Magistrate has stated in his reasons for decision that “they had committed some serious offences previously”; but insufficient specific evidence of their previous criminal activities, particularly as regards escapes, was before the Court.
It is true that the maximum sentence fixed by an Act should be imposed only when the Court is satisfied that the blameworthiness of the prisoner as regards the particular offence, is of a high order[cviii]2. This involves two major considerations:
(a)      Were the facts surrounding the particular offence such that the Court considers that it is a particularly bad case of that offence? That is to say, the Magistrate assesses the gravity of what occurred. This is the dominant consideration, in sentencing. So in the present case, the circumstances of the escape are of the utmost importance. In considering these circumstances, and assessing the gravity of the offence, the Magistrate would bear in mind such matters as the social danger, the alarm caused to the public, the harm done, the prevalence of escapes from Boys Town, and so on.
(b)      Does the background and history of the particular prisoner indicate a pattern of serious criminal behaviour? Factors such as length and type of criminal record, and how long ago he committed his last offence should be considered.
Generally, on the question of punishment, with particular reference to escapes, there is the illuminating judgment of Raine J. in Martin Kore v. Alan Carling[cix]3. I note in passing that, when it comes to consider punishment, the Court may, if it considers it desirable to do so, exercise in relation to persons between 16 and 21 years of age, any of the broad powers conferred by s.36(2) of the Act; the Court is not restricted to the range of punishments contemplated by s.22(1) of the Summary Offences Act 1977. Of course, this only applies when the District Court has jurisdiction, as here, to hear and determine the charge; see Re v. Stipendiary Magistrate at Port Moresby, ex parte Secretary for Law[cx]4.
It is clear from the record before me that the material placed before the Magistrate was insufficient to enable him properly to assess the blameworthiness of the 2 appellants, in the sense I have mentioned. There has been a substantial miscarriage of justice. For that reason their appeals against severity of sentence are upheld, the sentences imposed are quashed, and their cases remitted to the District Court for re-consideration of sentence in the light of the above remarks and any further material put before the Court by the Police in relation thereto. The question of the appropriate punishment, maximum or otherwise, is entirely a matter for the consideration of the District Court.
Orders accordingly.
Solicitor for the Appellants: M. Kapi, Public Solicitor.
Counsel: J. Hannan.
Solicitor for the Respondent: K.B. Egan. Public Prosecutor.
Counsel: J. Cagney.

[cvii](1963) P&NGLR 108
[cviii]See e.g. Bernard Vuga v. Thoni Ribi, unreported N141, 16 May, 1978, Wilson J.; and Luname Meuso v. Maiak Nagy, unreported N.139, 18 May, 1978, Wilson J.
[cix]Unreported No.722, 1 Dec. 1972. Raine J.
[cx](1974) PNGLR 201.