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Kerekere v Miria [1983] PGNC 31; [1983] PNGLR 277; N432(M) (1 September 1983)

N432(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

LAHO KEREKERE

V

ROBIN MIRIA

Waigani
Amet J

24 August 1983
1 September 1983

INFERIOR COURTS - District Courts - Summary offences - Sentencing - Prescribed minimum penalty - Discretionary dispositive powers of court still available - District Courts Act 1953, ss 138(1)(b) and 206(2) (Ch. No. 40) - Summary Offences Act 1977, s. 20.
CRIMINAL LAW - Sentencing - Summary Offences - Prescribed minimum penalty - District Courts - Discretionary dispositive powers of court still available - District Courts Act 1953, ss 138(1)(b) and 206(2) (Ch. No. 40) - Summary Offences Act 1977, s. 20.

Unlawful presence on premises is an offence under s. 20 of the Summary Offences Act 1977, and the penalty prescribed therefor is "Imprisonment for a term not less than one year and not exceeding 2 years:"

Section 138(1) of the District Courts Act 1953, empowers a court where a person is charged with a simple offence, and the charge is proved, in certain circumstances, without proceeding to conviction, to dismiss the charge or give a conditional discharge; and s. 206(2) of the said Act empowers a court to impose a fine when a penalty of imprisonment only is provided for, "if it considers that the justice of the case would be better met by a fine than by imprisonment."

Held

(1) Notwithstanding the minimum penalty provisions in s. 20 of the Summary Offences Act, the discretionary dispositive power contained in s. 138(1) of the District Courts Act, is available to a court dealing with an offence under s. 20.

Henderson v. Blackwell [1973] P.N.G.L.R. 223; Richard Cheong v. Vincent Nemil [1981] P.N.G.L.R. 472, and Cobiac v. Liddy [1969] HCA 26; (1969) 119 C.L.R. 257, followed.

(2) Notwithstanding the minimum penalty provisions in s. 20 of the Summary Offences Act, the discretionary dispositive sentencing power contained in s. 206(2) of the District Courts Act, is available to a court dealing with an offence under s. 20.

Makin v. Kelly [1963] P.&N.G.L.R. 127; Henderson v. Blackwell [1973] P.N.G.L.R. 223; and Healey v. Festini [1958] VicRp 36; [1958] V.R. 225, considered and applied.

(3) The discretionary sentencing power in s. 206(2) of the District Courts Act, applies only between a fine or the minimum penalty as being in the best interests of justice.

Cases Cited

Cheong, Richard v. Vincent Nemil [1981] P.N.G.L.R. 472.
Cobiac v. Liddy [1969] HCA 26; (1969) 119 C.L.R. 257; 43 A.L.JR. 257; [1969] A.L.R. 637.
Healey v. Festini [1958] VicRp 36; [1958] V.R. 225; [1958] A.L.R. 648.
Henderson v. Blackwell [1973] P.N.G.L.R. 223.
Makin v. Kelly [1963] P.N.G.L.R. 127.
Rose v. Hvric (1963) 108 C.L.R. 353; 37 A.L.JR. 1; [1963] A.L.R. 560.

Appeal

This was an appeal against conviction and sentence by a District Court for an offence against s. 20 of the Summary Offences Act 1977.

Editorial Note

The effect of this decision was reversed by District Courts (Amendment) Act No. 34 of 1983 in force on 8 November 1983. Section 206 was so amended that it does not apply to an offence for which a minimum period of imprisonment is prescribed.

Counsel

S. Lupalrea, for the appellant.
E. I. Kariko, for the respondent.
Cur. adv. vult.

1 September 1983

AMET J: This is an appeal against conviction and sentence by the Boroko District Court on 25 July 1983, for an offence that on 24 July 1983, the appellant was unlawfully on premises, to wit, Murray Barracks, contrary to s. 20 of the Summary Offences Act 1977 (Ch. No. 264) whereby he was sentenced to 12 months imprisonment, that being the minimum penalty provided for the offence.

The short facts were that on the afternoon of 24 July 1983, the appellant went along to Murray Barracks to see the bands playing at a rock concert. He had no money to pay to enter so he jumped over the fence.

Section 20 provides that, a person who, without lawful excuse, is in, on or adjacent to any premises is guilty of an offence. The terms in which the penalty is provided is important. It is framed in this way:

"Penalty: Imprisonment for a term not less than one year and not exceeding 2 years."

This section and fifteen other sections of the Act were amended by the Summary Offences (Amendment) Act No. 17 of 1983 by the deletion of the penalty provisions and substituting provisions such as this, prescribing minimum penalties.

The appellant pleaded guilty to the charge and was convicted and sentenced to one year imprisonment with hard labour, that being the minimum penalty of imprisonment prescribed.

The two grounds of appeal were that the magistrate failed to exercise or properly exercise his discretion under s. 138(1) and s. 206(2) of the District Courts Act 1953 (Ch. No. 40) and that the sentence was and is in the circumstances manifestly excessive.

The magistrate in his brief reasons for decision stated that the amending Act did not give him authority to use any discretion and that he was obliged to impose the minimum sentence of one year imprisonment.

Section 138(1) of the District Courts Act empowers a court where a person is charged with a simple offence, and the charge is proved, in certain circumstances, without proceeding to conviction, to dismiss the charge or give a conditional discharge; and s. 206(2) of the said Act empowers a court to impose a fine when a penalty of imprisonment only is provided for, "if it considers that the justice of the case would be better met by a fine than by imprisonment".

It was submitted for the appellant that the minimum penalty provision did not abrogate the court’s overriding discretions under s. 138(1) and s. 206(2). It was further submitted that, that being so, the court had erred in not so exercising its discretion under s. 138(1), in favour of the appellant, in the circumstances of the offence and of the appellant. It was further contended that if it were held that the magistrate had not erred in exercising his discretion to convict, then he erred in not exercising his discretion under s. 206(2) to impose a fine rather than the sentence of one year imprisonment, which in the circumstances is manifestly excessive.

Dealing firstly with the submissions on s. 138(1); the cases of Henderson v. Blackwell [1973] P.N.G.L.R. 223, Richard Cheong v. Vincent Nemil [1981] P.N.G.L.R. 472 and the Australian High Court authority of Cobiac v. Liddy [1969] HCA 26; (1969) 119 C.L.R. 257, relied on in Henderson v. Blackwell, were relied on as authorities for the proposition that the mere provision of minimum penalties, such as is contained in s. 20 of the Summary Offences Act does not exclude the operation of s. 138(1) of the District Courts Act in an appropriate case.

I consider, with respect, that these decisions are clearly correct in so far as they affirm that the discretionary dispositive power in s. 138(1) of the District Courts Act remains open to the court; for the penalty provided for in s. 20 of the Summary Offences Act can only be imposed upon conviction, and the effect of a disposition under s. 138(1) by the District Court never proceeds to the stage of conviction.

Both counsel quite properly agreed that this was the effect of the application of s. 138(1), so that it did not arise for consideration in this appeal as the magistrate had proceeded to conviction.

However, counsel for the appellant submitted, that accepting this as common ground, had the magistrate considered it, he should have applied s. 138(1) in the appellant’s favour, given the circumstances of the offence and the antecedent background of the appellant, which are that he was a single young man, employed with Lohberger Engineering, earning K80 a fortnight and with no prior convictions. He had therefore erred in not so considering and exercising the dispositive power under s. 138(1) in the appellant’s favour.

The power whether or not to convict is a discretionary one, and although the magistrate had not adverted to it on the records, I am quite unable to say that he had erred in proceeding to conviction. This submission is therefore dismissed.

I now turn to a consideration of the proposition on behalf of the appellant that the general discretionary power in s. 206(2) remains in the sentencing court despite the wording of the penalty in s. 20 of the Summary Offences Act, prescribing the minimum penalty of imprisonment of one year.

Reliance was placed on the cases of Makin v. Kelly [1963] P.&N.G.L.R. 127 and Henderson v. Blackwell (supra).

In the former case, Ollerenshaw J found support in the Victorian case of Healey v. Festini [1958] VicRp 36; [1958] V.R. 225 for holding that s. 220 and s. 244 of the Customs Ordinance 1957 did not exclude the general powers granted to a court under s. 207(2) (the predecessor to the present s. 206(2)) of the District Courts Ordinance, as the substitution of a fine for a term of imprisonment was not a reduction of the penalty of imprisonment. It merely substituted one form of penalty for another, and that s. 244 did not purport to deal with reducing in severity a particular penalty, but merely prevented the imposition of a period of less than three months imprisonment when a prison sentence was considered more appropriate.

The penalty provision of s. 220 of the Customs Ordinance was in identical terms to s. 20 of the Summary Offences Act now under consideration.

It was in these terms:

"Penalty: Imprisonment for not less than three months and not more than two years."

Section 244 of the Customs Ordinance further provided:

"No minimum penalty imposed by this Ordinance shall be liable to reduction under any power of mitigation which would, but for this section, be possessed by the court."

In Henderson v. Blackwell (supra) Frost S.P.J (as he then was) who was dealing with s. 7(1)(d) of the Dangerous Drugs (Possession) Ordinance 1970 which provided a minimum penalty of "Imprisonment for not less than three months or more than two years", was content to follow the authority of Makin v. Kelly which implied that the mere provision of minimum penalties did not exclude the operation of s. 206(2) of the District Courts Ordinance. Frost S.P.J considered that because of s. 244, the legislation considered in Makin v. Kelly was in stronger terms than the one he was dealing with.

In Richard Cheong v. Vincent Nemil (supra) Kearney Dep CJ however, referring to both Makin v. Kelly and Henderson v. Blackwell expressed some doubt as to whether the discretionary power in s. 206(2) of the District Courts Act could stand against the wording of a similar minimum penalty provision in s. 7(1) of the Dangerous Drugs Act that he was considering. His Honour however, left his doubt unresolved as he disposed of the appeal before him on other grounds without the need to address the issue.

However, counsel for the respondent did place some reliance on the doubt raised by his Honour. His Honour said, at 475, that the sole question there, he thought, was whether the legislature, in enacting the (later) minimum punishment provision, intended thereby impliedly to exclude the power of the court under s. 206(2) with respect to that provision.

It was affirmatively submitted by counsel for the respondent that, that is the effect of the minimum penalty provisions, to exclude the discretionary power of the District Courts under s. 206(2). It was submitted that the minimum penalty provision in s. 20 of the Summary Offences Act, being a later statute repeals the earlier s. 206(2) of the District Courts Act by implication. The approach is summed up in the maxim — lages posteriores priores contrarias abrogant, later Acts repeal earlier inconsistent Acts.

However, the application of this approach is not automatic.

"The court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, i.e., the repeal must, if not express, flow from necessary implication"

per Barton J in Goodwin v. Phillips [1908] HCA 55; (1908) 7 C.L.R. 1 at 10 referred to in Pearce on Statutory Interpretation at 94 par. 142.

Whether a later act has taken away a discretionary power given by an earlier act must depend upon a comparison of the actual language of each, to see whether they do not stand together or whether the latter has, impliedly (to that extent) abrogated the former.

In Healey v. Festini (supra), the Full Court of the Victorian Supreme Court in dealing with somewhat similar provisions held of their respective provisions that — s. 161 of the Licensing Act 1928, which provided only a term of imprisonment as the penalty for a second offence against the section of selling liquor without a licence, did not expressly exclude the operation of s. 71 of the Justices Act 1928 ... which authorized a court of petty sessions to impose a monetary penalty instead of a term of imprisonment if it thought that the justice of the case would be better met by imposing a fine instead of a prescribed penalty of imprisonment.

Gavan Duffy J at 229 posed the following questions in comparing the actual language of each Act to determine whether they were inconsistent and could not stand together such as to imply a repeal of the prior by the later.

I couch them in the terms of the sections under consideration in this appeal:

1. Is s. 20 inconsistent with s. 206(2)?

2. Does s. 20 show plainly an intention that s. 206(2) shall not operate?

3. Is it necessarily or even properly, to be implied from the language of s. 20 that s. 206(2) is not to operate?

4. Does it appear that s. 20 was enacted with any purpose in view which cannot be carried out consistently with s. 71?

Gavan Duffy J continued:

"I premise my answers to these questions by referring to the obvious fact that the provisions for imprisonment in s. 161(1)(b) as the only punishment and in s. 71 that the offender may be punished by a fine cannot amount ... to an inconsistency between the sections ..."

The High Court in Rose v. Hvric (1963) 108 C.L.R. 353 approved Healey v. Festini. The High Court was there considering a similar question as to the effect of a general provision s. 74(1) of the Justices Act 1958 (Vic.) and a particular provision s. 154(1) of the Licensing Act, and seeing whether they were inconsistent with one another in operation. The court said that the latter does not contradict the former in terms; but the appellant contended that the two could not stand together. It was contended by the appellant that the latter s. 154(1) of the Licensing Act exhibited an intention to deal exhaustively with the topic of the punishment which may be imposed for the offence .... The court said that the question was whether s. 154(1) meant to exhaust the topic of punishment. It said, questions of this nature are usually questions of implied repeal.

It was settled law that a later affirmative enactment does not repeal an earlier affirmative enactment unless the words of the later are "such as by their necessity to import a contradiction".

Then, is there in this appeal, in s. 20 of the Summary Offences Act a negative implication forbidding the imposition of a fine in lieu of the minimum imprisonment sentence of one year. Is there an inconsistency between the earlier general provision of s. 206(2) of the District Courts Act and the later specific provision of s. 20 of Summary Offences Act? Does s. 20 show plainly an intention that s. 206(2) shall not operate, does it necessarily follow or can it properly be implied from the language of s. 20 that s. 206(2) is not to apply.

Applying the authorities I have referred to I am of the opinion that these questions should be answered in the negative.

I am further of the opinion that given the authority of the Papua New Guinea cases, although pre-independence, the draftsman of the minimum penalty provisions is presumed to have known what the law is or the courts rulings in relation to similar laws have been, so that I would expect to see specific express provisions in an amending act if the intention were to repeal provisions which had been held to be available to the courts in relation to similar legislations.

I am of the opinion that there is no inconsistency between s. 20 and s. 206(2) and they can operate side by side, just as easily as can s. 206(2) and any other penalty provision prescribing an imprisonment sentence only but not a fine. It can take effect exactly as it does where no minimum term is prescribed, for its operation is merely to add a different kind of penalty as an alternative where the District Court considers that "the justice of the case would be better met".

The end result of this is that I am of the conclusion that the discretionary dispositive power under s. 206(2) is still available to the District Court as being not inconsistent with the penalty provision of s. 20 of the Summary Offences Act.

The magistrate has therefore erred in concluding that he had no discretion on the question of penalty.

It was conceded by counsel for the appellant that if the magistrate, in the exercise of his discretion considered nevertheless that a penalty of imprisonment was the appropriate one in the circumstances, then he had no discretion but to impose the minimum term of imprisonment prescribed.

I agree with this view. The discretion under s. 206(2) is only between a fine or the minimum imprisonment term and not as to any lesser imprisonment term or any penalty other than fine.

In the circumstances of this offence and the antecedent background of the appellant, I consider that had the court below properly exercised its discretion, it ought to have imposed a fine as being in the best interests of justice.

The counsel for the respondent concedes that, if the court were to hold that s. 206(2) discretion remains in court, the sentence of one year is manifestly excessive.

In the circumstances I accede to appellants counsel’s submission that I exercise this court’s power under s. 236(1)(e) of the District Courts Act and impose the appropriate fine. This I do.

I consider in all the circumstances that the justice of this case would be best met by a fine of K100 rather than by imprisonment of one year.

The order of the court therefore is that the appeal be allowed in part, that the conviction be confirmed, appeal against sentence allowed — the sentence be set aside and a fine of K100 be imposed in lieu thereof.

Appeal allowed in part.

__________________________

Lawyer for the appellant: N. R. Kirriwom, Public Prosecutor.
Lawyer for the respondent: L. Gavara-Nanu, Public Prosecutor.