[1973] PNGLR 223

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

HENDERSON

V

BLACKWELL

Port Moresby
Frost SPJ

5 April 1973

CRIMINAL LAW - Sentence - Possessing dangerous drugs - Minimum penalty provided - Power to give alternative penalties not excluded - Dangerous Drugs (Possession) Ordinance 1970, s. 7 (1) d[ccxxxv]1 - District Courts Ordinance, ss. 138 (1) (b)[ccxxxvi]2; 206 (2)[ccxxxvii]3 

By s. 7 (1) (d) of the Dangerous Drugs (Possession) Ordinance 1970, inter alia a person shall not knowingly be in possession of a dangerous drug and shall be liable to a penalty of “Imprisonment for not less than three months or more than two years.”

Section 138 (1) of the District Courts Ordinance empowers a court where a person is charged with a simple offence, in certain circumstances to dismiss the charge or give a conditional release; and s. 206 (2) of the District Courts Ordinance empowers a court to impose a fine when a penalty of imprisonment only is provided for “if it considers that the justice of the case would be better met by a fine than by imprisonment.”

H. was convicted by the District Court at Boroka of an offence under s. 7 (1) (d) of the Dangerous Drugs (Possession) Ordinance 1970 and sentenced to three months imprisonment. On appeal against conviction.

Held

(1)      The mere provision of minimum penalties, such as is contained in s. 7 (1) (d) of the Dangerous Drugs (Possession) Ordinance 1970 is not sufficient to exclude the operation of s. 138 (1) (b) of the District Courts Ordinance, in an appropriate case; Cobiac v. Liddy (1969), 43 A.L.J.R. 257 referred to.

(2)      Nor does the mere provision of minimum penalties such as is contained in s. 7 (1) (d) of the Dangerous Drugs (Possession) Ordinance 1970, exclude the operation of s. 206 (2) of the District Courts Ordinance; Makim v. Kelly, [1963] P. & N. G. L. R. 127 followed.

(3)      The appeal against conviction should be allowed and as the discretion to impose any penalty was placed in the magistrate and not in the appellate court the case should be remitted for further hearing.

Appeal

The appellant pleaded guilty before the Boroka District Court to an offence of having in his possession a dangerous drug, to wit, marihuana, contrary to s. 7 (1) (d) of the Dangerous Drugs (Possession) Ordinance 1970, and was sentenced to three months imprisonment that being the minimum penalty provided for the particular offence. The convicting magistrate held that the powers conferred by ss. 138 (2) and 206 (2) of the District Courts Ordinance had been excluded by the terms of s. 7 (1) (d) of the Dangerous Drugs (Possession) Ordinance 1970.

Counsel

J. Griffin, for the appellant.
B. Ryan, for the respondent (Crown).

5 April 1973

FROST SPJ: This is an appeal against a conviction by the Boroka District Court on 20th February, 1972, for an offence that on 18th February, 1972, at Port Moresby the appellant had in his possession a dangerous drug, to wit, marihuana, contrary to s. 7 (1) (d) of the Dangerous Drugs (Possession) Ordinance 1970, whereby he was sentenced to three months’ imprisonment.

The section provides, inter alia, that a person shall not knowingly be in possession of a dangerous drug unless he is authorized so to do by or under some other Ordinance. The terms in which the penalty is provided are important—”Imprisonment for not less than three months or more than two years”.

The appellant pleaded guilty and the record shows that on 18th February, 1972, the verdict was given that the defendant was convicted. A character witness was then called. For the rest of the proceedings I refer to the magistrate’s reasons for judgment, which are fully and carefully set out, and have been of assistance to this court. Mr. Andrews who appeared for the appellant, drew the court’s attention to s. 206 (2) of the District Courts Ordinance, which appeared to the magistrate to give discretionary power to a court to impose a fine where the law requires the imposition of a term of imprisonment only. After a brief adjournment to consider sentence, the magistrate mentioned that there was a possibility of the defendant being placed on a good behaviour bond as it was a summary hearing, and it was possible that the court could act under either s. 206 (2) (supra), or s. 138 (1) (b) of the same Ordinance. He mentioned that a $50.00 behaviour bond for six months was envisaged. The police prosecutor then submitted that by reason of the minimum term of three months prescribed by s. 7 (1) (d) (supra) that was the minimum sentence that could be imposed. The case was then adjourned until 20th February, 1973, when, after the opportunity for consideration, the magistrate announced that, in his opinion, the powers conferred by ss. 138 (2) and 206 (2) had been excluded by the terms of s. 7 (1) (d). Although the magistrate appears to have felt that the nature of the charge and the circumstances of the case may have been reasons for not applying s. 206 (2), he also expressed concern that such an interpretation would appear to deny natural justice, stating that the character evidence and the antecedents may have warranted imposing a fine or recognizance of good behaviour bond. I consider that it is clear enough that the magistrate’s approach to deciding on the penalty was determined by his opinion that he had no power to act under the two sections referred to.

The grounds of appeal argued before this Court were that the magistrate was wrong in holding that the District Courts Ordinance s. 138 (1) and s. 206 (2) had no application.

The effect of Cobiac v. Liddy[ccxxxviii]4 , which is a decision of the High Court of Australia, cited by Mr. Griffin is, however, that the mere provision of minimum penalty, in that case under drunk driving legislation, was not sufficient to exclude the operation of a section similar to that of s. 138. Actually Cobiac v. Liddy (supra) was a much stronger case as the legislation included a provision that notwithstanding any other Act the minimum amount of any fine and the minimum period of imprisonment or disqualification prescribed should not be reduced in any way (Road Traffic Act 1961-1967, s. 47 (4)). It follows that the mere provision of minimum penalties, in this case a term of imprisonment of not less than three months, is not sufficient to exclude the power of the court to give an offender, in an appropriate case, a conditional release. I should add that the magistrate in pronouncing his verdict that the defendant was convicted was, in my judgment, merely indicating that the charge was proved. I refer to the judgment of Windeyer J. in Cobiac v. Liddy (supra) at pp. 262-263.

Coming now to s. 206 (2), that section provides that where a court may impose a penalty for an offence punishable on summary conviction but has no power to impose a fine for that offence, it may nonetheless, if it considers that the justice of the case would be better met by a fine than by imprisonment impose a fine not exceeding One hundred pounds. The applicability of this section to sections such as the Dangerous Drugs Ordinance, s. 7 (1) (d), again is established by authority, and I refer to the case of Makin v. Kelly[ccxxxix]5 which was a decision of Ollerenshaw J. and which I am content to follow. In that case the magistrate had a prosecution under s. 220 of the Customs Ordinance before him. That section provided that it is an offence for a person “to have in his possession without reasonable excuse prohibited imports”, and a minimum penalty of three months’ imprisonment upon conviction was provided. The legislation was in stronger terms, again, than in the present appeal, for under s. 244 it was provided that no minimum penalty imposed by the Ordinance should be liable to reduction under any power of mitigation which would, but for the section, be possessed by the court. The magistrate convicted the appellant because he did not consider that he had power to impose a fine under s. 207 (2) (the predecessor of the present s. 206 (2)) and sentenced the appellant to three months’ imprisonment, although he felt the proper penalty should have been a fine of twenty pounds. Ollerenshaw J. held that s. 244 did not purport to deal with reducing in severity a particular penalty, but merely prevented the imposition of a period of less than three months’ imprisonment when a prison sentence was considered more appropriate. Section 244 did not, therefore, exclude the general powers granted a court under s. 207 (2). It is, therefore, implicit in that decision that the mere provision of a minimum term of imprisonment does not, under the District Courts Ordinance, prevent a court imposing a fine. Accordingly the terms in which s. 7 (1) (d) of the Dangerous Drugs (Possession) Ordinance is couched, do not exclude the operation of s. 206 (2).

Both grounds of appeal have thus been made out, and indeed the respondent’s counsel did not argue to the contrary. Mr. Ryan very properly conceded that the objections taken by the police officer before the magistrate were not soundly based, and the magistrate had authority either to grant the offender a conditional release or to impose a fine.

Accordingly as the magistrate has acted on wrong principles there has been a substantial miscarriage of justice and the appeal must be allowed.

Mr. Griffin submitted that, if this was the result, this court should act in accordance with what he submitted was the magistrate’s expressed intention and proceed under s. 138 (1) to grant a conditional release. However, looking at the magistrate’s reasons for judgment, it does not seem to me that the magistrate had reached any firm conclusion that if he had considered s. 138 (1) applicable, he would have acted under that section rather than under s. 206 (2). Accordingly as the discretion to impose the penalty is placed in the magistrate and not in this Court the appropriate order is for this Court to set aside the conviction and remit the case for further hearing. The magistrate will then have the alternative before him of acting under s. 138 (1) and granting a conditional release or of entering a conviction and imposing a fine. However, I propose to say, in the circumstances of this case, that it would appear that the case is similar to the one considered by the High Court in Cobiac v. Liddy (supra) in which, as Windeyer J. said, the legislature had taken a grave view of the offence of drunk driving, and shown a determination that it should be suppressed, and that any court that has power to extend mercy to such an offender ought gravely to hesitate and weigh the matter well before doing so, and particularly before going so far as to decide not to proceed to conviction under a section similar to s. 138 (1). What I have in mind is that whilst the magistrate was quite justified, in the circumstances before him, in taking the view that the case was not one for imprisonment, he might well consider, that, having regard to the nature of the offence, the appropriate course would be to proceed to conviction and impose a fine rather than to grant a conditional release under s. 138. The matter is, however, entirely within the discretion of the magistrate.

Accordingly the appeal will be allowed, the conviction set aside and the case will be remitted for further hearing.

Appeal allowed.

Conviction set aside.

Case remitted for further hearing.

Solicitor for the appellant: J. Griffin.
Solicitor for the respondent (Crown): P. J. Clay, Crown Solicitor.

[ccxxxv]The effect of s. 7 is set out at p. 224.
[ccxxxvi]The relevant provisions of Section 138 (1) are:—

“Where a person is charged before a court with a simple offence, and the court thinks that the charge is proved but is of opinion that, having regard to the character, antecedents,... of the person charged,... or to the extenuating circumstances under which the offence was committed, it is expedient (an obvious misprint for inexpedient—Craies on Statute Law, 7th Edn. pp. 520-2) to inflict punishment, or other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, make an order either—(a) dismissing the charge; or (b) discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour ...”

[ccxxxvii]The effect of s. 206 (2) is set out at p. 225.
[ccxxxviii](1969) 43 ALJR. 257.
[ccxxxix] [1963] PNGLR 127.