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Tuk v First Gori [1983] PNGLR 420 (18 November 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 420 - Henry Tuk v First Constable Gori 

[1983] PNGLR 420

N446(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

HENRY TUK

V

GORI

Lae

Pratt J

16 November 1983

18 November 1983

INFERIOR COURTS - Local courts - Summary offences - Sentencing - Prescribed minimum penalty - Discretionary dispositive powers still available - Local Courts Act 1963, ss 19A, 20 - Summary Offences Act 1977.

CRIMINAL LAW - Sentencing - Summary offences - Prescribed minimum penalty - Local courts - Discretionary dispositive powers still available - Local Courts Act 1963, ss 19A, 20 - Summary Offences Act 1977.

Section 20 of the Local Courts Act 1963 provides that a “local court is not bound to convict if the offence complained of is, in the opinion of the court, of so trivial a nature as not to merit punishment.”

Section 19A(i) of the Local Courts Act 1963 provides that where either fine or imprisonment may be imposed by a local court any required recognizance or condition may be dispensed with wholly or in part.

Section 19A(2) of the Local Courts Act 1963 provides that where a local court may impose imprisonment for an offence, but has no power to impose a fine, “it may none the less, if it considers that the justice of the case would be better met by a fine than by imprisonment, impose a fine not exceeding K100 ...”.

Held

(1)      Notwithstanding the minimum penalty provisions introduced into the Summary Offences Act 1977, by the Summary Offences (Amendments) Act No. 17 of 1983, a Local Court magistrate retains the discretionary dispositive power not to convict under s. 20 of the Local Courts Act 1963.

Laho Kerekere v. Robin Miria [1983] P.N.G.L.R. 277 followed.

(2)      Notwithstanding the minimum penalty provisions introduced into the Summary Offences Act 1977, by the Summary Offences (Amendments) Act No. 17 of 1983, a Local Court magistrate retains the discretionary sentencing power contained in s. 19A of the Local Courts Act 1963.

Laho Kerekere v. Robin Miria [1983] P.N.G.L.R. 277 followed.

(3)      In exercising the discretionary sentencing power in s. 19A(2) of the Local Courts Act 1963 a Local Court magistrate must choose between the minimum term of imprisonment and a fine as being in the interests of justice.

Cases Cited

Laho Kerekere v. Robin Miria [1983] P.N.G.L.R. 277.

Moer and Herol v. Morea (McDermott J unreported, unnumbered judgment dated 29 October 1983).

Appeal

This was an appeal against sentence on the grounds of severity.

Counsel

M. Sevua, for the appellant.

C. Righatta, for the respondent.

Cur. adv. vult.

18 November 1983

PRATT J: The appellant Henry Tuk was convicted in the Local Court Mumeng on 4 August 1983 for assault. He received six months’ imprisonment with hard labour being the minimum sentence operable under s. 6 of the Summary Offences Act 1977 as amended on 14 July 1983 by the Summary Offences Amendment Act No. 17 of 1983. Of this Act the learned magistrate made the following observation:

“This new amendment does not provide provision for a magistrate to impose fine at his own discretion, but only to imprison him.”

It is clear that his Worship considered he no longer had the ability to impose a fine. The appellant was released on bail pending hearing of his appeal on 4 November 1983. He has thus served three months’ imprisonment to date.

My task has been made much easier in this matter as a result of the research and published views of Amet J in Laho Kerekere v. Robin Miria, [1983] P.N.G.L.R. 277. This decision was approved more recently by McDermott J in Appeal No. 192 of 1983, Moer and Herol v. Morea (Unreported unnumbered judgment dated 29 October 1983). I would respectfully agree with both decisions and state that in my view also the minimum penalties legislation does not oust the alternative remedies open to a magistrate under s. 138 and s. 206 of the District Courts Act 1953. It remains to be seen whether the same position pertains under the Local Courts Act 1963.

There is certainly no exact replica of s. 138 which has the effect of permitting a magistrate to find the charge proven but, having regard to certain matters personal to the defendant, or because of extenuating circumstances, or the trivial nature of the offence, he may dismiss the charge or impose certain sanctions without proceeding to conviction. However, s. 20 of the Local Courts Act reads:

“A local court is not bound to convict if the offence complained of is, in the opinion of the court, of so trivial a nature as not to merit punishment.”

The section is certainly not as comprehensive as s. 138 above. The grounds for dismissal are more restricted, as is the course of action available to the magistrate. It seems to me, however, that, despite its greater brevity and simplicity, s. 20 is still directed to the same end as s. 138. It certainly affords an alternative course of action to the magistrate and like s. 138 of the District Courts Act there is nothing contained in Act No. 17 of 1983 which specifically affects s. 20 of the Local Courts Act. With respect, I think the statement of Amet J at 279 of Laho Kerekere v. Robin Miria has even greater force when applied to s. 20 of the Local Courts Act, that the decisions.

“... affirm that the discretionary dispositive power in s. 138(i) of the District Courts Act remains open to the court; for the penalty provided in s. 20 of the Summary Offences Act can only be imposed upon conviction, and the effect of a disposition under s. 138(i) is that the District Court never proceeds to the stage of conviction.”

As in the matter before Amet J the conviction recorded in this case means that s. 20 does not come up for consideration by the magistrate or by me. Nevertheless it is clear to me that it is still available to a magistrate and has not been made inoperative by the Summary Offences (Amendments) Act No. 17 of 1983.

Amet J then proceeded in Laho Kerekere v. Robin Miria to examine the authorities and principles applicable to the proposition that the minimum penalties legislation had rendered nugatory the provisions of s. 206(ii) of the District Courts Act. Once again I find myself in complete agreement with his Honour’s reasoning and conclusions.

Section 206(i) and (ii) has a word-for-word counterpart in s. 19a(i) and s. 19a(ii) of the Local Courts Act, allowing for some slight changes in nomenclature and the fact that the word “not” was inserted before the phrase “being such an amount as would”, being inadvertently omitted as in s. 206(ii) of the District Courts Act. (The obvious typing omission has finally been corrected this month by Act No. 34 of 1983.) It follows, therefore, that the section was available to the magistrate despite the amending Act No. 17 of 1983 and that he was in error in concluding that he had no power to impose a fine, if he considered imprisonment was too severe in the circumstances. I think it is particularly important, when considering the appropriate penalty, for magistrates to bear in mind the fact that if imprisonment is imposed it must now be imposed for a minimum period. Obviously, therefore, there will be a greater use of the fine provisions than previously because of the length of time which a citizen must now spend in gaol.

I accept his Worship’s view that this was quite a serious assault. Certainly the law must set its face strongly against “wife bashing”, but I do not think the wife would really appreciate the loss of the breadwinner of the family for six months. In some cases, of course, it would be a blessed relief. In the present circumstances there is nothing to indicate one way or the other.

The accused was a married man with two children and self-employed as a goldminer. He has no prior convictions and no doubt there were tensions which erupted during the domestic argument which led to the assault. To put a person in gaol for a first conviction of what is a relatively minor misdemeanour, in my view, flies in the very face of commonsense, humanity and modern sentencing principles. In the circumstances of this case it is excessive punishment. The magistrate was also demonstrably in error as a matter of law. I therefore uphold the appeal. A fine would clearly have been the more appropriate penalty. I would impose a fine of K50 and, subject to what follows, in default three months’ imprisonment. As the appellant has already served the default period he has now paid for his misdemeanour. He will not serve a further period of imprisonment.

I quash the order as to sentence. The period of imprisonment he has already served will be regarded as the default penalty and is adjusted accordingly.

Orders accordingly.

Lawyer for the appellant: N. Kirriwom, Public Solicitor.

Lawyer for the respondent: L. Gavara-Nanu, Public Prosecutor.