National Court of Papua New Guinea

A Raymond for the respondentndent

DECISION

3 September 1997

VAGI AJ: On 27th August which is the second last day of my circuit in Lae, I gave brief reasons for my decision to uphold the appeal and undertook to publish my reasons in full at a later date. T do now.

This iapp iappeal from the District Coct Court against a three months term of imprisonment imposed upon the appellants for playing an unlawful gf card for money, an offence against s. 51 of the Summary Oary Offences Act. The appellants pleguilty tlty to the charge.

The circumstances of the offence as set out thus, on the night of 1st August 1997 at Tais Club, 4 Mile, Lae, the appellants weund playing a game of card for money. A pack of cardscards and 4.00 bet money were taken by the police at the time of their arrest. They appeared in Court onA4th August and were convicted and sentenced. Following the proement of t of their see, the appellants filed a Nd a Notice of Appeal on the ground of severity of their sentence.

On 13th August, 1997, Mr Siminji of co for the appellants presented the notice of appeal and made made a verbal application for orders to release the appellants from Buimo Corrective Institution. Ithe urgency of the releaselease of the appellants because one of them was a child and a Grade 7 student at Milfordhaven Top-up Community School. She had alreadsed classes.sses. I granted theication and rand released each of them on own recognizance with a surety of K200 Mr J. Imari undertook to pay and condition that they appear to prosecute tappea27th August.

On 27th August, Mr Siminji expoundpounds the reasons why the Court must expedite the appeal, despite the failure by the appellants to comply with all the requirement of appeal procedures as set out in Part XI (sections 219 to 237) of the District Courts Act. Mrsond for the respondent dent has no objection to the appeal to proceed despite the failure.

Procedural requirements for appeals from the District Courts to the National Court are creatures of Acts of Parliament and one must look at the procedures and the requirements set out in the Act to find out the ambit of the power of the Court. I find incircumstances, prs, prolongation of this appeal will do greater injustice to the appellants if I allow the appeal adjourned to gufficient time to the appellants to comply with the appeal procedures. Whether I adjo adjourn oprto proceed with this appeal, the end results will be the same. In contrast to the magistrates court, the National Court has many inherent powers one of is that justice is done in the interpretation on the law (law (s 158 of the Constitution). An unjusuation has arose hose here think the justice of this this matter be better served if I waive the appeal procedures in Part XI of the District Court Act and alle appeal to proceed.

The unjust situation in this cais case is the term of imprisonment which is manifestly excessive. I say at the outset that that the term of three months imposed is far excessive than is allowed by s 51 of the Summary Offences A160; This section sets out penalty for the first offence is a fine of K40.00 or imprisonmenonment not exceeding one month. WhatWorship imposed here iere is for second and subsequent offence which is a fine of K100.00 or a term not exceeding three months.

There is not much of the record of District Court proceedings before me from which to deto determine whether or not His Worship considered using his powers under the District Courts Act for other options such as to release on good behaviour bond under s. 132.

Mr Siminji argues that if His Worship had properly enquired into the personal circumstances of each appellant, he would have found the following:

1. ـ A6a Kokoti is a mara married man and has a four year old child. He is a pormployed by the the Lae International Hotel.

2. ҈& J60; Judzorndzorn Benis a G7 stuat Mihaven Top-up Comm Communityunity School.

3. ;ټ E60; Elizabeizabeth Phil Philemon is a married woman and has a thrar olld.&#A househousewife.wife.

4. &##10;& ; Am0; Amos Lums Lume is 40 years old and works for Lae Bookshop.

The Politecedents report show ̶“nil previous convictions”. The appellare first offendffenders and so the term of three months imprisonment imposed is not within the range of penalty under s 51 of the Summary Offences Act, which is for the first offence a fine of00 or a term not exceeding ding one month.

Mrs Raymond concedes that the term of three months is manifestly excessive and suggest that the penalty in the alternative should now be a sentence at the rising of the Court.

Before continuing with this appeal, there is one very important matter which I raised with the counsels in a “off the cuff” manner if any of them was aware of. That is thvisions set out out in Part V of the Summary Offences Act. Pareals with “Gamingaming and Betting”. S. 50 is to beined in rela relation to the offences of this nature. None of tunsel is aware ofre ofe provisions and nor do I. The records ofproceedoceedoceedings do not show if His Worship knew about it. S. 50 deals with declon of unlawful game. It is in these terms

S5

S50p>S50 &#Declan oiounla unlawful gful game

(1) ټ The Head of Stacting on adon advice, may by notice published in the Nationational Gazette, declare any game to be an unlawame fe purof this Part.

(2) &#16declaration under subsesubsection tion (1) h(1) has noas no force or effect until approved by a resolution of the Parliament.

Perhaps His Worship may have known about the existence of these mandatory requirements of Part V and would have mentioned it if he had published his reasons for decision. Because there is no proper Appeal Book, His Worship’s reasons can not be sought at this stage of the proceedings.

The point I wish to make here is that there are two essential rements under s. 50 (1) and (2) that a magistrate must be sabe satisfied with before he can safely convict. First, the Head of Smust bust by a declaration declares a game to be unlawful. Seco that declaration has has no force or effect until approvea resolution of the Parliament. &#160 onus of the proof is f is on the prosecution.&#1n. This is a p declaration anon and ethod of proof is by tenderendering before the Court, by the prosecution, an authenticated copy of the National Gazette in which the declan was published.

The Summary Offences Act has been ieen in operation for the last twenty years. It replaced the Police Oesences Ordinance (Act) in 1977. In the Police Offences Act, a number of unlawful games were listed. It is not so inSummary Ofsences Act. The offence of playards fods for money was one such unlawful gaul game and the Police still continue charplayeder the Summary Oary Offence Act as they did under the Police Offences Act. In a card card game one e the essential element is that a player wagers money during the game. So in prosecutionn o aencefence under s. 51, the police must provide proof o requirement under s. 50 (1) and (2) in order to secure a ce a conviction. If either of them or both are missing the defendant titleacquittal. It cout could beld be that, for the last twenty years, no s 50 (1) and (2) declaration and resolution has been made. his b then the offence unde under the Police Offence Act, tct, that listed the “game of card for wager” and which no longists should not be adopted as an offence under s 51 of the Summary Offence Act.

This>This essentially would mean, that a large number of people had been convicted for playing at a card game that no longer is unlawful.

I now come back to this appeal. I have no intent to sho diny disrespect to His Worship for the way he had dealt with in this case. He has his own reasnd thos those reasons were not made available before me. But I to say this once more more. Thestrates exercise summarummary criminal jurisdiction. They have herent authorityority and may act only in acin accordance with those powers which are ssly rred on them by s by statutes.

The conviction His Wois Worship recorded in relation to the appellants is procedurally correct, except for that the term of three months he imposed is far excessive than what s. 51 on penalty allows.

The National Court on many occasions provides principles and guidelines on the treatment of first offenders. Onh guideline I often remi remind myself of is to avoid as much as possible mixing a first youthful offender with the more hardcore criminals. This case is n thegory of y of the cases where a first youthful offenderender has been exposed to the dangers of “hardcore” influence.

This guideline, if not a principle, is sometimes applied even in some serious cases.&#16. The before me now, is not not so serious that should warrant a term of imprisonment. Now that thellants have seve served nine days of the term of three monI see no point in altering the sentence to bring it in line line with the range of penalty provided for in s. 51. I think the nays, ugh unju unjust, is suis sufficient as a punishment.

I uphold the appeal and order that the appellants be sentenced to thing of the Court. I also order K200.00 posteposted as surety by Mr J Imari be reimburimbursed to him forthwith.

Appeal upheld.

Lawyer for the appellants: Public Solicitor

Lawyer for the respondent: Public Prosecutor