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Passingan v Beaton [1971-72] PNGLR 206 (8 June 1971)

[1971-72] PNGLR 206

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

PASSINGAN

V.

BEATON

Port Moresby
Raine J

1 June 1971
4 June 1971
8 June 1971

CRIMINAL LAW - Sentence - Breaking, entering and stealing - Imprisonment - Young Offender - Maximum penalties - Cumulative sentences.

The appellant pleaded guilty in the Children’s Court to seven charges of breaking and entering buildings and, in some instances, stealing therein. The items stolen were food, cigarettes and clothing and a record player. He had previously been convicted of other offences but these had been committed at about the same time as the seven offences charged. The appellant was only fifteen years old at the time. He was convicted and sentenced to six months’ imprisonment on the first charge and to the same term on each of the subsequent six charges, each sentence to be served cumulatively on the sentence imposed prior to it. Six months was the maximum term of imprisonment the Children’s Court could impose in respect of any of these offences. Upon appeal to the Supreme Court against sentence:

Held:

That:

(1) t&##16; Maximum penalties should be reserved for the worrt ofs and these offences did not belo belong tong to that category. R. v. Harrison [1997] UKHL 5; (1909), 2 Cr. App. R. 94 and Tabi Maima v. Ben Hambakon Sma (Prentice J., 1971, unreported) followed.

(2) ټ e exhent tent that is possible a young first offender or a person such as tpellaot whvirtually a firstfirst offe offender, should not be sentenced to a term of imprisonment. R. v. Taggart (1923), 17 Cr. App. R. 132, R. v. Mather and Rogers, [1962] TASStRp 4; [1962] Tas. S.R. 25 and Lahey v. Sanderson[1959] TASStRp 10; , [1959] Tas. S.R. 17 referred to.

(3) In vny ewhnt where a court deems it proper to imprison a young offent shoot, athis case, imposempose a cr a crushinushing sentence.

(4) ټ ugh ohere here is power to make more than tntences cumulative the power should be exer exercised only in exceptional cases and this was not such a case. R. v. Smith, [1952] S.A.S.R. 297 and R. v. Betteridge, [1965] S.A.S.R. 76 followed. R. v. Phillips and Lawrence, [1967] Qd. R. 237, R. v. Anderson, [1967] Qd. R. 599 and R. v. McIntyre[1965] VicRp 76; , [1965] V.R. 593 referred to.

(5) Accordingly the appeal should be allowed and the appellant who had already served more two earshof tne seetences imps imposed should be discharged.

Tendency of Crown to quote cases where denunciatory sentences have been imposed and seek to apply them to cases where a deterrent only is needed disapproved. R. v. Blake, [1961] 3 All E.R. 125, R. v. Britten, [1969] 1 All E.R. 517 and R. v. Wilson (1964), 48 Cr. App. R. 329 referred to.

Appeal From Children’s Court.

The facts and arguments of counsel appear sufficiently from the judgment hereunder.

Counsel:

Dillon (with him Neill), for the appellant.
Laucis (with him Bradshaw), for the respondent.

8 June 1971

RAINE J: is an appe appeal by a youngster aged 17 years against the sentences imposed on n 19th March, 1969, by the the East New Britain Children’s Court sitting at Rabaul. The appellant claims that these sentences are too severe.

Notice of appeal was only filed on 16th April, 1971. The appellant, who had convictions for other offences, pleaded guilty to seven charges of breaking and entering buildings and, in most cases, stealing therein. The goods involved were fairly typical, namely, food, cigarettes and some articles of clothing. Only in one of the cases, where a record player was stolen, was a good deal of money involved in the theft. Although, as I have said, the appellant had been convicted of other charges, they were committed in July and August 1968 and the first of the charges out of which this appeal arises was on 8th August, 1968.

The Children’s Court sentenced the appellant to six months’ imprisonment on the first charge and six months on each of the subsequent six charges, and each sentence of imprisonment subsequent to the first sentence was ordered to be served cumulatively upon the sentence imposed prior to it.

Thus, the appellant, who was then only fifteen years old, was in effect sentenced to imprisonment for three and a half years. It is true that he had some prior offences, but, as I have said, they were committed at about the same time as the offences out of which the seven charges I am dealing with arose. They were committed between 27th July and 15th August, 1968.

As I had rather similar appeals before me in the case of Gini Galamo v. Stuckey on 2nd June, 1971, where a boy of about eleven years of age was sentenced on similar charges to six months imprisonment on the first charge and six months imprisonment on three subsequent charges and as he was also ordered to serve sentences subsequent to the first sentence cumulatively and as, to my surprise, the Crown, while saying it left it to me, nevertheless fully argued this appeal, quoting authorities which were not designed to help the appellant, and tended to support the seven cumulative sentences of imprisonment, I have decided to give rather fuller reasons than might have been thought necessary.

The applicant has been in custody since the 17th February, 1969, that is, for a period of two years and nearly four months. Needless to say, in view of his age when convicted that is more than enough punishment for these offences, serious though they were. As soon as I am told that arrangements can be made to repatriate him to Rabaul I will formally allow the appeal, but, until these arrangement can be made I do not think that it would be in the boy’s interests to let him roam about the streets of Port Moresby. However, I am told that this can be done in the next day or two.

The appellant first went to the Corrective Institute at Kerevat and remained there until 8th July, 1969; he was then sent to a Salvation Army Institute at Sogeri, from which he escaped on 13th September, 1970. He was at large until 9th October, 1970 and since that time has been in the maximum security wing at the Bomana Corrective Institution. He was not in fact charged in respect of the escape.

I propose to deal with three matters, all of which bear on the sentences awarded to this fifteen year old.

1. ¦t THE AWARDFNG OF MAXIMUM PENALTIES

Maximum pment dhoulr be veseroed fly thst sort sort of c of cases.ases. See R. v. Harrison[ccxxxvii]1, Tabi Maima v. Ben Hambakon Sma[ccxxxviii]2.

This appellant, as I have said, committed a series of quite serious offences. But at 15 ½, and bearing in mind what he stole, and the period over which the subject and the prior offences stretched, this could not be called the worst sort of case.

2. ¦
HE; THE YOUTHFULNESS OF THE OFFENDER

Toextent is ble, young first offenoffenders ders shoulshould not be sent to gaol. The appellant was strictly not a first offender, but as I have explained, the prior offences were part and parcel of the offences out of which this appeal arises.

The late Lord Goddard went so far as to say that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility. One of Lord Goddard’s predecessors in the office of Lord Chief Justice of England, Lord Hewart, said in R. v. Taggart[ccxxxix]3 &;It is nots not practicable, and if practicable it would not be able to lay down a general rule, but there here are many cases in which it is worth while to take some risk in order to save a young man or a young woman from prison and the consequences of imprisonment”.

These observations seem to me to make it clear that where a court deems it proper to imprison a young first offender that it should not impose a crushing sentence. It should be remembered that there are no reformatories in the Territory and that in many cases young people share what is provided in the corrective institutions with adults. See the difference of the approach of Burbury, C.J. in R. v. Mather and Rogers[ccxl]4, when an excellent new reformatory institution was in existence as compared with his approach in Lahey v. Sanderson[ccxli]5, before the institution was available.

In my mind the totality of these cumulative sentences would have a crushing effect on a boy of 15 ½.

3. CUMVLATINT SENTENCES

On the face of it the impositioneven aumul tivemmaxieum scntennes oo a youthfuuthful offender was manifestly unjust. However, Mr. Laucis referred me to R. v. Blake[ccxlii]6, where a traitor, by a combination of three consecutive and two concurrent sentences, was awarded 42 years imprisonment. Blake was a man of whom the trial judge said “Your case is one of the worst that can be envisaged in times of peace.” Mr. Laucis also quoted R. v. Britten[ccxliii]7. Britten was another traitor, he received consecutive and concurrent sentences, the total being 21 years imprisonment. These were condemnatory sentences, expressing the “utter abhorrence” with which ordinary men and women would view the crime. He also referred to the case of R. v. Phillips and Lawrence[ccxliv]8. This was a case where a man was seriously assaulted, and treated in an utterly revolting way. Cumulative sentences were imposed there.

These cases, and other cases like R. v. Wilson[ccxlv]9 (&#8reat Trat Train Robbery”) have absolutely nothing to do with a native boy breaking and ent buildings ings and committing robberies therein.

There seems to be a tendency on the part of the Crown to quote cases where denunciatory sentences have been imposed and seek to apply them to cases where a deterrent is needed, but certainly not a savage sentence of the condemnatory type. It does not assist to quote R. v. Blake, R. v. Britten and R. v. Wilson in “run of the mill” cases.

There is power to make sentences cumulative and there is power to make more than two sentences cumulative. But the latter power should only be exercised in exceptional cases. R. v. Smith[ccxlvi]10 a>R. v.i> v. Betteridge[cc]11. In R. v. Phillips and Land Lawrence[ccxlviii]12 one of thelappellants received three cumulative sentences. However, the conviction on onege of robbery was set asideaside, so that the question as to whether three cumulative sentences should be passed did not arise. However, Mack C.J. did not agree that the conviction for robbery should be set aside, and was of opinion that three cumulative sentences were permissible. See also R. v. Anderson[ccxlix]13.

It does appear from other reading that an award of more than two cumulative sentences is unusual. I note that Monahan J. gave three cumulative sentences of four, four and two years in Victoria. The case was a bad one and the accused had a very bad record. See R. v. McIntyre[ccl]14, which is a report of the case on appeal to the Full Court. However, the question I am concerned with was apparently not raised.

Cases will arise where it will be quite proper to award more than two cumulative sentences, but they will be rare, and they will need to be very bad cases.

CONCLUSION
It is quite clear from what I have said that this appeal must succeed.

As I propose to release the appellant immediately so that he can be repatriated it does not matter, as a matter of practical politics, what particular orders I make, except that it does affect the criminal record of the appellant.

[On 8th June, 1971, His Honour formally allowed the appeal and the appellant was discharged.]

Appeal allowed and appellant discharged.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.
Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[ccxxxvii][1997] UKHL 5; (1909) 2 Cr. App. R. 94.
[ccxxxviii]Unreported judgment 616, Prentice J. 14th April, 1971.
[ccxxxix] (1923) 17 Cr. App. R. 132.
[ccxl][1962] TASStRp 4; [1962] Tas. SR. 25.
[ccxli][1959] TASStRp 10; [1959] Tas. SR. 17.
[ccxlii] [1961] 3 All ER. 125.
[ccxliii] [1969] 1 All ER. 517.
[ccxliv] [1967] Qd. R. 237.
[ccxlv] (1964) 48 Cr. App., R. 329.
[ccxlvi] [1952] SASR. 297.
[ccxlvii] [1965] SASR. 76.
[ccxlviii] [1967] Qd. R. 237.
[ccxlix] [1967] Qd. R. 599.
[ccl][1965] VicRp 76; [1965] VR. 593.