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Makin v Kelly [1963] PNGLR 127 (30 November 1962)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 127 - Makin v Kelly

[1963] PNGLR 127

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RAYMOND FRANK MAKIN

V.

WILLIAM ANTHONY KELLY

Port Moresby

Ollerenshaw J

30 November 1962

PENALTY PROVISIONS OF CUSTOMS ORDINANCE - Power of District Court to substitute fine for imprisonment notwithstanding prohibition of reduction of minimum penalty - Customs Ordinance 1951-1959, S.S. 220, 244 - District Courts Ordinance 1924-1961, S. 207(2).

By Section 220 of the Customs Ordinance 1951-1959 it is an offence for a person to “have in his possession without reasonable excuse prohibited imports” and provides a minimum penalty of three months imprisonment upon conviction. Section 244 of that Ordinance further provides that “no minimum penalty imposed by this Ordinance shall be liable to reduction under any power of mitigation which would, but for this Section, be possessed by the Court.” Section 207 (2) of the District Courts Ordinance 1924-1961, empowers a Court to impose a fine in certain circumstances when a penalty of imprisonment only is provided for.

The appellant was convicted by the District Court at Lae of an offence under Section 220 of the Customs Ordinance 1951-1959, and a term of three months imprisonment was imposed.

Held:

That the provisions of Section 244 of the Customs Ordinance 1951-1959 do not exclude the general powers granted to a Court under Section 207 (2) of the District Courts Ordinance 1924-1961 as the substitution of a fine for a term of imprisonment is not a reduction of the penalty of imprisonment. It merely substitutes one form of penalty for another. Section 244 does not purport to deal with reducing in severity a particular penalty, but merely prevents the imposition of a period of less than three months imprisonment when a prison sentence is considered more appropriate.

Appeal from the District Court, Lae.

Counsel:

Killduff, for the appellant.

Miles, for the respondent.

C.A.V.

OLLERENSHAW J:  The appellant was convicted in the District Court at Lae upon a charge under Section 220 (1) (c) of the Customs Ordinance 1951, that on the 21st September, 1962, he “did have in his possession without reasonable excuse prohibited imports to which Section 220 of the Customs Ordinance 1951-1959 applies.”

The learned Magistrate, for reasons which he set out in his carefully considered judgment, held the views that the justice of the case would be better met by a fine than by imprisonment and that the appropriate fine would be a sum of £20.

However, Section 220 of the Customs Ordinance expressly provides for punishment in these terms:

“Penalty: Imprisonment for not less than three months and not more than two years”

and Section 244 of this Ordinance provides:

“244.   No minimum penalty imposed by this Ordinance shall be liable to reduction under any power of mitigation which would, but for this Section, be possessed by the Court.”

Faced by these sections of the Customs Ordinance the Magistrate felt bound to impose the minimum penalty of three months imprisonment, prescribed in Section 220, and did so, notwithstanding his own assessment of the proper punishment to fit the crime.

The legal question which the Magistrate asked himself was whether his general power under Section 207 (2) of his District Courts Ordinance 1924 (amended), was excluded by the specific provisions as to penalty contained in Section 244 of the Customs Ordinance, which I have already cited and forbid the reduction of a minimum penalty prescribed by the Customs Ordinance. His general power under Section 207 (2) of the District Courts Ordinance enables him to substitute punishment by fine for punishment by imprisonment where he thinks that the justice of the case would be better met by so doing and is called, curiously enough, in the marginal note: “Mitigation of payment.”

He came to the conclusion that Section 244 of the Customs Ordinance did exclude his power under Section 207 (2) of the District Courts Ordinance and I gather that he found assistance from the majority decision in the case of Healey v. Festini[clxiii]¹ a decision with which I would agree.

However, I cannot agree with the learned Magistrate in thinking that the terms of Section 244 of the Customs Ordinance exclude the power to substitute a fine for the imprisonment prescribed by Section 220 of this Ordinance.

Section 244 of the Customs Ordinance expressly forbids the reduction of a minimum penalty imposed by this Ordinance so that it would not be competent for the Court, in the exercise of a power of mitigation, to reduce a sentence of three months imprisonment, prescribed by the Customs Ordinance, to one of two months or two weeks. Likewise a Court would be incompetent to reduce a fine of £100 to one of £20.

I suppose that, generally speaking, many, if not most people would think of a fine as a lesser punishment and the draftsman of the Customs Ordinance may have been in this class, but, that is not enough. It is not at all difficult to imagine that some people, in some circumstances in which they might find themselves, would prefer the hospitality of the government with free board and lodging and modern comforts, where they are available, to the payment of a sorely needed sum of £500 or £100, or even £25.

In other words, I do not consider that the words in Section 244 of the Customs Ordinance, forbidding the reduction of a minimum penalty, forbid the substitution of a fine for imprisonment and the reason is that, to my mind, the substitution of a punishment or penalty by fine for a punishment or penalty by imprisonment is not a reduction of that penalty of imprisonment.

It is to my mind beside the point that some, or many people would consider the substitution of a fine for an imprisonment to be a reduction in the severity of the penalty, and, it is not necessary to imply the words “in severity” after the word “reduction” in Section 244 of the Customs Ordinance in order to give the section a meaning. I do not consider that this implication should be made in an attempt to extend the meaning of the section.

The relevant ordinary meanings of “To reduce” are “To bring down, diminish to a small number, amount, extent, etc., or to a single thing; To lower, diminish, lessen”: (Vide Shorter Oxford English Dictionary) and a good example of a “reduction” would be found by the credulous in the phrase “Reduced to half-price” (Ibid.)

While the words of Section 244 of the Customs Ordinance are apt to exclude a power to reduce a prescribed term of imprisonment to a shorter term of imprisonment, they are not apt, to my mind, to exclude a power to substitute a fine for an imprisonment, notwithstanding that such a substitution may be considered to be a mitigation of the penalty.

It will be observed from what I have already said that I have not overlooked the rule of construction that requires a meaning to be found for Section 244 of the Customs Ordinance. I do consider that I follow the rules when I give this special provision a construction that avoids its collision with Section 207 (2) of the District Courts Ordinance.

I order that the adjudication of the District Court be varied by substituting for the imprisonment thereby inflicted a fine of £20 and I will make certain other orders of a consequential nature to be entered on the record and included in the memorandum to be sent forthwith to the District Court in pursuance of Section 234F. of the District Courts Ordinance.

Appeal upheld and Order varied.

Solicitors for the Appellant: Stan Cory and C. F. Kilduff.

Solicitor for the Respondent: P. J. Clay, Acting Crown Solicitor.

[clxiii][1958] VicRp 36; (1958) V.R. 225.