Papua New Guinea Law Reports - 1984
[1984] PNGLR 55
N455(M)
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
IN THE MATTER OF THE CORRECTIVE INSTITUTIONS ACT
RE SEBASTIAN LOKE NULI AND JOHANAS BENSON MANIGUT
Kimbe
Pratt J
17 March 1984
20 March 1984
CRIMINAL LAW - Sentence - Concurrent or cumulative - Default sentences - Unless expressed to be cumulative to be treated as concurrent - Rules applicable to default sentences.
Held
(1)      Where a sentence is not expressed to be cumulative on a sentence imposed immediately before it such new sentence must be regarded as concurrent with the previous sentence.
The State v. Aur Sivi [1981] P.N.G.L.R. 514, followed.
(2)      If it is intended that a sentence should be cumulative on another sentence it should be expressed to be cumulative on the specific sentence passed immediately before it.
(3)      Where a sentence is imposed in default of payment of a fine the above rules apply.
Cases Cited
R. v. Anderson [1967] Qd. R. 599.
State, The v. Aur Sivi [1981] P.N.G.L.R. 514.
State, The v. Beib Walbo (Unreported National Court judgment No. N382(M) dated 7 June 1982).
Applications
These were applications under the Corrective Institutions Act (Ch. No. 63) in respect of certain default sentences.
Counsel
E. Batari, for the applicant.
M. Fitzsimmons, for the respondent/State.
Cur. adv. vult.
20 March 1984
PRATT J: During my recent Visiting Justice Inspection of Lakiemata Corrective Institution, I observed a number of warrants in which fines had been imposed by the court with default penalties for non-payment. On discussion with the corrective officers, it became apparent that the clerk-in-charge of the calculations has been adding together all the default penalties, thereby making the sentences as if cumulative in the same way as one would add the fines together in order to arrive at the total amount owed by the detainee. There is a certain amount of logic behind this mental process. In order to arrive at what I hope would be the correct solution, I asked the State Prosecutor, Mr Fitzsimmons and defence counsel, Mr Batari, for their assistance which was given to me and which I much appreciate. Although certain aspects of calculation of sentences were covered in The State v. Aur Sivi [1981] P.N.G.L.R. 514, and The State v. Beib Walbo (Unreported National Court judgment No. N382(M) dated 7 June 1982), the one aspect which did escape attention, was the straight-out question of whether or not one should add together the default sentences where the fine has not been paid.
I do not believe that is the correct process. It is true that in order to ascertain the total money due, you must add the fines together, but that is because there is no piece of legislation or principle of law which prevents you from so doing. I can well imagine a person would rather pay several fines, than go to gaol, irrespective of whether the default penalty for non-payment is concurrent or cumulative. I think if the one basic principle is remembered and applied in every case, then no error should occur even in quite complicated instances. Section 20 of the Criminal Code says that sentences may, if desired, be made cumulative. The general law says quite clearly that unless a sentence is made cumulative on the last sentence previously imposed, then the new sentence must be counted as concurrent. If the court wishes the sentence to be made cumulative, then it must:
(a)      state that fact quite clearly; and
(b)      just as clearly define what sentence it is to be made cumulative upon.
There should be no doubt at all in the mind of the person who has the task of working out the release date of the prisoner. I especially urge magistrates to bear this factor in mind. It is quite wrong to leave the warrant in a vague form so that the corrective officer wonders if he should go back to court to find out what the learned magistrate meant. Of course, the magistrate cannot alter the warrant once it is written, other than in exceptional circumstances such as clerical error (the “slip rule”). Sometimes, the magistrate may not even be available and could be, as has occurred in the present cases here at Kimbe, already transferred out of the province before the trouble comes to light.
Taking the case of Sebastian Nuli as the first example, we have a fine of K80, in default eight weeks on the conviction of threatening behaviour; a fine of K50, in default one month for insulting words; a fine of K60, in default five weeks for another lot of insulting words. The total in fines is thus K190 but the total imprisonment comes to the longest period imposed and no more, in this case, eight weeks as no sentence was declared cumulative one upon the other. Mr Batari drew my attention to R. v. Anderson [1967] Qd.R. 599 referred to at 74 of the R. F. Carter’s Criminal Law of Queensland (5th ed.). The notation seems to support the proposition which I have enunciated, for if a sentence must be expressed to be cumulative on a period served for non-payment of maintenance, then one would think logically, the argument is even stronger for non-payment of a fine.
If the magistrate had wanted to impose cumulative sentences for the default penalties he should have said so. If he does not, the Corrective Institution must interpret all sentences as concurrent. If the magistrate wanted cumulative sentences, he should have written something like the following on the warrant:
(1)      Fine of K80 for threatening behaviour, in default of payment of the fine, a period of eight weeks’ imprisonment with hard labour.
(2)      Fine of K50 for insulting words, in default of payment of the fine, a period of one month imprisonment with hard labour, such period to commence at the expiration of the period of eight weeks imposed this day by this Court in respect of the conviction for threatening behaviour.
(3)      Fine of K80 for insulting words, in default of payment thereof, a period of five weeks’ imprisonment with hard labour, such period to commence at the expiration of the period of one month imposed this day by this Court in respect of the conviction for insulting words.
It is no good putting explanations, etc. on the court file. The Corrective Institution and any visiting justice are bound by what appears on the face of the warrant.
The case of Manigut is very similar to the above, except that his first sentence is a fine with two months in default, whilst his second sentence is a straight-out gaol term but is not expressed as being cumulative on the default penalty. The third sentence of six months is expressed to run concurrently and must therefore prevail over all other sentences starting from the date of imposition, 14 December 1983. The fourth sentence was a fine of K100 on 26 January, in default thereof, six months. The magistrate has specifically ordered this default penalty to be served concurrently. It would, of course, run concurrently anyhow, though I agree it is best to say what you mean, as the magistrate in fact has done in this case, and then no one can be confused. I repeat, that if the court wants the sentence to be cumulative it must say so.
Now, going to the actual sentences imposed on Manigut, we have as follows: on 10 November, two months; on 14 December, two months to start running from 14 December obviously, as it is not being expressed as being cumulative on the previous sentence imposed on 10 November. Again, on 14 December, six months to start on 14 December also, as it is a concurrent sentence. On 26 January, K100 fine, in default six months, which again must obviously start on 26 January, as it runs concurrently with previous sentences imposed on 14 December. If, for example, the detainees were to pay the full K100, then the default sentence would be wiped out and the sentence would then revert to the six months from 14 December. If he paid only part of the K100 imposed on him on 26 January, then the sentence would run from the date of imposition but would be reduced in proportion to the part of the fine paid, (District Courts Act, s. 210).
Ruled accordingly.
Lawyer for applicants: N. Kirriwom, Public Solicitor.
Lawyer for the State: L. Gavara-Nanu, Public Prosecutor.