Papua New Guinea Law Reports - 1984
[1984] PNGLR 387
SC282
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
THE STATE
V
MATHEW PETERS
Waigani
Kidu CJ Kaputin Woods JJ
24 September 1984
28 November 1984
CRIMINAL LAW - Sentence - Minimum penalty prescribed - Time spent in custody awaiting trial - No power to deduct from minimum penalty - Constitution, s. 155(4), not available - Criminal Code (Ch. No. 262), ss 19, 20.
CRIMINAL LAW - Sentencing - Relevant considerations - Time spent in custody awaiting trial - Relevant to mitigation - Discretionary practice.
CONSTITUTIONAL LAW - Judicial powers - National Court - Sentencing powers - Deduction of time spent in custody awaiting trial - No power where minimum penalty applied - Constitution, s. 155(4) - Criminal Code (Ch. No. 262), ss 19, 20.
Held
(1)      Where an accused is convicted of an offence the penalty for which is prescribed by the Criminal Code (Minimum Penalties) Amendment Act 1983, any period which the accused has spent in custody awaiting trial cannot be deducted from the minimum penalty.
(2)      Section 155(4) of the Constitution which provides that the National Court has “an inherent power to make, in such circumstances as seem to [it] proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case”, cannot be used to override specific legislation such as the sentencing provisions of the Criminal Code (Ch. No. 262).
S.C.R. No. 2 of 1981; Re s. 19(1)(f) of the Criminal Code [1982] P.N.G.L.R. 150, followed.
(3)      Where the court takes into account in appropriate cases any period which the accused has spent in custody awaiting trial, it does so in the exercise of a discretionary practice applied in mitigation of penalty and not pursuant to any rule of law.
Reference
This was a reference to the Supreme Court by a judge of the National Court pursuant to s. 21 of the Supreme Court Act (Ch. No. 37) of the question set out at the beginning of the reasons for judgment hereunder.
Counsel
E. Kariko, for the State.
N. Kirriwom, for the accused.
Cur. adv. vult.
28 November 1984
KIDU CJ KAPUTIN WOODS JJ: This is a reference pursuant to s. 21 of the Supreme Court Act (Ch. No. 37). The question of law referred is as follows:
“Was I correct, after convicting the accused of a crime the penalty for which is set out in the Criminal Code (Minimum Penalties) Amendment Act 1983 in issuing a warrant of commitment for a term of imprisonment which deducts from the minimum penalty imposed, the period the accused spent in custody awaiting trial?”
The accused had pleaded guilty to a charge of breaking and entering a dwelling house in the daytime and stealing K664.80, an offence which carries the minimum penalty of five years imprisonment. He had been in custody for about two months before his trial. In sentencing, his Honour, the trial judge, in effect used s. 155(4) of the Constitution to deduct the period of time spent in custody awaiting trial from the minimum penalty laid down in the legislation for the offence.
The parameters of s. 155(4) have been clearly discussed in S.C.R. No. 2 of 1981; Re s. 19(1)(f) of the Criminal Code [1982] P.N.G.L.R. 150. As Kidu C.J. said at 155:
“The provision under reference is worded in very wide terms. It does not, however, vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155(4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement.
As Greville Smith J. said at 166:
“... it seems to me impossible to contend that the ‘inherent power’ referred to in s. 155(4) is a power to make orders which have the effect of creating a ‘law’ ...”
As Pratt J. said at 174:
“... The phrase appears to direct the court to supply a remedy where there is a clear hiatus. Where the law deals with an issue, be it by way of statute or as part of the underlying law, that is the end to the matter.... it is unrealistic to suggest that the framers of the Constitution would have vested power in the Supreme Court to override an Act of Parliament.”
The Criminal Code is quite specific. In s. 20(2) it is expressly stated that a penalty by way of a term of imprisonment takes effect from the first day of the sittings of the court at which the offender is convicted. And s. 19(8) states, “Where a minimum penalty is prescribed for an offence nothing in this section authorises a court to impose any penalty other than that minimum penalty on a person convicted of that offence”.
How specific can one get, the Criminal Code lays down specific penalties, states clearly from what date penalties of imprisonment shall run, and takes away any discretion in the court to impose less than the specified minimum penalty.
Whilst we realise that courts in imposing a term of imprisonment or a penalty have often taken into account the time a person has spent in custody in his or her favour, this is only a discretionary practice applied in mitigation of penalty and not a rule of law reducing the penalty as provided by statute. We have no statute similar to the Criminal Justice (Administration) Act 1962 (Imp.) which allows for sentences to be reduced by the period spent in custody before sentence.
Our Criminal Code is quite specific and s. 155(4) cannot be used to override specific legislation of our Parliament. It, therefore, cannot be used to alter the sentencing provisions of the Criminal Code.
We would answer the question, “No”.
Question answered “No”.
Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.