N451(L)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

(APP. NO. 285 OF 1983)

BETWEEN:

UTU YAME
APPELLANT

AND:

TITAI KINAPU
RESPONDENT

Madang: Kidu CJ
15 February 1984

JUDGMENT

KIDU CJ: The appellant was on the 21st of November 1983 convicted by the Madang District Court of two offences -

(a) wilful damage to property (a lock valued at K8.50) and
(b) unlawful assault.

He pleaded guilty to the two charges and was sentenced to 6 months I.H.L. for the first charge (minimum penalty under s.47(1) of the Summary Offences Act 1977) and 6 months I.H.L. for the second charge (minimum penalty under s.6(1) of the Summary Offences Act 1977). This sentence was made cumulative on the first sentence. So in fact the appellant was imprisoned for a period of 12 months in hard labour.

FACTS OF THE CASE

On the 18th of November, 1983 at about 2.00am the appellant went to the complainant’s house at a settlement opposite the Madang Technical College. The complainant, a female by the name of Ailis Maiki, was asleep in the house. The accused used a hammer and broke the lock of the house. He went inside the house. 

The statement of facts reads:

"The defendant went inside the bedroom and went to the complainant. The defendant started putting his hand on the complainant’s leg and at the same time he moved his hand up until he put his hand near the complainant’s private part. The complainant then woke up and shouted. The defendant then pulled his hand out and walked out."

When interviewed by the police the appellant said that he had done what he did because, and I quote from the statement of facts,

"...one time he was drunk and asked the complainant if he could kiss with her and the complainant told some people that I said these words and when the news spread I was ashamed so I did this thing."

The grounds of appeal were as follows:

1. 	That the learned Magistrate failed to properly exercise the discretion under s.138(1) of the District Courts Act.

2. 	That in failing to properly exercise that discretion the learned Magistrate impose sentences which are manifestly excessive in the circumstances.

3. 	That the two offences arose out of the same set of facts and the same instance and as such should have been ordered to run concurrently.

GROUNDS 1 & 2

Section 138(1) vests Magistrates with a discretion and of course it must be exercised in a judicial manner and not in an arbitrary way. In this case there was nothing in the records as to whether or not the learned Magistrate adverted to s.138(1). So I could not say whether or not he exercised his discretion properly nor could I say that he failed to consider the applicability or non-applicability of that provision.

There seems to be a misconception on the part of some lawyers about the application of s.138(1). It is not incumbent on a Magistrate to consider s.138(1) in every criminal case that comes before him. If lawyers read this provision carefully they will see that the application of this section in confined to cases where a Magistrate is of the opinion that "having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence has committed, it is inexpendient to inflict punishment, or other than a nominal punishment or that it is expedient to release the offender on probation.."

The arguments advanced by counsel for the appellant do not come within s.138(1) of the District Courts Act.

GROUNDS 3

This ground was based on what Minogue, C.J. & Frost, SPJ (as he then was) said in Tremellan v. The Queen [1973] PNGLR 116 at p.119:

"It cannot be said that the cases show any clearly discrenible principle governing the making of sentences cumulative or concurrent. So much depends upon the facts of each particular case and the way in which the judge approaches the imposition of sentence. However, we feel that generally speaking sentences should be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts. This was the view taken by Hart J. in R. v. Phillips & Lawrence (1967) Qd. R. 237 at p.289. At the same time that learned judge thought it neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent. Similarly, in R. v. Melville (1956) 73 W.N. (N.S.W.) 579 the New South Wales Court of Appeal thought that two offences were both so connected that they could be regarded as part of the one incident and so merited the sentences being made concurrent."

Both counsel did not quote this case. I mentioned it in the case of Wari Mugining v. The Queen [1975] PNGLR 352 during submissions. These cases quite clearly how that there is no hard and fast rule that sentences for offences based on the same or closely related to facts or offences committed in the prosecution of a single purpose must be concurrent. A Judge or Magistrate looks at the facts in each case to decide whether sentences for such offences should be served cumulatively or concurrently.

In this case the two offences were clearly separate and distinct. The appellant had a hammer with him and "started banging on the door of the complainant’s house". This resulted in the lock of the door being damaged. He then went inside the house and touched the complainant near her private parts, thus committing the second offence.

The facts are straight forward and apart from the damage done to a lock valued at K8.50 no harm has been done to the complainant. The appellant knew the complainant. There is no evidence that he went to the complainant house in order to harm her. He touched the girl’s body and when she woke up and shouted he walked out of the house. He did not run out of the house.

An effective sentence of 12 months, in my opinion, considering the circumstances of the cases outlined above, clearly is manifestly excessive. I ordered that the District Court order making the two sentences be quashed and the sentences be served concurrently by the appellant.

Lawyer for the Appellant: Public Solicitor, Mr N. Kirriwom
Counsel: Mr M. Kopunye
Lawyer for the Respondent: Public Prosecutor, Mr L. Gavara-Nanu
Counsel: Mr R. Auka

NOTE:

After I had given my decision and made the order I found out that the sentences for the unlawful assault was 12 months and not 6 months with hard labour. So the appellant still has to serve 12 months.