In the Matter of a Refernce pursuant to s19 of the Constitution by the Provincial Executive of the Morobe Provincial Government; Re Minimum Penalties Legislation [1984] PNGLR 314

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kapi DCJ, Bredmeyer J, Kaputin J, McDermott J
• Judgment Date: 02 November 1984
• Citation: [1984] PNGLR 314
• Docket Number: Special Constitutional Reference No 1 of 1984
• Court: Supreme Court
• Year: 1984
• Judgement Number: SC280

Full Title: Special Constitutional Reference No 1 of 1984; In the Matter of a Refernce pursuant to s19 of the Constitution by the Provincial Executive of the Morobe Provincial Government; Re Minimum Penalties Legislation [1984] PNGLR 314

Supreme Court: Kidu CJ, Kapi DCJ, Bredmeyer J, Kaputin J, McDermott J

Judgment Delivered: 2 November 1984

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SPECIAL CONSTITUTIONAL REFERENCE NO. 1 OF 1984

IN THE MATTER OF A REFERENCE PURSUANT TO S 19 OF THE CONSTITUTION BY THE PROVINCIAL EXECUTIVE OF THE MOROBE PROVINCIAL GOVERNMENT

Waigani

Kidu CJ Kapi DCJ Bredmeyer Kaputin McDermott JJ

25 April 1984

3 August 1984

17 August 1984

2 November 1984

CONSTITUTIONAL LAW — Basic rights — Criminal legislation — Minimum penalties provisions — Validity Constitution, ss 36 (1), 41, 57 — Criminal Code (Minimum Penalties) (Amendment) Act 1983 — Summary Offences (Amendment) Act 1983 — Criminal Code (Amendment) Act 1983.

CRIMINAL LAW — Sentencing — Minimum penalties — Validity of legislation — Constitution, ss 36 (l), 41, 57 — Criminal Code (Minimum Penalties) (Amendment) Act 1983 — Summary Offences (Amendment) Act 1983 — Criminal Code (Amendment) Act 1983.

In 1983 three acts were passed, the Criminal Code (Minimum Penalties) (Amendment) Act (No. 10 of 1983), the Summary Offences (Amendment) Act (No. 17 of 1983) and the Criminal Code (Amendment) Act (No. 29 of 1983) by which the courts were compelled to impose minimum custodial sentences for certain offences.

Section 36 (1) of the Constitution provides:

"No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person."

Section 41 (1) of the Constitution provides:

"Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a) is harsh or oppressive, or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case, or

(c) is otherwise not, in the particular circumstances reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act."

Held

(1) (McDermott J dissenting.) The provisions of the Criminal Code (Minimum Penalties) (Amendment) Act 1983 (No. 10 of 1983), the Summary Offences (Amendment) Act 1983 (No. 17 of 1983) and the Criminal Code (Amendment Act (No. 29 of 1983) in so far as the said provisions compel the court to impose a minimum custodial sentence for an offence do not offend the provisions of s. 36 (1) of the Constitution and are therefore valid.

(Per Kidu CJ and Kapi Dep CJ) The intention of s. 36 (1) of the Constitution is to prohibit cruel, degrading and inhuman treatment which features pain and suffering caused to the human person either physically or mentally: it is not intended to probibit custodial sentences.

(Per Bredmeyer and Kaputin JJ) The excessiveness or the nature of a mandatory penalty may infringe s. 36 (1) of the Constitution but not the fact that it is mandatory.

(2) (Kaputin J dissenting.) In cases where the provisions of the Criminal Code (Minimum Penalties) (Amendment) Act 1983 (No. 10 of 1983), the Summary Offences (Amendment) Act 1983 (No. 17 of 1983) and the Criminal Code (Amendment) Act (No. 29 of 1983) apply, the provisions of s. 41 and s. 57 of the Constitution do not permit the Supreme Court, the National Court or any other tribunal to impose a lesser punishment than the minimum so provided.

(Per Kidu CJ) The provisions of s. 41 of the Constitution apply to all actions taken under any valid law subject to the limitation that it is not available in cases of non-discretionary acts.

(Per Kapi Dep CJ and Kaputin J) The provisions of s. 41 of the Constitution apply to all acts done under any valid law including constitutional laws and may apply to the non-discretionary judicial act of imposing a minimum penalty to the extent that such an act may in a particular case be declared invalid or unlawful by the Supreme Court.

(Per Bredmeyer J) The provisions of s. 41 of the Constitution apply only to a law which validly restricts a basic right given in Divn 3 of Pt III of the Constitution and which is a "right" which may be enforced under s. 57 of the Constitution.

(Per McDermott J) The provisions of s. 41 of the Constitution apply to discretionary acts affecting constitutional rights which can be qualified.

Cases Cited

Acting Public Prosecutor v. Nitak Mangilonde Taganis [1982] P.N.G.L.R. 299.

Acting Public Prosecutor v. Uname Aumane [1980] P.N.G.L.R. 510.

Agiru Aiena v. Tahain [1978] P.N.G.L.R. 37.

Bethea v. Crouse 417 F 2d 504 (1969).

Desai v. Republic [1971] EA 416.

Furman v. Georgia 408 US 238 (1972).

Hart v. Coiner 483 F 2d 136 (1973).

Heni Pauta and Kenneth Susuve, Re [1982] P.N.G.L.R. 7.

Hobbs v. State 32 N.E. 101933 Ind 404 (1983).

Imprisoned Citizens Union v. Shapp 451 F Supp. 893 (1978).

Ingraham v. Wright 430 US 651 (1977).

Inland Revenue Commissioners v. Hinchy [1960] A.C. 748.

Jackson v. Bishop 404 F 2d 571 (1968).

Kibirgen v. Republic [1975] EA 250.

Kimanzia v. Republic [1972] EA 495.

Kondan Kale v. The State (Unreported Supreme Court judgment No. SC250 dated 8 June 1983).

McDonald v. Commonwealth 53 NE 874; 173 Madd 322 (1899).

Minister for Home Affairs v. Fisher [1980] A.C. 319.

Muiruri v. Republic [1973] EA 86.

Mwakapesile v. Republic [1965] EA 407.

Njuguna v. Republic [1972] EA 494.

O'Neill v. Vermont 144 US 323 (1892).

Ong Ah Chuan v. Public Prosecutor [1981] A.C. 648.

Passingan v. Beaton [1971-1972] P.&N.G.L.R. 206.

Premdas v. Independent State of Papua New Guinea [1979] P.N.G.L.R. 329.

R. v. Kocan [1966] 2 N.S.W.R. 565.

R. v. McGrath [1971-1972] P.&N.G.L.R. 247.

Republic of Ireland v. United Kingdom (1978) 2 EHRR 25.

Riley v. A.G. of Jamaica [1983] 1 A.C. 719, [1982]3 All E.R. 469.

Robinson v. California 370 US 660 (1962).

S.C.R. No. 2 of 1981; Re s. 19 of the Criminal Code [1982] P.N.G.L.R. 150.

Secretary for Law v. Kaibug Jimbun & Anor [1976] P.N.G.L.R. 288.

Stevens v. Warden, Maryland Penitentiary 382 F 2d 429 (1967).

The People v. Broadie 332 NE 2d 338 (1975).

Tom Amaiu v. The Commissioner of Corrective Institutions [1983] P.N.G.L.R. 87.

Trop v. Dulles 356 US 86 (1958).

Tyler v. United Kingdom (1978) 2 EHRR 1.

Ulao Amentasi v. Secretary for Law [1975] P.N.G.L.R. 134.

United States v. Dawson 400 F 2d 194 (1968).

Ure Hane v. The State [1984] P.N.G.L.R. 105.

Weems v. United States 217 US 349 (1910).

Wilkerson v. Utah 99 US 130 (1878).

Willoughby v. Phend 301 FV Supp 644 (1969).

Yamore Memera & Ors v. Matthew Bisang [1976] P.N.G.L.R. 419.

Special Constitutional Reference

This was a Special Constitutional Reference by the Morobe Provincial Executive pursuant to s. 19 of the Constitution of two questions:

Question 1: "Are the provisions of the Criminal Code (Minimum Penalties) (Amendment) Act 1983 (No. 10 of 1983), the Summary Offences (Amendment) Act 1983 (No. 17 of 1983) and the Criminal Code (Amendment) Act (No. 29 of 1983) insofar as the said provisions compel the Court to impose a minimum custodial sentence for an offence unconstitutional in as much as they offend the provisions of s. 32 (1), s. 36 (1) and s. 37 (3) of the Constitution?"

Question 2: "If the minimum penalty legislation is valid under s. 36 (1) of the Constitution, can the National Court, Supreme Court or any other prescribed tribunal in individual cases give a lesser punishment under s. 41 and s. 57 of the Constitution?"

Counsel

J. Griffin and T. Doherty, for the Morobe Provincial Government.

S. Kaipu, for the Principal Legal Adviser.

J. Byrne, (by leave) for the Public Prosecutor.

Cur. adv. vult.

2 November 1984

KIDU CJ: This is a Special Constitutional Reference by the Morobe Provincial Executive pursuant to s. 19 of the Constitution. The Court is asked to give its opinion on two questions. The first of these is as follows:

"Are the provisions of the Criminal Code (Minimum Penalties) (Amendment) Act 1983 (No. 10 of 1983), the Summary Offences (Amendment) Act 1983 (No. 17 of 1983) and the Criminal Code (Amendment) Act (No. 29 of 1983) insofar as the said provisions compel the Court to impose a minimum custodial sentence for an offence unconstitutional in as much as they offend the provisions of s. 32 (1), s. 36 (1) and s. 37 (3) of the Constitution?"

Submissions by counsel did not advert to s. 32 (1) and s. 37 (3) and consequently no reference will be made by me to those provisions. Counsel for the Morobe Provincial Executive based his submissions on decisions of the Supreme Court and Federal and State Courts of the United States. In a nutshell his submission was that as s. 36 (1) of the Constitution of The Independent State of Papua New Guinea was similar to the Eighth Amendment to the Constitution of the United...