N5418
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CA NO 31 0F 2011

MATHEW DENGUO
Appellant

V

THE STATE
Respondent

Madang: Cannings J
2013: 25 October, 15 November

CRIMINAL LAW – appeal to National Court against sentence imposed by District Court – Summary Offences Act, Section 7(b) (provoking a breach of the peace) – principles to apply in determination of appeals against sentence

The District Court sentenced the appellant to four months imprisonment upon conviction after trial of one count of using threatening words by which a breach of the peace was likely to take place contrary to Section 7(b) of the Summary Offences Act. The appellant appealed against the sentence (not against conviction) on four grounds: failure to take account of mitigating factors; the circumstances of the offence did not warrant a prison sentence; failure to take account of de facto provocation; failure to take account of the appellant's personal particulars. It was also argued that the sentence was manifestly excessive.

Held:

(1)	Appeals to the National Court against sentences imposed by the District Court are determined in a similar way to appeals to the Supreme Court against sentences imposed by the National Court, subject to one additional requirement.

(2)	The appellant must show that the District Court either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguably) excessive and that there has been a substantial miscarriage of justice.

(3)	None of the four grounds of appeal disclosed an identifiable error of fact or law.

(4)	The sentence was not excessive, let alone manifestly so. Although the appellant had no prior convictions, the circumstances of the offence – discharging a firearm in the middle of the night immediately after the use of threatening words – were very serious, warranting a custodial penalty, and the sentence imposed was only 33% of the maximum sentence.

(5)	The appeal was dismissed and the sentence of four months imprisonment confirmed.

Cases cited

The following cases are cited in the judgment:

Adolf Sawaer v The State (2013) N5286
Anna Wemay v Kepas Tumdual [1978] PNGLR 173
Koniel Alar and Hosea Biu v The State [1979] PNGLR 300
Public Prosecutor v Barry Holloway [1981] PNGLR 482
The State v John Akoko (2001) N2061
The State v Rudolph Rimbma Clay unreported
William Norris v The State [1979] PNGLR 605

APPEAL

This was an appeal against sentence.

Counsel

G Pipike, for the appellant
J Morog, for the respondent

15th November, 2013 

1. CANNINGS J: Mathew Denguo appeals against the sentence of four months imprisonment imposed on him by the Madang District Court (his Worship Mr J Kaumi presiding) upon his conviction, after trial, of one count of using threatening words by which a breach of the peace was likely to take place contrary to Section 7(b) of the Summary Offences Act. He argues that the sentence is excessive and should be replaced by a fine.

DISTRICT COURT PROCEEDINGS

2. The appellant faced trial on two charges: one laid under Section 59(2) of the Firearms Act (discharging a firearm without lawful excuse) and the other under Section 7(b) of the Summary Offences Act. The charges stemmed from an incident that took place between 12 midnight and 1.30 am on 14 April 2011 at the Budua camp of the Ramu Nico Management (MCC) Company in the Kurumbukari area of Madang Province.

3. The appellant is a member of the Police Force, holding the rank of Inspector. He was staying the night at the mining camp in a room in an accommodation block with the approval of the company, as he was on official business. He took a woman into the room and retired for the night. At a point in time between midnight and 1.30 am another member of the Police Force, Constable Robert Nalai, knocked on the door and relayed a message from the security chief at the camp that in line with company regulations he should remove the woman from his room as this was prohibited and if he did not do so, security guards from the Raibus Security Company would remove her. There were four Raibus security guards standing in close proximity.

4. The District Court found that the appellant's response was twofold. First he used the following words, which were held by the Court to be threatening, by which a breach of the peace was likely to take place:

Yupla ol pipia security nambaut nogut bai mi brukim ol het blong yupela na bai yupela ron long displa traipla mountain igo down.

[You're nothing but useless security guards. I'll break your heads and you will run down this mountain.]

5. Secondly, immediately after using those words he fired a single shot into the air from a Police-issued pump-action shotgun.

6. Most of the facts were uncontentious. The appellant agreed that he used those words and that he had a woman in his room and that he fired the shot. But he raised defences of provocation (he was annoyed that he was given a direction by a junior officer) and self-defence (he felt that he was in danger of being assaulted by the Raibus security guards). Those defences were rejected. The Court found both charges proven beyond reasonable doubt, entered convictions and proceeded after a sentencing hearing to impose two sentences:

•	on the firearm charge, the maximum penalty for which was K1,000.00 (imprisonment is not one of the available penalties) the appellant was fined K500.00; and

•	on the threatening words charge, the maximum penalty for which was a fine of K300.00 or a term of imprisonment of one year, he was sentenced to four months imprisonment.

APPEAL

7. He appeals only against the four-month sentence. He does not appeal against conviction for either charge and does not appeal against the fine for the firearm conviction. He appeals on four grounds:

1	failure to take account of mitigating factors;
2	the circumstances of the offence did not warrant a prison sentence;
3	failure to take account of de facto provocation;
4	failure to take account of the appellant's personal particulars.

8. It was also argued by Mr Pipike for the appellant at the hearing of the appeal that the District Court erred in law as the sentence was manifestly excessive. Though this is not a ground of appeal in the notice of appeal Mr Morog for the State raised no objection to it being heard so I will consider the argument as if it were an additional ground of appeal.

9. Appeals to the National Court against sentences imposed by the District Court are determined in a similar way to appeals to the Supreme Court against sentences imposed by the National Court. The appellant must show that the District Court either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguably) excessive. And there is one additional requirement: it must be established that there has been a substantial miscarriage of justice (William Norris v The State [1979] PNGLR 605, Public Prosecutor v Barry Holloway [1981] PNGLR 482).

10. The first four grounds of appeal are arguments that the District Court made identifiable errors. The additional ground of appeal is an argument that the sentence was obviously excessive. If any of those grounds are upheld it will become necessary to determine whether there was a substantial miscarriage of justice.

1 	FAILURE TO TAKE ACCOUNT OF MITIGATING FACTORS

11. Mr Pipike submitted that the District Court erred in law by failing to give due weight to a number of mitigating factors, particularly those raised in the allocutus (the part of a criminal trial when the person who has been convicted has the right to address the court on the question of sentence), where the appellant said:

I have 12 children and some adopted children. One of my children is in university, one doing grade 11, one in grade 10 and another in grade 9 and the rest are in lower secondary and all are dependent on me. I am a first offender. I have served the Police Department for a very long time and this is my first offence and therefore I ask for a fine. Because of this case I have gone through a lot of hardships and it cost me money to travel to and fro for this case. I was suspended and lost 21 days pay. I ask for leniency and a fine.

12. Mr Pipike submitted that his Worship erred in law by failing to accept the import of that statement, as when he addressed the question of whether the offender and his family had already paid a heavy price for his actions his Worship assessed this as a neutral factor and said that there was no evidence before the court. Mr Pipike submitted that this was a 'grave error'. In support of that submission Mr Pipike cited the following passage from the judgment of the Supreme Court in Koniel Alar and Hosea Biu v The State [1979] PNGLR 300:

For the purpose of imposing sentence and in mitigation thereof ... and where unsworn material only is available it is the duty of the trial judge to act upon the version of the facts which within the bounds of reasonable possibility is most favourable to the accused.

13. There were also other mitigating factors which, Mr Pipike submitted, should have been taken into account: de facto provocation, lack of intention to provoke a breach of the peace, the appellant gave himself up to the Police, he surrendered his firearm, the threatening words were uttered only once in the heat of passion and the appellant went back to sleep. However, those mitigating factors were disregarded, Mr Pipike submitted, as his Worship erred in law by placing undue weight on the fact that the appellant pleaded not guilty, as is apparent from paragraph 26 of his Worship's written judgment:

In the exercise of his constitutional right the defendant chose to put the prosecution to the test by entering a plea of not guilty and so costs and time were incurred by the prosecution to secure a conviction by the calling of witnesses and therefore as a consequence any mitigating factors such as admission and remorse have limited application and as such he loses the advantage of a discount on sentence that the defendant pleading guilty would otherwise be entitled to.

14. Mr Pipike submitted that the above passage reveals that his Worship had an 'erroneous mindset' that because the appellant had pleaded not guilty he had lost his chance of raising any mitigating factors, resulting in his not placing any weight whatsoever on any mitigating factor and overemphasising aggravating factors that had no basis in evidence. This had the effect of making the offence look very serious, when an objective consideration of the circumstances of the offence would have resulted in a conclusion that it was not at all serious. Aggravating factors which Mr Pipike submitted were given undue weight included that the offence involved a deliberate and calculated plan of attack to achieve an unlawful purpose and the appellant had not been a good member of the community as he failed to uphold the rule of law and to have respect for other members of the community. Mr Pipike submitted that ground 1 alone warrants the four-month sentence being quashed and reduced to a fine.

15. I reject all of those submissions. The learned Magistrate was under no obligation to accept what was said by the appellant in allocutus or to give him the benefit of reasonable doubt on what he said about the hardship he faced as a result of the case. Such an obligation would only have arisen if the appellant had pleaded guilty. Mr Pipike misquoted the Supreme Court in Koniel Alar and Hosea Biu v The State [1979] PNGLR 300. The passage he referred to, which he cited in quotation marks in his written submission, does not form part of the judgment of any of the Judges (Prentice CJ, Wilson J, Andrew J) in that case. The passage quoted is based on a head-note to the judgment, which summarises what was decided by one of the Judges only. A head-note does not form part of a judgment and should never be quoted as authority as if it were a statement of dicta of the Court. More seriously Mr Pipike has misstated the passage of the head-note relied on. This is what the head-note actually says:

For the purpose of imposing sentence and in mitigation thereof, after a plea of guilty and where unsworn material only is available it is the duty of the trial judge to act upon the version of the facts which within the bounds of reasonable possibility is most favourable to the accused but the trial judge can reject an explanation if it exceeds the bounds of reasonable possibility provided he gives the accused an opportunity to support his story or have it supported on oath.

16. Mr Pipike's selective quoting of the head-note has entirely twisted its meaning. His Worship made no error in not accepting as mitigating factors the statements of the appellant in allocutus.

17. Contrary to what Mr Pipike suggested, his Worship did not say that because the appellant had pleaded not guilty he lost his chance of raising any mitigating factors. It is a misrepresentation of his Worship's carefully reasoned judgment to suggest that he disregarded all mitigating matters. He expressly took into accounting as mitigating factors that the appellant gave himself up after being detected, that he returned the firearm voluntarily and that this was his first offence. His Worship made no error in making this statement at paragraph 29 of his judgment:

Taking into consideration the defendant's personal background and his family needs, I cannot for obvious reasons accept them as factors in his mitigation or by extension as factors in mitigation of the head sentence because they are a direct result of his actions. We live by the decisions and actions we make in life and this defendant is no exception (The State v Lucas Yovuru (2003) N2366).

18. His Worship properly took into account that because the appellant pleaded not guilty and the matter had gone to trial, the limited admissions that the appellant had made and his remorse were to be given limited weight and he would not get a discount on the sentence that he would have been entitled to if he had pleaded guilty. These are standard sentencing principles that his Worship properly and fairly applied.

19. His Worship did not err by not treating as a mitigating factor the argument about de facto provocation being offered by being woken up in the middle of the night and given a direction by a junior police officer. Provocation was rejected as a defence at the trial so it was hardly going to be a significant issue in sentencing. The only part of his judgment which could conceivably expose an error of fact is where his Worship described the commission of the offence as a deliberate and calculated plan of attack to achieve an unlawful purpose. At first glance this might seem contrary to the evidence, which seems to suggest that it was a spontaneous incident that occurred in the heat of passion. However, on reflection, and reading that passage in the context of the judgment, his Worship was properly regarding the keeping of the woman in the room, contrary to company regulations, as an unlawful purpose, so the appellant's uttering of the abusive words and firing of the shot can be viewed as a deliberate plan of attack.

20. His Worship addressed the other arguably mitigating factors and properly dismissed them as irrelevant or of little significance. I am unconvinced that his Worship made any error of law by disregarding or giving insufficient weight to mitigating factors. Ground 1 of the appeal is dismissed.

2 	CIRCUMSTANCES OF THE OFFENCE DID NOT WARRANT A PRISON SENTENCE

21. Mr Pipike submitted that his Worship erred in law by imposing a prison sentence, rather than a fine, as the threatening words were not serious. The appellant was provoked by being disturbed in his sleep. He was angry. The words were uttered in the heat of the moment. If his Worship had properly researched the law he would have found a number of precedents that would have guided him towards imposing a fine, rather than a prison term, for this sort of offence by a first offender, including:

•	The State v Rudolph Rimbma Clay unreported (referred to in the judgment of Injia J in The State v John Akoko (2001) N2061): a police officer was convicted of unlawful wounding contrary to Section 322 of the Criminal Code for firing a pistol at a security guard who interrupted his drinking and womanising party at Nadzab: the offender was sentenced to a fine, rather than a term of imprisonment.

•	Anna Wemay v Kepas Tumdual [1978] PNGLR 173: four prostitutes who had been convicted of knowingly living on the earnings of prostitution contrary to Section 55(1) of the Summary Offences Act successfully appealed to the National Court against sentences of six months imprisonment imposed by the District Court, the National Court (Wilson J) expressing the view that a fine would normally be appropriate for a first offender for this type of offence: the time they had already spent in custody (two to six weeks) was adjudged sufficient.

•	Adolf Sawaer v The State (2013) N5286: the appellant, a police officer, had his sentences for unlawful assault of four months imprisonment confirmed on appeal.

22. I find that his Worship made no error in deciding to impose a term of imprisonment rather than a fine. Mr Pipike's submission highlights the nature of the threatening words which, if interpreted in isolation, might be able to be regarded as a mild rebuke to those who had annoyed the utterer of the words. But there was a context in which they were uttered. The appellant was an Inspector of Police, a big man in authority, and he was angry and straight after he uttered the words he fired a shot from a shotgun. The firing of the shot and the effect on those in proximity to the appellant were critical matters properly taken into account in determining the seriousness of the circumstances of the incident.

23. It is useful at this juncture to examine in detail the offence for which the appellant was being sentenced. Section 7 of the Summary Offences Act states:

A person who—

(a)	uses threatening, offensive or insulting behaviour; or

(b)	uses threatening, abusive or insulting words; or

(c)	makes threatening, abusive or insulting gestures,

with intent to provoke a breach of the peace or by which a breach of the peace is likely to take place is guilty of an offence.

Penalty: A fine not exceeding K300.00 or imprisonment for a term not exceeding one year.

24. The appellant was convicted of an offence under Section 7(b): using threatening words by which a breach of the peace was likely to take place. So in determining the severity of the offence it is relevant to take into account matters such as:

•	How threatening were the words?
•	How likely was it that the peace (of the mining camp) would be breached?
•	How severe was the breach of the peace?

25. When the firing of the shot is taken into account – and I reiterate it was a critical fact that could not be ignored by the sentencing Magistrate – each of those questions must be answered very strongly in the affirmative. The words were very threatening. It was highly likely that the peace would be breached. The peace was breached extremely severely. It was unsurprising that his Worship decided that a fine would be an insufficient punishment and that the only appropriate penalty was a term of imprisonment.

26. As for the precedents referred to by Mr Pipike they are a loose collection of fascinating cases that are of little or no relevance to the facts of this case. They do not demonstrate any failure on the part of the learned sentencing Magistrate to properly research the law. His Worship made no error in deciding to impose a term of imprisonment. Ground 2 is dismissed.

3 	FAILURE TO TAKE ACCOUNT OF DE FACTO PROVOCATION

27. This issue was addressed in ground 1. Having rejected the defence of provocation at the trial, his Worship properly disregarded it as a mitigating factor in deciding on the sentence. Ground 3 is dismissed.

4 	FAILURE TO TAKE ACCOUNT OF THE APPELLANT'S PERSONAL PARTICULARS

28. Ground 4 of the appeal was expressed in these terms:

The [appellant] is a respectable man in society. He is married with three wives and he has several children. He is currently a Police officer attached with the Police Department in Madang Province. He is an Inspector in the Police Force and looks after the Rural Command of Usino-Bundi District. The Magistrate erred in fact when not taking this into consideration.

29. I have never before encountered a submission that seeks to measure a man's worth according to the number of wives he has. In some parts of Papua New Guinea where customary law is being applied, perhaps in the Village Court, this might in some circumstances be a worthwhile point to make. In many quarters of PNG society, of course, a man who has one wife will be regarded as more respectable than a man who has three. In any event, in the National Court of Justice, sitting in Madang, in 2013, the first part of ground 4 of the appeal posits a curious proposition, which I find unfathomable and worthless. Mr Pipike wisely decided not to pursue the point. He did, however, maintain that the learned Magistrate failed to give due weight to the appellant's good character and background. I reject that submission. His Worship addressed this issue at paragraph 18(ix) of his judgment in these terms:

Has the defendant been a good member of the community in which he lives at Budua? No, the defendant has not been a good member of his community. He has been a policeman for 20 years and was therefore in a better position to appreciate and uphold the rule of law and respect for one another especially in his community at Budua where he is a principal landowner of the mine area. I am sure his clan members, Raibus Security Company and the Mobile Squad 15 stationed there looked upon him as a role model. What he did on that day runs contrary to the respect the community had in him as well as the expectation it had of him. He set a very bad example for other people and more importantly, his clan members.

30. His Worship paid due regard to the appellant's standing in the community. There was no failure to give it due weight. Ground 4 is dismissed.

5 	SENTENCE WAS MANIFESTLY EXCESSIVE

31. An appellant who argues that a sentence is manifestly excessive must demonstrate that even though no identifiable error on the part of the sentencing judge or magistrate can be shown, upon the proven facts and making the fullest allowance for the advantaged position of the trial judge or magistrate, the sentence is obviously – not merely arguably – excessive. The rationale for this way of challenging a sentence was explained by Kearney J in the leading case William Norris v The State [1979] PNGLR 605: although no identifiable error can be shown, if the sentence is out of reasonable proportion to the circumstances of the crime the appellate Court will infer that some error must have occurred in the exercise of the sentencing discretion.

32. I consider that the sentence of four months imprisonment was not excessive, let alone obviously so. Although the appellant had no prior convictions, the circumstances of the offence – discharging a firearm in the middle of the night immediately after the use of threatening words – were extremely serious, warranting a custodial penalty. The sentence imposed was only 33% of the maximum penalty available. It is a fair and appropriate sentence. It is punishment that fits the crime. Ground 5 is dismissed.

WHAT ORDERS SHOULD THE NATIONAL COURT MAKE?

33. As all grounds of appeal are dismissed, the appeal must fail. There was no miscarriage of justice. I will under Section 230(1)(c) (power of National Court on appeal) of the District Courts Act affirm the order appealed from. As it is not clear from the depositions that the period already spent in custody of one month and one week has been taken into account and to avoid doubt as to the period in custody still to be served, all previous warrants of commitment will be revoked and replaced by a new warrant.

ORDER

(1)	The appeal is dismissed.

(2)	The order of the District Court in DCR Nos 545 & 546 of 2011 imposing in respect of conviction for an offence under Section 7(b) of the Summary Offences Act a sentence of four months imprisonment is affirmed, subject to all previous warrants of commitment being revoked and replaced with a new warrant, which shall be issued forthwith by the National Court, which shall show the period in custody served already to be one month and one week and require that the appellant be detained at Beon Correctional Institution.

Judgment accordingly.
_______________________________________
Paul Paraka Lawyers: Lawyers for the Appellant 
Public Prosecutor: Lawyer for the Respondent