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Togora-Malube v Dano; Lagari-Imbiak v Ehau; Pabe-Uwi v Ehau [1965-66] PNGLR 402 (28 November 1966)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 402 - Togora-Malube v Dano; Lagari-Imbiak v Ehau; Pabe-Uwi v Ehau

[1965-66] PNGLR 402

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PABE-UWI AND OTHERS

V.

EHAU, TOGORA-MALUBE AN DOTHERS

V.

DANO, LAGARI-IMBIAK

V.

EHAU

Port Moresby

Ollerenshaw J

24 November 1966

28 November 1966

CRIMINAL LAW - Playing at cards - Gaming (Playing Cards) Ordinance 1965 - Penalty of imprisonment for three months provided - Power to impose lesser term - Principles to be applied by appellate court - Effect of new amendment to Local Courts Ordinance - Gaming (Playing Cards) Ordinance 1965, s. 6 (1); Ordinances Interpretation Ordinance 1949-1966, s. 17 (1); Native Regulations 1939, r. 83; Ordinance No. 55 of 1966.

Section 6 (1) of the Gaming (Playing Cards) Ordinance 1965 provides:

“Subject to the next succeeding subsection, a person shall not play at cards.

“Penalty: Imprisonment for three months.” Section 17 (1) of the Ordinances Interpretation Ordinance 1949-1966 provides:

“The penalty, pecuniary or other, set out:

(a)      at the foot of a section of an Ordinance, or

(b)      at the foot of a sub-section of a section of an Ordinance, but not at the foot of the section,

shall mean that a contravention of the section or of the sub-section respectively, whether by act or omission, shall be an offence against the ordinance, punishable upon conviction by a penalty not exceeding the penalty mentioned.”

The eighteen appellants were all convicted of playing at cards under s. 6 (1) of the Gaming (Playing Cards) Ordinance 1965 and each was sentenced to imprisonment for three months. The antecedents of the appellants differed greatly. Some had no previous convictions. some had convictions for offences of a kind unlike the offence of playing cards, and others had convictions for playing cards for money in breach of reg. 83 of the Native Regulations 1939. All the appellants appealed against the severity of the sentence.

Held:

(1)      Because of the uniform sentences imposed and the different antecedents of the appellants the Local Court must have assumed that no less severe penalty was permissible than that provided by s. 6 (1) of the Gaming (Playing Cards) Ordinance 1965.

(2)      Due to s. 17 (1) of the Ordinances Interpretation Ordinance 1949-1966, the penalty provided for at the foot of s. 6 (1) of the Gaming (Playing Cards) Ordinance is to be regarded as a maximum penalty and a lesser term of imprisonment may be imposed by a court to meet the justice of the case.

(3)      An error was made by the Local Court in the exercise of its discretion so that the interference of the appellate court was called for.

(4)      The orders of the Local Court in so far as they imposed penalties should be reversed and the matter of penalties to be imposed should be reheard by the Local Court.

(5)      A new section, 19a, to be added to the Local Courts Ordinance when Ordinance Number 55 of 1966 comes into force would give to the Local Court a general power to impose a fine instead of imprisonment when it is considered the justice of the case would be better met by a fine than by imprisonment and could apply in the rehearing of these cases.

Cases referred to:

House v. The King (1936), 55 C.L.R. 499; R. v. Canham (1910), 5 Cr.App.R. 110; R. v. McIntosh, [1923] Q.S.R. 278.

Appeal from Local Court.

The facts appear sufficiently from the judgment.

Counsel:

Luke, for the appellants.

Baird, for the respondents.

Cur. adv. vult.

28 November 1966

OLLERENSHAW J:  These are appeals from orders of the Local Court at Tari against the severity of sentences imposed by that court on the 28th, 29th and 31st days of October, 1966.

Each appellant pleaded guilty to a charge of playing at cards in contravention of s. 6 (1) of the Gaming (Playing Cards) Ordinance, 1965, was convicted and sentenced to a term of imprisonment for three months. In the cases of Togora-Malube and the three others, and of Lagari-Imbiak the imprisonment was with hard labour.

Section 6 (1) of the Gaming (Playing Cards) Ordinance is in these terms:

“6(1)   Subject to the next succeeding subsection, a person shall not play at cards.

Penalty: Imprisonment for three months.”

No reasons for imposing the full penalty in each case appear from the copies furnished of the proceedings in the Local Court and no reasons are before me.

However, it has been submitted by counsel for the appellants that the court must have considered that it had no power to impose a lesser sentence than that provided for by the section because the records of the appellants vary to such a considerable extent that the imposition of the same penalty for each offender appears to be quite unreasonable. Some of the offenders had no previous convictions while of the others, some had convictions for offences not of a kind like to the offence of playing cards, and some had one, and some had more than one conviction for “playing cards” and some of these had been fined and others imprisoned for their previous offences. It is possible, if not probable, that in some cases, at least, by “playing cards” is meant playing cards for money in breach of reg. 83 of the Native Regulations, 1939, amended, because the Gaming (Playing Cards) Ordinance, 1965, did not come into force until the 18th day of August, 1966, less than three months before the dates of the convictions in these appeals.

In the circumstances I have mentioned I cannot suppose that the Local Court would have made no distinction between the offenders and imposed upon each the full penalty prescribed unless it were thought that no less severe penalty was permissible and I accept counsel’s submission.

This means that the Local Court must have overlooked s. 17 (1) of the Ordinances Interpretation Ordinance, 1949- 1966, in these terms:

“17(1) The penalty, pecuniary or other, set out:

(a)      at the foot of a section of an Ordinance; or

(b)      at the foot of a sub-section of a section of an Ordinance, but not at the foot of the section,

shall mean that a contravention of the section or of the subsection respectively, whether by act or omission, shall be an offence against the Ordinance, punishable upon conviction by a penalty not exceeding the penalty mentioned.”

It is plain from this section that the penalty provided for at the foot of sub-s. (1) of s. 6 of the Gaming (Playing Cards) Ordinance is to be regarded as a maximum penalty and that a lesser term of imprisonment may be imposed by a court to meet the justice of the case.

It does appear to me that the interference of this court is called for within the principles expressed in the cases cited by counsel for the appellants: House v. The King[cdxvi]¹; R. v. Canham[cdxvii]² and R. v. McIntosh[cdxviii]³.

It is apt to cite here this passage from pp. 504-505 of the judgment of Dixon J. (as he then was), Evatt J. (as he then was) and McTiernan J. in House v. The King[cdxix]⁴:

“But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for so doing. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

The appeals are uncontested and counsel for the respondents has not contended contrary to the submissions made by counsel for the appellants.

Counsel for the appellants, recognizing that the Local Court at Tari is in a much better position than I am to decide what would be proper penalties for these offences committed at Tari asks, I consider properly, for no more than that the cases be remitted to the Local Court to determine the penalties.

Ordinance No. 55 of 1966, to which I have been referred by counsel for the respondents, adds to the Local Courts Ordinance a new s. 19a, designed to give to Local Courts a general power to impose a fine instead of imprisonment when it is considered that the justice of the case would be better met by a fine than by imprisonment. This Ordinance No. 55 of 1966, which has not yet been gazetted, obviously is intended to remedy a situation brought about by an oversight that unwittingly, surely, introduced a “discriminatory practice”: see s. 19 of The Criminal Code and s. 206 of the District Courts Ordinance, 1963-1965. If it has come into operation by the time these cases are reheard I see no reason why it should not apply to them and the power be exercised as may be required to meet the justice of the case of any of the appellants. It appears that all the appellants were admitted to “bail” immediately after conviction and sentence, upon their indication that they desired to appeal to this court.

In each case, I order that the appeal be allowed, that the order of the Local Court at Tari be reversed in so far as it imposed a penalty or penalties and that the matter be reheard by that court with reference only to the penalty or penalties to be imposed.

I further order that a memorandum of this decision together with a copy of this judgment be sent forthwith to the clerk of the Local Court at Tari by the registrar of this court.

Appeals allowed.

Solicitor for the appellants: W. A. Lalor, Public Solicitor.

Solicitor for the respondents: S. H. Johnson, Crown Solicitor.

[cdxvi](1936) 55 C.L.R. 499.

[cdxvii](1910) 5 Cr.App.R. 110.

[cdxviii][1923] Q.S.R. 278.

[cdxix](1936) 55 C.L.R. 499.