[1973] PNGLR 85

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SECRETARY FOR LAW

V

G.P.

Port Moresby
Minogue CJ Clarkson Kelly JJ

26-27 June 1972
17 July 1972

CRIMINAL LAW - Appeal against sentence - Sentence not excessive - Power of appeal judge to vary sentence - Period spent on bail pending appeal - Power to take into account on sentence - Criminal Law (Bail) Ordinance 1969, s. 3[lxxi]1.

When an appeal judge finds on appeal that the sentence by a magistrate was not excessive he has no power in law to alter such sentence. Under s. 3 of the Criminal Law (Bail) Ordinance, 1969 however an appeal judge may take into account the whole of, or any part of, the period spent by the appellant on bail pending the appeal in calculating the length of sentence of imprisonment to be served by him.

The discretion an appeal judge has by virtue of the Criminal Law (Bail) Ordinance, 1969 is to be exercised sparingly and upon the showing of special circumstances.

Discussion of difficulties raised by persons being on bail for long periods pending appeal.

Appeal

The relevant facts and arguments of counsel appear sufficiently from the reasons for judgment.

Counsel

P. K. Waight, for the appellant.
B. C. Hoath, for the respondent.
Cur. adv. vult. 

17 July 1972

MINOGUE CJ CLARKSON KELLY JJ: delivered the following written judgment:

On 23rd November, 1971, the Resident Magistrate at the Manus District Court convicted the respondent of behaving in a threatening manner in contravention of s. 30(a) of the Police Offences Ordinance 1925-1955 (New Guinea) and sentenced him to be imprisoned with hard labour for three months. On 16th December the respondent appealed to the Supreme Court against both his conviction and sentence and at or about that time an application was made under the District Courts Ordinance for his release on bail. Bail was granted and he was released having served one month of his sentence.

The appeal came on before the learned appeal judge at Rabaul on 15th March and his Honour dismissed the appeal as to conviction but allowed the appeal as to sentence and ordered that there be substituted for the sentence imposed the term of imprisonment actually served. It is against the decision that appeal is brought to the Full Court.

His Honour in his reasons for judgment found that the sentence imposed by the magistrate was not excessive but went on to take into account the difficulty in arranging prompt hearings in distant parts of the country and considered that in the circumstances of this case, for the appellant to be returned to custody would be in effect to inflict punishment additional to that ordered. He also took into consideration the fact of the respondent being a teacher and the telling effect which the sentence he had already served would have upon him and his future actions.

The Secretary for Law lodged a notice of appeal on 27th April and there can be no criticism of any delay on his part in lodging or prosecuting the appeal. The grounds of appeal in effect were that having found that the sentence imposed by the magistrate was not excessive the learned appeal judge had no power in law to alter such sentence, and that if he had such a power he wrongly exercised his discretion in taking the course that he did.

Appeals from decisions of District Courts are covered by Pt XI of the District Courts Ordinance 1963-1970 and the powers of the Supreme Court upon the hearing of an appeal are contained in s. 236. Subsection (2) of that section provides:

“(2)    An appeal shall be allowed only if it appears to the Supreme Court that there has been a substantial miscarriage of justice.”

It was argued that on an appeal in a criminal matter this subsection applies only to appeals against conviction, but we can see no warrant so to confine it; and except in so far as further evidence which may be received by virtue of s. 235 bears on the question we are of opinion that when considering whether there has been a substantial miscarriage of justice the court is restricted to the evidence before the magistrate and to the circumstances existing at the time the case was before him. The learned appeal judge found the sentence not to be excessive at the time of its imposition and that being so it seems to us that there was no room for consideration of the existence of a substantial miscarriage of justice. Consequently we think that he should have dismissed the appeal.

However, his Honour’s attention was not directed to, nor did he purport to act under, the Criminal Law (Bail) Ordinance 1969 (No. 72 of 1969). In our opinion he could under the provisions of that ordinance have given consideration to the question whether the period spent by the respondent on bail or any part of it should have been taken into account in calculating the length of the sentence of imprisonment to be served by him. We are not to be taken as saying that he should have done so in this particular case nor that had he done so and remitted what in fact was two-thirds of what was thought to be the proper sentence imposed this Court would have held such a remission to be a proper exercise of his discretion. That question was not before us. We think that such discretion as an appellate judge has by virtue of this ordinance is one to be exercised sparingly and upon the showing of special circumstances.

The question now is what should be done by this Court whose powers differ from those confided in the appellate judge.

This is an appeal as to sentence under s. 29 (1) of the Supreme Court (Full Court) Ordinance 1968. The sentence which we are considering is that of the learned appellate judge. The Full Court is given a discretion to vary that sentence and impose such sentence as it thinks proper. We have no reason to differ from the magistrate in his view of what was a proper sentence in November 1971 nor were we asked to do so, but the position now is that the respondent was on bail until 15th March, 1972, and on 21st March his right to remain free and the payment in full of his debt to society received the court’s imprimatur.

In the particular circumstances of this case which include the fact that it is now over seven months since the respondent was first convicted and that he has been free of custody for six months, that after the handing down of the decision of the learned appellate judge he might with some justification have felt free to order his affairs as a free man and that he has had the additional worry and strain of these further proceedings on him, we are confronted with a problem similar to that which the trial judge faced but in an accentuated form.

In this country where in a great number of cases legal aid is not quickly available the question of bail for people appealing against magistrates’ sentences raises some difficult practical problems.

It is our view that in future where bail is granted by magistrates it should be clearly pointed out to the applicant for bail that he cannot expect a remission of his sentence if his appeal be dismissed, or if some period of imprisonment greater than that already served is substituted for the sentence appealed against. In either of such events, unless abnormal or special circumstances can be shown the serving of the balance of his sentence should follow as a matter of course.

We are of the opinion that this case, the first of its kind to come before the Full Court, should be treated as a special case in that the respondent should not now be required to serve any further term of imprisonment for his offence. At the same time the record should show that the original conviction and sentence were correct.

The court therefore orders that this appeal be allowed and that the sentence appealed against be varied by confirming that of three months’ imprisonment imposed by the magistrate. At the same time the court orders pursuant to s. 3 of the Criminal Law (Bail) Ordinance 1969, that the period during which the respondent was released on bail from custody pending the hearing and determination of his appeal under Part XI of the District Courts Ordinance shall be taken into account in calculating the length of the sentence of imprisonment imposed on 23rd November, 1971, to be served by him.

Appeal allowed.

Sentence appealed against varied by confirming that of three months’ imprisonment imposed by the District Court Magistrate.

Further order that the period during which the respondent was released on bail from custody pending the hearing and determination of his appeal shall be taken into account in calculating the length of the sentence of imprisonment imposed on 23rd November, 1971, to be served by him.

Ordered accordingly.

Solicitor for the appellant: P. J. Clay, Crown Solicitor.
Solicitor for the respondent: W. A. Lalor, Public Solicitor.

[lxxi]Section 3 of the Criminal Law (Bail) Ordinance, 1969 provides:—

3.         (1) Notwithstanding anything in any other law of the Territory, where in a criminal proceeding an accused person is released on bail or on recognizance (whether pending the hearing and determination of an appeal or otherwise) including the case where an appellant is released under Section 229 of the District Courts Ordinance 1963-1969, no period during which he was so released shall, unless a court having jurisdiction in the matter otherwise orders, be taken into account in calculating the length of any sentence of imprisonment to be served by him.

(2) Any such imprisonment, whether under the sentence passed by the court of trial or the sentence passed by a court on appeal, shall subject to any order made under Subsection (1) of this section, be deemed to be resumed or to begin to run, as the case requires, as from the day when the person concerned is received into prison under the sentence.