In the Matter of Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 396

• Jurisdiction: Papua New Guinea
• Judge: Amet J:
• Judgment Date: 02 November 1983
• Citation: [1983] PNGLR 396
• Docket Number: The State v Danny Sunu, Namabai (or Namarai) Walter, Iku Gagoro and Philip Haro
• Court: Supreme Court
• Year: 1983
• Judgement Number: SC264

Full Title: The State v Danny Sunu, Namabai (or Namarai) Walter, Iku Gagoro and Philip Haro; In the Matter of Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 396

Supreme Court: Kapi DCJ, Bredmeyer J, Kaputin J, McDermott J, Amet J

Judgment Delivered: 2 November 1983

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE STATE

V

DANNY SUNU,

NAMARAI WALTER,

IKU GAGORO

AND PHILIP HARO

IN THE MATTER OF RESERVATION OF POINTS OF LAW UNDER S. 21 OF THE SUPREME COURT ACT (CH. NO. 37)

Waigani

Kapi DCJ Bredmeyer Kaputin McDermott Amet JJ

29 September 1983

2 November 1983

CRIMINAL LAW — Sentence — Minimum penalty provisions — Effect of — Effect of discretionary powers under s. 19 of Code on — Discretionary powers not affected except to extent that term of imprisonment must be minimum prescribed — Criminal Code (Ch. No. 262), ss 19, 398.

STATUTES — Interpretation — "Except where otherwise expressly provided" — Criminal Code (Ch. No. 262), s. 19.

STATUTES — Interpretation — Imprisonment for a term "not less than five years and not exceeding fourteen years" — Criminal Code (Ch. No. 262), s. 398.

The Criminal Code (Ch. No. 262), s. 398, provides for the offence of breaking and entering and committing a crime, the penalty for which is "Imprisonment for a term not less than five years and not exceeding fourteen years".

The Criminal Code, s. 19, which is headed "Construction of provisions of Code as to punishments" provides:

" (1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided:

(a) a person liable to imprisonment for life or for any other period may be sentenced to imprisonment for any shorter term; and ...."

The section then provides inter alia for the imposition of fines in addition to or instead of imprisonment, of good behaviour bonds and for the power of suspension of part of a term of imprisonment.

Held

(1) (Bredmeyer and Kaputin JJ dissenting). Although s. 398 of the Criminal Code (Ch. No. 262) provides a minimum penalty for an offence contrary thereto the discretionary powers of the court under s. 19 are not affected except to the extent that under s. 19 (1) (a) a court cannot impose less than the minimum penalty where it considers a term of imprisonment appropriate but may suspend the sentence or a portion thereof under s. 19 (6).

Discussion by Kapi DCJ, McDermott and Amet JJ of the meaning to be attributed to the words "... except when it is otherwise expressly provided ..." in s. 19 of the Criminal Code.

Cases Cited

Acting Public Prosecutor v. Clement Maki and Tom Kasen (Unreported Supreme Court judgment No. SC 205 dated 7 August 1981).

Acting Public Prosecutor v. Uname Aumane, Aluma Boku, Luku Wapulae and Piope Kone [1980] P.N.G.L.R. 510.

Black-Clawson Ltd v. Papierwerke Waldhof-Aschaffenburg A.G. [1975] A.C. 591; [1975] 2 W.L.R. 513; [1975] 1 All E.R. 810.

Chorlton v. Lings (1868) L.R. 4 C.P. 374.

Cobiac v. Liddy (1969) 119 C.L.R. 257; (1969) 43 A.L.JR. 257; [1969] A.L.R. 637.

Daymond v. Plymouth City Council [1976] A.C. 609; [1975] 3 W.L.R. 865; [1976] 1 All E.R. 39.

Flannagan v. Shaw [1920] 3 K.B. 96.

Gourlay v. Casey (1927) 38 C.L.R. 586; 1 A.L.J 28; 33 A.L.R. 98; [1927] V.L.R. 177.

Hack v. Minister for Lands (N.S.W.) (1905) 3 C.L.R. 10; 13 A.L.R. 60.

Healey v. Festini [1958] V.R. 225.

Hill v. Hall (1876) L.R. 1 Ex. D. 411.

Jennings v. Kelly [1940] A.C. 206; [1939] 4 All E.R. 464.

Kutner v. Phillips [1891] 2 Q.B. 267.

Lands, Minister for v. Frame [1980] P.N.G.L.R. 433.

Lubrano v. Gollin & Co. Ltd (1919) 27 C.L.R. 113; (1919) 26 A.L.R. 76; (1919) 36 W.N. 139; (1919) 20 S.R. (N.S.W.) 429.

McLean v. Kowald (1974) 9 S.A.S.R. 384.

Metropolitan Railway Co. v. Sharpe (1880) 5 App. Cas. 425.

Murray v. Wigzell (1971) S.A.S.R. 251.

O'Keefe v. Calwell (1949) 77 C.L.R. 261.

R. v. Commissioner for Local Administration for the North and East Area of England; Ex parte Bradford Metropolitan City Council [1979] Q.B. 287.

Rose v. Hvric (1963) 108 C.L.R. 353; 37 A.L.JR. 1; [1963] A.L.R. 560.

Scott v. Cawsey (1907) 5 C.L.R. 132; 13 A.L.R. 568.

Sillery v. The Queen (1981) 55 A.L.JR. 509; (1981) 35 A.L.R. 227.

Silvester v. Scibilio [1960] V.R. 624.

The India (1864) Br. & L. 220; 167 E.R. 345.

Tuck and Sons v. Priester (1887) 19 Q.B.D. 629.

Question of law

This was the hearing of a question of law reserved by Kidu CJ pursuant to s. 21 of the Supreme Court Act (Ch. No. 37), the question being:

"Does a judge have a discretion under s. 19 of the Criminal Code to impose some other form of punishment despite the fact that s. 398 of the Code provides that the minimum penalty for breaking and entering a warehouse, etc., and committing a crime therein is imprisonment for not less than five years?"

Editorial Note

The effect of this decision was reversed by the Criminal Code (Amendment) Act 1983, No. 29 of 1983, effective from 9 November 1983.

Counsel

N. R. P. Kirriwom, to argue the affirmative case.

L. Gavara-Nanu and P. A. Boyce, to argue the negative case.

Cur. adv. vult.

2 November 1983

KAPI DCJ: Four persons pleaded guilty before Kidu CJ on charges of breaking, entering and stealing.

On sentence, his Honour held the view, under s. 398 of the Criminal Code (Ch. No. 262), that he had no discretion but had to impose the minimum sentence provided for by the section, which is five years hard labour.

The Chief Justice referred the following question for consideration by the Supreme Court pursuant to s. 21 of the Supreme Court Act (Ch. No. 37):

"Does a judge have a discretion under s. 19 of the Criminal Code to impose some other form of punishment despite the fact that s. 398 of the Code provides that the minimum penalty for breaking and entering a warehouse, etc., and committing a crime therein is imprisonment for not less than five years?"

I set out the relevant provisions for consideration. The Criminal Code (Ch. No. 262), s. 19:

"19. Construction of provisions of Code as to punishments

(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided:

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(b) a person liable to imprisonment may be sentenced to pay a fine not exceeding K2000 in addition to, or instead of, imprisonment; and

(c) a person sentenced on conviction on indictment to pay a fine may be sentenced:

(i) to be imprisoned until the fine is paid, in addition to any other punishment to which he is sentenced; and

(ii) instead of being sentenced to be imprisoned until the fine is paid — to be imprisoned for a term (not exceeding the term provided for in subparagraph (i) ) if the fine is not paid within a specified period (which period may be extended as the court thinks fit); and

(d) a person convicted on indictment of an offence not punishable with death may:

(i) instead of, or in addition to, any punishment to which he is liable — be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) be ordered to be imprisoned until the recognizance, with sureties if so directed, is entered into; and

(e) a person convicted of any offence on summary conviction may, instead of being sentenced to any punishment to which he is liable, be discharged on his entering into his own recognizances, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a term not exceeding one year; and

(f) when a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that:

(i) he shall appear and receive judgment at some future sittings of the court or when called on within a period specified by the court; and

(ii) if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposes.

(2) Imprisonment in accordance with subsection (1) (c) (i), for non-payment of the fine:

(a) shall not extend for a term longer than two years; and

(b) shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

(3) In a case to which subsection (1) (c) applies, the court may give such directions as it thinks proper as to the enforcement of the sentence of imprisonment, including a direction that the person sentenced appear at some future sittings of the court or when called on, by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine...