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Wames v Constable Poku [1982] PGNC 28; N389 (27 October 1982)

N389

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

CORAM: Pratt, J.

Wednesday, 27th October 1982

Appeal 112 of 1982

BETWEEN:

BUTU WAMES, DAVID DENNY and JACOB MORRIES
Appellant

AND:

CONSTABLE ALLEN POKU
Respondent

Appeal 113 of 1982

BETWEEN:

BUTU WAMES, DAVID DENNY and JACOB MORRIES
Appellant

AND:

CONSTABLE JOSEPH SEPOE
Respondent

SENTENCING - Grade 5 Magistrates - duty on counsel to supply information - necessity to preserve consistency with National Court sentences - principle of totality combined with youthfulness of offender.

Cases cited;

Tremellan v. The Queen (1973) P.N.G.L.R. 116
Wart Mugining v. The Queen (1975) P.N.G.L.R. 352
Bakiri Pena v. The State Unreported Supreme Court Judgment SC183 of 3/11/80
Public Prosecutor v. Lalaiva and Ume Unreported, Supreme Court Judgment SC201 of 3/7/81
Public Prosecutor v. Maki and Kasen Unreported, Supreme Court Judgment SC205 of 7/8/81
Public Prosecutor v. John Airi Unreported Supreme Court Judgment SC214 of 24/11/81
Public Prosecutor v. Konis Haha Unreported Supreme Court Judgment SC202 of 2/7/81
Reg. v. Bentham (1973) 1 QB. 357
Public Prosecutor v. Terms Kaveku (1977) P.N G.L.R. 110
Hamilton (1980) 2 Cr. App. R. (S.) 229
Koyce [1997] EWCA Crim 918; (1979) 1 Cr. App. R. (S.) 21

14th & 15th October and 27th October

WAIGANI, NATIONAL CAPITAL DISDRICT

Pratt, J.

In this matter Mr Marlow from the Public Solicitor's Office appeared on behalf of each appellant but no counsel appeared on behalf of the respondents who were the original police informants before a Grade 5 magistrate.

The appellants were aged 17, 17 and 16 at the time they appeared before the Court on two consecutive days, the 11th & 12th May 1982. The matter dealt with on the 11th related to a break and enter committed in Port Moresby on the 9th February in respect of a dwelling house of one Bryan Smail (value of property stolen K870) whilst the matter dealt with on the 12th May concerned the break and entry of a house of one Arthur Spencer on the 4th February 1982 (value of property stolen K662).

On the first of these hearing dates the learned magistrate imposed a sentence of eighteen month imprisonment with hard labour. On the following day he imposed on each of the appellants a further period of twelve months imprisonment with hard labour to be served cumulatively on the 11th May.

As might be expected at the commencement of the institution of a new system, some of the administrative procedures appear to be in a state of some confusion. Although the Registrar received from the Clerk of the District Court of the third appellant, it was necessary to call papers in respect of the first and second appellant in each appeal. No copies of the records of interview appeal papers. Learned counsel for the appellant was unable to advise me whether such records of interview had been tendered to the magistrate and the Court working sheet did not disclose whether such tender had been made. As I cannot imagine his Worship proceeding without recourse to the records of interview, I asked for copies to be made available to me for my perusal on the appeals. In addition, reasons for sentence did not appear on the file of two of the appellants. His Worship's remarks on sentence were set out on the Court file dealing with the third appellant in each matter. There had been attempts by the Public Solicitor's Office to obtain reasons for sentence in respect of the other two appellants but for some reason or other this proved non-productive. I have no doubt however that the matters committed to writing by the learned magistrate in respect of the appellant Jacob, were the same as the matters that went through his mind and were enunciated in open court when sentencing the two co-accused in each case. Furthermore, neither the magistrate's working sheet nor the court papers showed whether or not antecedent reports were tendered. Hopefully these administrative problems will iron themselves out very rapidly as the new system becomes more firmly entrenched. It is vital however that the appellate tribunal has before it all the material which was laid before the magistrate.

The mitigating factors taken into account by the learned magistrate in respect of the matter dealt with on the 11th May (that is in Appeal No. 113 of 1982) included youth, a period of two and a half months in custody, little education and no prior convictions. On the other side of the coin his Worship emphasized that the offence occurred late at night, involved no less than six persons, the prevalence of the offence, the reaction of the community and the prospect of violence being ever present. In the ultimate, his Worship endeavoured to obtain a balance between the interests of the persons appearing before him and the interests of society. He then imposed the sentence of eighteen months imprisonment with hard labour. As I indicated at the conclusion of argument when I dismissed this appeal, I was not prepared to disturb the sentence albeit it was heavier than I would have imposed myself. It is well established that a court of appeal will not interfere with a sentence merely because the appeal court has a different personal view on the matter. I do not propose in this judgment to traverse once more the grounds upon which an appellate court will interfere with a lower court's decision on sentence.

Submissions then proceeded on Appeal No. 112 of 1982, that is the offence committed on the 4th February 1982. Once more the magistrate averted to the matters which had gone through his mind on the previous day in respect of the defendant then before him, Jacob. Again I assume the same factors operated in his Worship's mind and were so stated in open court in respect of the other two appellants. In addition his Worship specifically came to the view that concurrent sentences were not appropriate. He did remind himself to look at the totality of the two sentences and then imposed a sentence of twelve months cumulative.

Whilst it is clear that many factors were considered by the learned magistrate, both the sentence imposed of itself, together with the Court's failure to apply the principle of totality of sentences, indicate that an error has been made. Consequently I upheld the appeal in this matter and ordered that the sentence of twelve months imprisonment be served concurrently with the earlier period of eighteen months.

Appellant's counsel submitted as a first mayor argument that the magistrate had failed to take into account the fact that both offences were committed close in time, and drew my attention to a decision of the pre-Independence Full Court of the Supreme Court in Tremellan v. The Queen^[1]. That was a matter involving a number of thefts over a considerable period of time and at p.119 Minogue C.J. and Frost S.P.J. (as he then was) said:

"... we feel that generally speaking sentences should 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."

Their Honours then went on to refer to authorities in Queensland and New South Wales, where it was considered that the "two offences were both so connected that they could be regarded as part of the one incident and so merited the sentences being made concurrent." I do not think the present type of case fall within the area being considered by the Full Court in Tremellan's case (supra). In addition, counsel's submission would appear to be at odds with the judgment in Wari Mugining v. The Queen^[2]. In that case for example, reference is made to D.A. Thomas' 1st ed. "Principles of Sentencing" at p.50:

"The fact that two offences occur close together in time does not necessarily mean that they will be treated as part of one incident if they are essentially different in character and Involve different subject matter."

Mugining was guilty of two distinct and separate acts committed within the space of a few minutes. Tremellan had committed a series of thefts from the one source over a period of months, and the Court felt that "each act of stealing and its attendant falsification ... were so connected that they should be regarded as part of the one incident" (at p.120). I do not think the same can be said in the present appeals, at least not strictly.

Whether by accident or design one further difficulty was posed to the magistrate, by having the later offence brought before him first up. At p.51 of the 1st edition of Thomas on Sentencing we find:

"... sentences should generally be served in the same order as the offences to which they relate were committed; where the offender has been sentenced first for the later offence, the sentence for the earlier offence should not be consecutive to that sentence (this does not apply to the case where a probation order was made in respect of the first offence). Where a court wishes to ensure that an offender who is already serving a sentence should serve an additional sentence for a later offence, it should pass a sentence of appropriate length to commence at the expiration of the sentence which the offender is already serving, rather than a concurrent sentence longer than the first sentence by the period which the court wishes the offender to serve for the later offence and thus disproportionate to that offence."

I must say that I have certain reservations about accepting the content of the latter part of this paragraph dealing with an offender already serving a sentence, but the opening sentence is one which I would adopt and has particular application to the matter before me.

The present appeals do however highlight a set of facts which pose a definite problem from a practical point of view. The two offences were committed within a matter of days of each other. The decision to act outside the law and against society was obviously taken prior to the first offence, but there was little time for reflection in the intervening period. This of course will always be a matter of degree. If the two break-ins occurred on the one night, the point I am making would be much clearer. I appreciate that such an approach has very definite limitations, but nevertheless it does form a basis for handing down a sentence which reflects the realities of how these matter come about rather than becoming too much involved in the logical niceties of the matter. The young offenders had decided on a course of criminal conduct and fortunately one hopes for them, and certainly for the community, they were detained and dealt with for their misdeeds in a comparatively short space of time. Perhaps the real answer is that the question is part and parcel of the principle involving totality of sentence which was the second major submission put before me by counsel, in conjunction with previous good character and the youth of the appellants, and to which I now pass.

Of late the Supreme Court has been asked on a number of occasions to review the situation in respect of youthful offenders, and a series of decisions has been handed down. See for example Bakiri Pena v. The State^[3], Public Prosecutor v Lalaiva and Ume^[4], Public Prosecutor v. Maki and Kasen^[5] and Public Prosecutor v. John Airi^[6]. Perhaps the most comprehensive of these authorities on a matter of general principle in respect of youthful offenders is the case of Maki and Anor. There are however two aspects which are dealt with in Lalaiva and Ume which I consider are relevant to the present appeal. At p.7 of the unpublished judgment Mr Justice Miles says:

"It cannot be wrong in principle to aim to impose a sentence which will avoid a 'crushing' effect on a young offender ..."

This principle I know has been enunciated by many of the judges of this Court both before and since Independence, and is certainly one which I keep constantly in mind. In the matter of Public Prosecutor v. Konis Hatia^[7], the Supreme Court has additionally required to deal in part with concurrent and cumulative sentences and at p.13 his Honour the now Deputy Chief Justice Mr Justice Kapi says:

"The final sentence must bear some proportion to the offences and the circumstances surrounding them. In other words, the final sentence must not be inadequate or excessive. Whether or not the aggregate effect of a sentence is inadequate or excessive depends on the facts of each case."

In the same report at p.15 his Honour Mr Justice Miles deals with a number of English and Papua New Guinea authorities and specifically adopts the totality principle as expressed in Reg v. Bentham^[8]:

"... when a man is being sentenced at the same time for a number of different crimes it is necessary, when fixing the length of each sentence, to take into account whether it is going to be made consecutive to or concurrent with other offences. Thus, when a man is being sentenced for, say, four separate burglaries, it is not unusual for him to be sentence three years on each count concurrent. While each count, considered alone, merits three years' imprisonment twelve years would severe a punishment for the whole course of crime."

His Honour then goes on to say:

"It is permissible and in most cases necessary that if the totality principle shows the aggregate to be excessive, then the head sentence is adjusted upwards to some extent."

One of the cases to which his Honour refers is that of Public Prosecutor v. Terrence Kaveku^[9] where his Honour Frost C.J. says at p.111:

"But there is another principle which is applicable in this case. It is the totality principle which requires that when consecutive sentences are imposed a final review of the sentence is to be made by the Court to ensure that is not excessive."

Several other authorities to which learned counsel for the appellant has referred me are Hamilton^[10] and Koyce^[11], where observance by the Court of Criminal Appeal to the totality principle is again demonstrated. In my view an aggregate period of thirty months, plus two and a half months already in custody is a period so demonstrably "crushing" as to illustrate of itself that despite reference to the principle of totality by the magistrate, he has in fact failed to put it into practice.

In addition, the sentences imposed are well outside the range handed down by the judges of the National Court when applied cumulatively. It must be remembered that in many areas of the country the National Court is still dealing with offences which are simultaneously being handled by Grade 5 magistrates. There is a clear duty on the magistrates therefore to ensure that the sentences they are imposing are not in excess of the general pattern imposed by the National Court, irrespective of what their personal views may be. What must also be borne in mind is the fact that sentences for those matters which are now dealt with by a Grade 5 magistrate must still fit into the general, pattern of the totality of sentences for all crimes which are dealt with both in the area where the jurisdiction of the two Courts overlap and for those matters dealt with by the National Court only. If a superior court is for example imposing a penalty of round about twelve months give or take a few, depending on the individual circumstances for crime X, any system which would permit a lower court to regularly impose sentences from eighteen to twenty months for a like offence could not be permitted to continue and could only bring the law generally into contempt. The learned magistrates must take a realistic view of the maximum sentence which they are permitted to impose in respect of a particular conviction taken in conjunction with the maximum sentence which the National Court is authorized to impose, and must bear in mind the "tariff" of sentences commonly applied in such serious cases as murder, rape and armed robbery, to name but a few.

One major difficulty of course being faced by the Grade 5 magistrates is information concerning the type of sentence which has been handed down for a particular offence by the National Court over the past few years. An attempt to remedy this situation is being worked upon but in the meantime the absence of direct information on sentencing policy places a very heavy burden on both counsel for the prosecution and for the defence to advise the learned magistrate of such past sentences. So far as the office of the Public Prosecutor and the Public Solicitor are concerned, this should present absolutely no difficulty at all. I am sure that in those cases where a defendant represented by a private practitioner, the Public Solicitor's office would be only too willing to supply some of the information on request from the private practitioner.

In Appeal No. 113 of 1982 I confirm the sentence of eighteen months imprisonment with hard labour imposed on each appellant. However I uphold the Appeal No. 112 of 1982 and in place of the twelve months cumulative sentence which the magistrate imposed on each defendant, I substitute a sentence of twelve months imprisonment to be served concurrently with the sentence of eighteen months imprisonment imposed by the learned magistrate on the 11th May 1982.

Orders handed down accordingly on 15th October 1982.

Solicitor for the Appellant - A. Amet, Public Solicitor

Counsel - C. Marlow

No appearance for Respondent

^[1] (1973) P.N.G.L.R. 116
^[2] (1975) P.N.G.L.R. 352 at 360
^[3] Unreported Supreme Court Judgment SC183 dated 3rd November 1980
^[4] Unreported Supreme Court Judgment SC201 dated 3rd July 1981
^[5] Unreported Supreme Court Judgment SC205 dated 7th August 1981
^[6] Unreported Supreme Court Judgment SC214 dated 24th November 1981
^[7] Unreported Supreme Court Judgment SC202 dated 2nd July 1981

^[8] (1973) 1 Q.B. 357

^[9] (1977) P.N.G.L.R. 110
^[10] (1980) 2 Cr. App. R. (S.) 229

^[11] [1997] EWCA Crim 918; (1979) 1 Cr. App. R. (S.) 21