Re Maximum Penalty or Re Default Penalties [1984] PNGLR 418

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, McDermott J, Amet J
• Judgment Date: 11 November 1984
• Citation: [1984] PNGLR 418
• Docket Number: Supreme Court Reference No 1 of 1984
• Court: Supreme Court
• Year: 1984
• Judgement Number: SC287

Full Title: Supreme Court Reference No 1 of 1984; Re Maximum Penalty or Re Default Penalties [1984] PNGLR 418

Supreme Court: Kidu CJ, McDermott J, Amet J

Judgment Delivered: 11 November 1984

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 1 OF 1984

Waigani

Kidu CJ McDermott Amet JJ

9 September 1984

11 November 1984

CRIMINAL LAW — Sentence — Default penalty — Imposition of maximum fine — Maximum fine not maximum penalty — Default penalty a threat — Default penalty not sentence — Fine is sentence.

Held

(1) Where a criminal offence carries a maximum penalty of either a fine or imprisonment for a specified period, the imposition of the maximum fine in default of any period of imprisonment including the maximum specified period is not contrary to the principle that the maximum sentence should be reserved for the worst type of case.

(2) (By Kidu C.J.) The principle that the maximum sentence should be reserved for the worst type of case is not a rule of law but a rule of practice adopted through the exercise of common sense in order to do justice.

(3) (By Kidu C.J.) A fine is a sentence and is to be regarded as a less severe form of punishment than a custodial sentence.

Makin v. Kelly [1963] P. & N.G.L.R. 127, not followed.

(4) A default penalty is merely a threat that if the fine is not paid the defaulter will go to gaol; it need not be equated with the maximum fine specified in any particular case.

(5) (Per McDermott J.) The maximum "in default" provision should only be reserved for the case where there is real doubt that the fine imposed, after due consideration of capacity to pay, will not be paid.

Cases Cited

Avia Aihi v. The State (No. 3) [1982] P.N.G.L.R. 92.

Fleming v. Gwale Dau [1983] P.N.G.L.R. 339.

Goli Golu v. The State [1979] P.N.G.L.R. 653.

Laho Kerekere v. Robin Miria [1983] P.N.G.L.R. 277.

Makin v. Kelly [1963] P. & N.G.L.R. 127.

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

R. v. Harrison (1909) 2 Cr. App. R. 97.

Tabi Maima v. Ben Hambakon Sma (Unreported judgment No. 616 Prentice J., dated 14 April 1971).

Supreme Court Reference

This was a reference to the Supreme Court pursuant to s. 15 of the Supreme Court Act (Ch. No. 37) by a judge of the National Court, of a question of law set out in the reasons for judgment hereunder of Kidu C.J.

Counsel

E. V. Batari, to argue the affirmative case.

L. Gavara-Nanu, to argue the negative case.

29 March 1984

KIDU CJ: This is a reference by the National Court pursuant to s. 15 of the Supreme Court Act (Ch. No. 37). The Court is asked the following question:

"Accepting the principle that a court will impose the maximum penalty provided only in the worst type of case, is it the opinion of the Court that the following course of action would be contrary to such principle where for example:

The offence carries a penalty of either K100 or 3 months' imprisonment;

The Court imposes the maximum fine of K100, for although the case is quite bad, the circumstances dictate that imprisonment would be inappropriate:

(a) the penalty on default is one month's imprisonment.

(b) the penalty on default is three months' I.H.L. (the maximum)."

Ivan Sevese was convicted by the Ela Beach District Court of unlawfully using a motor vehicle without the owner's consent and fined K400 in default one years imprisonment with hard labour. The maximum penalty under s. 422 of the Criminal Code (Ch. No. 262) is "A fine not exceeding K400 or imprisonment for a term not exceeding one year." So Sevese was fined the maximum fixed by law and in default imprisonment for the maximum also fixed by law. He appealed to the National Court against this penalty as being manifestly excessive.

The National Court awaits this Court's decision before it determines the merits of Sevese's appeal before it.

When referring the matter pursuant to s. 15 of the Supreme Court Act the National Court gave the following as reasons for the order:

"Reasons for Order:

(1) On a number of occasions I have ruled that where a court imposes a maximum fine instead of the alternate punishment of imprisonment laid down in the section, irrespective of whether default penalty equals the maximum period of imprisonment laid down as the alternate punishment or some lesser period, the imposition of the maximum fine does not breach the requirement that maximum or near maximum sentences must be imposed only in the worst cases.

(2) I cannot recall having published in written form my reasons for such decision.

(3) It appears such rulings may be in conflict with the published reasonings of Ollerenshaw J. in Makin v. Kelly [1963] P. & N.G.L.R. 127, Amet J. in Kerekere v. Miria [1983] P.N.G.L.R. 277 and the Chief Justice in Fleming v. Gwale Dau [1983] P.N.G.L.R. 339."

It is not a rule of law that the maximum sentence for an offence should be reserved for the worst case, but a practice which has been accepted through the exercise of common sense in order to do justice. Therefore, in determining the question referred by the National Court this Court must not lose sight of this.

In Fleming v. Gwale Dau [1983] P.N.G.L.R. 339 I said that the maximum fine for an offence should be reserved for the worst type of case but I did not have the benefit of submissions by counsel on the matter. As I recall counsel for the appellant merely agreed with me and counsel for the respondent did...