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Dami v State [2009] PGNC 40; N3628 (20 April 2009)

N3628

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CRA NO 13 OF 2009

BETWEEN

STEVEN KONGI DAMI
Appellant

AND

THE STATE
Respondent

Minj: Makail, J
2009: 17th & 20th April

CRIMINAL APPEALS - District Court appeal - Appeal against sentence - No administration of allocutus prior to passing of sentence - Effect of - Denial of natural justice - Nullity of sentence - Appeal upheld and remitted for re sentencing - Constitution - Section 59 - Criminal Code - Section 593.

Cases Cited:
Anton Yani -v- The State (1999) SC615
The State -v- Joe Ivoro & Gemoro Yavura [1980] PNGLR 1
Agiru Aieni -v- Paul T Tahain [1978] PNGLR 37
Moses Aikaba -v- Tami [1971-72] PNGLR 155

Counsel:
Mr P. Kumo, for Appellant
Mr J. Waine, for Respondent

20 April, 2009

JUDGMENT

1. MAKAIL J: This is an appeal against the sentence of 2 years imprisonment in hard labour imposed by the Minj District Court on 17th March 2009 against the Appellant on his guilty plea to a charge of having in his possession offensive weapons, namely, two modified homemade guns contrary to section 12(1)(b) of the Summary Offences Act.

GROUNDS OF APPEAL

2. The Appellant bases his appeal on three grounds which are set out in the Notice of Appeal filed on 6th April 2009 but at the hearing of the appeal, counsel for the Appellant, Mr. Kumo informs the Court that grounds 2 and 3 will be abandoned and will only pursue ground 1. I recite them all hereunder:

"1. The Court erred in law when it did not administer an allocutus to [the] prisoner before deciding on the penalty.

2. The Court did not consider mitigating factors.

3. The sentence was too excessive".

GROUNDS 1 OF NOTICE OF APPEAL

3. Given the Appellant’s representation that grounds 2 and 3 of the appeal will not be pursued, I will only consider ground 1 of the appeal. Ground 1 raises two issues. First, whether the learned Magistrate in the District Court failed to administer allocutus to the Appellant before he passed sentence on him and if so, secondly, what is the effect of a failure to administer allocutus to the Appellant by the learned Magistrate?

4. In respect of the first issue, Mr. Kumo draws my attention to the hand written notes of the learned Magistrate of 17th March 2009 which are found in the Minj District Court Criminal Jurisdiction Form in the Appeal Book. From my reading of the hand written notes, it is clear to me that after the learned Magistrate arraigned the Appellant, the Appellant pleaded guilty to the charge and a guilty plea was entered against the Appellant. After a guilty plea was entered, I can see that the learned Magistrate wrote in the hand written notes that:

"A/R (Antecedent Report) - married & children, former village Councillor.

P/C (Prior convictions) Nil".

5. The learned Magistrate then went ahead to say, "Fine not considered appropriate under the circumstances. Imprisonment two years IHL".
But I can see that there is no record in the hand written notes of the learned Magistrate administering allocutus to the Appellant before imposing 2 years imprisonment IHL on the Appellant. Nor was it suggested by the State that the learned Magistrate may have orally administered allocutus to the Appellant but did not record it in the hand written notes. In fact, Mr. Waine, for the State was frank enough to concede that there was substantial miscarriage of justice and the appeal should be allowed because there is no record in the written notes of the learned Magistrate indicating that the learned Magistrate administrated allocutus to the Appellant before passing sentence on the Appellant. In the absence of a record of the administration of allocutus to the Appellant by the learned Magistrate, I find that the learned Magistrate did not administer allocutus to the Appellant.

6. It follows that the learned Magistrate went ahead to pass sentence on the Appellant without giving him the opportunity to tell the Court any matters of concern or relevance before the learned Magistrate passed sentence.

7. This leads me to consider the second issue of the effect of a failure to administer allocutus to an offender like the Appellant in this appeal before sentence is passed. Section 593 of the Criminal Code states that:

"593. Convicted person to be called on to show cause.

Where an accused person -

(a) pleads that he is guilty of an offence; or

(b) on trial, is convicted of any offence, the proper officer shall ask him whether he has anything to say why sentence should not be passed on him, but an omission to do so does not invalidate the judgment".

8. In my view, section 593 of the Criminal Code accords a person who is convicted by a Court of an offence a right to be heard before a sentence is passed upon him. This is a distinct and separate right from the right to be heard at the trial or submissions on sentence made on behalf by counsel or lawyer of one’s choice. It is a right to be heard accorded to an offender within a right to be heard made on behalf by counsel or lawyer for the offender.

9. I also consider that the right of an offender to be heard before sentence is passed on him proceeds from the well established principles of natural justice enshrined in the Constitution in section 59 which states as follows:

"59. Principles of natural justice.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly".

10. It has been held in past numerous Supreme and National Court cases that a judicial or quasi judicial authority must observe the principles of natural justice, in particular the duty to act fairly and the duty to act fairly must be seen to act fairly. Whether a decision of the judicial or quasi judicial authority is fair is determined objectively. Thus, it has been held that a judicial or quasi judicial authority in order to be seen to act fairly must accord a person a right to be heard before any decision is made by the judicial or quasi judicial authority.

11. In a criminal case, it becomes all the more important for the Court to administer allocutus to an offender before a sentence is passed because there are good reasons to require that to be done by the Court. For example, in a case where an offender’s allocutus raises a defence even though he has pleaded guilty and convicted on his guilty plea, it is the duty of the Court to clarify the issue with counsel: See Anton Yani -v- The State (1999) SC615.

12. If the Court is satisfied that the offender’s allocutus raises a clear defence, or there was a mistake on the part of the offender in pleading guilty or he did not really plead guilty, the Court has power to change the plea of guilty to not guilty even after the plea has been confirmed and allocutus administered but before sentence is passed. See The State -v- Joe Ivoro & Gemoro Yavuru [1980] PNGLR 1.

13. I find the facts of this appeal almost identical to the case of Agiru Aieni -v- Paul T Tahain [1978] PNGLR 37 which Mr. Kumo refers to in his submissions in support of the appeal. In that case, the learned Magistrate then, without giving any of the thirteen Appellants who were convicted of offences of behaving in a manner that was likely to cause a reasonable person to believe that they intended to start a fight, contrary to section 8 of the Summary Offences Act 1977, and sentences of 3 months imprisonment with hard labour (the maximum penalty prescribed) and one fine of K15 imposed, an opportunity to be heard on sentence, proceeded to impose sentence.

14. In the above case, it was found that the learned Magistrate did not indicate in his summary of proceedings or his reason for decision whether he administered to the Appellants, or any of them, anything in the nature of an allocutus or otherwise gave them an opportunity to speak to him on the question of penalty. If he did so and if they had made a statement, then, it was noted from the format of the notes that he made that, it seemed apparent that he would have recorded that he had given them such an opportunity to speak to him and that he would have recorded what each of them said (if anything). Thus, His Honour Wilson J, concluded that there was nothing in the nature of an allocutus being administered to the Appellants or any of them and none of them was given an opportunity to be heard on sentence. His Honour held that, to deny the Appellants the opportunity to be heard was to have denied them natural justice and as such, rendered each sentence pronounced a nullity.

15. It was also said in Moses Aikaba -v- Tami [1971-72] PNGLR 155 at 157:

"............ as a matter of commonsense, there should be an opportunity given to a prisoner, and/or his counsel, to be heard on sentence. As far as I know it is the invariable practice of this Court to put the allocutus and then to call upon counsel to address. Speaking for myself I think the practice is highly desirable.

However, the allocutus, "strictu senso", is only put in a trial, in other words, not in courts of summary jurisdiction.

But in the district court, and for that matter, in the local court, it is imperative that counsel or, where there is no representation, the defendant, should always be invited to address on the question of sentence.

The Court of Appeal in New South Wales has held in two cases that the failure to give counsel for the defendant an opportunity to be heard on the question of sentence is a denial of natural justice and renders the sentence pronounced a nullity".

16. Given the above case authorities standing for the proposition that a failure to administer to an offender before sentence is passed renders the sentence pronounced a nullity, I conclude in this case that the sentence of 2 years imprisonment IHL imposed by the learned Magistrate on the Appellant a nullity.

17. For these reasons, I find that the learned Magistrate fell into error when he did not administer allocutus to the Appellant before passing sentence on him. The error is fatal as the failure to administer allocutus to the Appellant renders the whole sentence pronounced a nullity.

ORDERS

18. I uphold the appeal and quash the sentence of the learned Magistrate of 17th March 2009 and further order that the matter shall be remitted before another Magistrate of the District Court for re sentencing on a date to be fixed by the District Court.

Orders accordingly.

Public Solicitor: Lawyers for the Appellant
Acting Public Prosecutor: Lawyers for the Respondent