Acting Public Prosecutor v Konis Haha

• Jurisdiction: Papua New Guinea
• Citation: [1981] PNGLR 205
• Date: 02 July 1981
• Court: Supreme Court
• Year: 1981

Supreme Court: Kidu CJ, Andrew J, Kapi J, Pratt J, Miles J

Judgment Delivered: 2 July 1981

1 Criminal law—State appeal against sentence—insufficient—s23 Supreme Court Act—sentence of 2½ months and 2½ months cumulative on 2 counts of robbery with violence—cumulative of 3 years for rape—whether court has unfettered discretion on State appeals against sentence—principles—whether sentences to be imposed cumulatively or concurrently

2 CRIMINAL LAW—Appeal against sentence—Appeal against inadequacy—Powers of court on appeal—Discretion not unfettered—Pre–Independence Full Court decisions not followed—Supreme Court Act 1975, s23.

3 CRIMINAL LAW—Appeal against sentence—Appeal against inadequacy—Robbery with violence—Two counts—Cumulative sentences of 2½ months—Also cumulative on 3 years for rape—Concurrent sentences of 2 years imposed—Principles applicable on discretion to make sentences concurrent or cumulative.

On an appeal against inadequacy of sentence by the State under s23 of the Supreme Court Act 1975 the Supreme Court does not have an unfettered discretion to vary the sentence appealed against and will only do so where it is clearly shown that the trial judge has fallen into error in the exercise of his discretion; and the principles to be applied are the same as those applicable when the question arises whether the sentence is excessive.

Griffiths v R (1977) 51 ALJR 749 at 757 and R v Liekefett; Ex parte Attorney–General [1973] Qd R 355, approved.

The Public Prosecutor v John Aia and Peter Pino [1978] PNGLR 224 referred to.

R v Pia–Afu [1971–72] PNGLR 393 and Wanosa and Others v R [1971–72] PNGLR 90 not followed.

On appeal against sentences of two and one half months imprisonment on two counts of robbery with violence ordered to be served cumulatively and also cumulative on a sentence of three years for rape:

Held:

(Miles J dissenting)

(1) The sentences were so lenient as to indicate an error of principle and ought not to stand;

(2) Taking into account the totality or aggregate sentencing principles, sentences of two years imprisonment should be imposed in respect of each count to be served concurrently, and cumulatively on the sentence of three years for rape.

Discussion by Kapi J of the principles applicable in exercising the discretion to make sentences cumulative or concurrent.

Appeal.

This was an appeal against sentence, on the ground of inadequacy, by the Acting Public Prosecutor pursuant to s23 of the Supreme Court Act 1975.

___________________________

Kidu CJ Andrew J Pratt J:

The Acting Public Prosecutor appeals against sentences imposed by the National Court upon the respondent in respect of his conviction on 27 October 1980, of two offences of robbery with violence. The respondent was sentenced to imprisonment with hard labour for a period of two and one half months on each count, which sentences were ordered to be served cumulatively upon each other and cumulative upon a sentence of three years imposed at the same time for the offence of rape.

The appeal is brought pursuant to s23 of the Supreme Court Act 1975 which provides that:

"23. Appeal by Public Prosecutor Against Sentence.

(1) The Public Prosecutor may appeal to the Supreme Court against any decision of a Judge of the National Court, 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) In Subsection (1)—

'sentence' includes any order made on conviction with reference to the person convicted or his property."

There is nothing in the words of this section which limits the exercise of the discretion conferred on the Supreme Court. In the pre–Independence case of R v Pia–Afu [1971–72] PNGLR 393 the then Supreme Court considered the effect of the very similar provision of s29(1) of the Supreme Court (Full Court) Act 1968 and concluded that on the hearing of such an appeal against sentence the then Full Court had an unfettered discretion to vary the sentence imposed by the trial judge. That case was regarded as having settled the law in this area and was followed in subsequent appeals by the Public Prosecutor by both the pre–Independence Supreme Court (Full Court) and by the post–Independence Supreme Court.

The court in R v Pia–Afu [1971–72] PNGLR 393 found that although the Full Court had an unfettered discretion it would not interfere with the sentence pronounced by the trial judge unless it was clearly satisfied that the sentence should be altered and that it would give due weight to the opinion of the trial judge, and would recognise that the just sentence to be passed on an offender by a trial judge may depend on circumstances not apparent or available to the court of appeal. Reliance was placed on R v Beevers [1942] QSR 230 and Whittaker v R (1928) 41 CLR 230.

It appears to us, with respect, that the court is saying first, that the discretion is unfettered and secondly, that it is to be exercised only in certain circumstances.

It has often been said that in an appeal by the Public Prosecutor the Supreme Court has an unfettered judicial discretion to alter sentences. Very similar provisions to s23 of the Supreme Court Act are in force in Australia and Whittaker v R (supra) was cited as an authority for this statement.

However in Griffiths v R (1977) 51 ALJR 749 the High Court of Australia had cause to reconsider the effect of its own decision in Whittaker (supra) and Barwick CJ at 757 said this:

"It has been said that this Court in Whittaker v R 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 R. 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."

The Chief Justice of the High Court then concluded:

"It seems to me that the misapprehension as to the effect of this Court's decision in Whittaker v R had led to much more frequent appeals by the Attorney–General than might properly have been expected. Inadequacy of sentence, an expression not found in the Criminal Appeal Act but which is the from in which the ground of the Attorney–General's appeal is expressed, is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed. It means, in my opinion, such an inadequacy in the sentence as is indicative of error or departure from principle."

For very similar reasons to those expressed by Barwick CJ in Griffiths (1977) 51 ALJR 749 the Queensland Court of Criminal Appeal in R v Liekefett, Ex parte Attorney–General [1973] Qd R 355 also found that the judgment in Whittaker (1928) 41 CLR 230 was no warrant whatsoever for the statement that the Court of Criminal Appeal had an unfettered discretion to alter sentences. That court disapproved of its earlier decision in R v Beevers [1942] QSR 230 and found that on an appeal by the Attorney–General against any sentence pronounced, the Court of Criminal Appeal...