The Secretary for Law v John Sibulewa Kwauga [1974] PNGLR 135

• Jurisdiction: Papua New Guinea
• Judge: Frost ACJ, Clarkson J, Prentice J
• Judgment Date: 26 September 1974
• Citation: [1974] PNGLR 135
• Year: 1974
• Court: Supreme Court
• Judgement Number: FC66

Full Title: The Secretary for Law v John Sibulewa Kwauga [1974] PNGLR 135

Full Court: Frost ACJ, Clarkson J, Prentice J

Judgment Delivered: 26 September 1974

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE SECRETARY FOR LAW

V

KWAUGA

Port Moresby

Frost ACJ Clarkson Prentice JJ

24 September 1974

26 September 1974

CRIMINAL LAW AND PROCEDURE — Appeal — Appeal against sentence — Application to increase sentence — Unlawful carnal knowledge — Term of four years' imprisonment, substituted for term of two years and restriction of movement order — Extent of Court's discretion — Supreme Court (Full Court) Act 1968, s. 28 (4) Supreme Court (Full Court) Act, s. 28 (4):

On an appeal against sentence the Full Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass the other sentence in substitution therefor, and in any other case shall dismiss the appeal, s. 29 (1) Supreme Court (Full Court) Act, s. 29 (1):

The Secretary for Law may appeal to the Full Court against any decision of a Judge, whether on appeal or sitting as a court of first instance, as to sentence, and the Court may in its discretion vary the sentence and impose such sentence as it thinks proper.2 — Criminal Law (Restriction of Movement) Act 1962, s. 4 (1).Criminal Law (Restriction of Movement) Act 1962, s. 4 (1):

Where a person is convicted on indictment of an offence against a law in force in the Territory or a part of the Territory, the court which convicts him may, in addition to or in lieu of any other punishment which may be imposed, order that —

(a) that person shall not come or be within such part of the Territory as is specified in the order; or

(b) that person shall be deported to and remain in such part of the Territory as is specified by the Administrator in Council,

during such period as is specified in the order.3

The respondent was convicted on a charge under s. 212 of the Criminal Code (Queensland adopted) of unlawful carnal knowledge of a girl under the age of twelve years and sentenced to two years' imprisonment with hard labour. The trial judge also made an order under s. 4 (1) (b) of the Criminal Law (Restriction of Movement) Act 1962.

On appeal against the inadequacy of the sentence by the Secretary for Law;

Held

(1) In the circumstances of the case a sentence of two years' imprisonment (even coupled with a restriction of movement order) was manifestly inadequate.

(2) The trial judge had proceeded on a wrong principle in not having sufficient regard to the consideration of deterring both the respondent and others, and insufficient weight had been given to the need to protect the public and in particular young girls, from this type of offence, and accordingly the appeal should be allowed.

(3) The order for deportation to and confinement in a particular part of Papua New Guinea pursuant to s. 4 (1) (b) of the Criminal Law (Restriction of Movement) Act 1962 should be quashed as the particular area nominated in the order had not been specified pursuant to the section.

(4) Accordingly the sentence should be varied by imposing in lieu of the sentence of two years' imprisonment a sentence of four years' imprisonment.

Per curiam. The construction which this Court has adopted of s. 29 (1) of the Supreme Court (Full Court) Act 1968, is that it confers an unfettered discretion upon the Court but that the Court should not interfere with the sentence appealed against unless it is clearly satisfied that the sentence should be altered (Reg. v. Pia-Afu [1971-72] P. & N.G.L.R. 393 and Reg. v. Harley [1971-72] P. & N.G.L.R. 399), and the Court would wish to follow its own decisions unless they are shown to be wrong or there were weighty considerations to the contrary.

Appeal

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