Unreported National Court Decisions
N139
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
APPEAL NO. 174 OF 1978
LUNEME MEUSO
V
MAIAK NAGY
Rabaul
Wilson J
18 May 1978
CRIMINAL LAW - appeals from District Court - presumption in favour of correctness of decision appealed from - appeal court to be satisfied that court appealed from clearly wrong.
CRIMINAL LAW - appeal against sentence - sentencing principles considered - severity of sentence on young first offender convicted of unprovoked gang assault - deterrent sentence justified because of circumstances of aggravation - need to achieve parity - maximum penalty reserved for worst or most serious types of cases.
WILSON J:  In Australian Coal and Shale Employees’ Federation v. The Commonwealth[lxxxii]1 Kitto, J. said:
(there is) “a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”
In appeals against sentencing from District Courts and Local Courts I consider that there should be a strong presumption in favour of the correctness of the decision of the lower court. After all, such courts handle the vast majority of offenders and such courts are in a unique position to strike the fine balance between the sometimes competing purposes of punishment.
In this appeal the appellant appeals against a sentence of 5 months imprisonment with hard labour he received after being convicted of assault (s.61 of the Summary Offences Act) in the District Court sitting at Rabaul. The ground of appeal is that that sentence for a married first offender, in circumstances where the maximum penalty was 6 months imprisonment with hard labour, was manifestly excessive.
I have carefully read the learned Senior Magistrate’s Reasons for Decision. I state them in full:
“Sub-Inspector Nelson Kompaon was attacked by a group of men while walking home with his wife after a function to farewell Superintendent ‘Sno’ Feeney. He was punched and kicked till he fell to the ground senseless. His wife ran away and called other police from the Steakhouse. Two of the attackers were arrested on the spot and later gave the names of their wantoks involved. Five minutes afterwards Kompaon got up. He suffered no permanent injuries and did not receive any medical attention.
This was a vicious assault because it was unprovoked and it was a gang attack. Kompaon is powerfully built and would have been more than a match for any one assailant. Although I did not record it in my notes on Allocutus for this defendant - I was working at speed - I asked this defendant and the other one, Joe Umeo, who was before me at the same time, if they knew that Kompaon was a policeman. Each said he did not. I then asked this defendant, ‘How long have you been in Rabaul?’ and I recorded his answer, ‘I’ve been in Rabaul 3 years’.
I considered in the circumstances that a deterrent sentence was required and thus, although it was a first offence, I imposed a five months gaol term.
This defendant was one of five men charged with the offence cases 174 to 178/1978. Four came from the Kainantu area, one from Henganofi. All were aged between 20 and 22 and all had no prior convictions. All pleaded guilty. I sentenced this defendant and one other to five months I.H.L. Mr Patterson R.M., sentenced two others to five months I.H.L. The fifth defendant, Takis Take, pleaded not guilty before Mr Patterson. He was represented by counsel. The case was adjourned and came on again before Mr Towai R.M. The plea was changed to guilty before Mr Towai and a character witness called, the defendant’s employer. The Magistrate gave the defendant a good behaviour bond for 24 months in the sum of K200 cash. There is no note on the file of the sentences given to the four co-defendants and it is possible that Mr Towai, who was on a one-day visit to the Rabaul Court from Buin Where he is stationed, was in ignorance of the sentences given to the other four defendants. It is likely too that Mr Towai did not have a statement of facts before him because there is none on the file and no note on his Record of Proceedings that he had one and read it out. The only details of the assault noted on the file are those given by defence counsel in his address.”
In my view the Reasons for Decision indicate that the learned Magistrate adopted a perfectly proper approach to his sentencing task. I am not persuaded that he made any error or acted upon any wrong principle or gave weight to extraneous or irrelevant matters or made any mistake as to the facts. The sentence imposed in no sense could be said to be unjust or unreasonable. I am satisfied that there was no failure properly to exercise his discretion. Indeed, the Reasons for Decision indicate to me that the learned Magistrate approached his sentencing task in an exemplary fashion.
I consider that the learned Magistrate was right in recognising the need to achieve some parity in the sentences which the several offenders received. It is well recognised that the maximum penalty should be reserved for the worst or most serious types of cases. Here, the learned Magistrate saw fit to impose almost the maximum penalty. However, this was quite obviously a very bad case of its type. There were circumstances of aggravation. This was an incident of unprovoked gang violence where the victim was punched, kicked and knocked senseless.
The learned Magistrate considered that this case called for a deterrent sentence. I agree with the learned Magistrate’s decision in that regard. I can do no better than repeat what I said recently in Paulus Mandatititip & Anor. v. The State[lxxxiii]2.
“There are offences where the notion of deterrence must take priority and where sentences of imprisonment may properly be imposed, even on young first offenders, to mark the disapproval by the law of the conduct in question and in the hope that other people will be deterred from like behaviour.”
This offence legitimately falls into that category.
During the argument consideration was given to the question of whether or not the learned Magistrate had taken into account the fact that the appellant was a young first offender. In Paulus Mandatititip & Anor. v. The State[lxxxiv]3 (supra) I had cause to state:
“In the absence of circumstances of substantial gravity surrounding a crime committed by a young first offender who stands to be punished and who has no other offences to be taken into consideration and in the absence also of a sufficient reason for sentencing him to a term of imprisonment, I am disposed to think that a retributive or primarily deterrent sentence is scarcely indicated.”
In my considered opinion there were circumstances of substantial gravity here. It is clear from the Reasons for Decision that the learned Magistrate was of a like opinion.
For these reasons the appeal against sentence will be dismissed. The sentence will be affirmed. I order that the appellant serve the balance of his sentence not yet served.
Solicitor for the Appellant: M. Kapi, Public Solicitor
Counsel: E. Jubilee
Solicitor for the State: K.B. Egan, Public Prosecutor
Counsel: B.T.J. Sharp

[lxxxii](1953) 94 C.L.R. 621 at 627
[lxxxiii]Unreported Supreme Court Judgment SC129 dated 3rd May 1978.
[lxxxiv]Unreported Supreme Court Judgment SC129 dated 3rd May 1978