Unreported National Court Decisions
N544
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
TOM GAIA & 2 OTHERS
Daru
Kapi DCJ
17-18 June 1986
CRIMINAL LAW - Minimum Penalty - Statute amended on penalty only, between date of offence and date of conviction, abolishing minimum penalty, - No retrospectivity - s.398 Criminal Code (Ch.262) - amended by Criminal Code (amendment) No.2) Act 1986 (17 of 86) - Interpretation Act (Ch.2) - s.11 Criminal Code - applicability
Held
(1)      Criminal Code (amendment) No.2) Act 1986
Does not apply to any offence which was committed prior to the commencement date.
(2)      The offence of break enter and steal has not been changed by a latter law and therefore s.11 is not applicable.
(3)      The maximum penalty authorized for break enter and steal by the former law and the amendment remains the same - 14 years imprisonment, s.11 of the Code can be of little help to the accused persons.
(4)      The words “whichever is the lesser” are to be implied at the end of s.11(2) of the Code.
Cases cited:
Richardson v. Brennan (1966) W.A.R. 159
State v. Baiza Tadu Avona (Unpublished decision April 1986 at Daru)
State v. Beko Job Paul and Geoffrey Harold (Unpublished decision April 1986 at Lae)
State v. Frank Tabua (Unpublished decision April 1986 at Daru)
State v. Phillip Asari (Unpublished decision April 1986 at Lae)
Legislation referred to:
Criminal Code (as amended) (Ch.262)
Interpretation Act (Ch.2)
Counsel:
G. Towaluta for the State
S. Sakumai for the Accused persons.
Cur. adv. vult.
KAPI DCJ:  All three accused persons pleaded guilty to a charge of break enter and stealing contrary to s.398 of the Code (Ch.262).
In considering submissions on sentence, the question of whether or not the minimum penalty was still applicable in this case arose. I pointed out the relevance of s.11 of the Code and adjourned the case overnight to enable both counsel to prepare proper arguments.
Both counsel made submissions after consulting their respective offices. I made a ruling that the minimum penalty was applicable and indicated I would publish the reasons. This I now do.
The offence was committed on 21st April, 1985. At that time, the appropriate penalty was minimum penalty of no less than 5 years and not exceeding 14 years imprisonment. In March, 1986, the Parliament abolished the minimum penalty provisions and gave full discretion to the courts on penalty that had existed before the minimum penalty provisions were introduced. This Act, the Criminal Code (Amendment No. 2) Act 1986 (17 of 86) came into force on the 14th April, 1986. There can be no argument that all offences committed after this date will be subjected to penalty in accordance with the amendment.
The question is - what penalty provision should govern offenders who committed this offence before the amendment came into force but are convicted after the amended law has come into operation as in the case before me?
There is no authority on this point. It appears from summary of sentences that two views have emerged. On the one hand, Wilson, J. in April in Lae, in sentencing offenders who committed the offence of break enter and stealing before the amendment came into force, appeared to have adopted the view that the Court should ignore the minimum penalty and exercise discretion that is now given by the new amendment. State v. Phillip Asari (Unpublished decision April 1986), State v. Beko Job Paul and Geoffrey Harold (Unpublished decision April 1986). On the other hand, Woods, J. in April in Daru, in dealing again with offenders who committed break enter and stealing before the amendment came into force, appeared to have considered himself bound by the minimum penalty provision. See State v. Frank Tabua (Unpublished decision April 1986) and State v. Baiza Tadu Avona (Unpublished decision April 1986).
In their submissions, both counsel adopted the same view. Briefly, they adopted the view that I have discretion to impose the appropriate penalty for the offence in accordance with the Criminal Code (Amendment No. 2) Act 1986 (No. 17 of 86). They submitted that I adopt this view by virtue of s.11 of the Code,
“(1)    A person cannot be punished for doing or omitting to do an act unless -
(a)      the act or omission constituted an offence under the law in force when it occurred; and
(b)      doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.
(2)      If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorized by the former law, or to any greater extent than is authorized by the latter law.
I do not consider that s.11 of the Code is applicable to the circumstances before me.
Section 11 deals with a different situation. It is applicable when the law changes in respect of prescription of an offence. Firstly, an act or ommission of an offender constitutes an offence prescribed by a law at the time it is committed. The offender, however, is not charged with that offence s.11(1)(a). In the mean time, the law is changed so that the offence which was prescribed by the law at the time of the commission of the offence is abolished and a different offence is prescribed by the new law. But the act or ommission by the offender under the previous law still constitutes the offence prescribed under the new law and he is charged with the latter offence s.11(1)(b).
Section 11(1) does not go on to deal with how punishment may be imposed in these circumstances. This is dealt with by s.11(2). This provision must not be interpreted in isolation. It must be interpreted within the context of s.11(1). The words,
“If the law in force when the act or ommission occured differs from that in force at the time of the conviction ...”
relate to the difference in law as set out under s.11(1). That is to say, the conviction referred to under s.11(2) is conviction relating to the offence prescribed by the new law which is different to the offence prescribed by law at the time the act or ommission occured.
I do not think that the section is applicable to change of law relating to penalty only. This conclusion is consistent with Richardson v. Brennan (1966) W.A.R. 159.
That case involved consideration of equivalent provision (s.11) in the Western Australia Criminal Code. That court was dealing with a charge of driving under the influence of drink contrary to s.32 of the Traffic Act 1919 - 1964. When the offence was committed, the section prescribed for a first offence, a fine not exceeding 6 months together with liability to suspension of license. The offender was convicted after the amendment came into force and the Magistrate considered himself bound by the new amendment and imposed the minimum of 100 pounds. Apart from other arguments the appellant relied on s.11 of the Code (W.A. - which is in similar terms as our s.11). At page 160, Wolff, C.J. was directing his mind to s.11 when he said,
“This was clearly an error. The penalty under s.32 before the section was amended in 1965 was the one applicable. That means that the maximum fine the magistrate should have imposed was 50 pounds. The fallacy of applying the new and increased monitary penalty is forcefully illustrated by considering the hypothesis that the charge was heard, the conviction recorded and the fine imposed on the day before 19 November, 1965. In that case the maximum would clearly have been 50 pounds whereas if the same three events had taken place on the day after, then according to the magistrate’s finding the penalty would have to be increased to not less than 100 pounds. The respondent does not seek to justify such an extraordinary result. Clearly, it should not depend on the fortuitous circumstance of when the charge was heard, the conviction recorded or the penalty imposed.”
It is clear he rejected s.11 as applicable and decided the case on other principles (to which I will return later in the judgment).
The words,
“... the offender cannot be punished to any greater extent than was authorized by the former law, or to any greater extent than is authorized by the latter law.”
in s.11(2) are not drafted in very clear terms. Wolff, C.J. in Richardson v. Brennan made some very helpful but obiter dicta observations. At page 160, he said,
“If this passage is read literally, then it gives the Court the option to choose the greater of the two maxima ..., but that would make nonsense of it’s provisions. What the legislature is here doing is to depart in a measure from the principle of non-retroactivity in favour of the offender. In effect it is saying that if the maximum penalty has been reduced between the date of the commission of the offence and the conviction then the reduced maximum is the one that applies despite the fact that the offender could have been more heavily punished if the conviction had been recorded before the law reduced the maximum punishment. In my opinion, the words “whichever is the less” must be implied at the end of the passage.”
With respect, I would adopt this construction as the proper one for our provision. Within the context of the whole provision, where the former law as in s.11(1)(a) had a different maximum penalty compared to the maximum penalty in the latter law as in s.11(1)(b), the lesser of the two will be applied. These words imply that the maximum penalty authorized by the former law has been changed as well by the latter law. If the maximum remains same, offenders can gain no assistance from s.11. The section does not in anyway deal with the manner in which the discretion may be exercised by the courts within the maximum authorized by the law. It does not deal with such matters as set out under s.19 of the Code. I am also of the opinion that it does not deal with questions of minimum penalty because the minimum penalty affects the manner of exercise of discretion by the courts within the maximum penalty.
APPLICATION TO THIS CASE.
In the present case, there is no change in the law relating to the offence of break enter and stealing at the time of commission of the offence and at the time of conviction.
In addition, the maximum authorized by the Code at the time of the commission of the offence was 14 years imprisonment and this has not been changed by the amendment passed by the Parliament. Insofar as the maximum penalty authorized by the law is concerned, accused persons can get no assistance from s.11 of the Code.
The question of whether the Criminal Code (Amendment 2) Act (17 of 86) applies to an offence committed before the date of commencement of the Act, is to be determined in accordance with general principles of construction.
Wolff, C.J. in Richardson v. Brennan decided the case on these principles. At p.160 he said,
“The rule of construction is that statute will not be given retrospective application unless its language clearly points to the conclusion that Parliament so intended .................... The general rule that a Statute speaks prospectively applies. I would decide this case on that principle alone”.
This is in effect what is stated by Interpretation Act (Ch.2)
“s.63.  Effect of repeal:-
(1)      The repeal of a provision does not -
(a)      ...
(b)      ...
(c)      ...
(d)      affect any penalty, ... or punishment incurred in respect of an offence committed against the repealed provision; or
(e)      affect any ... legal proceeding ... in respect of any ... penalty ... or punishment,
and any such ... legal proceeding, ... may be instituted, continued or enforced, and any such penalty ... or punishment may be imposed, as if the repeal had not been made.”
There is nothing in the Amending Act to suggest that the amendment would have retrospective effect on offences committed before the new amendment came into force. If the Parliament intended this, one would expect to find a provision or an implied provision in the Criminal Code (amend No.2) Act 1986 (17 of 86). For these reasons, I imposed the minimum penalty of 5 years imprisonment on each of the accused persons. Clearly this is not the appropriate penalty but I have to apply the law as I find it.
Lawyer for the State: V Noka - A/Public Prosecutor
Lawyer for the accused persons: E Kariko - A/Public Solicitor