Public Prosecutor v John Aia of Mondo and Peter Pino of Idu

• Jurisdiction: Papua New Guinea
• Judge: Raine DCJ, Wilson J, Andrew J
• Judgment Date: 30 June 1978
• Citation: [1978] PNGLR 224
• Court: Supreme Court
• Year: 1978
• Judgement Number: SC132

Supreme Court: Raine DCJ, Wilson J, Andrew J

Judgment Delivered: 30 June 1978

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE PUBLIC PROSECUTOR

V

JOHN AIA OF MONDO AND PETER PINO OF IDU

Waigani

Raine DCJ Wilson J Andrew J

29-30 June 1978

CRIMINAL LAW — Sentence — Appeal against sentence — Appeal against inadequacy — Principles applicable — Stealing — Previous offences — Sentences of 15 months substituted for sentences of 4« months.

CRIMINAL LAW — Appeal against sentence — Appeal against inadequacy — Evidence on appeal — Court records not before sentencing judge — Whether appellate court entitled to have regard to — Whether "fresh evidence" — Supreme Court Act 1975, s. 7Infra p. 237.1, s. 9 (2) Infra p. 237.2.

CRIMINAL LAW — Appeal against sentence — Appeal against inadequacy of sentence — Principles applicable discussed and previous decisions doubted — Supreme Court Act 1975, s. 23.

Two accused respondents with previous records for similar offences, stole a handbag containing valuable jewellery and money from an unlocked motor car, and were each sentenced to four and one half months' imprisonment, (taking into account three and one half months in custody pending trial). During the hearing of the appeal one of the appellate judges recalled sentencing one of the respondents some years earlier and referred to the record contained in his judges' notebook and the court files, which material was not available before the trial judge nor contained in the appeal books.

On appeal against inadequacy of sentence pursuant to s. 23 of the Supreme Court Act 1975:

Held

(1) In describing the respondents' previous offences as "petty theft type offences", the trial judge had erred in principle and in view of the serious nature of the offence, its prevalence within the community and the fact that the respondents were not first offenders, the sentences imposed were clearly inadequate and should be increased in each case to a sentence of fifteen months imprisonment (taking into account the three and one half months in custody pending trial).

(2) (Per Wilson and Andrew JJ, Raine Dep. CJ dissenting). Having regard to the prohibition in s. 9 (2) of the Supreme Court Act 1975 against the receipt of "fresh evidence" on appeal, the appeal court should not take into account information or evidence contained in court records which was not available to the court the decision of which is appealed from.

Quaere whether on an appeal against inadequacy of sentence pursuant to s. 23 of the Supreme Court Act 1975 the Supreme Court should have an unfettered discretion to vary the sentence appealed against, or whether the Supreme Court should vary the sentence only if it is first convinced that the trial judge has fallen into error in the exercise of his discretion.

Griffiths v. The Queen (1977) 51 A.L.JR. 749;

R. v. Liekefett; Ex parte Attorney-General [1973] Qd.R. 355;

Kovac v. R. (1977) 15 A.L.R. 637, and

Reg. v. Thomas [1975] Tas. S.R. 146 considered.

Reg. v. Pia-Afu [1971-72] P. & N.G.L.R. 393;

Reg. v. Harley [1971-72] P. & N.G.L.R. 399; and

Whittaker v. The King (1928) 41 C.L.R. 230 doubted.

Appeal

This was an appeal by the Public Prosecutor pursuant to s. 23 of the Supreme Court Act 1975 against inadequacy of sentence.

Counsel

K. B. Egan, for the appellant.

G. C. Lalor, for the respondents.

Cur. adv. vult.

30 June 1978

RAINE DCJ: This is an appeal instituted by the Public Prosecutor under s. 23 of the Supreme Court Act 1975, that is, against sentence. The Public Prosecutor submits that the sentences of four and a half months awarded to the co-accuseds, the respondents to this appeal, were inadequate. They stole a handbag containing valuable jewellery, some money, and papers from an unlocked car.

Mr. Lalor, of counsel for the respondents, has asked the court to decline to follow the long-standing decision of the former Full Court in Reg. v. Pia-Afu [1971-72] P. & N.G.L.R. 393.3. This has been applied on a number of occasions since and as recently as May this year, see Paulus Mandatititip & Anor. v. The State [1978] P.N.G.L.R. 128.4. As Prentice CJ and Pritchard J said at p. 129 referring to Pia-Afu's case "... it was laid down that whereas on appeal on sentence by the prosecution, the question of adequacy of sentence was completely open, in an appeal by a convicted person an appeal court should allow the appeal only where the sentence was seen to be manifestly excessive." Pia-Afu's case was based on the Full Court's understanding of a decision of the High Court in Whittaker v. The King (1928) 41 C.L.R. 230.5. Mr. Lalor submits that Whittaker's case was misunderstood and that accordingly Pia-Afu's case was wrongly decided. He relies strongly on a judgment of Barwick CJ in Griffiths v. The Queen (1977) 51 AL.JR. 749.6. My loose part of the Australian Law Journal containing this judgment only arrived here recently. It would not have been available to the court hearing the Paulus Mandatititip appeal. My brother Wilson, since we reserved our decision, has drawn my attention to a decision of the Full Court of the Federal Court of Australia, Kovac v. R. (1977) 15 A.L.R. 637.7, which considered Griffiths' case and appears to agree with what was said by Barwick CJ and Jacobs J In Queensland in R. v. Liekefett; Ex parte Attorney-General (1973) Qd. R. 355.8 the proposition that the court had an unfettered discretion in an appeal against sentence by the Attorney-General was rejected. Liekefett's case was brought to the old Full Court's attention in The Secretary for Law v. Kerema Kepoi and Gorepe Gaipe Avi (Unreported) Judgment FC65 of 30th August, 1974.9 but it was not argued and in the absence of argument the court declined to turn away from Pia-Afu's case.

In Griffiths' case Barwick CJ said at pp. 757 and 758, by way of obiter.

"A further matter was raised by the applicant which perhaps need not be disposed of in order to resolve this appeal. But the matter has been fully argued and it is a matter which affects the general administration of the criminal law in Australia. I propose to express my conclusion as to the submission.

It has been said that this Court in Whittaker v. The King, ante, decided that the Supreme Court sitting as a Court of Criminal Appeal on an appeal by the Attorney-General was not restrained as appellate courts usually are to the remedy of error in what has been done in the court below, but that that court has complete and, as it is said, unfettered discretion to substitute what it thinks is the proper sentence for that which the trial judge has imposed without considering whether in truth the trial judge has erred in a matter of principle or whether he has acted unreasonably or in disregard of relevant evidence or whether in some other way he has exceeded or misused the discretion which is committed to him in the sentencing of convicted persons.

In my opinion, this Court decided no such thing in Whittaker v. The King. It is quite true that what was said by the Chief Justice and Powers J in their joint judgment could support that view, but clearly nothing in what was said by Isaacs J or Higgins J would do so. The remaining two Justices, Gavan Duffy J and Starke J, in refusing special leave, said that the Court of Criminal Appeal 'in imposing the sentence complained of, did not proceed in opposition to any principle of law but in accordance with its own considered view of the facts.' This might be thought an ambiguous statement but it means, in my opinion, when related to the circumstances which obtained in that case, that their Honours were not disagreeing with what the Court of Criminal Appeal had said. The principle upon which the court acted was, in their opinion, the correct principle.

Having referred to the principles laid down in R. v. King (1925), 25 S.R. (N.S.W.) 218, the Chief Justice of New South Wales at p. 418 of the report, R. v. Whittaker (1928) 28 S.R. (N.S.W.) 411, posed for himself the question whether the trial judge had proceeded upon a wrong principle. On examination of what the trial judge had done, he concluded that he had erred in principle. James J and Campbell J concurred in this judgment. Having decided that error was present in what the trial judge had done, the Court then was in a position to impose such sentence as it thought proper. Thus, in my opinion, the joint judgment of Gavan Duffy J and Starke J, in supporting the judgment of the Supreme Court, denies the view of the function of the Court of Criminal Appeal which has been suggested.

The authority of the Court of Criminal Appeal to hear and determine an appeal by the Attorney-General against the sentence imposed at the trial is, as I have said, derived exclusively from s. 5d of the Criminal Appeal Act. The authority was thus given to an appellate court whose powers, derived from other sections of that Act, were exclusively appellate. Sections 6 and 8 of the Act quite clearly limit the court to an appellate function. It would indeed be strange to construe s. 5d as giving to the court more than a...