Unreported National Court Decisions
N141
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
APPEAL NO. 4 OF 1978
BERNARD VUGA
V
THONI RIBI
Rabaul
Wilson J
10 May 1978
16 May 1978
APPEAL - Local Court - statutory offence - practice and procedure - whether statement of facts disclosed an offence - plea of guilty by unrepresented defendant correctly entered - words spoken by defendant inequivocal.
CRIMINAL LAW - unlawfully on premises - s.20 of Summary Offences Act 1977 - what constitutes offence.
CRIMINAL LAW - appeal against sentence - sentencing principles considered - maximum sentence reserved for worst or most serious types of cases - first offender generally entitled to some leniency.
WILSON J: The appellant was convicted in the Kokopo Local Court, East New Britain Province, on 12th December 1977 of an offence known as "unlawfully on premises" - contrary to s.20 of the Summary Offences Act 1977.  He was sentenced to 3 months imprisonment with hard labour.  The offence was allegedly committed in an enclosed yard of Kabanga Station on 16th November 1977.  The appellant served one month of his three months' sentence before being released on bail pending the hearing of this appeal.
This appeal is against conviction and against sentence.  It was argued on behalf of the appellant that the plea of guilty had been wrongly entered by the Local Court in question, and, as an alternative ground of appeal, it was argued that the sentence imposed was manifestly excessive.
I would allow this appeal and order that this conviction be quashed if I were satisfied that the accused's statement to the Court made following the statement of facts being read to him was equivocal and not an admission of guilt.
From the Court record made available to me it appears that the defendant pleaded "guilty" which plea the Magistrate provisionally accepted.  It also appears that the Statement of Facts was then read to the appellant.  That statement was as follows:
"That on the 16th November, 1977 at Kabanga plantation Kokopo, the defendant Bernard Vuga who is now in court with other defendants went into the Cocoa Plantation of the mentioned plantation without the permission of the Manager.  When they went into the plantation and the other defendant they stole some Cocoa and the defendant Bernard Vuga he left them and he went home.  Later the matter was reported to police by the Manager of the said plantation, and police investigated into the matter, later the defendant was arrested conveyed to station, where he was interviewed regarding the matter and he did admitted the offence, cautioned charged and placed in the cells."
It is to be noted that according to that statement of facts it was never alleged that the appellant stole anything.  That statement of facts makes it clear that it was the contention of the prosecution that all were unlawfully on the premises, but that only the others (i.e. all of them except the appellant) were involved in the theft of some cocoa.
After the statement of facts had been read out, the appellant was given an opportunity to comment thereon.  His reply was:
"Yes true but I didn't steal any cocoa"
The Magistrate thereupon accepted the plea of "guilty" and entered a conviction.
It was argued on behalf of the appellant that that statement was a statement indicating his innocence and that the plea of "guilty" was wrongly entered.  I took this submission to amount to the contention that the appellant's words did not unequivocally point to an adoption by him of each of the elements of the charge.  It is true that that statement, if made in relation to a charge of stealing, would have been equivocal and it certainly was not an adoption by the appellant of each of the elements of the crime of stealing.  However, it must be remembered that this charge against the appellant was not stealing but being unlawfully on premises.  The appellant's statement in the context of the actual charge against him was, in my opinion, unequivocal and it pointed to an adoption by the appellant of the elements of the charge of unlawfully on premises, i.e. that (1) he was there on the premises and (2) he was there without lawful excuse.  I refer to Agiru Aieni & 12 Ors v. Paul T. Tahain ([lxxxv]1) for a statement of the principle I have applied and for a reference to the authorities.
Accordingly, I am satisfied that the plea of guilty was properly entered.  The appeal against conviction is dismissed and the conviction is affirmed.
The alternative ground of appeal was that the sentence of three months' imprisonment with hard labour was manifestly excessive.  The penalty prescribed in s.20 is, in the case of a first offence (as this was), a fine not exceeding K100 or imprisonment for a term not exceeding three months.  It thus is apparent that the magistrate saw fit to impose the maximum penalty.  I do not question the magistrate's decision to impose a prison sentence for this offence, bearing in mind its prevalence and the need to recognise the notion of deterrence.  I can also appreciate the force of Mr Sharp's argument that it was desirable for the magistrate to strive to achieve, if possible, some parity between all of the offenders who were unlawfully on the premises in question on the day in question.  However, in my considered opinion, other sentencing principles were of greater importance in a case of this kind and should have weighed sufficiently heavily with the magistrate to lead him to impose a sentence of imprisonment less than the maximum.  Those other sentencing principles to which I am referring are the principles that the maximum penalty should be reserved for the worst, or most serious, types of cases (this case could hardly be considered to be of such a type) and that a first offender (as the appellant was) should generally be entitled to some leniency on account of the fact that he has not been in trouble before.  For these reasons, I will allow this appeal against sentence and I will reduce the amount of the appellant's sentence.
In all the circumstances, I think the sentence should be reduced to the period already served, i.e. a period of one month.  I can see little point in requiring the appellant to surrender himself and return to prison for perhaps only a few more weeks.  To do so would achieve little and, in the scope of things, it might be counter-productive.  I think Mr Sharp, who appeared for the respondent in this appeal and who has adopted a most realistic and fair approach to this appeal and the other appeals that were heard during these sittings, recognised this fact.  The interests of justice will be served (and the public interest will not be jeopardised) if I treat the period of imprisonment already served as a sufficient punishment for this offence.
I should not be understood to be asserting that a first offender convicted of being unlawfully on premises in the absence (as in this case) of circumstances of aggravation should never be sentenced to a term of imprisonment of more than one month.  I can envisage circumstances in which a sentence as great as two months imprisonment with hard labour might be appropriate.  However, in this case, and for the reasons already given, a sentence of imprisonment equivalent to that already served will suffice.
The sentence will be varied by reducing it from three months imprisonment with hard labour to one month imprisonment with hard labour.
Solicitor for the Appellant: B.B. Passingan
Counsel: B.B. Passingan
Solicitor for the Respondent: K.B. Egan, Public Prosecutor
Counsel: B.T.J. Sharp

[lxxxv](1) Unreported National Court Judgment N123 dated 24th February 1978.