Butu Wames, David Denny and Jacob Morries v Constable Joseph Sepoe (1982) N389

• Jurisdiction: Papua New Guinea
• Judge: Pratt J
• Judgment Date: 27 October 1982
• Court: National Court
• Citation: (1982) N389
• Docket Number: Butu Wames, David Denny and Jacob Morries v Constable Allen Poku
• Year: 1982
• Judgement Number: N389

Full Title: Butu Wames, David Denny and Jacob Morries v Constable Allen Poku; Butu Wames, David Denny and Jacob Morries v Constable Joseph Sepoe (1982) N389

National Court: Pratt J

Judgment Delivered: 27 October 1982

1 Sentence—Grade 5 Magistrates—duty on counsel to supply information—necessity to preserve consistency with National Court sentences—principle of totality combined with youthfulness of offender

SENTENCING—Grade 5 Magistrates—duty on counsel to supply information—necessity to preserve consistency with National Court sentences—principle of totality combined with youthfulness of offender.

Cases cited:

Tremellan v R [1973] PNGLR 116, Wari Mugining v R [1975] PNGLR 352

Bakiri Pena v The State (1980) SC183

Acting Public Prosecutor v Andrew Lalaiva and Angelo Ume (1981) SC201

Acting Public Prosecutor v Clement Maki and Tom Kasen (1981) SC205

Acting Public Prosecutor v John Airi (1981) SC214

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205

R v Bentham (1973) 1 QB 357

Public Prosecutor v Terrence Kaveku [1977] PNGLR 110

Hamilton (1980) 2 Cr App R (S) 229

Koyce (1979) 1 Cr App R (S) 21

___________________________

Pratt J: In this matter Mr Marlow from the Public Solicitor's Office appeared on behalf of each appellant but no counsel appeared on behalf of the respondents who were the original police informants before a Grade 5 magistrate.

The appellants were aged 17, 17 and 16 at the time they appeared before the Court on two consecutive days, the 11th and 12th May 1982. The matter dealt with on the 11th related to a break and enter committed in Port Moresby on the 9th February in respect of a dwelling house of one Bryan Smail (value of property stolen K870) whilst the matter dealt with on the 12th May concerned the break and entry of a house of one Arthur Spencer on the 4th February 1982 (value of property stolen K662).

On the first of these hearing dates the learned magistrate imposed a sentence of eighteen months imprisonment with hard labour. On the following day he imposed on each of the appellants a further period of twelve months imprisonment with hard labour to be served cumulatively on the previous period of eighteen months imposed on the 11th May.

As might be expected at the commencement of the institution of a new system, some of the administrative procedures appear to be in a state of some confusion. Although the Registrar received from the Clerk of the District Court papers in respect of the third appellant, it was necessary to call for the Court papers in respect of the first and second appellant in each appeal. No copies of the records of interview accompanied the appeal papers. Learned counsel for the appellant was unable to advise me whether such records of interview had been tendered to the magistrate and the Court working sheet did not disclose whether such tender had been made. As I cannot imagine his Worship proceeding without recourse to the records of interview, I asked for copies to be made available to me for my perusal on the appeals. In addition, reasons for sentence did not appear on the file of two of the appellants. His Worship's remarks on sentence were set out on the Court file dealing with the third appellant in each matter. There had been attempts by the Public Solicitor's Office to obtain reasons for sentence in respect of the other two appellants but for some reason or other this proved non–productive. I have no doubt however that the matters committed to writing by the learned magistrate in respect of the appellant Jacob, were the same as the matters that went through his mind and were enunciated in open court when sentencing the two co–accused in each case. Furthermore, neither the magistrate's working sheet nor the court papers showed whether or not antecedent reports were tendered. Hopefully these administrative problems will iron themselves out very rapidly as the new system becomes more firmly entrenched. It is vital however that the appellate tribunal has before it all the material which was laid before the magistrate.

The mitigating factors taken into account by the learned magistrate in respect of the matter dealt with on the 11th May (that is in Appeal No. 113 of 1982) included youth, a period of two and a half months in custody, little education and no prior convictions. On the other side of the coin his Worship emphasised that the offence occurred late at night, involved no less than six persons, the prevalence of the offence, the reaction of the community and the prospect of violence being ever present. In the ultimate, his Worship endeavoured to obtain a balance between the interests of the persons appearing before him and the interests of society. He then imposed the sentence of eighteen months imprisonment with hard labour. As I indicated at the conclusion of argument when I dismissed this appeal, I was not prepared to disturb the sentence albeit it was heavier than I would have imposed myself. It is well established that a court of appeal will not interfere with a sentence merely because the appeal court has a different personal view on the matter. I do not propose in this judgment to traverse once more the grounds upon which an appellate court will interfere with a lower court's decision on sentence.

Submissions then proceeded on Appeal No. 112 of 1982, that is the offence committed on the 4th February 1982. Once more the magistrate averted to the matters which had...