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Maima v Sma [1971-72] PNGLR 49 (14 April 1971)

[1971-72] PNGLR 49

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

MAIMA

v

SMA

Kavieng Rabaul & Port Moresby
Prentice J

12 March 1971
26-27 March 1971
14 April 1971

CRIMINAL LAW - Police offences - "Being without lawful means of support" - Evidence of such offence - Severity of sentence - Principles of sentencing - Police Offences Ordinance (N.G.) 1966, 68[xxx]1, 69[xxxi]2.

CRIMINAL LAW - Procedure - Circumstances in which plea of guilty should be entered.

The accused was charged in a Local Court of "being without lawful means of support, Contra s. 69(1) of the Police Offences Ordinance (N.G.) 1966". He was convicted. He appealed, inter alia, on the ground that the information disclosed no offence.

Held
On appeal from the Local Court: The information, by incorporation of the reference to s. 69(1) made clear the offence with which the accused was being charged. An offence is provided for by s. 69 by a reference back to s. 68. Assuming the information to be defective in substance or form, no objection should be taken or allowed to it provided it does disclose an offence.

Ex parte Lovell [1938] NSWStRp 12; (1938) 38 S.R. (N.S.W.) 153, followed.

Nothing in the record of the Local Court indicated that the procedure set out in s. 38 of the Local Courts Ordinance 1963-1966 was not followed in the conduct of the appellant’s summary trial. After the facts alleged against the appellant were read out in the hearing before the Local Court the appellant said that he had nothing to say. The Magistrate constituting the Local Court entered a plea of guilty. The basic facts were that a local constable had arrested and brought before the Local Court the appellant who was a considerable distance from his home district, was living in a camp, had been unemployed for four months, was collecting food from old gardens, and was undernourished in appearance. The Magistrate, who reported upon the appeal that he thought that the appellant would receive good feeding, good housing, and good exercise in gaol imposed the maximum sentence permissible of six months’ imprisonment with hard labour. Further grounds of appeal relied on by the appellant were (1) that there was no evidence to support the charge, (2) that a plea of guilty should not have been entered, and (3) that the sentence was excessive.

Held

Further on the appellant’s appeal from the Local Court: (1) that there was ample evidence before the Local Court to support the charge, (2) that until material to the contrary was pointed out or appeared the regularity of the entry of the plea of guilty should be presumed, and (3) that in imposing the sentence awarded the magistrate allowed himself to be influenced by extraneous considerations and that a sentence of imprisonment with hard labour for one month ought to be substituted.

The considerations affecting the penalty for the offence of being an idle and disorderly person discussed and the circumstances in which the maximum permissible sentence should be awarded referred to.

Appeal under the Local Courts Ordinance 1963-1966, s. 43.

Ben Hambakon Sma (the appellant) having been arrested and charged, was convicted by the Local Court at Kavieng as being "without lawful means of support contra s. 69(1) of the Police Offences (New Guinea) Ordinance 1966" and sentenced to six months’ imprisonment with hard labour.

The appellant appealed against his conviction and sentence to the Supreme Court of the Territory of Papua and New Guinea. The grounds of the appeal and the relevant facts appear in the reasons for judgment hereunder.

Counsel

J. R. Baulch, for the appellant.
A. Pierce, for the respondent.
Cur. adv. vult.

14 April 1971

PRENTICE J: An appes bhas been brought herein against a conviction in the Local Court at Kavieng after the appellan been arresarrested and charged, in the words of the "information", as being "without lawful means of support contra Sec. 69(1) of the Police Offences (New Guinea) Ordinance 1966". The sentence of six months’ imprisonment with hard labour was the maximum which the Local Court could impose.

The appeal was supported on four grounds: (a) that it was wrong in law in that the information disclosed no offence; (b) that the plea of guilty should not have been entered; (c) that there was no evidence to support the charge; and (d) on the ground of severity.

NO OFFENCE DISCLOSED BY THE INFORMATION

Section 68 of the Police Offences Ordinance establishes an offence of "being an idle and disorderly person"; and categories of persons who may be so convicted are set out in sub-ss. (1)(b) to (f). Section 69 provides that a person arrested on reasonable constabular belief that he has no lawful (or insufficient lawful) means of support, and who fails to discharge the onus then placed on him of establishing that he did have such or sufficient lawful means of support, is to "be deemed to be an idle or disorderly person". The appellant contends that the offence established by sec. 69 is of "being an idle or disorderly person". There is no such offence as "being without lawful means of support" in the Territory of New Guinea. He relies on the principles examined and applied in Collins v. Mycock[xxxii]3 and K v. Dodd[xxxiii]4.

In my opinion, the information here, by incorporation of the reference to s. 69(1), makes clear the offence with which the accused was being charged. An offence is provided for by s. 69 by a reference back to s. 68. Assuming the information to be defective in substance or form, no objection should be taken or allowed to it—provided it does disclose an offence, Ex parte Lovell[xxxix]10. The Local Courts Ordinance unlike the Justices Acts of some of the States does not go on to enact what should be done by the Magistrate in such a case, though it is expressly stated that he may amend a variance (between the information and the offence). Presumably he should make any necessary amendment and allow any adjournment consequentially desirable to avoid prejudice to the accused. In Ex parte McAuley[xl]11 Jordan, con, considering the comparable portion of s. 65(1)(a) of the New South Wales stices Act, stated:

"By virtue of this provision mistakes in stating the name of the prosecutor . . . or of the accused may be corrected . . . Section 65(1)(a) is a most valuable section, and it is import ant that it should not be whittled away by the allowance of objections to an information if they can be cured without causing injustice. As was pointed out by Griffith C.J. in Hedberg v. Woodhall[xli]12 the se mean means that ‘if objections are taken which really do not go to the merits of the casemagistrate rate is not to stay his hand, but to proceed to dispose of the case on the merits’. If the defect is curable, it is the duty of the magistrate to aid in curing it".

In a dissenting judgment Davidson J. nevertheless, expressed a like view of the section’s powers. Sir William Cullen C.J., speaking of the effect of s. 65 of the Justices Act, made plain that "cases in which some particular item has been omitted from that which would have made a complete statement of what the defendant was charged with" fall within s. 65 of the New South Wales Act (R. v. Duff[xlii]13).

I think everybody here knew what the essence of the charge was and evidence was available to support that charge, and I do not consider the accused was disadvantaged by the defect. I am of the opinion that no objection could have been allowed at the hearing before the magistrate so as to require the discharge of the instant information. However, I consider that for greater precision the information, and therefore the conviction (see the judgment of Davidson J. in Ex parte McAuley[xliii]14, should have been amended.

NO EVIDENCE TO SUPPORT THE CONVICTION

In support of the ground that there was no evidence to justify the conviction, Mr. Baulch relied on the decision of Blackburn J. in Daniel v. Belton[xliv]15. There was nothing in the statement of facts, he says, to show that having regard to the accused’s employment and station in life, to his being a New Guinean villager (cf. the Australian aborigine), that the accused was without lawful means of support—support sufficient to what appears to be the standard of living of the person under consideration (Taylor v. Lenthall[xlv]16.) I should think it clear that provision of food and shelter by wan-toks could constitute lawful means of support in many settings of Papuan and New Guinean society. But this was not stated to have occurred in this case. A consideration of the circumstances prevailing would be required. This was a matter of a local constable arresting and bringing before a local magistrate, a Chimbu man from Minj who had ceased to be employed as a plantation labourer for some four months, was living in the Chimbu camp at Kavieng, and was collecting kau kau from local old gardens. The local court magistrate would no doubt be entitled to view the facts in the light of his local knowledge (cf. Daniel v. Belton[xlvi]17 )specificalfically states in his report that the accused was underished. The matter was uncontested—th12;the accused said in court he had nothing to say. I consider there was ample material before the court on which the learned magistrate could come to the conclusion to which he did, regarding a conviction. I would dismiss the appeal on this ground.

PLEA OF GUILTY SHOULD NOT HAVE BEEN ENTERED

Mr. Baulch next contended that a plea of guilty should not have been entered in the circumstances—that the facts were not clear and that the magistrate should have been in some doubt as to the accused’s understanding of the charge both at the time of the plea and subsequently. That is, that not only at the putting of the charge to the accused, but after reading the statement of facts to him he should have had some doubt whether the accused properly understood the essence of the charge. There is nothing on the record to indicate that the correct procedure was not followed as set out in s. 38 of the Local Courts Ordinance. I consider that until material to the contrary were pointed out or appeared, I should apply the maxim omnia praesumuntur rite esse acta. From the local court magistrate’s report it appears that the order set out in the pro forma used as a court document was followed, and that after the facts were read out the accused said he had nothing to say. In fact, the form in which the information was framed would have helped the accused in my opinion, to understand the real nature of the charge. I would dismiss the appeal on this ground.

SEVERITY

On the ground of severity Mr. Baulch submitted that the facts did not warrant the maximum punishment, and that the last paragraph of the magistrate’s reasons for judgment indicated that he proceeded on a wrong principle in sentencing. In his report the learned magistrate said:

"Looking at the defendant in Court, he looked skinny and a little bit weak. No doubt that the defendant was not getting enough food (sic), his home district is too far, he cannot afford to go back there for he had nowhere to get any money to help himself to go there. If the defendant Tabi Maima could be living like that for another few months, no doubt he would be looking worse than he was.

"The above said reasons were borne in mind that the condition of the said defendant has to be improved and also that he has to be supported in some ways. Thinking that the defendant would be well fed, well housed, receiving good exercise to help his muscles and body and to keep him out of further troubles of the said old gardens, the defendant was convicted and adjudged to be imprisoned with hard labour for six months."

I am of the opinion that the learned magistrate has allowed himself to be influenced by extraneous considerations. Good feeding, housing and good exercise could no doubt be available to the accused other than in gaol; and though the magistrate no doubt was pursuing a course which would have materially assisted the physical well being of the accused, I consider he misdirected himself in so doing. In addition, he has imposed the maximum punishment open to him. The general principle is that the maximum punishment should be awarded only in the worst cases (R. v. Harrison[xlvii]18). The court must not substitute its own opinion in regard to the possible inadequacy of the statutory range of punishment allowed it, but must act judicially within that range. In other words, it could not impose the maximum punishment merely on the basis that the top limit is in its opinion inadequate. (There is no indication here that the learned magistrate actually approached the matter in that way.)

The accused was a man not shown to have been in trouble before. He had been working up until four months previously. He was a long way from his district. There were no alarming features about his arrest which suggested a potential grave delinquency. I consider that an appropriate sentence in the circumstances would have been imprisonment for one month. The accused had in fact served one month before being admitted to bail. He was before me at the hearing in Rabaul and then looked well fed and happy. I was informed by his counsel that he has re-engaged in plantation work at Kavieng. I direct that the record be amended by substituting for the words "was without lawful means of support contra s. 69(1) of the Police Offences (New Guinea) Ordinance 1966" appearing in the information and in the record of conviction, the words "was an idle and disorderly person in that he was without lawful means of support, contra s. 69(1) of the Police Offences Ordinance". I substitute for the penalty imposed by the local court magistrate a sentence of imprisonment with hard labour for one month. This sentence having already been served, I direct that the appellant be suffered to go at large.

Direction that information and record of conviction be amended. One month’s imprisonment with hard labour substituted.

Appellant discharged.

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

[xxx]Section 68 provides:

(1) ¦
ny; Any person committing any of the following offences shall be deemed an ind dirordeely p:rson1—

(2) &##160; ـ Any peronv convicted of being an idle and disorderly person w the neani the last precedieceding subsection shall ball be guilty of an offence.

[xxxi]Section 69 provides:

(1) ¦t Where anycpolice officer has reasonable cause to believe that any peras noulawfal mef supor has has insufinsufficieficient lawful means of support he may arrest that person either with or without warrant, and bring him before a Court or may summon him to appear before a Court.

(2) &##160; ـ If thaton rson fails to prove to the satisfaction of the Court that he has sufficiawfulsmeans of support or that shat such means of support as he has are lawful, he shall be deemed to be an idle and disorderly person within the meaning of the last preceding section.

(3) ¦t The fact that any person charged under this section can produce or prove that he possesses money or propertll not be t be taken into account in deciding the charge against that person unless he shows by his own or other evidence that he honestly obtained the money or property.

[xxxii] [1964] PNGLR 1.
[xxxiii] [1969-70] PNGLR 176.
[xxxiv](1968) 12 FLR 101.
[xxxv][1968] 12 FLR, at p. 103.
[xxxvi][1912] VLR. 322.
[xxxvii][1912] VLR. 322.
[xxxviii][1912] VLR, at p. 325.
[xxxix](1938) [1938] NSWStRp 12; 38 S.R. (N.S.W.) 153.
[xl](1944) [1944] NSWStRp 19; 44 S.R. (N.S.W.) 258, at p. 259.
[xli](1913) [1913] HCA 2; 15 CLR 531, at pp. 534, 535.
[xlii](1921) [1923] NSWStRp 78; 41 W.N. (N.S.W.) 23.
[xliii](1944) [1944] NSWStRp 19; 44 S.R. (N.S.W.) 258, at p. 262.
[xliv](1968) 12 FLR 101.
[xlv][1930] SASR 413.
[xlvi](1968) 12 FLR 101.
[xlvii](1909) [1997] UKHL 5; 2 Cr. App. R. 94.