|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V.
JAMES R.M. SORTHSON
Waigani
Los J
31 July 1987
CHILD WELFARE ACT - Declaration of Ward - Jurisdiction of National Court - No power over offence punishable by imprisonment for life.
Cases:
Inakambi Singorom v. John Klaut [1985] SC 299
State v. Kendol Gegera (Un-numbered decision of Wilson, J., June 1987, Waigani)
Counsel:
Towaluta for the State
Gene for the Prisoner
SENTENCE
LOS J: On the 29theptember 1986 t986 the prisoner and a number of his friends went to a house at Hohola and held up a man, Richard Gordon Goddard, and stole various goods including cash. The prisoner stole K17.e pleaded guilty to particirticipating in the robbery. Some of his friends wounded the man with a knife. Because he was with them he is also guilty of wounding the victim with intent to cause grievous bodily harm to him.
It is apparent that he did not take part in planning the hold up. But when he was told about the plan he did not refuse. I am assisted by the pre-sentencing report made by the senior Probation Officer, M.J. Cobern. His trouble has been that he could not resist temptation by his so called friends. He left Hohola Sacred Heart Community School and Don Bosco Vocational School because he preferred to be with the rascal friends. He also did not want to listen to his parents, he preferred to take advice from the rascal friends and enjoyed their friendship. He realizes now what this has led him to.
I understand he realizes his mistake and he says he deserves to be punished. His sentence will reflect the seriousness of the offences as well as the degree of his participation.
As the prisoner is 14 years of age - a juvenile, the Defence Counsel urged me to declare him ward of the Director of Child Welfare. To get away from the kind of influence that had been imposed upon the prisoner, the Counsel urged upon me to recommend to the Director to place the prisoner at the Boys Town, Wewak. Counsel for the State agreed that this would be a proper case for the Court to declare the prisoner ward of the Director of the Child Welfare on the grounds in s.41(1) of the Child Welfare Act Chap. No.276 namely that child is “a destitute, neglected, incorrigible”. Apparently the counsel relies on the report by Mr Cobern as a ground for his submission.
Responsibilities of the Director as a ward are covered in Division 1 Part X of the Child Welfare Act ss 64 - 66. These sections are descriptive of the Director’s powers. In my view they do not give jurisdiction to the National Court to declare ward. Section 64 for instance says:
64. Director as guardian of w (1) ҈ thtwinditanding anyg any other law relating to the guardianship or custf chi, thector&; (a) &##160; is the the guardian ofaevof ever every chiy child whld who becomes a ward to the exclusion of the parent or oguardian;
and (b) ـ shall cuntinue to b to be the guardian unan until the child ceases to be a ward; and (c) &ـ is resp responsiblnsible for the care and management of every ward and of the property of every ward. (2) &##160;;bject to Subsecubsection (3), the Director may terminate his guardianship ofip of a wa a ward at any time after the
ward attainsage of 16 years. (3) ټ Where gere guardianship is not terminarminated under Subsection (2), the Director remains guardian until the person
concerned attains the age of 21 years, and the person is subject to the supervision of the Directring period”.
> The prisoner has committed serious offences. These offences carry a maximum of life imprisonment. This type of offences especially
the robbery offence is prevalent. A need for strong deterrent punishment therefore is apparent. But the prisoner is 14 years of age.
I have no intention to send him to serve his sentence at any Corrective Institution. Both Counsel also referred me to a sentence
by Wilson, J. in State v. Kendol Gegera (June 1987, Waigani). His Honour declared the prisoner a ward of the Director to be placed at Boys Town Wewak until he reaches 16.
Because of the youthfulness of the prisoner and for parity of sentence (the prisoner before me is an accomplice) I should follow
that course. However, I find I have jurisdictional problem. Under s.1 of the Child Welfare Act “ward” means a child- (a) ټ&#committmmitted to d to the care of the Director, or sent to an institution, in accordance with an order of a court havinisdicto do so under this Act; or (b) eclaredlared to b to be o be a ward under Section 41(2);...(underline is mine for emphasis) “Court” means— (a) a Children’s ; or (b);  
strict Couet exercising theg the jurisdiction of a Children’s Court under Section 33; S.32(4) “Where a court other than a Children’s Court deals with an offence (other than a homicide or rape, or any other offence
punishable by death or imprisonment for life) committed by a child, that court may exercise the powers of a Children’s Court
under Subsection (2), and an order made in the exercise of those powers has effect as if it were an order of a Children’s Court”. Subsection 3(b) allows the Children’s Court to make any order as if the order has been made under s.41. In my view the National Court can only have power to declare ward if in the first place it ‘acquires’ jurisdiction under
sub-s.4 and the National Court intends to impose punishment prescribed by sub-s.2. As the offence of robbery in company with other persons and
wounding with intent to cause grievous bodily harm carry maximum penalty for life imprisonment, the National Court does not have
jurisdiction. The argument of the counsel for the state seem to imply that the National Court has power under s. 41 irrespective of the limit stated
in sub-s.4 of s. 32. I do not accept this implication. In my view s. 41 does not give the National Court any independent jurisdiction.
I am aware of the Supreme Court decision in Inakambi Singorom v. John Klaut [1985] SC 299. The case involved the interpretation sub-s. 6 of s. 32 of the Child Welfare Act. S. 32(6). “A Children’s Court is not bound by a minimum penalty prescribed for an offence dealt with by it and may disregard the
minimum penalty prescribed in imposing a penalty”. The question was whether the sub-s applied only to the Children’s Court per se and no other courts because of the express mention
of Children’s Court. The court was unanimous in its answer to this question: reference to ‘Children’s Court’
includes other courts that exercise the Children’s Courts powers. The basis of this decision varied but the most obvious was
the anomaly in sentences the subsection would cause if other counts were excluded. I think that question of wardship is completely different especially in relation to an offence carrying penalty of death, or rape
or any other offence carrying life sentence. I cannot therefore rely on any provision of the Child Welfare Act. I resort therefore to the normal discretionary powers under s. 19 of the Criminal Code. I also resort to the inherent power of the National Court in s. 155(4) of the Constitution. For the sake of parity and because of the serious nature of the offences the prisoner has committed I impose a sentence of four
(4) years imprisonment for robbery, and two (2) years imprisonment for wounding with intent to cause grievous bodily harm. Although
the offences are distinct, they are related in time and place and that wounding was a supportive incident to the robbery. I make
them concurrent. I order that the prisoner serve his sentences at Boys Town, Wewak until he is 16. I suspend the rest of the sentences that go beyond
the age of 16, on the condition that the prisoner enters into his own recognizance and he be of good behaviour for three years from
the date of discharge from the Boys Town. Lawyer for the State: Public Prosecutor Counsel: G. Towaluta Lawyer for the Prisoner: Public Solicitor Counsel: M. Gene
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/1987/5.html