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Aia and Pino, Public Prosecutor v [1978] PNGLR 224 (30 June 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 224 - Public Prosecutor v John Aia and Peter Pino 

[1978] PNGLR 224

SC132

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE PUBLIC PROSECUTOR

V

JOHN AIA OF MONDO AND PETER PINO OF IDU

Waigani

Raine DCJ Wilson J Andrew J

29-30 June 1978

CRIMINAL LAW - Sentence - Appeal against sentence - Appeal against inadequacy - Principles applicable - Stealing - Previous offences - Sentences of 15 months substituted for sentences of 4« months.

CRIMINAL LAW - Appeal against sentence - Appeal against inadequacy - Evidence on appeal - Court records not before sentencing judge - Whether appellate court entitled to have regard to - Whether “fresh evidence” - Supreme Court Act 1975, s. 7[ccclxxiii]¹, s. 9(2)[ccclxxiv]².

CRIMINAL LAW - Appeal against sentence - Appeal against inadequacy of sentence - Principles applicable discussed and previous decisions doubted - Supreme Court Act 1975, s. 23.

Two accused respondents with previous records for similar offences, stole a handbag containing valuable jewellery and money from an unlocked motor car, and were each sentenced to four and one half months’ imprisonment, (taking into account three and one half months in custody pending trial). During the hearing of the appeal one of the appellate judges recalled sentencing one of the respondents some years earlier and referred to the record contained in his judges’ notebook and the court files, which material was not available before the trial judge nor contained in the appeal books.

On appeal against inadequacy of sentence pursuant to s. 23 of the Supreme Court Act 1975:

Held

(1)      In describing the respondents’ previous offences as “petty theft type offences”, the trial judge had erred in principle and in view of the serious nature of the offence, its prevalence within the community and the fact that the respondents were not first offenders, the sentences imposed were clearly inadequate and should be increased in each case to a sentence of fifteen months imprisonment (taking into account the three and one half months in custody pending trial).

(2)      (Per Wilson and Andrew JJ, Raine Dep. CJ dissenting). Having regard to the prohibition in s. 9(2) of the Supreme Court Act 1975 against the receipt of “fresh evidence” on appeal, the appeal court should not take into account information or evidence contained in court records which was not available to the court the decision of which is appealed from.

Quaere whether on an appeal against inadequacy of sentence pursuant to s. 23 of the Supreme Court Act 1975 the Supreme Court should have an unfettered discretion to vary the sentence appealed against, or whether the Supreme Court should vary the sentence only if it is first convinced that the trial judge has fallen into error in the exercise of his discretion.

Griffiths v. The Queen (1977) 51 A.L.JR. 749;

R. v. Liekefett; Ex parte Attorney-General [1973] Qd.R. 355;

Kovac v. R. (1977) 15 A.L.R. 637, and

Reg. v. Thomas [1975] Tas. S.R. 146 considered.

Reg. v. Pia-Afu [1971-72] P. & N.G.L.R. 393;

Reg. v. Harley [1971-72] P. & N.G.L.R. 399; and

Whittaker v. The King [1928] HCA 28; (1928) 41 C.L.R. 230 doubted.

Appeal

This was an appeal by the Public Prosecutor pursuant to s. 23 of the Supreme Court Act 1975 against inadequacy of sentence.

Counsel

K. B. Egan, for the appellant.

G. C. Lalor, for the respondents.

Cur. adv. vult.

30 June 1978

RAINE DCJ: This is an appeal instituted by the Public Prosecutor under s. 23 of the Supreme Court Act 1975, that is, against sentence. The Public Prosecutor submits that the sentences of four and a half months awarded to the co-accuseds, the respondents to this appeal, were inadequate. They stole a handbag containing valuable jewellery, some money, and papers from an unlocked car.

Mr. Lalor, of counsel for the respondents, has asked the court to decline to follow the long-standing decision of the former Full Court in Reg. v. Pia-Afu[ccclxxv]³. This has been applied on a number of occasions since and as recently as May this year, see Paulus Mandatititip & Anor. v. The State[ccclxxvi]⁴. As Prentice CJ and Pritchard J said at p. 129 referring to Pia-Afu’s case “... it was laid down that whereas on appeal on sentence by the prosecution, the question of adequacy of sentence was completely open, in an appeal by a convicted person an appeal court should allow the appeal only where the sentence was seen to be manifestly excessive.” Pia-Afu’s case was based on the Full Court’s understanding of a decision of the High Court in Whittaker v. The King[ccclxxvii]⁵. Mr. Lalor submits that Whittaker’s case was misunderstood and that accordingly Pia-Afu’s case was wrongly decided. He relies strongly on a judgment of Barwick CJ in Griffiths v. The Queen[ccclxxviii]⁶. My loose part of the Australian Law Journal containing this judgment only arrived here recently. It would not have been available to the court hearing the Paulus Mandatititip appeal. My brother Wilson, since we reserved our decision, has drawn my attention to a decision of the Full Court of the Federal Court of Australia, Kovac v. R.[ccclxxix]⁷, which considered Griffiths’ case and appears to agree with what was said by Barwick CJ and Jacobs J In Queensland in R. v. Liekefett; Ex parte Attorney-General[ccclxxx]⁸ the proposition that the court had an unfettered discretion in an appeal against sentence by the Attorney-General was rejected. Liekefett’s case was brought to the old Full Court’s attention in The Secretary for Law v. Kerema Kepoi and Gorepe Gaipe Avi[ccclxxxi]⁹ but it was not argued and in the absence of argument the court declined to turn away from Pia-Afu’s case.

In Griffiths’ case Barwick CJ said at pp. 757 and 758, by way of obiter.

“A further matter was raised by the applicant which perhaps need not be disposed of in order to resolve this appeal. But the matter has been fully argued and it is a matter which affects the general administration of the criminal law in Australia. I propose to express my conclusion as to the submission.

It has been said that this Court in Whittaker v. The King, ante, decided that the Supreme Court sitting as a Court of Criminal Appeal on an appeal by the Attorney-General was not restrained as appellate courts usually are to the remedy of error in what has been done in the court below, but that that court has complete and, as it is said, unfettered discretion to substitute what it thinks is the proper sentence for that which the trial judge has imposed without considering whether in truth the trial judge has erred in a matter of principle or whether he has acted unreasonably or in disregard of relevant evidence or whether in some other way he has exceeded or misused the discretion which is committed to him in the sentencing of convicted persons.

In my opinion, this Court decided no such thing in Whittaker v. The King. It is quite true that what was said by the Chief Justice and Powers J in their joint judgment could support that view, but clearly nothing in what was said by Isaacs J or Higgins J would do so. The remaining two Justices, Gavan Duffy J and Starke J, in refusing special leave, said that the Court of Criminal Appeal ‘in imposing the sentence complained of, did not proceed in opposition to any principle of law but in accordance with its own considered view of the facts.’ This might be thought an ambiguous statement but it means, in my opinion, when related to the circumstances which obtained in that case, that their Honours were not disagreeing with what the Court of Criminal Appeal had said. The principle upon which the court acted was, in their opinion, the correct principle.

Having referred to the principles laid down in R. v. King [1925] NSWStRp 18; (1925), 25 S.R. (N.S.W.) 218, the Chief Justice of New South Wales at p. 418 of the report, R. v. Whittaker [1928] NSWStRp 35; (1928) 28 S.R. (N.S.W.) 411, posed for himself the question whether the trial judge had proceeded upon a wrong principle. On examination of what the trial judge had done, he concluded that he had erred in principle. James J and Campbell J concurred in this judgment. Having decided that error was present in what the trial judge had done, the Court then was in a position to impose such sentence as it thought proper. Thus, in my opinion, the joint judgment of Gavan Duffy J and Starke J, in supporting the judgment of the Supreme Court, denies the view of the function of the Court of Criminal Appeal which has been suggested.

The authority of the Court of Criminal Appeal to hear and determine an appeal by the Attorney-General against the sentence imposed at the trial is, as I have said, derived exclusively from s. 5d of the Criminal Appeal Act. The authority was thus given to an appellate court whose powers, derived from other sections of that Act, were exclusively appellate. Sections 6 and 8 of the Act quite clearly limit the court to an appellate function. It would indeed be strange to construe s. 5d as giving to the court more than a truly appellate function. What it is claimed that Whittaker v. The King decided would give to the court a function more akin to original jurisdiction exercisable without reference to what has already been done and in the exercise of which the court was not constrained by those principles of appellate courts which concede to the presiding judge a discretion the exercise of which is not to be disturbed except for error.

In my opinion, s. 5d does not bear such a construction. It does no more, in my opinion, than give to the Court of Criminal Appeal authority to hear and determine an appeal by the Attorney-General against the sentence erroneously imposed by a trial judge. Its reference to discretion, in my opinion, does no more than ensure that where a proper occasion arises for the allowance of an appeal, the court itself may substitute the sentence which it considers appropriate for that imposed by the trial judge. Thus, no question of remitting the matter to the trial judge for sentence in conformity with the reasons for judgment of the Court of Criminal Appeal arises. In other words, the court is not limited to acting as a court of cassation.

In the instant case, had the Court of Criminal Appeal not been in error in setting aside the orders of the trial judge, it could have imposed the sentence which it properly thought appropriate. The matter not having been argued, I do not say anything as to the propriety of the sentence in fact imposed by the court. However, as in my opinion the Court of Criminal Appeal was in error in holding that the trial judge was in error in the course he took, the court was not entitled to impose a sentence of its own choice.

It seems to me that the misapprehension as to the effect of this Court’s decision in Whittaker v. The King had led to much more frequent appeals by the Attorney-General than might properly have been expected. Inadequacy of sentence, an expression not found in the Criminal Appeal Act but which is the form in which the ground of the Attorney-General’s appeal is expressed, is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed. It means, in my opinion, such an inadequacy in the sentence as is indicative of error or departure from principle. No doubt, consistency in the sentences imposed by the judges of the District Court is a desirable feature of criminal administration. Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle. Thus, in an appropriate case, the Court of Criminal Appeal may exercise its influence towards such consistency of sentence. But that consistency is not to be sought or secured, in my opinion, by the Court of Criminal Appeal substituting in any case which the Attorney-General cares to bring before it, its own view of the appropriate sentence irrespective of the presence or absence of error on the part of the trial judge. I ought at this point to say that I agree with the reasons for judgment of Isaacs J in Whittaker v. The King and accept the citations which he makes in support of his views. I would call attention to what his Honour says at pp. 248-249 of the report and add that, in my opinion, the views of those whose daily, or almost daily, task is the sentencing of prisoners must command respect. They are in reality in a better position to assess the proper sentence than, in my opinion, is a court of appeal, error or breach of principle being absent.

On my view of the proper meaning of s. 5d in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. The present appeal, though mistaken, is understandable as apparently it was thought that the course taken by the trial judge was erroneous in point of principle or practice.”

(Section 5d of the N.S.W. Act is in almost similar terms to our s. 23.)

In Griffiths case Jacobs and Murphy JJ discuss the N.S.W. section, s. 5d, rather tersely. I therefore treat what their Honours say with some reserve. However, I see nothing in what they say that prompts me to feel that they are differing from the Chief Justice.

On my return from leave the Griffiths’ case was one of the first that I read amongst reports that had accumulated during my absence. In all frankness, I must say that when I read what Barwick CJ had to say it accorded with the thoughts I had had about Pia-Afu’s case over the last several years here. I had always felt that it was undesirable that the Crown or the State had an easier row to hoe in its appeals than did an accused appellant, who was tied to the principles laid down in House v. The King[ccclxxxii]¹⁰.

The forceful judgment of Sir Garfield Barwick greatly impresses me. His analysis of Whittaker’s case is, I think, correct. We are no longer bound by the decisions of the High Court but where they are decisions that are extremely persuasive, naturally enough, we might well feel inclined to adopt them. The same thing goes for decisions of the State Supreme Courts or Courts of Criminal Appeal. I have already mentioned that in Queensland the whole of that Court, so it seems, has changed its tune and I refer to Liekefett’s case. Then again we have Kovac’s case. Although this does not, in terms, completely support or approve Griffiths’ case, I think it can be implied that it certainly does not resist the obiter dicta that I have quoted from the judgment of Barwick CJ

The Public Prosecutor, referring to the facts of this case, suggested that as a matter of practical politics it matters not which test is applied. In fact, so far as this appeal is concerned I agree, being strongly of opinion that the appeal should succeed. Thus, anything I say about Pia-Afu’s case is “obiter”.

But in many cases it may not be correct to say that as a matter of practical politics it matters not what test is applied and the application of Pia-Afu’s case which allows the exercise of an unfettered discretion, could lead to one arguable view being preferred to another arguable view.

In my opinion this appeal must be allowed. While it is true these men had been out of trouble for some years prior to that they had quite bad records. His Honour the trial judge described their earlier trials as petty. With respect I would not so describe them. The instant crime is certainly not a petty crime. I take into account the fact that the owner of the stolen handbag stupidly left it in an unlocked car. This provides temptation. But this is not a case where a passer-by chances to glance inside a car and, on the moment, succumbs to temptation. The respondents had their eyes and their minds set on this car well before they found that it was unlocked. One approached the car, the other stayed behind and acted as a “cockatoo”.

It was further argued that very little was lost, that all or nearly all the jewellery was recovered and little money taken. This is undoubtedly something that should be taken into account, but it should not be over-stressed. The respondents had no use for the stolen jewellery so they abandoned it. But what if it had been kina? Of course, it goes without saying, they would have taken the lot.

This was a serious crime, and this crime is prevalent. His Honour said it was not urban crime. I suppose his Honour was thinking of store, house and car breakings in the city and in suburbs skirting the city. With respect, I see no force in this. Many citizens go up and down the road to Sogeri. There are two busy hotels in the area and further back towards the city at 12 Mile there is a large store with a liquor licence, and there are other activities there as well.

In my respectful opinion the sentences imposed must be substantially increased.

There is one additional matter to which I will refer. During argument, when our attention was drawn to a Supreme Court conviction in 1971 on a similar charge when Peter Pino was sentenced to imprisonment for twelve months, I observed that I thought he had been dealt with then by me. This proved to be correct. I see from my judgment and notes then, and from the file, that he had been in custody for three months so that it was an effective sentence of fifteen months.

But this was not all that I ascertained. His co-accused in 1971 was John Aia, and there is not a shadow of doubt that he is the John Aia we are dealing with now. He received a sentence of sixteen months.

I informed Mr. Lalor of these matters and the court reconvened as counsel wished to submit that as the facts about John Aia were not before the trial judge that what I had found constituted fresh evidence or evidence within the meaning of s. 9(2) of the Supreme Court Act 1975. See also s. 7.

I do not treat it as evidence at all. My notes, contained in my judge’s note book, are part of the court record. So is my judgment which is in the file, and so is the usual court file. Some possible indications to the contrary were referred to. I should add that R. v. Thompson[ccclxxxiii]¹¹, quoted by Mr. Lalor, certainly does not support him. It is clearly distinguishable.

The fact of the matter is that the police were at fault when they prepared the antecedent report in relation to John Aia and left out the 1971 conviction. It is not the first time this sort of thing has happened; apparently all is not so well in the “modus operandi” section.

Am I, who was the judge who tried these respondents in 1971, and who knows the true situation, to say solemnly to myself that Peter has a conviction in the Supreme Court and that John has not? It is sometimes said that the law is an ass. But I trust not such an ass as that. Grave injustice could result. If it was wrongly thought that John Aia had not graduated in crime to the point where he had been previously before the Supreme Court then he could receive a lower sentence than is due, one disproportionate to that awarded to his co-accused, the respondent Peter Pino.

In my opinion this appeal should be allowed and a sentence of fifteen months imprisonment with hard labour substituted in the case of each respondent.

WILSON J: This is an appeal against sentence brought by the Public Prosecutor pursuant to s. 23 of the Supreme Court Act 1975. The appellant seeks to have the Supreme Court increase two sentences of four months and two weeks imprisonment with hard labour imposed on the 6th April, 1978 by a judge of the National Court sitting as a court of first instance. Those who received such a sentence were each of the two respondents each of whom had been convicted of the crime of breaking, entering and stealing. The ground of appeal is that the sentence which each of the respondents received was in the circumstances inadequate and insufficient.

A preliminary question has arisen as to whether the Supreme Court has power on an appeal by the Public Prosecutor under s. 23 of the Supreme Court Act to increase a sentence (or substitute a different sentence) simply because the members of the court would themselves, had they been in the position of the judge of first instance, have imposed a different sentence, or whether this Court should vary the sentence only if it is first convinced that the trial judge has fallen into error in the exercise of his discretion.

It was held by the pre-Independence Supreme Court in Reg. v. Pia-Afu (supra)[ccclxxxiv]¹² and Reg. v. Harley[ccclxxxv]¹³ that the High Court case of Whittaker v. The King (supra)[ccclxxxvi]¹⁴ should be applied and that, by virtue of s. 29(1) of the Supreme Court (Full Court) Ordinance 1968, which is in all relevant respects in the same terms as s. 23 of the Supreme Court Act, the appellate court has an unfettered discretion to vary the sentence imposed by the trial judge but that the appellate court should not interfere with the sentence appealed against unless it is clearly satisfied that the sentence should be altered.

Notwithstanding the note of warning sounded by Clarkson, Raine and Williams JJ in The Secretary for Law v. Kerema Kepoi and Gorepe Gaipe Avi[ccclxxxvii]¹⁵ and the protest of Raine J in The Secretary for Law v. Ulao Amantasi and Ors. [ccclxxxviii]¹⁶, such has been the law in this country in this period since Reg. v. Pia-Afu[ccclxxxix]¹⁷ and Reg. v. Harley[cccxc]¹⁸ were decided. See The Secretary for Law v. Kwauga [cccxci]¹⁹, The Public Prosecutor v. Terrence Kaveku [cccxcii]²⁰, The Public Prosecutor v. Wiwi Gok [cccxciii]²¹, The Public Prosecutor v. Willy Moke Soki[cccxciv]²² and The Public Prosecutor v. Yapuna Kaso [cccxcv]²³. In fact, until as recently as 3rd May, 1978 when Paulus Mandatititip & Anor. v. The State[cccxcvi]²⁴ was decided in the Supreme Court, Reg. v. Pia-Afu[cccxcvii]²⁵ was receiving approval, albeit in obiter dictum in this latest case.

However, it now appears that the view has recently been expressed both in the High Court of Australia and in the Federal Court of Australia and not so recently in the Supreme Courts of several of the Code States of Australia that it would be wrong to conclude that the majority view in Whittaker v. The King [cccxcviii]²⁶ was that, upon an appeal against sentence under s. 5d of the Criminal Appeal Act 1912 (N.S.W.), the Court of Criminal Appeal had an unfettered discretion.

Mr. Lalor, for the respondents, strenuously sought to persuade this Court that the time had come when Reg. v. Pia-Afu[cccxcix]²⁷ and Reg. v. Harley[cd]²⁸ should be over-ruled. He referred to Griffiths v. The Queen[cdi]²⁹ (in the High Court of Australia), R. v. Liekefett; Ex parte Attorney-General[cdii]³⁰ (in the Supreme Court of Queensland), Reg. v. Thomas[cdiii]³¹ (in the Supreme Court of Tasmania) and R. v. Lawlor[cdiv]³² (in the Supreme Court of Western Australia). He omitted to mention one other case which would appear to support his argument viz. Kovac v. R.[cdv]³³. That decision of the Federal Court of Australia may be of some importance in this debate. Mr. Egan in his argument contended that, in reality, there is no difference between Reg. v. Pia-Afu[cdvi]³⁴ and Reg. v. Harley[cdvii]³⁵ on the one hand and Griffiths v. The Queen[cdviii]³⁶ on the other. He argued that the obiter dicta of Barwick CJ and Jacobs J are in line with the “clear satisfaction” proviso which is a necessary part of the principle adopted in Reg. v. Pia-Afu[cdix]³⁷ and Reg. v. Harley [cdx]³⁸.

The decisions in Reg. v. Pia-Afu[cdxi]³⁹ and Reg. v. Harley[cdxii]⁴⁰ may now be wrong and perhaps the time has come for them to be no longer followed. However, I apprehend that there may be implications for the general administration of the criminal law in Papua New Guinea if this Supreme Court, constituted as it is by only three members, were to over-rule Reg. v. Pia-Afu[cdxiii]⁴¹ and Reg. v. Harley[cdxiv]⁴² at this time. I realise that the Supreme Court is not bound by earlier decisions of the Supreme Court (see Sch. 2.9 of the Constitution). Nevertheless the legal doctrine of stare decisis and the principles of judicial comity are such that an earlier decision of the Supreme Court should only be over-ruled after great caution and in a clear case. I am of the opinion that, if the Supreme Court is to be invited to over-rule an earlier decision of the Supreme Court, or even an earlier decision of the pre-Independence Supreme Court, it is desirable that the Court be constituted by more than three judges and, if possible, the Chief Justice of the day should preside. I am also of the opinion that the Supreme Court should not consider over-ruling one of its earlier decisions, assuming it considers the earlier decision to be wrong, unless it has heard full argument (and we have heard none in this case on this aspect) as to the desirability or otherwise of the Supreme Court at this stage in this country’s development and in circumstances such as arose in this case changing the law by judicial as opposed to legislative decision. The Supreme Court should also have an opportunity to consider the principles which should guide the Supreme Court in the reconsideration of its own decisions.

Because I consider (for the reasons that will follow) that the judge at first instance did in any event, in the exercise of his discretion, fall into error to such an extent that this Court must intervene, I do not propose to express a concluded opinion as to the correctness or otherwise of Reg. v. Pia-Afu[cdxv]⁴³ and Reg. v. Harley [cdxvi]⁴⁴. Such an opinion would be obiter anyway.

I now turn to the principal question raised on this appeal, and I should immediately set out the relevant facts. The two respondents planned to steal from any motor vehicle which came to the vicinity of the Rouna Falls, a tourist attraction not far out of Port Moresby. It was decided that one would keep watch whilst the other would approach any vehicle left unoccupied, enter it if it was not locked, and steal anything of value therefrom. This is precisely what happened in the instant case. In the car in question there was a bag containing goods of considerable value to the victims (viz. jewellery, documents, keys and money) but it happened that the goods were of little value or interest to the respondents. Subsequently all of the property, except for a few kina in cash, was recovered. As the judge at first instance held, it was not a “spur of the moment” offence.

As far as the personal circumstances of the respondents are concerned, both are in their middle or late 20s, both are relatively uneducated, both are married with one child, and neither of them has had a great deal of work experience.

Both respondents have previous convictions. According to the information before the judge at first instance, the respondent, John Aia, had seven previous convictions as a juvenile, six of which were for offences of dishonesty for which he received sentences varying from one month’s imprisonment to four months’ imprisonment. Likewise, according to the information before the judge at first instance, the respondent, Peter Pino, had five previous convictions including three for stealing in 1970 (for which he received cumulative sentences totalling eleven months’ imprisonment) and one for breaking, entering and stealing in 1971 for which he was sentenced by the Supreme Court to twelve months’ imprisonment. It is true that each of the respondents, John Aia and Peter Pino, has apparently kept out of trouble for the past eight and six years respectively.

It was urged on behalf of Peter Pino that he had made an effort to rehabilitate himself since 1971. It was urged on behalf of John Aia that his previous offences before 1969 were committed when he was a minor.

It is in relation to the previous convictions of the respondents that I think the learned judge went wrong.

He said, when sentencing the respondents:

“Both prisoners have records which started 10 years ago, Peter Pino convicted on 5 occasions and John Aia on 7, for what appear to be petty-theft type offences; but Peter Pino has been out of trouble these last 6 years, and John Aia for the last 8 ...

... As to their records, the offences they committed were in their early teens, and they have kept out of trouble for quite a long time. I view their records against that background bearing in mind the more serious offence of Peter Pino in 1971.

I think that personal deterrence calls for a sentence of the more modest type. I think 8 months in hard labour is adequate. Bearing in mind the time in custody, I sentence each to 4 months and 2 weeks in hard labour.”

With all due respect to the learned judge, I do not see how offences of stealing for which the respondent, John Aia, received sentences of four months’ imprisonment (on two separate occasions) and three months’ imprisonment (on one other occasion) can properly be described as ‘petty-theft type offences’. Likewise, I do not see how three offences of stealing for which the respondent, Peter Pino, received cumulative sentences totalling eleven months’ imprisonment, and one offence of breaking, entering and stealing for which he received a sentence of twelve months’ imprisonment in the Supreme Court can properly be so described.

Whilst it was perfectly valid for the learned judge to give them credit for the fact that they had kept out of trouble for quite a long time, the plain fact of the matter was that these two young men, who had previously been before the courts for quite serious crimes of dishonesty and who had been punished accordingly, had deliberately returned to premeditated crime involving dishonesty.

The sentences imposed by the learned judge were the sort of sentences which first offenders might expect to receive for committing a crime such as this. By characterizing the respondents’ previous crimes as “petty-theft type offences” the sentencing judge equated them with first offenders and thereby led himself into error. He gave insufficient weight to their previous criminal histories; he made an evident mistake relating to the respondents’ previous criminal histories.

In Crayson v. The King[cdxvii]⁴⁵ McMillan CJ said at p. 38:

“It is not right to be guided merely by previous convictions, and if the offence for which punishment is to be awarded does not indicate a deliberate return to crime, and there are circumstances which do not show that the offence was planned beforehand, less weight is to be given to previous offences. More weight should be given to previous convictions for offences of the same character as that for which the offender is to be punished than to convictions for offences of a different character.”

In approving that dictum I should not be taken to be advocating increasing a sentence because of the offender’s bad record; to do so involves the danger of punishing him again for something for which he has been punished before, and that cannot be too strongly deprecated. Speaking generally, the principal bearing that an offender’s record has on the exercise of judicial discretion is the extent to which it does or does not justify leniency. It is better to have regard to the offender’s antecedents only for the purpose of seeing if there are mitigating circumstances, for example, of being a first offender. Such a circumstance (i.e. the fact that he is a first offender) would justify leniency and therefore a reduction in the length of sentence. A lengthy period free of any convictions or a period free of convictions of the same character would also be a circumstance justifying leniency but not normally justifying as much of a reduction as for a first offender.

As D. A. Thomas said in his book Principles of Sentencing (at p. 174):

“The fact that a man with previous convictions receives a longer sentence than a first offender, and that a man with five previous convictions receives a longer sentence than a man with two previous convictions, is the result not of a progressive aggravation of the basic penalty, but a progressive loss of credit for good character ...”

It is especially important to formulate the principle in this way when the court wishes to place particular emphasis on deterrence which necessarily involves disregarding or giving less effect to mitigating factors.

The learned judge was urged to take into account the fact that the respondent, Peter Pino, had “made an effort to rehabilitate himself”, and the trouble-free period preceding the offence for which each respondent faced sentence was emphasized by counsel for the respondents and noted by the learned judge. My concern in this case, which has a bearing on the sentencing policy of the National Court, is that by virtue of the learned judge’s error regarding their previous criminal histories, he gave too much weight to that mitigating circumstance which I would characterize as the “trouble-free gap in the offender’s criminal record”.

I agree with the learned author of Principles of Sentencing (supra) who said (at p. 179):

“The fact that an offender who has a criminal record has made an effort to ‘go straight’ since his last conviction or release from prison normally counts as a substantial mitigating factor if he subsequently commits an offence. In the case where the previous offences were trivial and committed in the long distant past, the Court will normally disregard them entirely and treat the offender as a man of previous good character. Where the previous convictions are more numerous or are for offences of a more serious character, the existence of a period free from conviction immediately before the commission of the present offence still has substantial mitigating effect. Clearly, the longer the period, the more effect it will have in mitigation ...”

I am of the opinion that, whilst the learned judge clearly had this principle in mind when he sentenced these respondents, he erroneously treated the previous offences as trivial (his precise words were “petty-theft type”) and found himself imposing a sentence which normally would be appropriate for a first offender.

D. A. Thomas went on to state (at p. 181):

“Where the subsequent offence appears more as determined return to criminal behaviour, the existence of a period without conviction is likely to be ignored.”

Whilst I cannot agree that the existence of a period without conviction should mean that previous convictions should be ignored altogether, the mitigating effect of such a period without conviction certainly diminishes when the subsequent offence appears more as a determined return to crime. The learned judge here, who, it will be remembered, had rejected defence counsel’s submission that this was a “spur of the moment” offence, failed sufficiently to diminish the mitigating effect of the trouble-free gap in the respondents’ criminal records.

Having decided that this appeal should be allowed and the sentences varied, it now remains for me to decide what sentence I think ought to have been imposed in the first instance (see s. 15 (c) of the Supreme Court Act). I do not think that this is the sort of case which should be remitted for further hearing under s. 15(d). I have reached that conclusion notwithstanding the discussion and supplementary argument to which I will make reference later in this judgment.

Upon the material before the court of first instance I think an effective sentence of about eighteen months’ imprisonment with hard labour would have been appropriate rather than eight months. Accordingly, I would allow the appeal and vary the sentences by increasing them to fifteen months’ imprisonment with hard labour.

During the course of the hearing of this appeal some discussion took place as to the effective sentence which the respondent Peter Pino received in 1971 and, as a result of an examination of the records of the pre-Independence Supreme Court, some doubt was expressed as to whether the last conviction of the respondent, Peter Pino, had in fact resulted in an effective sentence of as little as twelve months’ imprisonment and as to whether the judge of first instance had had placed before him the complete criminal record of the respondent, John Aia.

We then heard argument (which was supplementary to the other argument in this appeal) as to whether the Supreme Court on an appeal under s. 23 of the Supreme Court Act should, in circumstances in which it has decided to allow the appeal upon the basis of some error by the court of first instance, take into account information in the court records and act upon information or evidence not available to or placed before the court the decision of which is appealed against.

Section 7 of the Supreme Court Act provides:

“7.      APPEAL TO BE BY WAY OF REHEARING

(1)      An appeal to the Supreme Court shall be by way of rehearing upon the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court:

(a)      to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and

(b)      to draw inferences of fact.

(2)      For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.”

Section 9 of the Act provides:

“9.      SUPPLEMENTAL POWERS OF SUPREME COURT

(1)      For the purposes of this Act, the Supreme Court may, if it thinks it necessary or expedient in the interests of justice:

(a)      order the production of any document, exhibit or other thing connected with the proceeding the production of which appears to it necessary for the determination of the case; and

(b)      order any persons who would have been compellable witnesses at the trial to attend and be examined before the court, whether or not they were called at the trial, or order any such person to be examined on oath before a Judge of the National Court, an officer of the Supreme Court, a magistrate of a court of summary jurisdiction or any other person appointed by the Court for the purpose, and admit as evidence any deposition so taken; and

(c)      receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness and, if the appellant consents, of the husband or wife of the appellant in cases where the evidence of the husband or wife could not have been given at the trial except with that consent; and

(d)      where any question arising on the appeal involves prolonged examination of documents or accounts or any scientific or local investigation which cannot in the opinion of the Supreme Court conveniently be conducted before the Court, order the reference of the question for inquiry and report, in accordance with Part IV, by a referee appointed by the Court and act upon the report of the referee so far as it thinks fit to adopt it; and

(e)      exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the National Court on appeals or application; and

(f)      issue any warrants necessary for enforcing the orders or sentences of the Court.

(2)      The Supreme Court shall not increase a sentence in a criminal proceeding by reason of, or in consideration of, any evidence given under Subsection (1).”

Having regard to the prohibition contained in s. 9(2) and as an examination of the court’s records for the purpose of removing the aforementioned doubts could only operate against the interests of the respondents by leading to them receiving increased sentences, I consider that this Court should not take into account such information as may be in the court records or act upon that information or evidence which was not available to the court the decision of which is appealed from. It might have been otherwise if this had been an appeal against the severity of sentence and if it appeared that the court records might contain information either which would favour the prisoners or which would enable the court more effectively to do justice to them. Furthermore, the spirit and intent of the appeal legislation contained in the Supreme Court Act is such that the primary function of the Supreme Court in appeals under s. 23 in particular is to see whether the lower court went wrong on the material before it, not to see whether a different conclusion might have been reached on different or additional material.

I would therefore allow this appeal and vary the sentences imposed in both cases by substituting a sentence of fifteen months’ imprisonment with hard labour.

ANDREW J: This is an appeal against sentence brought by the Public Prosecutor pursuant to s. 23 of the Supreme Court Act 1975. The respondents were both sentenced on the 6th April, 1978 to imprisonment with hard labour for a period of four months and two weeks for the offence of breaking and entering and stealing. The ground of appeal is that the sentences were and are in the circumstances inadequate and insufficient.

In Reg. v. Pia-Afu[cdxviii]⁴⁶ the Full Court held that on the hearing of an appeal against sentence pursuant to s. 29(1) of the Supreme Court (Full Court) Ordinance 1968 the Full Court had an unfettered discretion to vary the sentence imposed by the trial judge. See also Reg. v. Harley[cdxix]⁴⁷. Section 29(1) of the Supreme Court (Full Court) Ordinance 1968 is in the same terms as s. 23 of the Supreme Court Act 1975. In both these cases Whittaker v. The King[cdxx]⁴⁸ was applied.

Counsel for the respondents submits that, following criticism of Whittaker’s case[cdxxi]⁴⁹ by the High Court in Griffiths v. The Queen [cdxxii]⁵⁰, Pia-Afu’s case[cdxxiii]⁵¹ can no longer be regarded as good law and that on an appeal against the inadequacy of a sentence by the Public Prosecutor the Supreme Court does not have an unfettered discretion to vary the sentence. It is submitted that inadequacy of sentence is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed. It means such an inadequacy in the sentence as is indicative of error or departure from principle.

In Griffiths v. The Queen[cdxxiv]⁵² Barwick CJ at pp. 757 and 758 has analysed Whittaker’s case[cdxxv]⁵³ most closely and concluded that it was never authority for the proposition that the Court of Criminal Appeal on an appeal by the Attorney-General was not restrained, as appellate courts usually are, by being vested with an unfettered discretion to substitute what it thinks is the proper sentence for that which the trial judge has imposed without considering whether in truth the trial judge has erred in a matter of principle or whether he has acted unreasonably or in disregard of relevant evidence or whether in some other way he has exceeded or misused the discretion which is committed to him in the sentencing of convicted persons. At p. 757 “It seems to me that the misapprehension as to the effect of this Court’s decision in Whittaker v. The King had led to much more frequent appeals by the Attorney-General than might properly have been expected. Inadequacy of sentence, an expression not found in the Criminal Appeal Act but which is the form in which the ground of the Attorney-General’s appeal is expressed, is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed. It means, in my opinion, such an inadequacy in the sentence as is indicative of error or departure from principle.”

Griffith’s case[cdxxvi]⁵⁴ has subsequently been approved in Kovac v. R. [cdxxvii]⁵⁵.

Further, in each of the Australian States which has a Criminal Code similar to our own it has been held that upon the hearing of an appeal by the Attorney-General against any sentence pronounced, the Court of Criminal Appeal does not have an unfettered discretion of its own: the appeal is against the exercise of judicial discretion and should be determined by established principles. The principles to be applied in deciding whether a sentence is inadequate are the same as those applicable when the question arises of whether it is excessive: See R. v. Liekefett; Ex parte Attorney-General [cdxxviii]⁵⁶; Reg. v. Thomas[cdxxix]⁵⁷ and R. v. Lawlor [cdxxx]⁵⁸.

The weight of authority is thus overwhelming that the appellate court should only vary a sentence if it is convinced that the trial judge has fallen into error in the exercise of his discretion. In my respectful view it is illogical and undesirable that a convicted person who may only appeal with leave and who desires to challenge his sentence must show some error or misunderstanding on the part of the trial judge before this Court will intervene whilst the State which can appeal as of right can invite this Court to substitute its view of the correct sentence. In my view this Court should no longer follow the pre-Independence Supreme Court in Reg. v. Pia-Afu [cdxxxi]⁵⁹.

In this case I have had the advantage of reading the judgment of the Deputy Chief Justice and of my brother Wilson and I agree that by characterizing the respondents’ previous crimes as “petty-theft type offences” that that is indicative of error. In my view also the sentences should be increased. I would allow the appeal and vary the sentences by increasing them to a period of fifteen months’ imprisonment with hard labour in the case of each respondent.

One further matter arose on the hearing of this appeal, namely whether the Supreme Court on an appeal under s. 23 of the Supreme Court Act should take into account information or evidence not placed before the court at first instance. I agree with my brother Wilson that having regard to the prohibition in s. 9(2) of the Supreme Court Act this Court should not take such evidence into account which was not available to the court whose decision is appealed against.

Appeals allowed.

Sentences increased.

Solicitor for the appellant: K. B. Egan, Public Prosecutor.

Solicitor for the respondents: M. Kapi, Public Solicitor.

[ccclxxiii]Infra p. 237.

[ccclxxiv]Infra p. 237.

[ccclxxv][1971-72] P. & N.G.L.R. 393.

[ccclxxvi][1978] P.N.G.L.R. 128.

[ccclxxvii](1928) 41 C.L.R. 230.

[ccclxxviii](1977) 51 A.L.JR. 749.

[ccclxxix](1977) 15 A.L.R. 637.

[ccclxxx](1973) Qd. R. 355.

[ccclxxxi](Unreported) Judgment FC65 of 30th August, 1974.

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

[ccclxxxiii](1907) 7 S.R. (N.S.W.) 764.

[ccclxxxiv][1971-72] P. & N.G.L.R. 393.

[ccclxxxv][1971-72] P. & N.G.L.R. 399.

[ccclxxxvi](1928) 41 C.L.R. 230.

[ccclxxxvii](Unreported) Judgment FC65 of 30th August, 1974.

[ccclxxxviii][1975] P.N.G.L.R. 134 at p. 139.

[ccclxxxix][1971-72] P. & N.G.L.R. 393.

[cccxc][1971-72] P. & N.G.L.R. 399.

[cccxci][1974] P.N.G.L.R. 135.

[cccxcii][1977] P.N.G.L.R. 110.

[cccxciii][1977] P.N.G.L.R. 161.

[cccxciv][1977] P.N.G.L.R. 165.

[cccxcv][1977] P.N.G.L.R. 209.

[cccxcvi][1978] P.N.G.L.R. 128.

[cccxcvii][1971-72] P. & N.G.L.R. 393.

[cccxcviii](1928) 41 C.L.R. 230.

[cccxcix][1971-72] P. & N.G.L.R. 393.

[cd][1971-72] P. & N.G.L.R. 399.

[cdi](1977) 51 A.L.JR. 749.

[cdii][1973] Qd. R. 355.

[cdiii][1975] Tas. S.R. 146.

(1976) A.C.L. Digest case 082.

[cdv](1977) 15 A.L.R. 637.

[cdvi][1971-72] P. & N.G.L.R. 393.

[cdvii][1971-72] P. & N.G.L.R. 399.

[cdviii](1977) 51 A.L.JR. 749.

[cdix][1971-72] P. & N.G.L.R. 393.

[cdx][1971-72] P. & N.G.L.R. 399.

[cdxi][1971-72] P. & N.G.L.R. 393.

[cdxii][1971-72] P. & N.G.L.R. 399.

[cdxiii][1971-72] P. & N.G.L.R. 393.

[cdxiv][1971-72] P. & N.G.L.R. 399.

[cdxv][1971-72] P. & N.G.L.R. 393.

[cdxvi][1971-72] P. & N.G.L.R. 399.

[cdxvii](1920) 22 W.A.L.R. 37.

[cdxviii][1971-72] P. & N.G.L.R. 393.

[cdxix][1971-72] P. & N.G.L.R. 399.

[cdxx](1928) 41 C.L.R. 230.

[cdxxi][1928] HCA 28; (1928) 41 C.L.R. 230.

[cdxxii](1977) 51 A.L.JR. 749.

[cdxxiii][1971-72] P. & N.G.L.R. 393.

[cdxxiv](1977) 51 A.L.JR. 749.

[cdxxv](1928) 41 C.L.R. 230.

[cdxxvi](1977) 51 A.L.JR. 749.

[cdxxvii](1977) 15 A.L.R. 637.

[cdxxviii][1973] Qd. R. 355.

[cdxxix][1975] Tas. S.R. 146.

[cdxxx](1976) A.C.L. Digest case 082.

[cdxxxi][1971-72] P. & N.G.L.R. 393.