In the Matter of Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 396

• Jurisdiction: Papua New Guinea
• Date: 02 November 1983
• Citation: [1983] PNGLR 396
• Docket Number: The State v Danny Sunu, Namabai (or Namarai) Walter, Iku Gagoro and Philip Haro
• Court: Supreme Court
• Year: 1983

Full Title: The State v Danny Sunu, Namabai (or Namarai) Walter, Iku Gagoro and Philip Haro; In the Matter of Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 396

Supreme Court: Kapi DCJ, Bredmeyer J, Kaputin J, McDermott J, Amet J

Judgment Delivered: 2 November 1983

1 Criminal law—sentence—discretion—s19 Criminal Code (Ch262) is not affected by the minimum penalty provisions of s398 Criminal Code except to the extent that an imprisonment under s19(1)(a) must not be less than 5 years

2 Statute—"imprisonment for a term not less than 5 years and not exceeding 14 years"—s398 Criminal Code (Ch262)

3 CRIMINAL LAW—Sentence—Minimum penalty provisions—Effect of—Effect of discretionary powers under s19 of Code on—Discretionary powers not affected except to extent that term of imprisonment must be minimum prescribed—Criminal Code (Ch262), s19, s398.

4 STATUTES—Interpretation—"Except where otherwise expressly provided"—Criminal Code (Ch262), s19.

5 STATUTES—Interpretation—Imprisonment for a term "not less than five years and not exceeding fourteen years"—Criminal Code (Ch262), s398.

The Criminal Code (Ch262), s398, provides for the offence of breaking and entering and committing a crime, the penalty for which is "Imprisonment for a term not less than five years and not exceeding fourteen years".

The Criminal Code, s19, which is headed "Construction of provisions of Code as to punishments" provides:

"(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided—

(a) a person liable to imprisonment for life or for any other period may be sentenced to imprisonment for any shorter term; and . . . "

The section then provides inter alia for the imposition of fines in addition to or instead of imprisonment, of good behaviour bonds and for the power of suspension of part of a term of imprisonment.

Held:

(1) (Bredmeyer J and Kaputin J dissenting). Although s398 of the Criminal Code (Ch262) provides a minimum penalty for an offence contrary thereto the discretionary powers of the court under s19 are not affected except to the extent that under s19(1)(a) a court cannot impose less than the minimum penalty where it considers a term of imprisonment appropriate but may suspend the sentence or a portion thereof under s19(6).

Discussion by Kapi DCJ, McDermott J and Amet J of the meaning to be attributed to the words " . . . except when it is otherwise expressly provided . . . " in s19 of the Criminal Code.

Acting Public Prosecutor v Clement Maki and Tom Kasen (1981) SC205, Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510, Black–Clawson International Ltd v Papierwerke Waldhof–Aschaffenburg AG [1975] AC 591; [1975] 2 WLR 513; [1975] 1 All ER 810, Chorlton v Lings (1868) LR 4 CP 374, Cobiac v Liddy (1969) 119 CLR 257; (1969) 43 ALJR 257; [1969] ALR 637, Daymond v Plymouth City Council [1976] AC 609; [1975] 3 WLR 865; [1976] 1 All ER 39, Flannagan v Shaw [1920] 3 KB 96, Gourlay v Casey (1927) 38 CLR 586; 1 ALJ 28; 33 ALR 98; [1927] VLR 177, Hack v Minister for Lands (NSW) (1905) 3 CLR 10; 13 ALR 60, Healey v Festini [1958] VR 225, Hill v Hall (1876) LR 1 Ex D 411, Jennings v Kelly [1940] AC 206; [1939] 4 All ER 464, Kutner v Phillips [1891] 2 QB 267, Minister for Lands v Frame [1980] PNGLR 433, Lubrano v Gollin & Co Ltd (1919) 27 CLR 113; (1919) 26 ALR 76; (1919) 36 WN 139; (1919) 20 SR (NSW) 429, McLean v Kowald (1974) 9 SASR 384, Metropolitan Railway Co v Sharpe (1880) 5 App Cas 425, Murray v Wigzell [1971] SASR 251, O'Keefe v Calwell (1949) 77 CLR 261, R v Commissioner for Local Administration for the North and East Area of England; Ex parte Bradford Metropolitan City Council [1979] QB 287, Rose v Hvric (1963) 108 CLR 353; 37 ALJR 1; [1963] ALR 560, Scott v Cawsey (1907) 5 CLR 132; 13 ALR 568, Sillery v R (1981) 55 ALJR 509; (1981) 35 ALR 227, Silvester v Scibilio [1960] VR 624, The India (1864) Br & L 220; 167 ER 345 and Tuck and Sons v Priester (1887) 19 QBD 629 referred to

Question of law.

This was the hearing of a question of law reserved by Kidu CJ pursuant to s21 of the Supreme Court Act (Ch37), the question being:

"Does a judge have a discretion under s19 of the Criminal Code to impose some other form of punishment despite the fact that s398 of the Code provides that the minimum penalty for breaking and entering a warehouse, etc., and committing a crime therein is imprisonment for not less than five years?"

Editorial Note: The effect of this decision was reversed by the Criminal Code (Amendment) Act 1983 (No 29 of 1983, effective from 9 November 1983)

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Kapi DCJ:

Four persons pleaded guilty before Kidu CJ on charges of breaking, entering and stealing.

On sentence, his Honour held the view, under s398 of the Criminal Code (Ch262), that he had no discretion but had to impose the minimum sentence provided for by the section, which is five years hard labour.

The Chief Justice referred the following question for consideration by the Supreme Court pursuant to s21 of the Supreme Court Act (Ch37):

"Does a judge have a discretion under s19 of the Criminal Code to impose some other form of punishment despite the fact that s398 of the Code provides that the minimum penalty for breaking and entering a warehouse, etc., and committing a crime therein is imprisonment for not less than five years?"

I set out the relevant provisions for consideration. The Criminal Code (Ch262), s19:

"19. Construction of provisions of Code as to punishments.

(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided—

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(b) a person liable to imprisonment may be sentenced to pay a fine not exceeding K2000 in addition to, or instead of, imprisonment; and

(c) a person sentenced on conviction on indictment to pay a fine may be sentenced—

(i) to be imprisoned until the fine is paid, in addition to any other punishment to which he is sentenced; and

(ii) instead of being sentenced to be imprisoned until the fine is paid—to be imprisoned for a term (not exceeding the term provided for in subparagraph (i)) if the fine is not paid within a specified period (which period may be extended as the court thinks fit); and

(d) a person convicted on indictment of an offence not punishable with death may—

(i) instead of, or in addition to, any punishment to which he is liable—be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) be ordered to be imprisoned until the recognizance, with sureties if so directed, is entered into; and

(e) a person convicted of any offence on summary conviction may, instead of being sentenced to any punishment to which he is liable, be discharged on his entering into his own recognizances, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a term not exceeding one year; and

(f) when a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that—

(i) he shall appear and receive judgment at some future sittings of the court or when called on within a period specified by the court; and

(ii) if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposes.

(2) Imprisonment in accordance with subsection (1)(c)(i), for non–payment of the fine—

(a) shall not extend for a term longer than two years; and

(b) shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for...