Papua New Guinea Law Reports - 1975
[1975] PNGLR 460
N22
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
BABI PIM
V
W. AKANO
Mount Hagen & Waigani
Raine J
12 December 1975
31 December 1975
CRIMINAL LAW - Appeal against sentence - Powers of appellate court - Appeal not hearing de novo - Miscarriage of justice - Behaving in riotous manner - Parity of sentencing - Sentence of one month’s imprisonment reduced to fourteen days - Local Courts Act 1963, s. 43.
Section 43 (3) of the Local Courts Act 1963, pursuant to which “an appeal shall be allowed only if it appears to the Supreme Court (National Court) that there has been a substantial miscarriage of justice”, does not envisage a hearing de novo; accordingly where an appeal judge believes that the penalty awarded is within a permissible range but either a little more severe or a little less severe than he himself would have awarded he is not at liberty to substitute the sentence he himself would have awarded.
R. v. Gosper (1928), 28 S.R. (N.S.W.) 568 and Wanosa v. The Queen [1971-72] P. & N.G.L.R. 90, at pp. 99-100 referred to; Gotnogosa and Ors. v. Jarratt, [1969-70] P. & N.G.L.R. 343 and Mames-Weviong v. Zania, [1967-68] P. & N.G.L.R. 79 considered.
The appellant, a female first offender, pleaded guilty to and was convicted of behaving in a riotous manner. The offence arose out of a fight with another woman who had four prior convictions for the same sort of behaviour and whose behaviour with the appellant’s husband prompted the fight. Both women were sentenced to one month’s imprisonment. On appeal against sentence,
Held
That a distinction should have been made when sentencing the appellant and the other woman, and the appellant’s sentence should be halved to fourteen days’ imprisonment.
Appeal
This was an appeal against a sentence of one month’s imprisonment imposed on a female first offender on a charge of behaving in a riotous manner. Relevant facts appear in the reasons for the judgment.
Counsel
K. R. Roddenby, for the appellant.
B. McDade, for the respondent (State).
Cur. adv. vult.
31 December 1975
RAINE J: The appellant, a female, pleaded guilty to and was convicted by a Local Court on a charge of behaving in a riotous manner. She was sentenced to a month’s imprisonment on 1st May, 1975. On 13th May a judge granted her bail, but she was not released until about 15th, so she has served about half the sentence. Apparently some confusion arose, and the appeal was not listed, and this appears to have been due to no fault on the part of the appellant or her solicitors.
The appellant had a fight with another woman in a public place and this other woman was also sentenced to a month’s imprisonment. Now the other woman had four prior convictions for the same sort of behaviour, whereas the appellant was a first offender. And the fight was prompted by the other woman’s behaviour with the appellant’s husband. Counsel for the appellant complains that each woman received the same sentence, he submits that a distinction should have been made in favour of his client, that there should not have been parity of sentence.
Mr. Roddenby of counsel for the appellant was keenly appreciative of the difficulty any judge might feel in reducing a sentence of only a month to one of fourteen days. Whilst he made no concessions, I think that he apprehended that most appeal judges might well take the view that while they themselves might have discriminated between the two women, that nevertheless any error on the part of the magistrate had not produced “a substantial miscarriage of justice”, the “sine qua non” of the allowing of an appeal. See s. 43 (3) of the Local Courts Act of 1963.
Thus Mr. Roddenby called in aid a decision of mine, Gotnogosa and Ors. v. Jarratt [dclxxiii]1, where, at p. 349, I followed “obiter dicta” of Ollerenshaw J in Mames-Weviong v. Zania[dclxxiv]2. The passage from his Honour’s judgment is set out by me at p. 349 of Gotnogosa and Ors. v. Jarratt [dclxxv]3, and, after setting it out, I went on to say “And his Honour referred to R. v. Gosper, (1928) 28 S.R. (N.S.W.) 568”. In fact, what his Honour said, at p. 83, was “See R. v. Gosper, where it was held that the Court of Criminal Appeal of New South Wales in the exercise of its powers under the Criminal Appeal Act, 1912 (N.S.W.), had an unfettered judicial discretion to review sentences without the necessity of considering whether, in imposing any sentence under review, the trial judge, e.g., proceeded upon any wrong principle, or upon any mis-apprehension of the facts”. The New South Wales section considered by P.W. Street CJ was s. 6 (3) of the Criminal Appeal Act. It reads “On an appeal against the sentence the Court, if it is of opinion that some other sentence whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor and in any other case shall dismiss the appeal”. This is in similar terms to s. 28 (4) of the Supreme Court (Full Court) Act of 1968.
Mr. Roddenby points to the difference in wording between ss. 6 (3) and 28 (4) from s. 43 (5) (d), and exhorts me to regard s. 43 (5) (d) as giving me an unlimited judicial discretion. I will come back to this, but before doing so I wish to discuss R. v. Gosper [dclxxvi]4.
It is clear that Ollerenshaw J, as was I, was greatly influenced by the judgment of Sir Philip Street, with whom Ferguson and James JJ agreed.
Now I should draw attention to the fact that both Ollerenshaw J and I, in the cases referred to above, gave our decisions before the case of Wanosa and Ors. v. The Queen [dclxxvii]5. In that case Clarkson J, at pp. 99, 100, said:
“In New South Wales a different view has been adopted. The position was considered in R. v. Gosper ((1928) 28 S.R. (N.S.W.) 568, 45 W.N. (N.S.W.) 165). There according to both reports, s. 6 (3) of the Criminal Appeal Act, the provision equivalent to s. 28 (4) of our Ordinance, enabled the appellate Court ‘if it is of opinion that some other sentence whether more or less severe is warranted in law and should have been passed’ to quash the sentence and pass such other sentence in substitution therefor ‘as it thinks fit’. Note that these latter words are absent from the Queensland and Territory provisions and do not appear in the 1824-1937 edition of the New South Wales Statutes. I am unable to explain the discrepancy.”
Sir Philip Street, inserted the words “as it thinks fit”, apparently unconsciously, in what was, in fact, an extemporary judgment. Sir Philip was a great Chief Justice, and a meticulous lawyer, if I might say so, so the mistake made by his Honour might be thought to be surprising. However, I imagine that the advocate appearing for the appellant probably used the words “as the Court thinks fit”, or “as Your Honours think fit” during his argument, and I incline to the view that the Chief Justice, in quite a lengthy extemporary judgment, unconsciously imported the words “as it thinks fit” into s. 6 (3) as quoted by him.
I feel that had I seen what Clarkson J saw, that I might have written a different judgment than I did in Gotnogosa and Ors. v. Jarratt[dclxxviii]6 and that so might Ollerenshaw J in Mames-Weviong v. Zania [dclxxix]7.
I now return to consider s. 43 (5) (d). It is true that it is in different terms to ss. 6 (3) and 28 (4). However, I do not believe that there is any very significant difference, or, at any rate, that such differences as there are result in serious distinctions. However, apart from this, and apart from what I have said about R. v. Gosper [dclxxx]8, I do feel that there is a very strong reason for suggesting that Mr. Roddenby’s submission should fail.
In essence, what counsel submits is that even where I believe a magistrate has awarded a penalty that is within a permissible range, that nevertheless I am at liberty to say that it is a little bit too severe, or rather more severe than I would have awarded myself. But to adopt such a course conflicts sharply with s. 43 (3), which says “an appeal shall be allowed only if it appears to the Supreme Court that there has been a substantial miscarriage of justice”. Again, to adopt such a course involves a rehearing “de novo”. In my opinion the Local Courts Act does not envisage this. It is, of course, a reviewing situation, but this is not the same as a complete rehearing as, for instance, is the situation in New South Wales, where a Quarter Sessions Appeal is a completely full rehearing, and this even to the extent that the judge cannot read the magisterial depositions without the permission of the parties.
I must say that I have always doubted whether r. 3 (1) of the Rules of Court under the Local Courts Act was “intra vires”.
Notwithstanding the views I have expressed about s. 43 (5) (d), I propose to allow this appeal.
I think that a distinction should have been made when sentencing the appellant and the other woman, and I think the appellant’s sentence should be halved. It might be said that to cut a sentence by fourteen days achieves a “de minimis” situation. However, it is a fifty per cent reduction.
I therefore allow the appeal against sentence, and I further order that for the sentence of one month’s imprisonment imposed by the Local Court that the appellant should be imprisoned with hard labour for a period of fourteen days. I further order that the period of fourteen days or more already served prior to the appellant being released on bail shall be deemed to be service of the substituted sentence and that the appellant should be discharged.
Appeal against sentence allowed.
Sentence of fourteen days’ imprisonment substituted for sentence of one month’s imprisonment.
Solicitor for the appellant: N. H. Pratt, Acting Public Solicitor.
Solicitor for the respondent: B. W. Kidu, State Solicitor.

[dclxxiii][1969-70] P. & N.G.L.R. 343.
[dclxxiv][1967-68] P. & N.G.L.R. 79, at pp. 82 and 83.
[dclxxv][1969-70] P. & N.G.L.R. 343.
[dclxxvi](1928) 28 S.R. (N.S.W.) 568.
[dclxxvii][1971-72] P. & N.G.L.R. 90.
[dclxxviii][1969-70] P. & N.G.L.R. 343.
[dclxxix][1967-68] P. & N.G.L.R. 79.
[dclxxx](1928) 28 S.R. (N.S.W.) 568.