Unreported Supreme Court Decisions
SC205
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
S.C. APPEAL NO. 32 OF 1980
ACTING PUBLIC PROSECUTOR
APPELLANT
AGAINST
CLEMENT MAKI AND TOM KASEN
RESPONDENTS
Waigani
Greville Smith Andrew Miles JJ
25 May 1981
7 August 1981
CRIMINAL LAW - State appeal against sentence - s.23 Supreme Court Act - sentence of 12 months with 9 months suspended for breaking entering and stealing - youthful offenders - observations on sentence - Paulus Mandatititip v. The State (1978) P.N.G.L.R. 128 explained - observations on need for uniformity of sentences and the judicial discretion - observations on suspended sentences - S.19 Criminal Code - power to suspend sentence discussed - offence of breaking, entering and stealing discussed - delay in bringing appeal - effect on sentence.
Cases Referred To
Paulus Mandatititip and Anor. v. The State (1978) P.N.G.L.R. 128
Bakiri Pena v. The State Unreported Supreme Court Judgment SC183 of 3rd November 1980
R. v. Daugamani-Adamanika (1965-66) P.N.G.L.R. 80
R. v. Robson & East (1970) Crim. L. R. 354
Alwyn Gruffydd and 2 Ors. (1972) 56 Cr. App. R. 585
R. v. Radich (1954) N.Z.L.R. 86
Paia Lifi v. Phillip Dege Unreported National Court Judgment N291(M) of 21 Feb. 1981
R. v. Price (1978) Qd. R. 68
The Acting Public Prosecutor against Andrew Lalaiva and Angelo Ume Unreported Supreme Court Judgment SC201 of 3 July 1981
Reg. v. Cuthbert 1967 2 N.S.W.R. 329
Acting Public Prosecutor v. Konis Haha Unreported Supreme Court Judgment SC202 of 2 July 1981
Passingan v. Beaton (1971-72) P. & N.G.L.R. 206
Lahey v. Sanderson (1959) Tas S. R. 17
The Queen v. Shueard 4 S.A.S.R. 36
Griffiths v. The Queen 51 A.L.J.R. 749
Veen v. The Queen 53 A.L.J.R. 305
Regina v. O’Keefe (1969) 2 Q.B. 29
Monomb Yamba v. Maits Geru (1975) P.N.G.L.R. 322
Wilkeson, Stephens, Michalov v. Grant (1967-68) P.& N.G.L.R. 112
Order of the Court
Appeal dismissed - sentence appealed against confirmed.
GREVILLE SMITH J:  This is an appeal by the Acting Public Prosecutor, on the ground of inadequacy, against sentences imposed in the National Court upon the respondents, as co-defendants, for breaking and entering in the night time the dwelling house of another and committing a crime therein. The crime consisted of stealing property to the value of approximately K1,300. All the property stolen was, in the event, recovered, the defendants being apprehended on the night of the offence. The breaking was effected by the ripping of an insect wire screen.
The sentence imposed on each defendant was imprisonment with hard labour for twelve months, suspended after three months upon the defendant entering into a bond in the sum of K100 to be of good behaviour for a period of three years. Each defendant had, at the time of sentencing, been in custody awaiting trial for four months, so that the effective actual prison term in each case (in the non-event of any later activation of the suspended part) was seven months.
Neither defendant was a first offender. Each had nine months earlier concluded a term of about three months imprisonment with hard labour imposed by the District Court, in the case of the defendant Clement Maki on a charge of stealing and on a charge of receiving, and in the case of Tom Kasen on a charge of breaking and entering. To my mind it is not relevant that the District Court did not have jurisdiction to deal with the receiving charge or the breaking and entering charge. Counsel for the appellants did not attempt to assert in proceedings before his Honour the sentencing judge, or in these proceedings, that such offences had not been committed, and in my view for the practical purposes of this appeal there are prior “convictions”. Simply, the appellants both had been in this sort of trouble before, and served terms of imprisonment in consequence.
The learned trial judge’s notes on the submissions of counsel made on sentence were as follows (sic):
John Byrne:
The State
The offence is extremely prevalent. It is on the increase. Here in July of 26 cases done 12 were B & E & S (50%). Note from Antecedent Report that neither 1st offence. Maki convicted for (24/11/79) and fined K80.00 in default 2 months for stealing. 6 weeks later on 18/1/80 convicted and fined K80.00 in default 2 months IHL for receiving stolen property.
Kasen not 1st offence.
On 18/11/79 convicted and sentenced to 3 months IHL for B & E & S. May be said that each accused considered amount took or received for B & E very small. Maki admitted to taking 1 white shirt, a laplap and 5 cartons milk. Kasen admitted taking a towel and laplap. Amount taken irrelevant to sentence. Both young men. Remind ct. re S/C in Mandatititip. Young people only receive special treatment if circumstances warrants it. Quotes Wilson J. - spontaneity not here not material need to commit offence. Premeditation & ones committed at spur of moment & group crime here. None of these elements present here. On evidence this was planned offence. Accused observed car not present & this was factor which induce B & E
Bakiri Pena S/C last Monday (Smith, Kapi & Pratt JJ) rejected appeal against sentence & re-affirmed Mandatititip. Position in 1980 re B & E is no different to 1977.
Deterrent aspect important - no “gentil” sentences Accused has no right as such to ask it re mitigating sentence
(Thomas p. 180) Submit on evidence & A/AR there are few mitigating factors.
Wilson (Maki)
In Nope’s case Andrew J. reports principle that sentence not science. Prevalence offence - can’t dispute it. No evidence of increase. They are not first offenders. Sentence discretion of Ct.
(a)      Tariff principle
(b)      Ct. has resp. to weigh up factors 16 years of age - did grade 6 (1974) Both parents alive - lives with them - 2 sisters.
Dropped out - loose end since then. Some work at home. Influence of Catholic Mission. Come from Kiundi (urban drifters area). Has 2 prior offences. In relation to fine, he spent 4 weeks before fine paid. He has been in custody since 19/7/80 (nearly 4 months). Re breaking no reasonable explanation - young irresponsible & engaged in criminal activities. Submit Ct. has difficult decision - has been in trouble in lower Ct. - spent 4 months - with men in trouble. He’s had his chance & must be sent to jail, or societies interest served if he is sent to jail at 16 years and confirmed pattern he has set out in risk here special circumstance. Too old for Boy’s Town. Submit reasonable approach would be that he split time & then released on long recognizance. Give him a final opportunity. He is 16 years old. Submit there must always be leniency. Goods have been recovered (instructions).
Ms Cox (Kasen)
Similar to the Maki. Took a towel & a shirt. A/R re Kasen. He is 16 years. Similar trouble before (in Dist.Ct.). He has been influenced by people - was “greased” by others. Submit not leader or mindless follower. A directionist without ambition. Limited education - Grade 1. Away from village far from Wewak. Taken out of village environment and his role in village not available in town. Now part of urban unemployment. Father Bomer says he’s good person - liable to be influenced by strong personality. Traditional forms of control absent in town. He is eldest male child. If sent to boys town, might have help. Too old now for Boy’s Town.
Boy’s Town.
If jailed repercussions - custodial sentence be destructive - should be dealt with in non-custodial way - 3 years good behaviour would be appropriate.
Mandatititip case - submit deterrent sentence in Western countries here not work. Defendant feels an outsider - in his traditional society. If jailed, alienation will ...
Factors
(1)      Age (16)
(2)      Tried to obtain work no success
(3)      Limited opportunity outside labour force
(4)      No social security
(5)      Has been influenced and led into trouble
(6)      Pleaded guilty
(7)      In custody for 4 months
(8)      Constructive application of law should be applied.”
It appears from the depositions, which were before his Honour the learned sentencing judge, that the two defendants together with four or more other youths, had been to the “Garamut” Theatre in Wewak, were returning home, saw that the motor car of the occupant of the dwelling house was not in the yard, inferred, rightly, from this that he was absent from the house, decided to break in, and did so. It also appeared that at the committal proceedings the two defendants, who were unrepresented, displayed a certain amount of hardihood. Each elected to make a statement on oath in which he sought to counter certain admissions to the police by making allegations of what is usually referred to as police brutality. Clement Maki said as follows:
“Police took us for nothing, they forced us to admit the charge. They fought us and forced us to say yes. They belt us with belt for sometimes and we were frighten so we said yes, But we didn’t do anything.”
Tom Kasen said as follows:
“We came to buy betelnut and police got us. At station when asked about the Break and Enter case, we said no. One Manus police slapped me. He bumped me on a edge of a timber Police forced us to say yes, but said No. So they kept fighting us until we were frighten so we said yes. We didnt Break the house. Kept saying No to all questions relating to the Break Enter and Stealing.”
Tom Kasen receded from those allegations under cross examination. Clement Maki did not. Counsel for the appellants instanced those allegations as evidence of the deleterious effect of imprisoning young persons with older prisoners. However that may be, these two persons were already possessed of the traits so exhibited when dealt with by the learned sentencing judge which, amongst other things, did not leave much room for treating their pleas of guilty before the National Court as evidence of remorse. No doubt they were evidence of the good judgment of defence counsel.
The learned sentencing judge took overnight to consider. In determining the sentence he should impose, his Honour referred, ‘inter alia’, to two cases in this court, each dealt with before a court of three judges, as this court is, namely the cases of Paulus Mandatititip and Anor. v. The State[lxxxix]1 and Bakiri Pena v. The State[xc]2. Obviously a factor which weighed very heavily with his Honour was the youth of the two defendants, each aged sixteen years, his Honour said as follows:
“If a court deems it necessary to imprison youths, they must be treated differently and kept separate from mature adults lest they become pupils to adult offenders. In Papua New Guinea however, prisons are not constructed in such a way that separation can be meaningfully applied. I have seen some of these prisons myself. Should we then send young people to jail simply because they have committed a prevalent offence and therefore must receive the wrath of the public as well as the courts? Young people are in the main not too sophisticated in the ways of adults. They are easily led astray. Not too many are hardened criminals or have set on a determined path of life of crime. Where the Courts are able, they have the responsibility to ensure that young people do not offend again. One way to do this is not to incarcerate them but to give them a chance to mend their ways and become responsible citizens. Of course when it becomes apparent that a young man or woman will not mend his or her ways no matter how many chances he or she is given, then incarceration may be the only answer.
The Parliament has given each Judge a discretion in sentencing offenders. This is obvious in sections 18 and 19 of the Code and the maximum penalties set down for each offence in the Code and in other legislations providing for penalties. Whilst therefore, mindful of the Supreme Court’s decisions mentioned above, I also bear in mind that as a Judge I have a discretion to exercise in relation to each offender who comes before me. I also remind myself of what was said 13 years ago in the case of Wilkeson, Stephens & Michalov v. Grant (1967-68) P.N.G.L.R. 112 at 117 & 118:
‘The Court may, in sentencing, take into account the prevalence of the offence for which the accused is being punished, and impose a sentence which might act as a deterrent to those who commit that class of crime. That is a proper consideration so long as it does not result in a convicted man being made the scapegoat of other people who have committed similar crimes but have not been caught and convicted.”
This still applies today. I know of no Supreme Court case, which has commented on this with disapproval.
I shall now refer to the cases of Paulus Mandatititip and Anor (supra) and Bakiri Pena (supra) of which, as aforesaid, his Honour made mention. In the case of Paulus Mandatititip where the sentence of his Honour the judge at first instance was unanimously upheld, the facts and the appellate court’s reasoning are apparent from the following excerpts from the joint judgment of Prentice, C.J. and Pritchard, J. (at pp. 129 and 130):
“The two appellants are young men. Paulus who was sentenced to 16 months’ imprisonment (effective 19 months), locked to the trial judge to be 16 or 17. The police estimated his age at 19.
Poro, who was sentenced to 20 months’ imprisonment (effective 23 months), his Honour as well as the Police, took to be 22 years old. Their crime was that of breaking, entering and stealing from a trade store in September 1977 in the Wapenamanda area, for which the maximum statutory penalty is 14 years’ imprisonment with hard labour.
His Honour’s adjudication is attacked as being excessive having regard to the appellants’ ages and lack of prior convictions, the comparatively small value of the goods stolen, the surrounding circumstances, sentences in other cases, and the lack of evidence of prevalence of this offence in the particular area - the Enga Province.”
...
“We should say at once that the sentences in this case do not immediately strike us as being excessive. As his Honour stated, this was a bad case involving pre-planning, co-operation of a number of people and a determined effort. The break was made into a store which had been broken into on previous occasions. It resulted in the almost complete stripping of the stock of the store, which is in a district which had been notoriously lawless aver a considerable period beforehand. There was no indication on the part of the appellants that they were remorseful. The trial judge, a most experienced member of the National Court, considered the case called for a deterrent sentence; we are not prepared to disagree with him. The crime of breaking and entering for which severe penalties are prescribed by Parliament, was then, and seems to be still, on the increase throughout the country. As is well known, such offences are completely anathema in village society without interposition of the introduced law. We agree with the remarks of Herron C.J. in relation to another society (Reg. v. Cuthbert) when he said “a plea of youth is no longer a satisfactory answer to crime” as being applicable today in Papua New Guinea. There appears to us to be no exceptional circumstances which call for leniency. As had been frequently announced and published over a long period, the policy of the courts (as indeed seemed to be demanded by public opinion as far as the courts can gauge it) were to increase sharply, and as might continue to be necessary, the severity of punishment for such offences.”
In the case of Bakiri Pena (SC183) the sentence appealed against was a sentence off imprisonment with hard labour for fourteen months imposed upon a youth aged about seventeen for breaking and entering business premises and stealing property to the value of K800. The accused was in company with others. None of the property had been recovered. The accused had been four and a half months in custody and so the sentence imposed was effectively one of eighteen and one half months. In the judgment of the court upholding the sentence imposed the following passage occurs:
“Breaking and entering offences of all kinds are grave crimes, very prevalent, and increasing in incidence. From breaking and entering business premises it is only a small step to breaking and entering private homes. This Court would repeat and confirm the statement of Prentice C.J. and Pritchard J., in Paulus Mandatititip and Anor v. The State that “youth is no longer a satisfactory answer to crime”, at least so far as the crime of breaking and entering is concerned.
Learned Counsel for the Appellant made some submissions in respect of the “tariff” for breaking and entering offences in this country. We would point out that insofar as the “tariff” approach may be appropriate, the so-called “tariff” has been built up largely upon sentences imposed upon youthful first offenders, who often plead guilty, many of whom make claims to have been misled by companions and to having received only a small part of the total proceeds, so that the “tariff” tends to contain inbuilt discounts for all or most of such factors. Very frequently also, the offender dealt with is the only one of several offenders apprehended, though the identities of the others are not infrequently known.
We draw attention to the fact that the maximum penalty for this type of offence is imprisonment with hard labour for fourteen years. We do not think that the sentence appealed against was manifestly excessive. Indeed having regard to current lawlessness in and around Mount Hagen we think it may not inappropriately have been somewhat higher. We refuse leave to appeal and confirm the sentence imposed by the learned trial judge.”
None of the four judges concerned in Mandatititip was concerned in Bakiri Pena, and thus the weight of those authorities is increased by the wide spectrum of views involved. In my view such authorities should not be derogated from at this time, either by express disagreement or by countenancing or encouraging departures from the sentencing principles or criteria there laid down, by a court of the numerical composition of this court. Fluctuations of such a kind would certainly not promote respect for the law or the courts, and should not occur.
As evidenced hereinbefore, the accused in the latter case was “about seventeen years” and one of the accused in Mandatititip, though the police estimated his age to be nineteen years “looked to the trial judge to be sixteen or seventeen”. I have no doubt that for the purposes of sentencing the judge at first instance and also the appellate court in Mandatititip did as it would have been right for them to do, and gave that accused the benefit of any doubt, and treated him as “sixteen or seventeen”.
So here we have two recent cases of breaking and entering, one involving a youth aged, for purposes of sentencing, sixteen or seventeen, and one involving a youth aged “about seventeen”, both first offenders, in which effective sentences of, respectively, imprisonment with hard labour for nineteen months, and eighteen and one half months, were held on appeal not to be manifestly excessive. I see nothing nor did his Honour the sentencing judge suggest that there was anything to substantially distinguish the facts with which Bakiri Pena was concerned from the case which is the subject matter of this appeal so far as concerns matters relevant to penalty which would make in favour of the appellants. Rather the contrary. And some of the more serious features of Mandatititip are balanced by equally aggravating features in this case. The maximum penalty imposable so far as concerned the offenders in Mandatititip and Bakiri Pena was imprisonment with hard labour for fourteen years. In the case of the two appellants here concerned, by virtue of the circumstance of aggravation that the offence was committed in the night, the maximum penalty is imprisonment with hard labour for life. Such a circumstance of aggravation is appropriate in breaking and entering offences involving dwelling houses (it does not apply in respect of other breaking and enterings) for the reason indicated by Mann C.J. in Daugamani-Adamanika[xci]3 in the following terms:
“It seems to me that the crime of burglary was developed as a premium offence carrying much heavier penalties than the larceny which is generally involved, because of the extremely dangerous situation created by intruders found in dwelling-houses at night time.”
In addition, neither of the appellants is a first offender. Both in Mandatititip and Bakiri Pena the offenders were first offenders.
It seems to me reasonable, in applying the measure furnished by Mandatititip and Bakiri Pena to the sentences now under consideration, that an adjustment appropriate to the proportion between a maximum of fourteen years, and a maximum of life imprisonment should, in a broad way, be applied.
Having regard to the sentences in Mandatititip and Bakiri Pena, are effective sentences of actual imprisonment with hard labour for seven months in the present case (forgetting for the moment the suspended part of the sentences) manifestly inadequate? I am of opinion that they must be seen as such, and this in no way offends against my own intuitive reaction. The judicial discretion in the matter of sentencing cannot be as elastic as his Honour the learned judge at first instance obviously took it to be. There can be no justice and no appearance of justice in such a disparity. Those contemplating committing such offences, and the public, should not be led to think that the penalty will, for example, be actual imprisonment for eighteen months or for seven months depending, like a lucky dip, on the judge the offender draws. There should be consistency in the application of the law, in sentencing as elsewhere. An American judge wrote (Judge Wyzanski, U.S. District Court[xcii]4):
“If in the district in which a judge sits his fellow judges have established, and insist on following, a pattern for dealing with offenders of a particular type, it is his responsibility to get them to change or to come close to their standard.”
I agree. See also R. v. Robson & East[xciii]5.
Does the suspended part of the sentence make a difference? To my mind not significantly. Unless either of the defendants breaks the law again, this is discovered, and in addition he is apprehended and convicted, his sentence will have been effectively seven months, in the vital or substantive sense of the period of imprisonment he will serve. It is, mainly, breaking and entering offences with which the imposition of the penalties in this case were concerned, not some other breach of the law or the peace, and if either of the accused persons does offend in the same way again and is caught (the odds, as is well known, being much against the latter) he will be dealt with as a person who has a record and will, one would expect, be dealt with severely for that latest offence. Having been so dealt with I think it extremely unlikely that the offender would, on top of that, be visited with having to serve the whole or part of the suspended sentence. Of course his youth will once again be pleaded in his aid. Or if the sentencing court feels that, as a gesture, it should have him serve a part or the whole of the suspended sentence, then the sentence for the current offence will in the highest probability, be abridged correspondingly. It is therefore reasonably certain that the suspended part of the sentence will never be activated under any circumstances, rendering it in effect largely a sham.
As to appearance, in its bearing on the general deterrent effect of the sentence, most of the people against whom such deterrence is aimed will have the impression that the penalty imposed was the total period served, namely seven months. As to the personal deterrent aspect, if the accused persons did ever really understand the intended significance of the suspension (apart from its shortening of the actual time to be served) such appreciation will in my view have faded virtually to oblivion in a matter of six months at the outside.
In short, to my mind, in the case of grave offences, more especially in cases where the offenders are not first offenders, and having regard to time, place, and other attendant circumstances such as here relevant, the suspended sentence, or part suspended sentence, after a short term of actual imprisonment, is a snare and a delusion, tending to give a superficial impression without the reality of an adequate penalty. It should be observed that in the case of the two appellants there was no evidence of any factor such as interest or control, family or church or institutional, which might have given some degree of efficacy to the suspended part of the sentence. The courts must deal with realities in discharging their duty to protect the community.
I cannot help but feel in this case, to the point of conviction, that his Honour the learned sentencing judge, confronted with the spectacle of these two young persons in the dock, allowed his natural compassion to obscure in his mind for the time being certain aspects of the matter of higher importance. All judges in this jurisdiction face, from time to time, these and like situations, as do judges elsewhere. In Alwyn Gruffydd and 2 Ors.[xciv]6 Lord Justice Edmund Davies, in delivering the judgment of the English Court of Appeal (Criminal Jurisdiction) when dealing with appeals against sentence by young persons said, in that context:
“Bail inevitably raises hopes, and to wreck them by ordering a return to custody is a painful duty for any judge. Nevertheless, there are times when such a duty is unavoidable.”
In the case of the appellants the sentencing judge certainly was mindful of the prevalence of the type of offence being dealt with. His Honour refers to this twice, but otherwise his Honour dwells upon the youth of the respondents. It seems to me that his Honour lost sight, to a substantial extent, of the gravity of the offence, that it was committed in the night time, that the offence was of a kind that involved the dangers referred to in Daugamani-Adamanika, that the maximum penalty was one of life imprisonment, that the offence was of a kind that strikes at members of the community in an extremely sensitive area, namely in their homes, that most such offences are committed by youthful offenders, and that the first duty of the court is to protect the community. His Honour, as appears from his judgment on sentence set out hereinbefore did not mention any of these things, but he did say two things which to my mind indicate conclusively that they were matters not present in due measure to his Honour’s mind. The ensuing underlining is mine. His Honour rhetorically asked “should we then send young people to jail just because they have committed a prevalent offence ...? With respect to his Honour it is not “just because” the accused persons have committed a prevalent offence that, in my view, they should be sent to gaol for a long time, but because of this and all the other features of the offence that I have just mentioned, not to mention the authoritative and binding criteria laid down in Mandatititip and Bakiri Pena. His Honour also said, “of course when it becomes apparent that a young man or woman will not mend his or her ways no matter how many chances he or she is given then incarceration may be the only answer”. I am confident that, being cognizant of the prevalence of such offences, had his Honour adequately reflected on the shock, anger, and abiding apprehension experienced by the many citizens who become victims of this sort of offence at the intrusion upon their innermost privacy, and the despoliation and deprivation of their personal effects and, often, the danger to their persons that occurs, his Honour would not have spoken in terms suggesting that the perpetrators of such crimes should, merely because they are youthful, be given repeated chances.
In an address to the Cambridge Law Society delivered in 1959 and emminent English judge Salmon J. said as follows[xcv]7:
“Nothing is more effective to stamp out crime than a long term of imprisonment. That may sound harsh, but we have to remember the twelve thousand or so of ordinary people who last year were the victims of crimes of violence. They, and their like, must be protected. And in these circumstances it does not wring my withers at all to be told how awful it is that a comparatively young man should be shut up for a long time.”
In my view those sentiments are eminently appropriate at the present time in this jurisdiction ‘mutatis mutandis’ to breaking and entering offences.
I think it is appropriate in this case to refer to the New Zealand case of Radich[xcvi]8 decided in the Court of Appeal, which is regarded as a classic statement on the principles of sentencing. Its terms, for instance, over the years, have been referred to with approval on at least ten occasions by the Supreme Court of New South Wales sitting as Court of Criminal Appeal. In that case, in respect of the sentence being appealed against, it was put to the Court ‘inter alia’ that:
“having regard to his character, so long a sentence was unnecessary to deter the prisoner from a repetition of an unpremeditated offence of this kind, or for reformative purposes, and that the factor of retributive punishment to meet the strong public feeling as to such offences should not be considered as an element justifying a heavier sentence.”
In the judgment of the Court, delivered by Fair J., the Court said as follows:
“We should say at once that this last argument omits one of the main purposes of punishment, which is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilized countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crime should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment.
If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine the appropriate amount of punishment.” (underlining mine)
As to the first duty of the courts being the protection of the community see also Halsbury’s Laws of England, Vol.II, p. 288, para 482, last sentence, and Smith and Hogan Criminal Law, 4th Edit. at p. 12.
In Paia Lifi v. Phillip Dege[xcvii]9 Pratt J. referred to two recent decisions of the Queensland Court of Criminal Appeal. One of them was R. v. Price[xcviii]10 in which Wanstall C.J. with whom Matthews and Kelly JJ. agreed, said as follows:
“In R. v. Casey; R. v. Smyth (1977) Qd. R. 132, the Court of Criminal Appeal said at p. 133:
“It is necessary however to draw attention to the attitude of the legislature in recent years in regard to the punishment of offenders. That may be evidenced by referring to the offenders’ Probation and Parole Act 1959-1974, the Weekend Detention Act 1970 and The Criminal Code and Justices Acts Amendment Act 1975 whereby s. 657A was inserted in the Criminal Code. We refer particularly to s.8 of the Offenders’ Probation and Parole Act and to the fact that if a probation order is breached the offender may be sent to prison. Undoubtedly there is a distinct emphasis on the rehabilitation of offenders, if at all possible. The above statement, of course, must be taken in its context, and as not applicable in the main to the more serious type of crime.”
“I add that the Court of Criminal Appeal, of which I was a member, went on to quote a passage from a judgment of Walters J. of the South Australian Supreme Court in Coles v. Samuels (1972) 2 S.A.S.R. 488 at p. 492 to this effect:
“In the absence of circumstances of substantial gravity surrounding a simple offence or a minor indictable offence committed by a first offender who stands to be punished for a single offence and who has no other offences to be taken into consideration, and in the absence also of a sufficient reason for sentencing him to a term of imprisonment, I am disposed to think that a reformative or a primarily deterrent sentence is scarcely indicated, and that the imposition of a fine, a release on probation, or a discharge on a suspended sentence should prima facie be adequate.”
Referring with approval to the decisions in those two cases, Pratt J. said:
“The thrust of these and other authorities establishes in my view that where a youthful first offender is before the courts on a relatively minor charge, there must be quite compelling reasons in existence to warrant the imposition of a prison sentence.” (underlining mine)
The foregoing indicate, as do Mandatititip and Bakiri Pena, that limitations must be placed upon concessions to youth in the case of more serious crime. The more serious the offence, the greater or more numerous the aggravating circumstances, the less compatible tender treatment of youthful offenders becomes with the prime duty of the courts to protect the public by imposing penalties which are both deterrent and denunciatory. Light penalties for grave offences tend to trivialize such offences, and to trivialize them is of course to encourage them.
In my opinion an appropriate sentence in the case of each respondent would have been a sentence of, simply, imprisonment with hard labour for twelve months. I reach this conclusion by giving the utmost weight that I feel able, in the light of all other relevant circumstances, to the inclinations towards leniency of the learned sentencing judge who, after all, had the not insubstantial advantage of forming a direct impression of the accused persons at the time of sentence, and to the fact that when they decided to enter the dwelling house the respondents did believe the occupants to be absent, as in fact they were. This to me seems a mitigating factor. It follows that in my respectful opinion the penalties imposed on the appellants are so inadequate that they should be increased by this Court.
At this point another question arises. It has been five months since the respondents served the unsuspended portions of their sentences and were released. Counsel for the respondents submits that the court should not, in these circumstances, cause them to be returned to prison. A somewhat comparable submission was made in the recent case of The Acting Public Prosecutor against Andrew Lalaiva and Angelo Ume[xcix]11. In that appeal where, on the facts, the submission could not be put with such force as in this case, because there the respondents were not at liberty, but were close to release after having served most of the sentences appealed against without notice of the appeal, I said as follows: -
“My view upon this submission is that once the appellate court has come to the conclusion that a sentence appealed against is substantially insufficient, particularly in the case of a serious offence, and it would not be contemplating increasing such a sentence if it had not arrived at such a conclusion, a submission such as the one presently under consideration should not succeed unless, perhaps, in most exceptional circumstances, which I do not see in this case.
Counsel for the appellant did not refer the court to any authority in support of his submission, nor did Counsel for the State, but several English authorities have come to my notice which deal with the analogous situation of the question whether persons who have been on bail pending appeal should be returned to custody. One such is R. v. Lancastle (1978) Crim. L.R. at p. 367. The following is the relevant excerpt from the report as to the remarks of the appellate court.
“The sentence had been proper when passed and nothing had occurred since to alter the position. It was to be regretted that L had been granted bail pending her appeal. It would have been preferable had she remained in custody and the hearing of the appeal been expedited. Granting bail often made people believe erroneously that they would not in the end be returned to prison. That was an unfortunate circumstance in this case but the court had to have regard to realities and could not be influenced by the fact that pending the hearing of the appeal L had been at liberty. Appeal dismissed.”
In the commentary to that report reference is made to the decision of the English Court of Appeal (Criminal Division) in Gruffydd (1972) 56 C.A.R. 585 at 589 with the interpretation that the fact that an appellant against sentence has been on bail pending the determination of an appeal is not a relevant consideration for the court in deciding whether or not to uphold the sentence. I agree with such interpretation. Reference is also made to an English case McElhinney, not reported, decided in 1970, where the appellant had been on bail for eleven months pending appeal against a sentence of twelve months and yet the sentence was upheld.
I agree with the tenor of the reasoning apparent in these cases, and I think in principle it is applicable to this case. I am thus fortified in the view I have expressed that Mr. Wilson’s submissions should not prevail.”
I think that what I said in that case applies to this case also, in fact ‘a fortiori’ in the absence of any other relevant factor or factors, of which in my view none has been shown. Such a relevant factor might be constituted, for instance, depending upon all the circumstances of the case, by a responsible person or authority having undertaken the rehabilitation of the appellant and such rehabilitation having proceeded with substantial promise of success, or of a hitherto unemployed offender obtaining and becoming established in permanent employment and, say, forsaking bad companions, or of an urban offender returning to and being accepted into his village community with the intention of remaining there. In such a case an appellate court might consider, where the offence is of a less serious variety, that the balance of advantage to the community as well as to the accused had shifted away from emphasis on exacting a full measure of retribution, denunciation or deterrence, towards allowing such rehabilitation to continue without interruption.
Turning to another matter, I think it desirable to make reference, for the guidance of counsel in future, to a submission made by counsel for the respondent Kasen in her address upon sentence to his Honour the learned sentencing judge. I refer to his Honour’s note to this effect, namely:
“Mandatititip Case - submit deterrent sentence in Western countries here not work.”
It appears that counsel submitted, in respect of Mandatititip, that the deterrent sentence was a “western” device which will not “work” in Papua New Guinea. No basis for this strange proposition appears to have been suggested. This was in effect an invitation to his Honour to disregard Mandatititip, with its emphasis upon deterrence.
Mandatititip is of course, until overruled or modified in the Supreme Court, authority binding upon the National Court, and it is wrong for counsel to proceed as counsel did in this case. Counsel has a duty not to mislead the court and to be careful not to do so.
In this case, for the reasons indicated hereinbefore, I would allow the appeal, set aside the sentences appealed against, and in substitution therefore impose in each case a sentence of imprisonment with hard labour for one year.
ANDREW J:  The Acting Public Prosecutor appeals against the inadequacy of sentences imposed by the National Court upon each respondent in respect of their convictions on 6th November 1980 of an offence of breaking, entering and stealing from a dwelling house. The respondents were sentenced to terms of imprisonment with hard labour for 12 months to be suspended after three months upon entering into a recognisance in the sum of K100 to keep the peace and be of good behaviour for a period of three years.
The respondents were said to have been aged 16. They, with others, broke into a house in Wewak in the night time stealing a cassette player, a quantity of linen and clothing. They pleaded guilty to the charge. They both had prior convictions. The respondent Clement Maki had been convicted by the District Court in Wewak in 1979 on a charge of stealing and fined K80, and in default a term of imprisonment of two months with hard labour. In January 1980 he was convicted of being in possession of stolen property, also by the District Court, and he was again fined K80 and in default to be imprisoned with hard labour for two months. The respondent Tom Kasen was convicted for breaking, entering and stealing in November 1979 when he received a sentence of imprisonment of three months with hard labour.
It has not been said that the learned trial judge fell into any error of principle, nor any error in the understanding of the facts. The State sought to demonstrate an error of the relevant kind by submitting that the sentences imposed were manifestly inadequate in comparison with the range of sentences said to be appropriate to the offence and the circumstances of each offender. It was submitted that too much emphasis was placed on the youth of the offenders and insufficient consideration given to their history of previous criminal convictions. The State also relied upon the Supreme Court decision in Paulus Mandatititip and Anor. v. The State (supra)[c]12. In my view this decision gives rise to some difficulty to which reference is made below, and as it is referred to by the trial judge in his judgment on sentence, I think it is important that his findings be set out. He said:
“The prisoners broke and entered the dwelling house of one Vandmuller and stole one stereo cassette player, 20 cassettes, quantity of linen, pillow cases, bath towels, tea towels, shirts, jeans, trousers, socks and a jersey.
The offence was committed at night time. It carries a maximum penalty of life imprisonment.
This offence was committed by a group of which these young men were a part. It is not shown that the group was what is termed sometimes as a ‘rascal gang’.
Both young men are 16 years old and they look very young to me. The State addressed on sentence and submitted that the offence these two young persons committed is a prevalent one and their youth should not attract lenience of the Court in sentence. Paulus Mandatitip & Another v. The State (1978) P.N.G.L.R. 128 was cited in support. In that case the Supreme Court said at p. 130:
“The crime of breaking and entering for which such severe penalties are described by Parliament was then and seems to be still, on the increase throughout the country. As is well known, such offences are completely anathema in village societies without interposition of the introduced law. We agree with the remarks of Herron C.J. in relation to another society (Reg. v. Cuthbert) when he said ‘a plea of youth is no longer a satisfactory answer to crime’ as being applicable today in Papua New Guinea. There appears to us to be no exceptional circumstances which calls for leniency. As has been frequently announced and published over a long period, the policies of the courts (as indeed seemed to be demanded by public opinion as far as the courts can gauge it) were to increase sharply, and as might continue to be necessary, the severity of punishment for such offences”.
This view has been confirmed by the Supreme Court in a decision handed down last Monday (Bakari Pena v. The State Unreported Judgment SC 183 of 1980.)
In Mandatititip the appeals were against a sentence of 16 months on a 19 year old youth and one of 20 months imprisonment on a young man 22 years old. In Bakari Pena the appeal was against sentence of 14 months imprisonment on a 17 year old youth.
I find it difficult to accept that the young age of an offender cannot be a mitigating factor on sentence. Section 37(19) of the Constitution reads as follows:
“Persons under voting age who are in connexion with an offence or alleged offence shall be separated from other persons in custody and be accorded treatment appropriate to their age.”
Now it seems to me that the framers of the constitution recognised that young people incarcerated should not be put in same prison cells or part of a prison as adults they must be treated differently from adults. The reasons are obvious. If a court deems it necessary to imprison youths, they must be treated differently and kept seperate from mature adults lest they become pupils to adult offenders. In Papua New Guinea however, prisons are not constructed in such a way that separation can be meaningfully applied. I have seen some of these prisons myself. Should we then send young people to jail simply because they have committed a prevalent offence and therefore must receive the wrath of the public as well as the courts? Young people are in the main not too sophisticated in the ways of adults. They are easily led astray. Not too many are hardened criminals or have set on a determined path of life of crime. Where the courts are able, they have the responsibility to ensure that young people do not offend again. One way to do this is not to incarcerate them but to give them a chance to mend their ways and become responsible citizens. Of course when it becomes apparent that a young man or woman will not mend his or her ways no matter how many chances he or she is given, then incarceration may be the only answer.
The Parliament has given each Judge a discretion in sentencing offenders. This is obvious in sections 18 and 19 of the Code and the maximum penalties set down for each offence in the Code and in other legislations providing for penalties. Whilst therefore, mindful of the Supreme Court’s decisions mentioned above, I also bear in mind that as a Judge I have a discretion to exercise in relation to each offender who comes before me. I also remind myself of what was said 13 years ago in the case of Wilkeson, Stephens & Michaloc v. Grant (1967-68) P.N.G.L.R. 112 at 117 & 118:
“The Court may, in sentencing, take into account the prevalence of the offence for which the accused is being punished, and impose a sentence which might act as a deterrent to those who commit that class of crime. That is a proper consideration so long as it does not result in a convicted manbeing made the scapegoat of other people who have committed similar crimes but have not been caught and convicted”.
This still applies today. I know of no Supreme Court case, which has commented on this with disapproval.
It is a difficult task Courts face when sentencing young offenders. A Judge or a Magistrate must balance the interest of the State in seeing that law breakers are punished and the interest of the offender in seeing that his case is dealt with justly.
The difficulty as I see it which has arisen from Paulus Mandatititip and Anor. v. The State (supra)[ci]13 is that the court there placed much reliance upon a statement attributed to Herron C.J. in Reg. v. Cuthbert[cii]14 that a “plea of youth is no longer a satisfactory answer to crime”. But an examination of Cuthbert’s case (supra)[ciii]15 shows firstly an exceptional set of facts and, secondly, Herron C.J. has been misquoted. The facts in Cuthbert (supra)[civ]16 were that the accused and others had gone out with the intention to “go after long hairs and pick fights”. They attacked a youth and knocked him to the ground whereupon most of the attackers ran away. The accused returned and jumped on the head of the fallen youth and then kicked him violently in the head, as a result of which he died. The accused was convicted of manslaughter. Herron C.J., with whom the other members of the court agreed, said:
“I have given due consideration to the emotional elements and instability of judgment in youth. But the respondent will be eighteen in October and in this day and age young men of that age have taken on responsibilities and claim to be treated for many purposes as adults, and a plea of youth is no longer entirely a satisfactory answer to crime”.
Given the very exceptional facts of Cuthbert’s case (supra)[cv]17 it is unfortunate that the word “entirely” was omitted when that passage was cited in Paulus Mandatititip (supra)[cvi]18. Clearly it gives a very different meaning and cannot be a licence for the statement that “youth is no longer a satisfactory answer to crime”. I would adhere to what was said in Acting Public Prosecutor v. Konis Haha[cvii]19 that this court would only depart from the earlier judgment with the greatest reluctance but may do so where the present Supreme Court has come to a view that the earlier interpretation was misconceived or that it is inappropriate to the circumstances of the country. In my view the statement that “a plea of youth is no longer a satisfactory answer to crime” is misconceived and is inappropriate to the circumstances of the country. That, however, is not to say that the corollary is true. There could hardly be any plea that was a satisfactory answer to crime. But youth has always been one of the most effective mitigating factors especially in the case of the first offender: See, for example, Passingan v. Beaton[cviii]20.
I would adopt the views of Pratt J. in Paia Lifi v. Phillip Dege[cix]21 where his Honour cited with approval the following passage in Lahey v. Sanderson[cx]22:
“The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia, and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility. With that I respectfully agree.”
However I would agree that other considerations must also play their part such as in a more serious type of crime or where a particular offence has become especially prevalent and experience has shown that it is invariably committed by youthful offenders. In such cases a plea of youth may itself be mitigated by such factors and I think that this is what the court in Paulus Mandatititip (supra)[cxi]23 was saying. I think it is a misconception to cite that case as a general authority for the proposition that youth is no longer a mitigating factor which is an extension derived from the misconception in that case of what was said by Herron C.J. in Cuthbert (supra)[cxii]24.
In my view the learned trial judge was correct in the approach which he took. He recognised the importance of the plea of youth and the importance which the Constitution places upon youth. It is true that the offence of breaking, entering and stealing is a prevalent one and it is a fact of life that it is invariably committed by youthful offenders. But in weighing those considerations I do not think the sentence which he reached was so inadequate that this court should interfere.
It was said that the sentence was one of three months only. This is not completely accurate because the sentence was one of 12 months, nine months of which was to be suspended upon entering into a recognisance in the sum of K100 to keep the peace and be of good behaviour for a period of three years. The head sentence is three months (to which may, in effect, be added another four, as they were both in custody awaiting trial for that period) but it is the whole sentence which is now under review and the review by an appellate court of a sentencing judge’s discretion to suspend sentence involves the same principles as a review of the judicial discretion to impose the head sentence itself: See The Queen v. Shueard[cxiii]25. If the sentence as a whole is seen to be so disproportionate to the sentence which the circumstances require then the appellate court should intervene.
The respondents have served a period of seven months in prison. They were said to be 16 years of age and appeared to the trial judge to be very young. The balance of the sentence was only suspended upon entering into a recognisance for three years. In my view that is a substantial sentence as well as giving a proper consideration to their rehabilitation. Should they offend again within that period they may be ordered to serve any remaining period of the nine months which was suspended.
It is true that both respondents had prior convictions for similar offences. But this sentence is a considerable increase on that which they received before from the District Court. I am not persuaded that the sentences are inadequate and I would dismiss the appeal.
There are, in my view, two further reasons why this appeal should not be allowed. It appears that both respondents were under the age of 16 when they first appeared before the District Court at Wewak, yet they were not dealt with as children as required by the Child Welfare Act, 1961 and it appears that they served a period in custody. They were not given the protection of the law nor given the chance which a first offender of that age and in those circumstances could reasonably have expected. Secondly, there has been a long delay in bringing this appeal to determination. The respondents have served their terms of imprisonment and have been released. Delay both in the lodging and hearing of the appeal must always be a relevant factor. See R. v. Liekefett, ex parte Attorney-General[cxiv]26. In the circumstances of this case, especially considering the youth of the respondents, I would think it would not be just that they should now be re-arrested and returned to prison for some further period.
I would dismiss the appeal.
MILES J:  The State appeals against a decision of His Honour the Chief Justice in which he sentenced the two respondents for an offence of housebreaking. The precise decision was that each respondent be sentenced to twelve months imprisonment with hard labour and that he be imprisoned for a three months portion of that term and further that the execution of the sentence for the remaining nine months of that term be suspended upon his entering into a recognizance in the sum of K100.00 to keep the peace and be of good behaviour for a period of three years.
The Chief Justice was, it is clear, exercising the power given to him under s.19(f) of the Criminal Code, and in particular the proviso thereto. These provisions are as follows:
“19.    CONSTRUCTION OF PROVISIONS OF CODE AS TO PUNISHMENTS
In the construction of this Code it is to be taken that, except when it is otherwise expressly provided:
...
(f)      a person convicted upon indictment of an offence not punishable with death may, instead of, or in addition to, any punishment to which he is liable, be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks fit, that he shall keep the peace and be of good behaviour for a time to be fixed by the court and comply with such other conditions as the court may in its discretion impose, and may be ordered to be imprisoned until the recognizance, with sureties if so directed, is entered into, but so that the imprisonment for not entering into the recognizance shall not extend for a term longer than one year, and shall not, together with the fixed term of imprisonment, if any, extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine;
Provided that whenever the court shall sentence any person so convicted to a term of imprisonment, it may further order that the offender be imprisoned for such portion of that term as it shall think fit and that the execution of the sentence for the remaining portion thereof be suspended upon his entering into a recognizance, with sureties if so directed, as aforesaid but further conditioned that, if called upon, he shall appear and receive judgment in respect of his service of the portion of his sentence so suspended and any judge of the court may, upon being satisfied that the offender has committed a breach of any of the conditions of the recognizance, forfeit the recognizance and commit him to prison to undergo the portion of his sentence so suspended or any part thereof;”
The attitude of the State is that in deciding as he did, His Honour fell into error by giving too much weight to the youthfulness of the offenders and by giving too little weight to their prior histories and to the prevalence of the offence of housebreaking. It is also said as I understand it that in ordering that the offenders be imprisoned for the three months portion, His Honour was in effect imposing an “effective” sentence of seven months imprisonment (they had already served four months awaiting trial) and that whatever the reasons that sentence was manifestly inadequate.
The latter argument cannot be sustained. The sentence was twelve months imprisonment, not three months. True it is that part of the sentence was ordered to be suspended upon the fulfilment of conditions, namely that each offender enter into a recognizance and that he keep the terms of the recognizance. The recognizance may never have been entered into (I presume that it was), in which case it could not be said that the twelve months term (not to mention the four months already served) was anything but “effective”. A judge cannot force on the convicted person the burden of a recognizance: Griffiths v. The Queen[cxv]27. The offenders may or may not adhere to the terms of the good behaviour bond, in which case it is at least possible that His Honour will order that any remaining portion of the twelve months sentence be served in prison. The approach of the State implies, I think, that it was His Honour’s intention to impose an immediate sentence of three months which he saw as appropriate to the offence and all the circumstances of the case, and then to add to it a provisional and additional cumulative sentence of nine months as a punishment for future misbehaviour should it occur or indeed as a punishment for not entering into the bond. There is not the slightest evidence that that is what His Honour intended and if it had been, it would have been a wholly erroneous application of the discretion available under s.19(f). A fundamental principle of sentencing is that the offender is punished for what he has done and not for what he might do: see Veen v. The Queen[cxvi]28. Furthermore for what he has done he may be punished once and once only.
It was said in an English case, Regina v. O’Keefe[cxvii]29, that the proper procedure before imposing a suspended sentence is for the judge first to consider whether a non-custodial sentence is appropriate; if it is not, to fix the term of imprisonment appropriate to the circumstances and finally to decide whether the case is one in which the sentence of imprisonment may properly be suspended. It may be over meticulous to require that exact procedure in Papua New Guinea. The attitude sometimes expressed in England and Australia that a prison sentence should be imposed only as a last resort does not appear to have been adopted in this country, possibly because of the lack of facilities to implement non-custodial measures. Furthermore, there does not appear to be in s.19 any provision for the total suspension of a prison sentence: s.19(f) authorities partial suspension only. (In some cases of less serious offences a first offender may be given a totally suspended sentence under s.613.)
However it is often overlooked that the provisions of ss. 18 and 19 apply to the punishments to be imposed in respect of all offences in the Code “except when it is otherwise expressly provided”. Those sections themselves do not oblige a sentencing judge to adopt one of the options available under s.19 rather than any other. An immediate sentence of imprisonment is only one of the options. Since Independence the National Parliament has amended s.19(f) and thereby enlarged the powers of a sentencing judge to order an offender to enter into a recognizance to comply with conditions: Criminal Code (Amendment) Act 1979, s.1. The fact is that in recent times sentencing judges have made increasingly frequent use of the power to suspend portion of a sentence pursuant to the proviso to s.19(f). Until now the Supreme Court has not been called upon to examine this practice. In England it has recently been said that “vagueness has reigned too long” over matters relating to the criteria for suspending a prison sentence[cxviii]30. To suspend part of a prison sentence upon the offender complying with conditions has something of the character of placing on probation. It is well to recall that the Probation Act 1980 came into force in October 1980 but at this time applies only to certain limited areas of the country, namely the National Capital District and Lae. Offenders being sentenced at Wewak for instance are not eligible for probation under the Act. On the other hand it seems to me a perfectly proper procedure for a sentencing judge in a suitable case - no matter where he happens to be sitting - to proceed as the Chief Justice did in the present case: that is if he feels that there is some chance of rehabilitation on the part of the offender, then the offender ought be given the chance of showing it over an appropriate period of time after release from a relatively short portion of a term of imprisonment (although he will lack supervision by a professional probation officer). Part of the sentence may be suspended for other valid reasons, for instance to enable the payment of compensation or a fine, or to keep employment opportunities open.
It cannot be said that twelve months imprisonment (after four months in custody before trial) is such inadequate punishment for a sixteen year old convicted of housebreaking in the circumstances of each case under appeal that this Court should interfere. That a heavier sentence might have been properly imposed likewise without intervention is possible but is not to the point.
The more difficult question to be decided in this Court in this appeal is whether the Chief Justice was wrong in exercising his discretion to suspend part of the twelve months sentence of imprisonment upon the offender entering into the recognizance. The nature of the question is such that it cannot be answered satisfactorily by any test of manifest inadequacy; there must be shown to be some error in principle. The submission of the State suggests that the error may be found in the attaching of too much weight to the youthfulness of the offenders and the failure to attach sufficient weight to the prevalence of the offence and to the personal history of the two respondents.
Reliance was placed on the decision of this Court in Bakiri Pena v. The State[cxix]31 and Paulus Mandatititip and Anor. v. The State[cxx]32 and the approval therein of a statement said to come from R. v. Cuthbert[cxxi]33 that “youth is no longer a satisfactory answer to crime, at least so far as the crime of breaking and entering is concerned”. The words quoted (somewhat inaccurately) come from Herron C.J., at the time one of the most experienced sentencing judges in Australia (as was the judge being appealed against).
A literal reading of the words quoted would imply two propositions. One is that there had been a time well into the past when it was accepted that offenders could expect to go unpunished for committing offences of breaking and entering simply because of their youth, but that either that time had more recently come to an end or that time should henceforth be regarded as finished. The other is that youthfulness was no longer to be regarded as a mitigating factor in the determination of sentence for offences of housebreaking. I do not believe that Herron C.J. intended to assert either of these two unsupportable propositions nor that the Supreme Court of this country intended to approve them. To put the words of Herron C.J. into their proper context, the sentence in which they appear should be read in full, and it is as follows:
“But the respondent will be 18 in October and in this day and age young men of that age have taken on responsibilities and claim to be treated for many purposes as adults, and a plea of youth is no longer entirely a satisfactory answer to crime.”
Bearing in mind that eighteen is the age of majority in New South Wales, it would be dangerous to lay down a principle in similar terms to be applied to sixteen year old Papua New Guineans. The two respondents should not be treated as adults for the purpose of sentencing in the present case.
The Chief Justice said in the present case:
“I find it difficult to accept that the young age of an offender cannot be a mitigating factor on sentence.”
D.A. Thomas says that “youth is one of the most effective mitigating factors” (“Principles of Sentencing”, 2nd edition, London 1979, p.195). This must be regarded as a general principle and consistent with the decisions in Bakiri Pena[cxxii]34 and Mandatititip[cxxiii]35. Generally speaking, the younger the offender the greater the mitigation. In this country consideration must be given to the policy implicit in the Child Welfare Act 1961 that young offenders under the age of sixteen should be dealt with under the Act. The National and Supreme Courts exercise the judicial power of the people: Constitution s.158(1), and have therefore a constitutional responsibility for the welfare of minors: Monomb Yamba v. Maits Geru[cxxiv]36. This responsibility may be lacking in the statutory courts of criminal appeal established in other countries. The nation’s long term interest lies in the reformation if at all possible of young offenders and I would have thought that it was widely accepted that reformation is more likely to be effected by assistance and supervision in the community rather than by incarceration in a prison. The difficulty at present is that the means of such assistance and supervision are rarely available. The present offenders were required as a condition of the suspension of part of their sentence to enter into a recognizance to be of good behaviour for a period of three years at the end of which they would be nineteen years of age. Although there was no requirement that they submit to any form of official supervision, presumably because none was available, they are to be regarded as in effect upon probation during this period. That period of probation is considerably longer than any appropriate custodial sentence and its punitive character must not be underestimated, punitive in the sense that the suspended prison sentence may be reactivated at any time during the three year period. In my view the fact that the respondents were barely over the age prescribed by the Child Welfare Act 1961 was a strong indication that a form of probation was an appropriate way of dealing with their cases. It is not as if probation had been tried and failed. I would with respect adopt the following passage from His Honour’s reasons:
“Now it seems to me that the framers of our Constitution recognised that young people incarcerated should not be put in same prison cells or part of a prison as adults they must be treated differently from adults. The reasons are obvious. If a court deems it necessary to imprison youths, they must be treated differently and kept separate from mature adults lest they become pupils to adult offenders. In Papua New Guinea however, prisons are not constructed in such a way that separation can be meaningfully applied. I have seen some of these prisons myself. Should we then send young people to jail simply because they have committed a prevalent offence and therefore must receive the wrath of the public as well as the courts? Young people are in the main not too sophisticated in the ways of adults. They are easily led astray. Not too many are hardened criminals or have set on a determined path of life of crime. Where the Courts are able, they have the responsibility to ensure that young people do not offend again. One way to do this is not to incarcerate them but to give them a chance to mend their ways and become responsible citizens. Of course when it comes apparent that a young man or woman will not mend his or her ways no matter how many chances he or she is given, then incarceration may be the only answer.”
The submission has been made on behalf of the Public Prosecutor that His Honour gave insufficient weight to the prevalence of the offence of housebreaking in the Wewak area. That such prevalence was given consideration appears both from His Honour’s references to Paulus Mandatititip and Anor. v. The State[cxxv]37 and Wilkeson, Stephens, Michalov v. Grant[cxxvi]38 and from His Honour’s concluding remarks that “the interest of the State is obviously clear - break and enters are prevalent and the demand is the law must be enforced”. However prevalence, if recognised by the Court, is not a factor which must necessarily outweigh others. Mr Byrne gave us some figures from the Bar table about the incidence of housebreaking in the Wewak area but without a systematic survey of such matters (of which the offender’s counsel has some notice), figures are of little assistance. The English Streatfield Report considered that the prevalence of an offence is most relevant when there has been a sudden increase in the incidence of an office and deterrent sentences may be imposed for the purpose of “arresting the increase”: par. 280 quoted by Sir Rupert Cross in “The English Sentencing System”, London 1975, p.161.
Lastly, it was submitted on behalf of the Public Prosecutor that His Honour gave insufficient weight to the prior history of the two respondents. If two young offenders are to be treated as incorrigible because of their past transgressions, it is essential to know what those transgressions were and what was done about them. Both these respondents were dealt with by courts when they were aged fifteen. Clement Maki was convicted in the Wewak District Court on 24th November 1979 for stealing and was fined K80 with two months imprisonment in default. It seems that he served about one half of that period and shortly after his release was again convicted in the same Court for receiving and was again fined K80, with two months imprisonment in default. We do not know if the later conviction was for a prior or later offence, and it was not clear whether he served the later sentence in custody. In the case of Tom Kasen he was sentenced at the age of fifteen years to three months imprisonment with hard labour on 18th November 1979, again by the Wewak District Court, and apparently served that sentence. He has another conviction for “fighting”.
If one thing is clear about the way in which these offenders have been dealt with until the present, it is that they have not been afforded the protection of the Child Welfare Act to which they were entitled. Apart from the jurisdictional point that they should have been dealt with by a Children’s Court, the sentences they received at the hands of the District Court seem extraordinary to say the least in the case of fifteen year old offenders in their situation. The fact that they have committed prior offences must of course be taken into account in the present matters but the fact that they served prison sentences for those offences in no way leads to a conclusion that part of their present sentences must not be suspended.
As this appears to be the first time the Supreme Court has been called upon to evaluate the propriety of the partial suspension of a prison sentence, I think it is timely to remind ourselves that the experience in Papua New Guinea has not, as far as I am aware, shown that imprisonment has been any more successful in this country than in others. After a lengthy and comprehensive enquiry into the New South Wales prison system the Royal Commissioner, Mr Justice Nagle concluded:
“In all countries, Marxist or otherwise, imprisonment is used as a punishment for offences against society. There is, however, an increasing awareness of the harmful nature of imprisonment and that it should be used as a last resort.”
Bearing this in mind and considering the wide range of alternatives open to a sentencing judge under s.19 of the Criminal Code, the words of Murphy J. in Griffiths v. The Queen[cxxvii]39 are in my view particularly appropriate to the present case:
“The massive failure and enormous cost of traditional sentencing approaches has aroused worldwide concern and this has been reflected in numerous conferences, inquiries and learned articles. Uniformity in sentencing has some virtue in avoiding apparent injustice of unequal treatment. But, as the operation of criminal justice is characterized by gross inconsistencies and inequalities, the disadvantages of maintaining uniformity as a primary objective should be realized. Emphasis on and adherence more or less to a scale of penalties for various offences (the tariff system) exerts pressure on the primary judges to impose more severe sentences than they would sometimes wish and in practice inhibits desirable experimentation and exploration of alternative courses contemplated by the legislature.”
It has not been shown that either the twelve months sentence or the partial suspension of that sentence was based on some error on the part of His Honour the Chief Justice, nor has it been shown that the sentence of twelve months was manifestly inadequate. I would dismiss the appeal.
Solicitor for the Appellant: L. Gavara-Nanu, Public Prosecutor
Counsel: J. Byrne
Solicitor for the Respondents: A. Amet, Public Solicitor
Counsel: K. Wilson

[lxxxix](1978) P.N.G.L.R. 128
[xc]Unreported Supreme Court Judgment SC183 of 1980
[xci](1965-66) P.N.G.L.R. 80 at 85.
[xcii](1952) 65 Harvard Law Review 1281 at 1292
[xciii](1970) Crim. L.R. 354
[xciv](1972) 56 C.A.R. 585 at p. 589
[xcv]1960 Cambridge Law Journal
[xcvi](1954) NZLR 86 at 87
[xcvii]Unreported National Court Judgment N291(M) of 21 Feb. 1981
[xcviii](1978) Qd. R. 68
[xcix]Unreported Supreme Court Judgment SC201 of 3 July 1981
[c](1978) P.N.G.L.R. 128
[ci](1978) P.N.G.L.R. 128
[cii]1967 2 N.S.W.R. 329 at p. 332
[ciii]1967 2 N.S.W.R. 329 at p. 332
[civ]1967 2 N.S.W.R. 329
[cv]1967 2 N.S.W.R. 329
[cvi](1978) P.N.G.L.R. 128
[cvii](Unreported) Judgment SC202 of 2/7/81
[cviii](1971-72) P.& N.G.L.R. 206
[cix](Unreported) Judgment N291(M) of 21/2/81
[cx](1959) Tas S.R. 17 at p.21
[cxi](1978) P.N.G.L.R. 128
[cxii]1967 2 N.S.W.R. 329
[cxiii]4 S.A.S.R. 36 at p.43
[cxiv](1973) Qd. R. 355 at p. 366
[cxv]51 A.L.J.R. 749 at p.756 per Barwick C.J.
[cxvi]53 A.L.J.R. 305
[cxvii](1969) 2 Q.B. 29
[cxviii](1981) Crim. L.R. 74
[cxix]Unreported Supreme Court Judgment SC183 dated 3rd November 1980
[cxx](1978) P.N.G.L.R. 128
[cxxi](1967) 2 N.S.W.R. 329
[cxxii]Unreported Supreme Court Judgment SC183 dated 3rd November 1980
[cxxiii](1978) P.N.G.L.R. 128
[cxxiv](1975) P.N.G.L.R. 322
[cxxv](1978) P.N.G.L.R. 128
[cxxvi](1967-68) P. & N.G.L.R. 112 at 117 & 118
[cxxvii]51 A.L.J.R. 749 at p. 765