N291(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 18 OF 1981

BETWEEN:

PAIA LIFI
APPELLANT

AND:

PHILLIP DEGE
RESPONDENT

Lae: Pratt J
21 February 1981

INCITING TO FIGHT - S.9 of Summary Offences Act - maximum sentence of three months imposed - person killed during fight - such death not relevant to sentencing for offence charged - necessity to exclude extraneous material during sentencing process - principles of sentencing youthful first offender reviewed.

Cases Cited
Maima v. Sma: [1971-1972] PNGLR 49
Toiona v. Bryant: [1969-70] PNGLR 201
R. v. Casey; R. v. Smyth: (1977) Qd. R. 132
R. v. Price: (1978) Qd. R. 68
Lahey v. Sanderson: (1959) Tas. S.R. 17

SENTENCING

PRATT J: The appellant in this matter was charged with two others that on the 25th day of December 1980 at Minimang, by words namely: "Yumi bai fait tumoro", incited other persons, namely Binimpamp villagers to fight thereby contravening s.9 of the Summary Offences Act. That section reads as follows:

"A person who by words, gestures or otherwise incites any other person or persons to fight is guilty of an offence.

Penalty: A fine not exceeding K100.00 or imprisonment for a term not exceeding three months."

The facts surrounding this matter are conveniently set out in a lengthy "reasons for judgment" furnished to the court by the learned magistrate. A summary of those facts is as follows: On the afternoon of the 25th December, a dispute erupted at Sangan Village between groups from two separate villages. There was apparently a fight at the time and the appellant eventually left the area and located his father on the road. He and the father and a brother of the appellant returned to the Binimpamp villagers and it was on that occasion that the appellant is said to have used the words which form the substance of the information. It also appears from the magistrate’s report that the villagers from the appellant’s village did return to Sangan in the early hours of the next morning round about 7.00 a.m. and a major fight broke out at which a number of persons were injured and it appears as a result of which one man died.

The appeal in this matter is against the severity of sentence only. The maximum sentence has been imposed by the Court. As I stated earlier, the maximum is three months or a K100.00 fine. Time and again the appeal courts have made it clear that the maximum sentence should only be imposed in the worst type of case. The worst type of case of course may be, for example, one where the appellant is consistently in breach of the law and constantly coming back before the courts on that particular charge. Another example may be where the circumstances surrounding the particular offence charged are very aggravating. In this instance it may possibly be questioned as to whether there was an inciting at all. However, that issue has not been taken up and I do not think it appropriate for me to make any further observations. I merely mention it at this point because the appellant may really have been in the position of inciting his own village people to fight, rather than the opposing village people, and I am not quite clear exactly who it was that he is alleged to have incited. However, that is not a matter in issue and the information does specifically allude to the Binimpamp villagers. Counsel for the appellant drew the court’s attention to the reported decision of Mr Justice Prentice, as he then was, in the case of Maima v. Sma which restated within the Papua New Guinea context the principle that only in the worst cases is a maximum penalty imposed. The principles as applicable to Papua New Guinea have been reiterated time and again both before and after Independence, and of course Mr Justice Prentice was only stating what all of the judges have been saying in this country long before 1971. It is trite law but is nonetheless binding on all members of the judiciary because of that. The situation has therefore arisen where it is difficult for the respondent to make any reply whatsoever to the submissions of the appellant’s counsel.

I propose dealing with this appeal by way of paying particular attention to the reasons given by the learned magistrate, because within the body of those reasons, it seems to me, it is clear why His Worship has gone into error. In the first place, the learned magistrate spends some little time on why the appeal was lodged at all. For example, he says that although the discretion to appeal was within the prerogative of the Public Solicitor’s Office, "I find it hard to limit my reasons to the activities of the defendant Paia Lifi alone without making reference to the other two defendants. By way of explanation, I should point out here that this young appellant was convicted on this charge with two other persons, namely his father and brother. No appeal has been lodged in respect of those two." In relation to His Worship’s remarks, I would point out first of all that of course there is no prerogative in the Public Solicitor’s Office at all other than to decide whether a particular applicant should be granted legal aid. The Public Solicitor of course takes instructions and whether or not he received instructions from the other two persons, is of no concern to me. What I am concerned with solely is the matter before the court and the courts are not here to speculate on why the Public Solicitor or any other counsel for that matter takes a particular course. Like any other counsel, the Public Solicitor can act only on instructions. He is not there to canvass work. Quite apart from the fact that this would be completely unethical, I imagine he has as much work as he can handle without going around seeking further work. His Worship goes on:

"If the ground that the sentence was excessive in the circumstances is the only ground for appeal being relied upon by the defendant, it is interesting to note here that, why haven’t the other two defendants who were also charged with the same offence and convicted and sentenced also to three months on the same facts, lodged their appeal on the same ground. Although I find it hard to understand this move, I am also anxious to know under what circumstances was this sentence of three months excessive."

Again I can only repeat that it is no concern of the court what other people may or may not be doing or the reasons why they have taken a course or failed to take a course. In court we have enough difficulties as it is without pondering on further extraneous and irrelevant material.

The second aspect of the magistrate’s report which I draw attention to is the emphasis laid on the fact that injury and death occurred as a result of this fight. For example, after enumerating the facts surrounding the fight, His Worship says that as a result of the disputation between the various villagers

"A death resulted from this fight. The deceased was from the village of Zumagurum which joined force with the defendant’s village of Wafibampun to attack Binimpamp Village. Many others were also injured in that fight."

Now at the bottom of p.2 of the report after dealing with several matters, particularly the appellant’s failure to respect established law and order, His Worship goes on -

"It was on these bases I accordingly resolved that under these circumstances a serious fight claiming a life and many injuries has erupted because of the defendant Paia Lifi together with his father and the other brother. A court of justice must not be lenient under such circumstances but ought to be hard on those who instigated this fight."

It is patently clear from the material just quoted that the learned magistrate has punished this appellant for matters which are not contained in the charge - indeed cannot be contained in the charge. In establishing the penalty which he imposes, the magistrate has taken into account the fact that there was a death and that there were injuries. I shall deal with this aspect more fully in a moment.

The third aspect which emerges from the magistrate’s report gives me some little cause for concern because of the manner in which His Worship has dealt with it. He says at p.3 of his report as follows:

"I now come to know that the circumstances in which my sentence of three (3) months was and is excessive is the fact that this defendant PAIA LIFI has been accepted for University Course and must enrol by the 9th February, 1981. If he does not enrol he will not be accepted to attend.

Should this be the circumstances that is seen by the learned Counsel makes the sentence of three months excessive, then I could not see the logic behind his reasoning.

Whether the defendant is a student or has been accepted to attend University or whatever position he may hold, the fact simply shows that this man of high learning has shown no or little respect to our established system of law and order or legal dispute settlement process. Yet with his standard of education, he has saw fit to resort to the uncivilized method of dispute settlement or law and order by inciting those who have fought him to be prepared to contest another fight with him, instead of referring the overall incident of the 25th December, 1980 to the proper authorities."

His Worship says that whether or not he had been aware of his imminent enrolment, he would not have shown any leniency to the defendant but to punish him harshly as he has done.

Now it seems to me that the significance of the way in which the magistrate has worded his report here is this - that he has tended not only to be unduly influenced by the results of this fight, but he has failed to take into account, as the law requires, the individual circumstances of each defendant who comes before the court, albeit he may come there as a joint defendant, and to weigh up the consequences of the penalty which the court imposes on that particular individual. There are two sides of the coin of course: what the community is entitled to expect from the courts in relation to sentencing for the crime charged and what is just for the individual. No-one would pretend that the task of balancing those two aspects is easy but nevertheless some genuine attempt must be made and it is also clear to me that the period of imprisonment which was imposed on this appellant could have a very serious effect on his future career. I don’t say that that would necessarily have been so, but at least the possibility was distinctly there and it was indeed a factor which the magistrate should take into account in the balance when he points out that the student is one who should know better. I might point out here, of course, that he is not a university student - he is merely a university entrant, a lad who has just completed his highschool and, if my memory serves me correctly, I think it was Grade 10 that he’d completed.

I return now to the other aspect emphasised by the magistrate, namely the injuries and fatality for which the appellant is being punished. There is a responsibility on the courts in matters of sentence, to proceed cautiously and with a tight rein on emotions. There is also a requirement that a court endeavour to sift the wheat from the chaff and proceed rationally and logically. What is the appellant charged with in this case? He is charged with a comparatively minor offence, if one gauges the seriousness of the offence by the maximum penalty provided. He has not been charged with fighting as I understand it and if that is so, that is the end of the matter. If the charge is clearly inappropriate, it is the plain duty of the Court to point this out to the prosecuting authorities. If the charge is blatantly an abuse of process, then equally it is the duty of the Court to refuse to deal with the case. Every court has a right to prevent abuse of its own process, although a magistrate’s court has certain limitations imposed by statute. The facts in this case, provided there is some further evidence, may well establish at least prima facie, a counselling and procuring to riot, an offence which I might add is punishable by two years imprisonment maximum under the Criminal Code (s.63). If the appellant actually took part in the fight and this is by no means clear on the facts that were read out to the magistrate, then he could have been charged with assault occasioning bodily harm or at least just plain common assault. Such a charge may be dealt with summarily under s. 353 of the Code and provides a maximum fine of K200.00 or six months imprisonment.

Of course he must be charged with such offence before he can be punished under its accompanying penalty provision. A person must be charged and given a chance to defend himself against that charge before he is punished for it. It may be thought that I am here stating the obvious but this case and the learned magistrate’s reasons show with crystal clarity that it is sometimes dangerous not to state the obvious. The law on the subject is set out succinctly and clearly by Mr Justice Frost, as he then was, in the case of Toiona v. Bryant. The facts of that case, I think, are not completely irrelevant to the circumstances before me now:

"On this day Isimel Towalaka was driving along the road, when a number of trucks full of people, coming in the other direction, stopped Isimel, the people in the trucks alighted, dragged him from the car, and then proceeded to beat him up. He was left unconscious on the side of the road, and the attackers then departed. The defendant before the Court, was one of three men, who had been identified as having struck Isimel.

These facts, if true, disclose flagrant breaches of law and order for which, as Mr Broadley submitted, various charges could have been brought. Thus the three persons identified as being concerned could have been proceeded against on indictment for riot, in that being unlawfully assembled they had acted in so tumultuous a manner as to disturb the peace, and also for an offence that, acting in concert with themselves and others, they had unlawfully assaulted Towalaka thereby occasioning him bodily harm. Each of these offences was punishable by three years’ imprisonment. It would also have been open for the authorities to proceed against the appellant or the two other men for the less serious individual offence of either assaulting or striking Towalaka, and thus ignore the element of common design. As on the facts it is not suggested that Towalaka was beaten into insensibility by any single blow, an offence that he caused bodily harm could not have been alleged against the appellant as a circumstance of aggravation, if indictable proceedings had been taken for the individual offence."

In his judgment the learned judge says at pp. 203 & 204 of the report:

"In my judgment, there is only one point in this appeal, that is, what was the precise offence with which the appellant was charged, and to which he pleaded guilty, for that is the only offence for which he is liable to punishment ...

The charge actually brought could have been so framed as expressly to charge the appellant with others in striking, that is as a joint offence, although such a charge in relation to an act of striking under s.30(a) is not really appropriate on the facts alleged; so it is necessary to turn to the proceedings to determine the nature of the charge."

I expressly adopt these words as appropriate to the circumstances of this appeal and I reiterate that the law as stated by His Honour is a fundamental part of the underlying law of this country. It is basic, elementary and in this appeal critical.

In the present case, the appellant is a young man and a first offender. He had just completed his schooling and was awaiting entry into the University. A sentence of three months imprisonment could have had a disastrous effect on his future career. He has already served almost two months of the three months sentence imposed. The position of youthful first offenders was recently re-examined by the Court of Criminal Appeal in Queensland. I refer particularly to the reports of R. v. Casey; R. v. Smyth and R. v. Price. The thrust of these and other authorities establishes in my view that where a youthful first offender is before the courts on a relatively minor charge, there must be quite compelling reasons in existence to warrant the imposition of a prison sentence. In the 1978 case (supra), the court specifically adopted the views of the Chief Justice of Tasmania in Lahey v. Sanderson where His Honour stated:

"The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia, and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominent consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility. With that I respectfully agree."

I would add by way of aside here that Lord Goddard was not noted for his leniency.

The statements of principle which I have set out above do not contain any matter which makes them inappropriate to the circumstances of this country and I have not heard any submissions to the contrary. Indeed I find it inconceivable that any such submissions could be made successfully. Indeed the overcrowded conditions in many of our gaols in Papua New Guinea lend special relevance to the comments I have referred to. I would also adopt the warning given by the court in Casey’s case (supra) that these matters must not be taken out of context and that other considerations must play their part where a more serious type of crime is being dealt with.

Looking as I must at the effect of the sentence on the individual before me, together with the justifiable expectation which the community has in the court’s duty to enforce the law, taken in conjunction with the nature of the charge and the maximum penalty available, it is clear that the period of imprisonment already served by the appellant is more than adequate and that the sentence of three months imprisonment imposed by the learned magistrate was manifestly excessive. I say nothing of the other two persons convicted with the appellant as their case is not before me and is therefore no concern of this court.

Solicitor for the Appellant: A. Amet, Public Solicitor
Counsel: M. Sevua
Solicitor for the Respondent: K. Roddenby, Acting Public Prosecutor
Counsel: V. Noka