Papua New Guinea Law Reports - 1986
[1986] PNGLR 148
SC317
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
BAIZA TADU AVONA
V
THE STATE
Waigani
Kidu CJ Amet Cory Los Wilson JJ
30 June 1986
1 July 1986
CRIMINAL LAW - Sentencing - Effect of changes in law - Minimum penalties legislation - “Repeal” or “amendment” of by Criminal Code (Amendment No 2) Act 1986 - Construed as amending legislation - Effect of penalty in real terms determinative - Penalties under Amending Act applicable - Criminal Code (Ch No 262), s 11(1), (2) - Interpretation Act, (Ch No 2), s 63.
STATUTES - Classification - Amending or repealing - Substance of provisions relevant - Interpretation Act (Ch No 2), s 63 - Criminal Code (Amendment No 2) Act 1986.
CRIMINAL LAW - Sentencing - Effect of changes in law - No liability for punishment “to any greater extent” than authorised by the former law or latter law - Punishment in real terms relevant - “Whichever is the lesser” to be implied - Criminal Code (Ch No 262), s 11(2).
The Criminal Code (Ch No 262), s 11, provides as follows:
“Effect of changes in law
(1)      A person cannot be punished for doing or omitting to do an act unless:
(a)      the act or omission constituted an offence under the law in force when it occurred; and
(b)      doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.
(2)      If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law.”
The Criminal Code (Amendment No 2) Act 1986, which commenced on 14 April 1986, repealed the minimum penalty provisions previously inserted in s 19(8) of the Criminal Code and restored discretionary penalties under s 19.
On 16 April the defendant/appellant was convicted at Daru on a charge of break enter and steal, and the trial judge being unapprised of the passing of the amending legislation, sentenced him to the minimum penalty under s 19(8) of the Criminal Code.
On appeal against sentence:
Held
(1)      The Provisions of the Criminal Code, s 11(2), need not be read together with the provisions of s 11(1): s 11(2) can only apply where a penalty provision or penalty aspect of a particular offence has been altered.
(2)      In order to give to the Criminal Code, s 11(2), its proper meaning the addition of the words “whichever is the lesser” must be implied at the end thereof.
Richardson v Brennan [1966] WAR 159, adopted and applied.
(3)      Properly construed, the effect of s 11(2) is that if the punishment to which a person would be subjected in real terms under the former law is substantially greater than that to which the person would be subjected under the latter law, ie under the changed law, then the punishment under the changed law should apply.
(4)      Having regard to the substance of its provisions in changing the minimum penalties the Criminal Code (Amendment No 2) Act 1986 was to be treated as an amending Act and not a repealing Act for the purposes of the Interpretation Act (Ch No 2), s 63.
(5)      Accordingly, the provisions of the Criminal Code (Amendment No 2) Act 1986 apply to any offence which was committed prior to its commencement.
(6)      The appeal should be allowed, the sentence imposed set aside and the matter remitted to the trial judge for sentence.
Cases Cited
Richardson v Brennan [1966] WAR 159.
State, The v Danny Sunu [1983] PNGLR 396.
State, The v Tom Gaia and Two Others (Unreported, National Court decision No N544, dated 18 June 1986 of Kapi DCJ).
Appeal
This was an appeal against sentence.
Counsel
E Kariko and S Sakumai, for the appellant/defendant.
V Noka, for the respondent.
Cur adv vult
1 July 1986
KIDU CJ AMET CORY LOS WILSON JJ: This is an appeal against sentence in relation to the conviction of the appellant and his subsequent sentencing on 16 April 1986 at Daru. At the time of imposing sentence, the learned sentencing Judge was of the view that the minimum penalties legislation was still in force. His Honour had not been informed that the Act which amended the existing minimum penalties legislation by removing the minimum penalty aspect had come into effect on 14 April 1986.
As appears from his Honour’s comment, “if Parliament changes the minimum penalty legislation, I may recommend that you be released on licence before the expiration of the sentence”, his Honour would probably have taken a different view of this matter had he been alerted to the effective change in the law. It is unfortunately not unusual in the circumstances of Papua New Guinea, particularly in view of the nature of circuit work, that judges, especially when they are away from Port Moresby, are unable to have ready access to the latest developments in the statute law. This appeal arises because of that difficulty.
The appellant contends that the minimum penalty should not be applicable even though the penalty was applicable at the time the appellant committed this offence.
The appellant argues that s 11(2) of the Criminal Code (Ch No 262) is applicable to his circumstances and that since the law in force when the act or omission occurred differs from that in force at the time of the conviction he cannot be punished to any greater extent than was authorised by the latter law, ie, the law as it stands at the time of his conviction.
It is appropriate here to set out the provisions of s 11(1) and (2) of the Criminal Code:
“11.    Effect of changes in law
(1)      A person cannot be punished for doing or omitting to do an act unless:
(a)      the act or omission constituted an offence under the law in force when it occurred; and
(b)      doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.
(2)      If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law.”
The critical issues to determine in relation to the impact of this provision relate to two factors. The first factor is whether s 11(1) and s 11(2) need to be read together or whether s 11(2) can have an operation on its own. The second factor is whether “the law in force” differs from that applying when the offence took place to that applying when the conviction was recorded.
In relation to the first factor, the view of Kapi DCJ expressed in The State v Tom Gaia and Two Others (Unreported, National Court decision No N544) is that s 11(2) cannot be read on its own. His Honour says, “this provision must not be interpreted in isolation”. With respect to his Honour, we do not agree that the provision cannot be read on its own. The provisions of s 11(1) are directly related to the offence and to the circumstances in which a person can be punished for doing or omitting to do an act. Section 11(2) in broad terms deals with penalty or punishment. It may well be that there are situations where both provisions apply to the particular circumstances of a particular case but it is equally true that s 11(2) can apply where only a penalty provision or penalty aspect of a particular offence has been altered. It is our view that the provision should be read this way. The provision of s 11(1) can be read without reference at all to s 11(2).
The Deputy Chief Justice in the above mentioned judgment adopts the test of Wolff CJ in Richardson v Brennan [1966] WAR 159, when he confirms that the addition of the words “which ever is the less” must be implied at the end of s 11(2) to give the section its true meaning. We also adopt this construction of s 11(2). It is relevant to note that Wolff CJ in considering s 11(2), makes no comment in relation to the necessity to have s 11(1) in operation, as it were, as a condition precedent for s 11(2) coming into force.
We are of the view, therefore, that s 11(2) can be read on its own.
We now turn to consider the second factor, that is whether the law in force when the act or omission occurred differs from that in force at the time of conviction.
It is to be noted that s 11(2) of the Criminal Code, as distinct from s 37(7) of the Constitution, uses the words “cannot be punished to any greater extent ... than is authorised by the latter law” and not “no penalty shall be imposed ... more severe ... than the maximum penalty” (as in s 37(7) of the Constitution).
Punishment is defined under s 18 of the Criminal Code as follows:
“Kinds of Punishment
The punishments that may be inflicted under this Code are:
(a)      death; or
(b)      imprisonment with hard labour; or
(c)      imprisonment without hard labour; or
(d)      detention in an industrial or reformatory school; or
(e)      fine; or
(f)      finding security to keep the peace and be of good behaviour.”
What meaning then is to be attached to the words in s 11(2) that “the offender cannot be punished ... to any greater extent than is authorised by the latter law”. Under the former law, the minimum penalty legislation, the offender in this case could be punished by imprisonment for a minimum period of five (5) years up to a maximum of fourteen (14) years.
Under the latter law, the amending legislation No 17 of 1986, the penalty provisions were altered as follows:
(a)      Section 1 repealed s 19(8) of the Criminal Code and thereby restored all the discretionary punishments under s 19.
(b)      Section 25 amended s 398 and inserted a new penalty provision providing that the offender was liable for imprisonment for a term not exceeding fourteen (14) years.
The punishment which can be imposed after the amendment is anything in the range from a fine or recognisance up to fourteen (14) years imprisonment, including suspension for any period of imprisonment imposed. If then in any particular case the appropriate sentence for a break and enter offence under s 398 were a fine or a recognisance or a suspended sentence or a term of imprisonment, then that would be the sentence that would have to be imposed and if imposed it would be “authorised by the latter law”. If in these circumstances a minimum sentence of five years imprisonment were to be imposed, such a sentence would be in breach of s 11(2), the accused would thereby be punished to a greater extent.
When the minimum penalties legislation was brought into effect, the approach of the National Court was to sentence those persons who had committed offences prior to the effective introduction of the legislation but were sentenced and convicted after the introduction to the lesser punishment, that is the punishment using the common law approach.
It seems to us that to interpret this provision ignoring the practical reality of the effect of a minimum penalty is not to do justice in the circumstances of the particular case. The law should not be seen to be so bound in technicality that it would ignore a reasonable interpretation that would bring about a just solution in such circumstances. We are strenghtened in our view by the following passage appearing in Maxwell on The Interpretation of Statutes (12th ed, 1969) at 239:
“The principle applied in construing a penal act is that if, in construing the relevant provisions, ‘there appears any reasonable doubt or ambiguity’, it will be resolved in favour of the person who would be liable to the penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case” said Lord Esher MR, “we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penalty sections.”
It follows from what has been said that we do not take the view that the concept of the maximum penalty available under the offence is the criteria for determining whether or not the law in force when the act of omission occurred differs from that in force at the time of the conviction. We take the broader view and that which reflects the reality of the situation, that the punishment the person would be subjected to in real terms under the former law is substantially greater than that the person would be subjected to under the latter situation, ie, with the law changed and the minimum penalty removed.
Section 63 of the Interpretation Act (Ch No 2) has been referred to in argument and also referred to in the judgment of Kapi DCJ in Tom Gaia and Two Others as being applicable to the circumstances of the amending Act, ie, Criminal Code (Amendment No 2) Act of 1986.
The Interpretation Act, s 63, provides:
“Effect of repeal
(1)      The repeal of a provision does not:
...
affect any penalty, ... or punishment incurred in respect of an offence committed against the repealed provision; or affect any ... legal proceeding ... in respect of any ... penalty ... or punishment,
and any such ... legal proceeding, ... may be instituted, continued or enforced, and any such penalty ... or punishment may be imposed, as if the repeal had not been made.”
The critical and threshold issue to determine in relation to the application of s 63, is whether or not the Act which changed the minimum penalties was an amending or repealing Act. We take the view that particularly in view of the title to the Act and the use of terminology throughout the Act in relation to the changing of the penalty, ie, that the provision is amended by repealing particular words and replacing those words with other words, amounts to an amendment rather than a repeal. We note the concession by the Acting Public Prosecutor on his interpretation of the law on this question that he adopted the test set out at the end of p 121 in the 2nd ed of Statutory Interpretation in Australia (1981) by Pearce where the learned author says as follows:
“It seems probable that in determining whether a provision should be regarded as ‘amending’ or ‘repealing’ the Courts will continue to have followed the approach in Beaumont v Yeomans (1934) 34 SR (NSW) 562 of looking to the substance of the provision rather than its form.”
In applying this test to the amending Act — it is clear that the provisions that amend the penalty provisions in substance are amendments although the word repeal is one of the words that is used the word amend and replacement are also used.
It is also appropriate in circumstances such as this to give consideration to what was the intention of the legislature. There was little information or argument put to the Court on this question. However, the terms of the amending Act itself provide us with a clear indication of the Parliament’s intention. Before the provisions dealing with the amendment of each particular provision, which formally imposed a minimum sentence, there is a provision which repeals unconditionally the provisions of s 19(8) of the Criminal Code. This was the section which was added to the Code following the decision of this Court in the case of The State v Danny Sunu [1983] PNGLR 396, which retained the court’s discretion in certain circumstances when the minimum penalty was to be imposed. The repeal unconditionally of s 19(8) appears to give a clear expression of intention by the Parliament. That expression being that as from the date of the effective introduction of the legislation, the minimum penalties legislation was no longer to be in effect. It follows as a matter of commonsense that if the Parliament had intended that in relation to certain offenders the provisions would still be imposed then it would have retained the direction contained in s 19(8). Parliament chose not to do this and this was a clear indication of its view that the law being passed was removing the minimum penalties legislation from the statute books with effect from the time that law came into operation.
It follows from what has been said that we are of the view that the appeal should succeed and that the matter should be returned to the trial Judge for the exercise of his discretion on sentence. While the Supreme Court Act (Ch No 37) is silent on procedure in these circumstances, we are of the view that the Court should return the matter to the trial Judge for sentence and in those circumstances, due to the lack of a procedural provision, this Court should rely on s 185 of the Constitution and order that the matter be returned to the trial Judge for sentence.
The order of the Court is that we allow the appeal and set aside the sentence of five (5) years imprisonment imposed by the trial Judge. We order that the matter be returned to the trial Judge for sentence. The appellant is to be remanded in custody for sentence.
Orders accordingly
Lawyer for the appellant: Public Solicitors Office.
Lawyer for the respondent: Public Prosecutors Office.