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Worofang v Wallace [1984] PGNC 49; [1984] PNGLR 144; N479(M) (21 May 1984)

N479(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

JOHN WOROFANG

V

PATRICK WALLACE

Lae
Bredmeyer J

21 May 1984

CRIMINAL LAW - Practice and procedure - Informations - Variance between words used and section under which charge created - Words to prevail - Criminal Code (Ch. No. 262), s. 395(1) and (2).

CRIMINAL LAW - Sentence - Minimum penalty provisions - Offender between 16 and 21 years - Indictable offence - Triable summarily - Minimum penalty provisions mandatory - Child Welfare Act (Ch. No. 276), s. 32(5) and (6).

INFANTS AND CHILDREN - Crimes and offences by children - Sentence - Minimum penalty provisions - Indictable offence triable summarily - Minimum penalty provisions mandatory - Child Welfare Act (Ch. No. 276), s. 32(5) and (6).

Held

(1) Where there is a variation between the words in which an offence is charged in an information and the section number under which the charge purports to be laid, the words shall prevail: an incorrect reference to a section number cannot amount to a substantial miscarriage of justice.

(2) Where a District Court deals summarily with an indictable offence listed in Sch. 1A to the Criminal Code (Ch. No. 262) which is also a minimum penalty offence and where the defendant is aged between 16 years and 21 years, the court is required to impose the minimum penalty subject to s. 138 of the District Courts Act 1963.
R. v. Stipendiary Magistrate, Port Moresby; Ex parte Secretary for Law [1974] P.N.G.L.R. 201, considered and applied.

Appeal

This was an appeal against conviction on a charge of breaking, entering and stealing, the offence created by the Criminal Code (Ch. No. 262), s. 395(1).

Editorial Note

Appeal to the Supreme Court has been lodged.

Counsel

P. Kopunye, for the appellant.
C. Righatta, for the respondent.

21 May 1984

BREDMEYER J: This is an appeal against a conviction for break and enter and a sentence of eight years I.H.L. The appellant appeared before Mr N. Silip a grade V magistrate at Wewak on 13 March 1984 and pleaded guilty. The information read "you did break and enter a dwelling house of one Jeremy James Burfoot and therein stole properties valued at K560 the property of Jeremy James Burfoot and Robert Graven — thereby contravening s. 395(2) of the Criminal Code".

The first point argued on appeal is that the section does not disclose an offence. The offence is created by s. 395(1) and the information refers to s. 395(2). That is true enough but I consider that the point is without merit. If there is any variation between the words of an information and the section number, the words prevail. After all a defendant pleads guilty to the words of the charge put to him and not to the section number. On getting an information a magistrate should check that the charge is correctly worded, that it follows the section properly, and then put the charge to the defendant. He should not read the section number to the defendant. A defendant can only plead to facts for example "that he did on the 1 December 1983 break and enter the property of A and while therein stole the properties etc.". A defendant cannot plead to law. Whether or not those facts constitute an offence under s. 395(1) or (2) or any other section is for the magistrate to decide. In this case the section mentioned in the information was wrong but the defendant pleaded to facts as alleged in the text of the information and the wrong section number is in itself of no consequence. It is not a "substantial miscarriage of justice".

The information did not contain the words "in the night". A break and enter of a dwelling house in the night is a circumstance of aggravation resulting in a higher penalty. If the State wishes to rely on a circumstance of aggravation it must plead the circumstance in the indictment or information: s. 528(2). What is more the offence did not occur at night time. The offence clearly occurred between 8.00 and 8.30 p.m. The victim arrived home at 8.30 p.m. and discovered his house burgled. "Night time" is defined by s. 1 as between 9.00 p.m. and 6.00 a.m. Clearly the penalty of eight years’ imprisonment which is the minimum penalty for a house burglary in the night, cannot stand.

It was next argued that as the offender was aged nineteen years the magistrate should have applied the Child Welfare Act (Ch. No. 276), s. 35(5), and imposed a sentence such as the Children’s Court can impose under s. 35(2), for example six months’ imprisonment. I was cited the case R. v Stipendiary Magistrate, Port Moresby; Ex parte Secretary for Law [1974] P.N.G.L.R. 201.

The learned magistrate thought he did not have jurisdiction to apply s. 32(5) of the Child Welfare Act. He put the matter like this "The court feels that it may not have jurisdiction under s. 35(5)", and went on to cite the 1974 case mentioned. The learned magistrate did not quote s. 32(6) which was added by Amendment No. 33 of 1983 in force on 7 November 1983. It was probably not cited to him. I know it was not cited to me. Subsections (5) and (6) of s. 32 provide:

"(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."

The effect of subs. (5) as held in R. v. Stipendiary Magistrate Port Moresby; Ex parte Secretary for Law is that the subsection does not confer on a court jurisdiction to determine all offence if it did not otherwise have jurisdiction. But where a court other than the Children’s Court properly has jurisdiction to try an offence, it may punish in accordance with the subsection. Subsection (5) does not give jurisdiction to a court but rather it gives special powers to punish youths aged between sixteen and twenty-one to a court which already has jurisdiction. In that case the learned District Court magistrate at Port Moresby (Mr Quinlivan) convicted and punished youths for stealing goods worth $5,190. Under the law as it was then he had no power to hear such a charge summarily; he should have heard the case as a committal.

In the present case the learned grade V magistrate, had power to hear the offence of break, enter and steal because the offence is one set out in Sch. 1A of the Criminal Code (Ch. No. 262) being a list of indictable offences triable summarily. 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 one, it is required to impose the minimum penalty subject to s. 138 of the District Courts Act. Section 138 does not apply on the facts of the case.

Even if the law were otherwise and subs. (5) did allow the District Court to avoid a minimum penalty I do not consider a penalty of six months’ imprisonment, which is the maximum the Children’s Court could impose, to be adequate. The appellant was the leader of a group of lads who burgled a house between 8.00 and 8.30 p.m. He was aged nineteen, the others were younger. Before the introduction of minimum penalties, he would have got about eighteen months’ imprisonment for this offence. The minimum penalty legislation was an expression of parliamentary or public opinion that penalties were too low for these offences. It is unrealistic to argue now that a six months’ sentence would be appropriate.

The appeal will be allowed in part because the offence did not occur at "in the night" and a sentence of five years’ imprisonment with hard labour substituted. This was a s. 395(1) offence and that is the minimum penalty for that offence.

Appeal allowed in part.

_____________________________

Lawyer for appellant: Public Solicitor.
Lawyer for respondent: Public Prosecutor.