Papua New Guinea Law Reports - 1984
[1984] PNGLR 66
N459(M)
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
ITO MEMAIRI
V
NELSON GUIA
AND
WILLIAM JIWAIBA
V
NELSON GUIA
Popondetta
Pratt J
11 April 1984
INFERIOR COURTS - Sentencing - Discretionary dispositive powers - When available - Charge to be proved first - Circumstances to be considered in light of wording of section - District Courts Act 1963, s. 138.
Section 138(1) of the District Courts Act 1963 provides that:
“Where a person is charged before a court with a simple offence, and the court thinks that the charge is proved but is of the opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, ... the court may, without proceeding to conviction, make an order either (a) dismissing the charge; or (b) discharging the offender ...”
Held
In considering the application of s. 138 of the District Courts Act 1963 to a charge before the court a magistrate is required to be satisfied:
(a)      that the charge is proved; and
(b)      that one of the three matters, (character, nature of the offence, or extenuating circumstances) is applicable; and
(c)      that there are special features about the matter which cause him to believe that it would not be proper or expedient to inflict punishment or more than nominal punishment, or that the offender should be released on probation.
Discussion of the circumstances in which application of the section might be appropriate.
Cases Cited
Henry Tuk v. Gori [1983] P.N.G.L.R. 420.
Utu Yame v. Titai Kinapu (Unreported judgment No. 451(L) dated 15 February 1984).
Appeal
This was an appeal against a sentence of imprisonment imposed on conviction on a charge of being unlawfully on premises the minimum penalty for which was twelve months.
Counsel
D. McMillan, for the appellants.
V. Noka, for the respondent/State.
11 April 1984
PRATT J: Basically what counsel for the appellants submits is that, in the light of all the facts of this case, it is not one in which it is appropriate to impose a gaol sentence irrespective of the length of such sentence. Of course, in the present instance, we are dealing with a minimum penalty period of twelve months being the punishment for the offence of being unlawfully on premises. I have observed earlier in passing, and at the moment I adhere to the observation, that not only must one take into account whether or not a gaol penalty is appropriate to the circumstances of the case, but whether it is appropriate to impose such penalty in view of the fact it is such a heavy one, that is heavy because it is a minimum period of time, be it six months or twelve months, or whatever: see Harry Tuk v. Gori [1983] P.N.G.L.R. 420.
The facts of this case I do not intend to traverse, other than to say they arose out of what was essentially a “family” dispute which was regenerated by one party after he had taken too much drink and wanted to continue the discussion at the other party’s house at 11.30 p.m., despite the fact that everyone had retired to bed and indeed most of the household was asleep. Suffice it, I think, to add to those facts which the magistrate I think accepted, and he certainly would be entitled to do so, that the husband of the complainant who was apparently the only party awake in the house at the time, heard the voice in the distance and heard the first knock on the door and the calling out by the appellant, Ito his cousin, and formed the view very clearly that he was in a most aggressive mood. The complainant, that is the wife of the man about whom I have just spoken, woke up at least by the third knock, and she went to the door. Discussion ensued for some fifteen or twenty minutes between Ito and her. Meantime, unobserved by her, the defendant William had wandered inside the house, he being just as drunk as Ito. He was removed by the complainant’s brother, whether by physical force or by force of words is not quite clear, but in the ultimate I do not think it matters a great deal.
Of course counsel for the appellants must now direct my attention to s. 138 of the District Courts Act as the only alternate possibility in the matter of sentence. That section was clearly adverted to by the learned magistrate, and indeed he has committed to paper some of his views on the section which I shall comment on a little later. It is therefore not one of those cases in which the magistrate has failed to consider the section at all. But I think in a matter such as this it is important to look at the exact words of the section because I think within those words lies the answer as to how wide the application of the section can be: see also Kidu C.J. in Utu Yame v. Titai Kinapu (Unreported judgment No. 451(L) dated 15 February 1984).
First of all, the court must be satisfied that the charge is proved; that, under ordinary circumstances, it is a matter in which it would bring down a verdict of guilty. The charge is proved, and is proved beyond reasonable doubt. Despite the fact that it has been proved beyond reasonable doubt, are there special features about the matter which cause the magistrate to believe that it would not be proper, that it would not be expedient to inflict punishment or more than mere nominal punishment; or that, thirdly, in all the circumstances should the offender be released on probation. Now this third one is in the alternate once one has looked at s. 138(1)(a) and (b). All these three courses however depend on the preliminary finding which the magistrate must make in relation to the words:
(1)      “having regard to the character, antecedents, age, health or mental condition of the person charged”; or
(2)      “to the trivial nature of the offence”; or
(3)      “to the extenuating circumstances under which the offence was committed”.
Now he must be satisfied of one of these three matters before he can even consider applying the section. I think once this point is appreciated the answer to this appeal is fairly simple.
I do not think the appeal can succeed for I do not believe any of these areas, one, two and three, could apply to the circumstances of a case such as this. For example, in relation to part one, character and antecedents, I think it is clear enough that there must be something quite special about them, such as his extraordinarily good character and background — a pillar of the Church and the community, and a great social worker and so forth. In other words if the defendant has made an extraordinary or a special contribution to community welfare. That is the type of thing where this aspect has been applied.
“Mental condition”, as I said during argument, applies to someone who is perhaps just a little above being declared mentally ill under the appropriate Act. So there is something special there, too. Something out of the ordinary. And there is nothing, in my view, which is out of the ordinary or especially indicates a moronic intellect or mental retardation in the case of the appellants before me. They are ordinary, law-abiding citizens, who have, except for Ito’s somewhat trivial matters under the Motor Traffic Act, led an unblemished life up to date. They are not of any special character; they are not someone who, say, is of an age that is special, such as eight years of age, or ninety-five years of age, and with one and a half feet in the grave, at all. So I do not think any of those qualities apply in this case.
I go now to the second area — “extenuating circumstances”. Mr McMillan has laid considerable emphasis on the fact that this was an unusual piece of conduct. One of the appellants was related to the complainant through marriage; no doubt both the appellants were quite ashamed of their conduct when they sobered up the next morning, knocking on neighbours’ doors by mistake and then their own relatives’ door and waking up everyone at 11.30 p.m. When it is all said and done, I do not think all these factors and others which learned counsel has put before me amount to extenuating circumstances within the meaning of the phrase here. I think it would be holding the court and the interpretation of the law up to ridicule if I were to say there were any extenuating circumstances in two drunks coming along at 11.30 p.m. and frightening the life out of the inmates of a house, most of whom were asleep, with drunken challenges and door bashing. No doubt the complainant was somewhat reassured on recognising that one of the aggressive voices she heard belonged to a relative. Nevertheless I think that the woman was really the one who kept the peace here and she was rightly and understandably annoyed and alarmed at the outburst.
“The trivial nature of the offence” — well the same argument applies there. By no stretch of the imagination could this be regarded as trivial for the same reasons that I have given under “extenuating circumstances”. That is not to say one equates those two phrases. I can well imagine that an offence may not be regarded as trivial yet there may be many extenuating circumstances Mr McMillan has listed a number of trivial aspects, aspects which could be said to extenuate what took place here on that night, and I do not understand Mr Noka to attempt to make those aspects any more severe than they were or have been interpreted to be by Mr McMillan. What I think, however, is the final answer to this question, is when you put the trivial matters and the more serious matters into the balance, you certainly come down on the more serious side to such an extent that you cannot say when you look at the incident as a whole that it is just trivial, or that there are in the final analysis prevailing circumstances of extenuation. I think that would be a misuse of the language and a misuse of this section.
Parliament has still left open a door, but unfortunately I cannot agree with counsel that the door is open for his clients, despite the evil consequences which will flow from the minimum penalty legislation.
Finally I would like to make some comments on the matters raised by the learned magistrate, because although I think he properly referred himself to s. 138, I believe he has misapplied the section. In the circumstances I do not believe this affects the outcome because I find that the misapplication did not result in any miscarriage of justice.
I think perhaps the best way I can answer the matters raised by his Worship is to quote what I hope is the essential sentence or thought underlying each point. In the first place his Worship feels some difficulty in saying, on the one hand, I find the charge proved, which in effect means that one is finding him guilty, and yet go ahead and dismiss the charge. His Worship says the case should only be dismissed when found not guilty. Well, the logic of that argument is very true, but what must be borne in mind is that the section allows you to do other than that very thing. To use counsel’s words it is to some extent a legal fiction. Because of the wording of the section, the court is not finding him guilty however. That is exactly what the section says you must not do. It says that you find the charge proved, and that, in my view, constitutes the judgment of the court. The verdict of the court is something else and the point has never been quite resolved within the terms of this section. I do not intend to try a resolution at this stage without full argument on the point. Some people hold that the verdict can only be in effect one of either “guilty” or “not guilty”. With great respect I do not think this is correct. I think the situation here is that one brings in a “no verdict” decision, because of the proven offence side by side with a provision which allows a court to record “no verdict”. The answer to the learned magistrate’s query may be summed up as follows: What you say is quite correct, or would be quite correct if it were not for the section. The section, however, authorises and indeed directs you to do that very thing which you say cannot be done, namely to find the offence proved but make no finding as to guilt or otherwise.
I now go to the second point, “triviality”. First of all his Worship says that “every cases brought to court are not trivial in nature” [sic]. I am not completely sure what his Worship means here. Sometimes there are very trivial matters brought to court for one reason or another, and there are occasions on which the court, in effect, has to say: do not trouble the administration of criminal justice with a silly little trivial thing of this nature. There is even a legal maxim which, expressed in the earlier Latin of the law, de minimis non curat lex or, as we would say in our more modern and less classical days, the law will not concern itself with trivialities. What this section does is to allow the court to do that very thing. There are many cases which emphasise that a magistrate’s court can only do that which is permitted or directed or authorised by the legislation setting up that court. Unlike a court of record, it does not have other wide powers which have developed over the centuries and which form a useful repository of power. The point is that the lower courts, for good or ill, are bound strictly by the powers contained in their Act and it is therefore necessary for a section to be introduced to allow the magistrates to clear their list of trivialities. This is the section.
Of course there are a few occasions where the prosecutor is only waiting for an indication from the Bench that if the matters alleged are found to be proved then the provision of s. 138 will be utilised. Such an intimation to the prosecutor would allow him to withdraw the information and complete the matter then and there without incurring any criticism.
Going now to No. 3: his Worship feels some difficulty in proceeding to examine the antecedents when he has not reached the stage where he has found a verdict of guilty. Once again, I can appreciate the logic of that process but once again I can only say this is exactly what the law, the section, allows you to do. It is not as the magistrate has said: “the subsection means that if found guilty”. As I have already pointed out, what the subsection says is “if found proved”. Therefore if one could eradicate from the mind the word “guilty” altogether, I think the interpretation of the section becomes a lot easier. Thus on this point, No. 3, it is clear that the court can consider the antecedents because the section says that having found the matter proved, one may then look at all these other aspects and see what one should do.
The fourth point arises from certain difficulties which his Worship considers inherent in the giving of a bond which suspends a sentence indefinitely. I appreciate that his Worship feels there is some unfairness about such an indecisive course, but I would point out in response to his queries, firstly, that the bond is limited to a certain period of time, and only operates where the defendant commits another wrong. He knows that it will only come into operation if he commits another wrong. Secondly, there is nothing unusual about one magistrate imposing a sentence although the bond has been originally imposed by a different magistrate. I have not had occasion to consider this aspect following legal argument but it can certainly happen in the National Court where bonds are imposed under s. 19 of the Criminal Code (Ch. No. 262). Indeed there is a specific sub-paragraph of s. 19 which makes it clear that a person may be called up before another judge to answer for his breach of bond where the whole of the sentence was suspended unless and until he commits some other offence. It seems to me, by analogy, therefore, that the same situation may well apply under s. 138.
Appeal allowed.
Lawyer for the appellants: N. Kirriwom, Public Solicitor.
Lawyer for the State: L. Gavara-Nanu, Public Prosecutor.