N443

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

LUCAS NEP KORORO

V

MOSES JARUKA

Waigani
Kidu CJ

18 October 1983
20 October 1983

CRIMINAL LAW - Sentence - Offences dealt with summarily by grade V magistrates - Maximum penalties prescribed in Sch. 1A - Schedule 1A penalties only applicable - Criminal Code penalties inapplicable - Minimum sentences irrelevant.

CRIMINAL LAW - Sentence - Maximum sentence prescribed - When near maximum sentence appropriate.

CRIMINAL LAW - Sentence - Appeal - Appeal against severity - Breaking and entering - Normal offence - Near maximum penalty not appropriate - Maximum four years - Fifteen months substituted for three years.

INFERIOR COURTS - District Courts - Grade V magistrates - Sentencing powers - Indictable offences dealt with summarily - Schedule 1A penalties only applicable - Criminal Code penalties inapplicable.

Under the Criminal Code (Ch. No. 262) the offence of breaking into a building with intent to commit a crime carried a penalty of imprisonment for a term not exceeding seven years and after amendments effective 14 July 1983, a minimum sentence of three years.

Under Sch. 1a of the Criminal Code a grade V magistrate dealing summarily with this offence pursuant to s. 420 of the Code may impose a maximum penalty of four years’ imprisonment.

On a plea of guilty to a charge of breaking and entering with intent the appellant was sentenced to three years’ imprisonment with hard labour, the magistrate taking into account, youth, previous good character and co-operation with the police. There was nothing unusual about the circumstances of the offence during which the appellant acted as watchman outside a workshop; nothing was in fact stolen.

On appeal against severity of sentence,

Held

(1) Where offences within Sch. 1a of the Criminal Code (Ch. No. 262) are dealt with by a grade V magistrate, the magistrate must adhere to the sentences prescribed in Sch. 1A: minimum sentences prescribed within the Code are not applicable.

(2) Sentences which are close to the maximum should be reserved for cases which, though not categorised as the "worst type" are close to that category.
Agiru Aieni and 12 Others v. Paul T. Tahain [1978] P.N.G.L.R. 37 at 48-49, considered.

(3) In the circumstances the sentence of three years imprisonment should be reduced to fifteen months.

Cases Cited

Agiru Aieni and 12 Others v. Paul T. Tahain [1978] P.N.G.L.R. 37.
Maima v. Sma [1971-72] P. & N.G.L.R. 49.
James Otto v. Jack Pewa (Unreported judgment No. N299 (M) dated 12 June 1981 of Kearney Dep CJ).

Appeal

This was an appeal against a sentence imposed by a grade V magistrate on a charge of breaking and entering with intent to commit a crime.

Counsel

E. Batari, for the appellant.
P. A. Boyce, for the respondent.
Cur. adv. vult.

20 October 1983

KIDU CJ: I heard this appeal on 18 October 1983. It was not opposed by counsel for the respondent, Mr Boyce. I allowed the appeal and substituted a sentence of fifteen months in hard labour in the place of three years of hard labour imposed by the Port Moresby District Court on 22 August 1983.

I now give reasons for the order that I made.

The appellant pleaded guilty to a charge of breaking and entering the Taldola Radio Maintenance Workshop at Seven Mile with the intent to commit a crime therein. The facts were very brief and they were as follows: At about 11.00 p.m. on 23 May 1983, the appellant went with five others to the Taldola Radio Maintenance Workshop at Seven Mile and whilst the appellant kept watch outside, others broke into the workshop with the intention of stealing some tools. In fact, although they broke and entered, nothing was stolen because they were disturbed in the course of their activities and the appellant was apprehended. There is now nothing in the court records which indicate that others were arrested at the same time. On the facts before me, as is usual in break and enter cases in Papua New Guinea, the watchman was arrested whilst those who actually perpetrated the crime escaped.

The following appears in the court records:

"Plea: We went to this workshop but we did not get anything.
Plea: Guilty.

Allocutus: We were forced by one of our men to go there to get some tools for him, but unfortunately we didn’t get any tools.

Antecedent report tendered. No prior convictions.
Defence counsel: On 20 May 1983 at about 3.00 p.m. the defendant went to shopping centre at six mile. He was unemployed. Whilst walking around he met two wantoks and three strangers. The strangers are from Highlands. At about 6.00 p.m. that evening one of the strangers disclosed the intention of obtaining tools. This man led the defendants to the place in question. Defendant was forced to go to the place. In the first instance he was posted as a look-out and when the shop was broken, defendant entered. Defendant was arrested and others escaped.

Age: 20 years from Goilala. No prior convictions. Attended high school. Completed grade eight. Due to finance difficulties forced out of school. Co-operated, made admissions. Pleaded guilty. In custody for three months and two days."

In sentencing the appellant, the learned magistrate said:

"I take into account the matters put to me; notably defendant’s youth, previous good character and his co-operation. I am not persuaded by the bold assertion that the defendant was forced somehow into his actions. The crime was planned, it was not a spontaneous action.

I sentence the defendant to three years in hard labour."

The crime with which the appellant was charged is defined by s. 399 of the Criminal Code (Ch. No. 262) and the penalty prescribed before the minimum penalties came into effect on 14 July 1983, was imprisonment for a term not exceeding seven years. Section 399 was amended and it now says that the penalty for the crime with which the appellant was charged, carried imprisonment for a term not less than three years and not exceeding seven years. Although the learned magistrate does not say so in his reasons, it seems that he had imposed the new minimum sentence which came into effect after the appellant had committed the offence. In my view, the minimum penalties contained in the body of the Criminal Code do not apply if the offences to which they relate are dealt with summarily by grade V magistrates. There is absolutely no provision in the amending legislation which says that these minimum penalties are to apply equally to the relevant offences dealt with by way of indictment or summarily. It is my view that if any Sch. 1a offences in the Criminal Code are dealt with by the grade V magistrates, the question of minimum penalties provided for the same offences in the body of the Criminal Code are irrelevant. Magistrates must adhere to sentences that are provided in Sch. 1a only. In the present case, therefore, the maximum penalty provided by Sch. 1a is a maximum of four years in hard labour. The learned magistrate in imposing a sentence of three years quite clearly had imposed an excessive sentence contrary to the circumstances or and the facts of this particular case.

It has been said in numerous National Court cases (Maina v. Sma [1971-72] P. & N.G.L.R. 49; Agiru Aieni and 12 Others v. Paul T. Tahain [1978] P.N.G.L.R. 37; James Otto v. Jack Pewa (Unreported judgment No. N299 (M) dated 12 June 1981 of Kearney Dep. CJ) that the maximum penalty for any offence should be reserved for the worst type of a particular offence. I quote from the case of Agiru Aieni and 12 Others v. Paul T. Tahain at 48-49 (per Wilson J) said:

"However, the troublesome feature of what the magistrate did is that he saw fit to impose the maximum penalty in the case of all but one of the appellants. It is well established in this Court that the maximum penalty should be reserved for the worst or most serious of cases. If that principle is to be applied properly, it is essential that, before the maximum penalty is imposed, there be some inquiry as to how seriously any particular accused was involved in the offence. There needs to be some inquiry as to the extent to which each accused was culpable or, to put the nature of the inquiry in yet another way, there needs to be some inquiry as to the extent to which each accused participated in the offence.
There having been no such inquiry in the case of any appellant, these sentences ought not to stand."

Although the sentence in this case is three years out of the maximum of four provided for in Sch. 1a of the Criminal Code, it is my view that the same principle should apply in such cases. In my opinion the sentences which are close to the maximum, should also be reserved only for the cases which are not the worst but pretty close to that category.

Looking at the facts of this case, it cannot be said that this was a bad break and enter case. In fact it is what I would call myself an ordinary break and enter case, the sentence for which should be in the lower range of the sentences usually imposed by the National Court in such instances. The learned magistrate did not put any weight or very little it seems, on the facts of the particular case. Although he said in his brief reasons that he took into account the appellant’s youth and his previous record and his co-operation with the police, he nevertheless imposed a sentence which is out of proportion to the facts of the case and the seriousness of the particular case. His Worship referred to the fact that this offence had been planned. However, the evidence does not disclose what particular part the appellant played in the planning of the break and enter. In the absence of such evidence, his Worship should have held in favour of the accused having not taken part in the actual planning of the offence. I refer to this because the learned magistrate put emphasis on this planning aspect when sentencing the appellant.

The appellant had not been in trouble previously. There were no alarming features about the circumstances of the case. He had co-operated with the police and had pleaded guilty to the charge. Although these were mentioned, it seems clear from the very high sentence imposed that the magistrate placed very little reliance or emphasis on these matters. In the National Court, in sentencing offenders in appropriate cases and appropriate cases would be most cases that come before the court, such practices are given appropriate weight. In fact it is because of these types of mitigating factors that sentences for ordinary break and enters, and I have said that this particular one is one of them, range from a good behaviour bond to as much as eighteen years’ to two years’ imprisonment. In this case, it is quite obvious that the sentence is excessive considering the particular facts and circumstances of the case.

The learned magistrate had failed to give appropriate weight to matters of mitigation and in my view this was an error.

Appeal allowed.

________________________________

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