Kemai v Symonds [1975] PGSC 18; [1975] PNGLR 81 (10 April 1975)

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CRIMINAL LAW - Appeal against sentence - Relevant considerations on appeal - Matters of condemnation only referred to in judgment on sentence - Whether judgment at risk - Nature of discretion of appellate court.

Where a judgment or sentence is given by a magistrate or judge and fairly full reasons are given, if the magistrate or judge sets out strong considerations one way or the other and leaves out other competing considerations, then the judgment is at risk.

The appellant, a young native born police inspector was charged under s. 30 (a) of the Police Offences Act (N.G.) 1925, with and pleaded guilty to unlawfully striking a citizen. The appellant believed his victim to be a prisoner trying to escape when he assaulted him. In addressing on sentence the magistrate referred strongly to matters that condemned the appellant rather than to matters that were in his favour and sentenced him to three months’ imprisonment.

N1>(1) That in view of the condemnatory nature of the magistrate’s reasons which were open to the inference that good things which could be said in favour of the appellant had been overlooked, the matter should be reviewed afresh.

N1>(2) That in reviewing the matter, in the light of the very serious nature of the offence and taking into account additional character evidence, no “substantial miscarriage” of justice had occurred and the appeal should be dismissed and the sentence affirmed.

This was an appeal against a sentence of three months’ imprisonment on a plea of guilty to a charge under s. 30 (a) of the Police Offences Act (N.G.) 1925, of unlawfully striking a citizen.

RAINE J: This is an appeal from the decision of an experienced magistrate by a young, native born police inspector, against sentence only, on a charge preferred against him of unlawfully striking a citizen. (Police Offences Act (N.G.) of 1925, s. 30 (a)).

Before setting out the facts I might add that additional evidence was tendered, character evidence, and I exercised the powers I have under s. 235 of the District Courts Act of 1963, and admitted it. The Crown, as is its wont, strongly opposed this. However, the appellant was unrepresented in the court below, and this is merely an appeal against sentence. It is, in my respectful view, rather a waste of my time, in cases such as this, to fuss about a bit of character evidence being called before me that was not called before the magistrate. However, I think it is well known that I am, in most cases, against the calling of fresh evidence that could well have been called below.

I well appreciate that if I admit the evidence I can only do so in the exercise of a judicial discretion.

However, be all this as it may. I have heard the further evidence. I have given it my deepest consideration and I have also heard, against objection, some further matters advanced to me from the Bar table.

This case is quite a distressing one. I have been here for four years and seven months, probably at the most critical time in the history of this nation. During this period everything has gone so much faster, and young men like this appellant have been pushed into positions of responsibility and power in a way that would have been unthinkable ten years ago. It is not lost on me that a very young man like this, he is only twenty-two years old, is likely to react either well or badly under strain. As an inspector in the Royal Papua New Guinea Constabulary, or as a European with a completely full education, and a different background, the task committed to him would still have been a very considerable task indeed. I have great sympathy for young men, native born, thrust into these high positions because of the present vacuum. It is a vacuum that will, I hope, soon be filled. Thus, anything I might say about the appellant does not stem from any lack of appreciation of the enormous problems faced by young men in his position, who have done their best to better themselves and serve their country.

The appellant made a mistake. Hhe thought that somebody who was not a prisoner was in fact a prisoner. Hhe thought that this man was trying to escape. Inexcusably the appellant assaulted the man he believed was a prisoner. Of course, the man was not trying to escape, he had no reason to.

It goes without saying that police officers, particularly those holding commissioned rank, must treat prisoners with respect. By respect I simply mean that the prisoner must be treated as a human being, that he must not be bullied, and that, in the physical sense, he must get more or less reasonable treatment, e.g. blankets, food, water, lavatory facilities, and so on. The moment that the police, or other Government authorities of a like nature start to treat detainees in a brutal and indifferent way, respect for the police and authority will inevitably be lessened. This is not to say that I deplore firm, even stern treatment of offenders. But stern treatment of offenders does not involve their abuse. Authority and power are heady things. Abuse of authority is extremely serious. It must be discouraged. If it is not discouraged then the rot will set in.

This appellant, probably under great pressure, being so young, breached the trust reposed in him. I saw him in court. He looked a decent, cleancut young man. First rate, decent citizens spoke of his good qualities. I accept them. Professor James has not known the appellant long, but I have no doubt that he was a sincere witness, and a man with the professor’s background ought to be able to make a good value judgment, even on short notice.

I now come to discuss what was said by the learned magistrate. I know the magistrate. He is a longtime servant of this country. He is, in my view, a careful and most conscientious magistrate. The record, and this magistrate always makes a careful record, shows that he gave very serious thought to this matter. This did not surprise me.

Mr. Griffin of counsel appeared for the appellant before me. Nobody appeared for the appellant before the magistrate. Mr. Griffin’s real complaint is that the learned magistrate, in quite a careful judgment, or address, only addressed himself to matters that condemned the appellant, rather than to matters that were in the appellant’s favour.

In fact the learned magistrate did not really deliver a judgment, he addressed the appellant (defendant) directly, as is common. However, when this is done, I always treat it as being in the nature of a judgment rather than as a mere expostulation by the magistrate directed at the convicted defendant, unless the magistrate’s words are so terse as to indicate that it would be unfair to both the magistrate and the accused to suggest that a reasoned judgment was being delivered.

I agree with everything that fell from the learned magistrate, but the fact of the matter is that all his remarks were condemnatory, and he did not mention “the good things”.

Mr. Roberts-Smith, the very experienced counsel for the Crown, answers the complaint made as to this by saying that it often happens that judicial officers, in directing remarks to accused persons, fail to mention all the relevant factors. He quoted to me the case of Reg. v. Reiner[lxxxi]¹. He particularly referred me to the judgment of Wells J at p. 113 et. seq. I did not then have the report in front of me and did not appreciate, when Mr. Roberts-Smith was addressing me, that Wells J was in the minority. This is not of super-importance, because, as I read the judgments of Bray C.J and Hogarth J, they did not really hold differing views on the matters referred to by Wells J that I set out below. However, Wells J spoke very strongly about the attitude that appeal courts should take “qua” matters in favour of a prisoner not referred to by a trial judge in his judgment on sentence. My own view, having read all of the judgments, is that the rather striking remarks made by Wells J have to be treated with some reserve, in view of the attitude of the majority of the court. In my view the approach taken by the majority of the court has the effect of de-emphasizing what Wells J had to say at pp. 113 to 115.

Of course the learned Judge was there referring to appeals from single judges. With great respect to the magistracy, I do not think he would have put it so high in the case where the appeal was from a magistrate.

I agreed, when this was read to me, with a great deal of what Wells J said, and I say this with real respect. However, I had some reservations. I mentioned to counsel that there was a divorce appeal in my old State, New South Wales, that I felt put a rather different slant on the situation. Neither counsel knew of the decision and I have since found it and I place great reliance upon it. With respect to Wells J I think that he tends rather to cramp the style of an appellate court. The New South Wales case that I remembered was Cowell v. Cowell[lxxxii]². At p. 218 Maxwell J, a very senior and experienced common law judge, said this:—

“The fact, if it be the fact, that his Honour has not stated directly or expressed himself so that one can by inference say, that these are the principles on which his Honour has exercised his discretion, makes it not only easier but more incumbent upon this Court to examine the circumstances in which the exercise of discretion was sought.

In my opinion, there is ample authority for the proposition that this Court, faced with no real explanation of the principles acted upon in the first instance, must perhaps for the first time exercise its own discretion, not for the purpose of substituting it for that of the learned judge, but of really formulating the grounds upon which a particular course ought or ought not to be taken.”

I might add that I thought there was another, and similar judgment, given by the Full Court at about the same time, in fact I am almost sure there was. But I cannot find it. Cowell v. Cowell[lxxxiii]³ was a case where the trial judge, whom I believe was Myers J, said some rather hard things about the petitioner in a divorce suit, but did not specifically go through the points laid down by Viscount Simon L.C. in the famous case of Blunt v. Blunt[lxxxiv]⁴, and refused to exercise his discretion and grant a decree.

With respect to Wells J, I prefer the approach taken by Maxwell J, which gives the appellate court room to move, in other words, room to exercise its discretion. I appreciate that it might be argued that there is a distinction between a judgment on sentence and a judgment on liability or a judgment on a consideration whether or not orders should or should not be made in the exercise of a judicial discretion. For myself, as a matter of principle, I do not appreciate the distinction.

Apart from this consideration I would not have bothered to have circulated this judgment. However, it does seem to me that the situation where a judgment is given by a magistrate or a judge, and fairly full reasons are given, is this; if the magistrate or judge sets out strong considerations one way or the other, and leaves out other competing considerations, then his judgment is at risk. I do not suggest for one moment that if one of my brothers, in a careful judgment on sentence, omitted to say that the accused was of good character, that the whole thing is necessarily reopened.

Here, in view of the careful reasons of the magistrate, admittedly directed at the accused, rather than in judgment form, I rather incline to the view that his Worship might have overlooked some of the good things that could be said in favour of this man. There are many good things that can be said in the appellant’s favour, and very strongly so.

Thus I feel that the matter is at large, and that I can review the matter afresh. Doing so, I see no miscarriage of justice, certainly no “substantial miscarriage”. See s. 236 (2) of the District Courts Act. What the appellant did was a serious thing and I do not propose to interfere in the sentence imposed by his Worship.

I take into account the splendid record, prior to this incident, of this young man. I take into account the great strains placed upon men in his position. I have already discussed this above. The appellant worked hard to achieve the position he has now lost. He has been in custody for one month and any further custody will be the more unattractive for him because he has a child by his marriage. He has lost employment, and very significant employment. When this occurred he was at Kundiawa at a time when great strains were placed upon the police because of a mass escape from the Corrective Institution. It is not a case where a denunciatory sentence is required. It is not a case of an old man going wrong, but of a young man erring, probably in a fit of temper. The appellant pleaded guilty and this is a matter to be taken into account in his favour. See R. v. McGrath[lxxxv]⁵, and the cases referred to by me there.

With great regret, because the appellant seems to have excellent qualities, I cannot say that the magistrate’s decision was manifestly unjust.

I hope that this young man will appreciate that a Supreme Court judge has given very serious consideration to his case, and that he has been given all the benefits conferred by the law, and that he will not become bitter because my decision has gone against him. He will have to serve another two months in custody, and I do trust that this potentially valuable citizen will emerge from Bomana and get useful employment in the future. Of course, it will not be with the Police Force. However, it might assist him, if I indicate in this judgment that his conviction obviously stemmed from a situation that put him in a position of strain, which, at his young age, was too much for him. No questions of dishonesty or brutality, I mean brutality in its usually accepted sense, arise. I will see that his counsel has an extra copy of my judgment, so that the appellant will be able to demonstrate to possible future employers that his incarceration was on account of an incident, that, in my opinion, does not disqualify him from getting a good job.

[lxxxi](1974) 8 S.A.S.R. 102.

[lxxxii](1954) 71 W.N. (N.S.W.) 217.

[lxxxiii](1954) 71 W.N. (N.S.W.) 217.

[lxxxiv][1943] A.C. 517.

[lxxxv][1971-72] P. & N.G.L.R. 247, at p. 253.

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Supreme Court of Papua New Guinea

Kemai v Symonds [1975] PGSC 18; [1975] PNGLR 81 (10 April 1975)

Papua New Guinea Law Reports - 1975