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Gotnogosa v Jarratt [1969-70] PNGLR 343 (26 October 1970)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 343 - Gotnogosa v Jarratt

[1969-70] PNGLR 343

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GOTNOGOSA AND OTHERS

V.

JARRATT

Goroka

Raine J

22 October 1970

26 October 1970

CRIMINAL LAW - Appeal against sentence - Local courts - Powers of appellate court - Consideration of extraneous matters - Local Courts Ordinance 1963-1965, s. 43[dxviii]¹.

CRIMINAL LAW - Local courts - Powers on conviction - Power to award compensation - Default penalty if compensation unpaid - Local Courts Ordinance 1963-1965, ss. 19, 30[dxix]².

Upon an appeal on the ground that a sentence imposed is excessive under the Local Courts Ordinance 1963-1965, s. 43, the appellate court, although the sentence imposed is not demonstrably wrong, is empowered to substitute a sentence which in the view of the appellate court is more fitting to the requirements of justice and the circumstances of the case than that imposed in the primary court.

Dicta of Ollerenshaw J. in Mames Weviong v. Zania, [1967-68] P. & N.G.L.R. 79, applied. House v. The King (1936), 55 C.L.R. 499, followed.

A local court has no power, under the Local Courts Ordinance 1963-1965, ss. 19 and 30, to order that an accused convicted before it of an offence should be imprisoned in default of payment of compensation it directs to be made by the accused.

Following an incident during which stones were thrown at police and in which a police vehicle was damaged, the appellants were convicted in the Local Court on charges of riotous behaviour contrary to s. 30(e) of the Police Offences Ordinance 1925-1965. The appellants were sentenced to five months’ imprisonment and ordered to pay $8 compensation in default of one month’s imprisonment “cumulative upon the sentence or conviction”. The Local Court gave weight, in imposing each sentence, to facts placed before it relating to a fight. Those facts did not allege that any of the appellants participated in the fight and showed that the fight had occurred prior to and at some distance from the subject incident.

Held:

That the Local Court had allowed extraneous or irrelevant matters to guide it and that there had been a substantial miscarriage of justice within s. 43(3) of the Local Courts Ordinance 1963-1965.

APPEALS under the Local Courts Ordinance 1963-1965, s. 43.

On 6th May, 1970, on the complaints of Edwin Francis Jarratt (the respondent), Bapo Gotnogosa, Rabis Asaro and Gonogosa Sima were each convicted before the Local Court at Goroka of riotous behaviour contrary to s. 30(e) of the Police Offences Ordinance 1925-1965. Each appellant was sentenced to five months’ imprisonment and ordered to pay $8 compensation in default of one month’s imprisonment expressed to be “cumulative upon the sentence or conviction”.

Each appellant appealed on the ground that the sentence imposed was excessive. All the relevant facts, including the facts placed before the Local Court, appear in the reasons for judgment.

Counsel:

Luke, for the appellants.

Wall, for the respondent.

Cur. adv. vult.

26 October 1970

RAINE J:  In these two appeals Mr. Luke appears for the appellant in Appeal No. 80 and the appellants in Appeal No. 81 of 1970. Mr. Wall appears for the respondent in each appeal. By consent the appeals are heard together, as they arise out of the same transaction, and the statement of facts in each case is exactly the same, in fact the record in Appeal No. 81 is a carbon of the Local Court record in Appeal No. 80. The accused were convicted of riotous behaviour contrary to s. 30(e) of the Police Offences Ordinance 1925-1965.

In each case the ground of appeal is that the sentences are excessive. In each case the appellants, who pleaded guilty, were sentenced to a term of imprisonment of five months with hard labour and ordered to pay compensation of $8 in default one month’s imprisonment with hard labour “cumulative upon the sentence on conviction”, which I take it means that on nonpayment by the appellants of the compensation the learned magistrate intended the period of one month in default to be a cumulative sentence. I will deal with this question of cumulative sentence later.

Mr. Luke submits that the effect of the sentences and the reasons given for them by the magistrate in his report demonstrates that there has been “a substantial miscarriage of justice” within the meaning of s. 43(3) of the Local Courts Ordinance 1963.

The relevant portions of s. 43 are as follows:

“Part VI.—Appeals.

43(1)  Subject to the next two succeeding subsections, a person aggrieved by a decision of a Local Court on a matter may appeal to the Supreme Court therefrom.

(2)      . . .

(3)      The Supreme Court may order an amendment to be made at any stage of the proceedings on appeal and an appeal shall be allowed only if it appears to the Supreme Court that there has been a substantial miscarriage of justice.

(4)      . . .

(5)      On an appeal under this section against a decision of a Local Court, the Supreme Court may—

(a)      dismiss the appeal and uphold the decision;

(b)      reverse the decision;

(c)      . . .

(d)      substitute for the decision any decision, including an order for variance, which might have been given, on the evidence before the Supreme Court, by the Local Court . . ., if the justice of the case so requires.

(6)      For the purposes of this section, ‘decision’ includes an order or sentence.”

The fact that the restricted powers of the Supreme Court as set out in sub-s. (3) are rolled up with the Court’s discretion to order an amendment is not significant and the power to amend does not govern the Court’s power to allow appeals. This is made clear when one looks at sub-s. (1) with its references to “the next two succeeding subsections”, one of which, of course, is sub-s. (3).

Mr. Luke invokes s. 43(3) in two ways, as I understand him. Firstly, he says that the sentences are manifestly unjust, both as to the sentences of five months, and those sentences plus the cumulative period of one month if the $8 compensation is not paid. Secondly, he says it is apparent the magistrate acted upon a wrong principle in that his report shows that he allowed extraneous matters to affect him. I will deal with these two matters separately although they overlap, or can overlap.

MANIFESTLY EXCESSIVE SENTENCES.

The riotous behaviour struck at, although said to be at Goroka in the complaints, occurred, as I pointed out in argument, a little out of Goroka, on the Highlands Highway. The incident out of which these appeals arose was a very unattractive one indeed, involving, inter alia, the throwing of stones at the police and wild abuse. Police were hit by the stones, which also damaged a police Toyota land cruiser quite extensively. A large number of natives, considerably affected by liquor, were involved in this affair. Serious though the situation became it is only good luck that things did not get much worse, and that nobody was seriously injured. In his report, the magistrate took the matter very seriously indeed, and while the statements of facts speak for themselves, I pay a deal of attention to what the report says, coming as it does from “the man on the spot”, who is better able than I am to put this matter into its correct perspective. In saying this I am not to be understood to abdicate from my own responsibilities in the appeal.

However, Mr. Luke asks me to note that the maximum penalty for the offence is a term of imprisonment for six months, a fine of $100, or both. He points out that liquor played its part in the behaviour of his clients and that whilst this does not excuse, it does explain. He also draws my attention to the fact that none of the three appellants has a criminal record.

Mr. Luke submitted that the appellants, sentenced on 6th May and released on 18th August, 1970, had served long enough already to atone for their wrongdoing. In fact they have served thirteen weeks and five days, and have another eight weeks to go, so that if I let the sentences stand, then by the time they are arrested and returned to custody it will be close to the end of October or the beginning of November in all probability.

After a careful consideration of all the facts and of Mr. Luke’s submissions, I do not feel as a matter of law that “the result embodied in [the magistrate’s] order . . . is unreasonable or plainly unjust” so that I “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” (House v. The King[dxx]³).

It is important to note that what I say above only goes to the sentence looked at in the light of the facts.

EXTRANEOUS OR IRRELEVANT MATTER IN MAGISTRATE’S REASONS.

I have only quoted from House v. The King[dxxi]⁴ in a limited way. Dixon J., Evatt J. (as they then were) and McTiernan J. say[dxxii]⁵:

“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 comprising 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 doing so. 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.”

I only need to consider so much of the extract from their Honours’ reasons down to the asterisk I have placed in the margin, in order to come to a decision on this limb of Mr. Luke’s argument, but have continued on with the quote as a matter of convenience, as it bears on the previous subheading.

Mr. Luke says that it is plain from the report of the magistrate that he allowed “extraneous or irrelevant matters to guide or affect him”.

In his reasons the learned magistrate set out five matters that he said were proved beyond reasonable doubt, and in their setting it seems clear to me that these five matters were all regarded by him as blameworthy and as giving rise to the imposition of a very severe sentence. I only need to set out the first three of the five matters enumerated by the magistrate.

1.       That the defendants including the three appellants were well under the influence of intoxicating liquor. (The emphasis is mine.)

2.       That the defendants were intentionally participated (sic) in fight firstly at the Zokozoi Hotel and secondly on the Highlands Highway (with criminal minds).

3.       With the criminal intention, the defendants including the three appellants, did disturb the public and cause violation to peace when the police party approach(ed) and order(ed) them to keep the peace.

Two things are made clear by this recital of the reasons. Firstly, the magistrate took into account something that happened at the Zokozoi Hotel. In the statement of facts given at the Lower Court only six lines out of fifty refer to the events at the Zokozoi Hotel, and this is only introductory matter, and was hearsay, because after getting what was obviously a complaining telephone call from the manager the police went to the hotel, “where the bars were closed and a conversation took place with the manager”. In the telephone call the statement of facts discloses that the manager said “there was a large fight in progress”. The first six lines do not indicate whether the appellants were in the fight and, as I have indicated, these opening lines were merely introductory and explanatory. It is wrong therefore to saddle the appellants with whatever went on at the hotel, by the time the police got there the appellants, whom I assume were probably there, and their comrades had made off in a very overcrowded utility along the Highlands Highway. There is nothing to indicate that the appellants caused trouble at the hotel, nor is it mentioned in the complaints or in relation to compensation. For all I know they might have been mere spectators who joined others in the subsequent riotous behaviour at another place.

The second matter is the reference to the appellants being under the influence in the first of the reasons and acting with “criminal minds” in the second of the reasons, and with “criminal intention” in the third. Although I do not regard this as being as important as the matters set out in the preceding paragraph, I am left with the strong impression that the learned magistrate did not pay due regard to the inflammatory effect of liquor on these three men. He says they were “well under the influence” but credits them with “intentionally participat[ing]”, with “criminal minds” and with “criminal intention”, and it seems to me he credits them with these things to the fullest extent.

All in all, I am of opinion that a s. 43(3) situation does arise, because I believe that the magistrate did allow “extraneous or irrelevant matters to guide or affect him” (House v. The King[dxxiii]⁶ ), although, as I have already said, I do not think that on the face of it the sentences were manifestly wrong.

This brings me to a consideration of the decision of Ollerenshaw J. in Mames-Weviong v. Zania[dxxiv]⁷ where his Honour said:

“In Pabe-Uwi v. Ehau[dxxv]⁸ I referred to the principles which usually govern appeals against sentence: see also the judgment of my brother Frost J. in Laeka-Ivarabou v. Nanau[dxxvi]⁹. Since delivering my judgment in Pabe-Uwi v. Ehau it has occurred to me that the powers of this Court in reviewing sentences of a local court may be wider than indicated by those principles. Section 43(5)(d) of the Local Courts Ordinance empowers this Court to substitute for the decision of a local court any decision which might have been given by the local court if the justice of the case so requires. It may be argued, therefore, that this Court may substitute for the sentence of the local court such sentence as it considers fitting although there is nothing manifestly wrong, within the principles to which I have referred, with the sentence imposed by the local court.”

And his Honour referred to R. v. Gosper[dxxvii]¹⁰.

Ollerenshaw J. did not expressly decide the point, nor did he need to as he dismissed the appeal so far as it concerned the sentences complained of. However, with great respect to his Honour, I agree with what he said above and, although not of opinion that the Local Court in the instant appeals was demonstrably wrong in the final sentences arrived at, in my view they are a little severe. Thus, by the combined application of s. 43(3) and s. 43(5)(d) I substitute for imprisonment for five months with hard labour a sentence of imprisonment for four months with hard labour, and I allow the appeals to this extent and vary the sentences of the Local Court accordingly.

COMPENSATION—DEFAULT IMPRISONMENT—CUMULATIVE SENTENCE.

I can find nothing in the Local Courts Ordinance which gives a local court power to do what the magistrate did in these cases. Section 19(2) and (3) provides for fines and sentence in default of payment. Section 19(4) sets out the maximum periods that may be imposed in default of various ranges of fines.

Compensation is specifically referred to in s. 19(7) and (8), but no mention is made of imprisonment in default of payment.

This being so, I do not believe that s. 30 enables a default order to be made. It reads:

“Matters not covered by this Ordinance. 30. Subject to this Ordinance, in respect of any matter not provided for by this Ordinance a Local Court may make such order as seems to it convenient and as does substantial justice.”

In my opinion this does not empower a local court magistrate to order a citizen to be imprisoned in default of payment of compensation, when the provision for compensation is silent on this aspect, particularly where sub-s. (7) of s. 19 follows sub-ss. (4), (5) and (6), which spell out the situation “qua” imprisonment in default of payment of a fine.

Even if this is wrong, it seems quite inappropriate to me, e.g. under s. 20 of The Criminal Code, to order that if an order for compensation is disobeyed the offender should serve the period of imprisonment nominated as being in lieu of compensation cumulatively with the other sentence. One only has to go to s. 20, which reads:

“20.    When a person who is convicted of an offence is undergoing, or has been sentenced to undergo, for another offence, a sentence involving deprivation of liberty, the punishment to be inflicted upon him for the first-mentioned offence may be directed to take effect from the expiration of the deprivation of liberty for the last-mentioned offence.” The emphasis is mine.

Even if there was or could be an order for imprisonment in default of payment of compensation this is not a sentence involving deprivation of liberty “for another offence”, and one could never formulate a satisfactory sentence inflicting the cumulative punishment so that it took effect “from the expiration of the deprivation of liberty for the last-mentioned offence”.

Therefore, in addition to the orders I have already made, I vary the Local Court’s sentences, so far as compensation is concerned, by deleting the words “or in default one month imprisonment with hard labour cumulative”.

Appeals against sentence allowed.

Sentences reduced and varied.

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

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

[dxviii]Infra, at p. 345.

[dxix]Section 30 appears at p. 350. The provisions of s. 19 are summarized at p. 350.

[dxx](1936) 55 C.L.R. 499, at p. 505.

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

[dxxii](1936) 55 C.L.R., at pp. 504-505.

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

[dxxiv][1967-68] P. & N.G.L.R. 79, at pp. 82-83.

[dxxv][1965-66] P. & N.G.L.R. 402.

[dxxvi][1967-68] P. & N.G.L.R. 12.

[dxxvii][1928] NSWStRp 70; (1928) 28 S.R. (N.S.W.) 568; 45 W.N. 165.