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SCR No 1 of 1984; Re Maximum Penalty [1984] PNGLR 418 (11 November 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 418 - SCR No 1 of 1984; Re Maximum Penalty 

[1984] PNGLR 418

SC287

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 1 OF 1984

Waigani

Kidu CJ McDermott Amet JJ

9 September 1984

11 November 1984

CRIMINAL LAW - Sentence - Default penalty - Imposition of maximum fine - Maximum fine not maximum penalty - Default penalty a threat - Default penalty not sentence - Fine is sentence.

Held

(1)      Where a criminal offence carries a maximum penalty of either a fine or imprisonment for a specified period, the imposition of the maximum fine in default of any period of imprisonment including the maximum specified period is not contrary to the principle that the maximum sentence should be reserved for the worst type of case.

(2)      (By Kidu C.J.) The principle that the maximum sentence should be reserved for the worst type of case is not a rule of law but a rule of practice adopted through the exercise of common sense in order to do justice.

(3)      (By Kidu C.J.) A fine is a sentence and is to be regarded as a less severe form of punishment than a custodial sentence.

Makin v. Kelly [1963] P. & N.G.L.R. 127, not followed.

(4)      A default penalty is merely a threat that if the fine is not paid the defaulter will go to gaol; it need not be equated with the maximum fine specified in any particular case.

(5)      (Per McDermott J.) The maximum “in default” provision should only be reserved for the case where there is real doubt that the fine imposed, after due consideration of capacity to pay, will not be paid.

Cases Cited

Avia Aihi v. The State (No. 3) [1982] P.N.G.L.R. 92.

Fleming v. Gwale Dau [1983] P.N.G.L.R. 339.

Goli Golu v. The State [1979] P.N.G.L.R. 653.

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

Makin v. Kelly [1963] P. & N.G.L.R. 127.

Passingan v. Beaton [1971-1972] P. & N.G.L.R. 206.

R. v. Harrison [2011] UKSC 43; (1909) 2 Cr. App. R. 97.

Tabi Maima v. Ben Hambakon Sma (Unreported judgment No. 616 Prentice J., dated 14 April 1971).

Supreme Court Reference

This was a reference to the Supreme Court pursuant to s. 15 of the Supreme Court Act (Ch. No. 37) by a judge of the National Court, of a question of law set out in the reasons for judgment hereunder of Kidu C.J.

Counsel

E. V. Batari, to argue the affirmative case.

L. Gavara-Nanu, to argue the negative case.

29 March 1984

KIDU CJ: This is a reference by the National Court pursuant to s. 15 of the Supreme Court Act (Ch. No. 37). The Court is asked the following question:

“Accepting the principle that a court will impose the maximum penalty provided only in the worst type of case, is it the opinion of the Court that the following course of action would be contrary to such principle where for example:

The offence carries a penalty of either K100 or 3 months’ imprisonment;

The Court imposes the maximum fine of K100, for although the case is quite bad, the circumstances dictate that imprisonment would be inappropriate:

(a)      the penalty on default is one month’s imprisonment.

(b)      the penalty on default is three months’ I.H.L. (the maximum).”

Ivan Sevese was convicted by the Ela Beach District Court of unlawfully using a motor vehicle without the owner’s consent and fined K400 in default one years imprisonment with hard labour. The maximum penalty under s. 422 of the Criminal Code (Ch. No. 262) is “A fine not exceeding K400 or imprisonment for a term not exceeding one year.” So Sevese was fined the maximum fixed by law and in default imprisonment for the maximum also fixed by law. He appealed to the National Court against this penalty as being manifestly excessive.

The National Court awaits this Court’s decision before it determines the merits of Sevese’s appeal before it.

When referring the matter pursuant to s. 15 of the Supreme Court Act the National Court gave the following as reasons for the order:

“Reasons for Order:

(1)      On a number of occasions I have ruled that where a court imposes a maximum fine instead of the alternate punishment of imprisonment laid down in the section, irrespective of whether default penalty equals the maximum period of imprisonment laid down as the alternate punishment or some lesser period, the imposition of the maximum fine does not breach the requirement that maximum or near maximum sentences must be imposed only in the worst cases.

(2)      I cannot recall having published in written form my reasons for such decision.

(3)      It appears such rulings may be in conflict with the published reasonings of Ollerenshaw J. in Makin v. Kelly [1963] P. & N.G.L.R. 127, Amet J. in Kerekere v. Miria [1983] P.N.G.L.R. 277 and the Chief Justice in Fleming v. Gwale Dau [1983] P.N.G.L.R. 339.”

It is not a rule of law that the maximum sentence for an offence should be reserved for the worst case, but a practice which has been accepted through the exercise of common sense in order to do justice. Therefore, in determining the question referred by the National Court this Court must not lose sight of this.

In Fleming v. Gwale Dau [1983] P.N.G.L.R. 339 I said that the maximum fine for an offence should be reserved for the worst type of case but I did not have the benefit of submissions by counsel on the matter. As I recall counsel for the appellant merely agreed with me and counsel for the respondent did not say anything.

All the cases I have read on the matter do not distinguish between custodial sentences and fines, although almost all these cases concern custodial sentences. For instance in Passingan v. Beaton [1971-1972] P. & N.G.L.R. 206, Raine J. (as he then was) merely said (at 208):

“Maximum punishment should be reserved for only the worst sort of cases.” (My emphasis.)

His Honour then quoted as authorities, R. v. Harrison [1997] UKHL 5; (1909) 2 Cr.App.R. 94 and Tabi Maima v. Ben Hambakon Sma, (Unreported judgment No. 616 Prentice J. dated, 14 April 1971). In the latter case Prentice J. (as he then was) said at 6:

“The general principle is that the maximum punishment should be awarded in the worst cases: R. v. Harrison.” (My emphasis.)

R. v. Harrison was a case involving the award of the maximum custodial sentence (two years for indecent assault). Once again the Court (per Maunsell J.) only said the following, at 96:

“The maximum sentence must, as presumably the law intended, be reserved for the worst case.” (My emphasis.)

This Court has, since Independence, confirmed this view: See Goli Golu v. The State [1979] P.N.G.L.R. 653 and Avia Aihi v. The State (No. 3) [1982] P.N.G.L.R. 92.

It should be noted that Raine J. in Passingan v. Beaton and Prentice J. in Tabi Maima v. Ben Hambakon Sma used the term “punishment” whilst the court in R. v. Harrison used the term “sentence”. Is there a distinction? I do not think there is any difference. A sentence passed by a court includes a fine. As was pointed out by Mr Batari the word “sentence” is defined in the Shorter Oxford Dictionary as meaning, “an authoritative decision, a judgment pronounced by a tribunal, a judicial determination of punishment to be inflicted on a convicted criminal”. The word is defined in Osborne’s A Concise Law Dictionary (5th ed.) as meaning, “The judgment of a court, particularly in an ecclesiastical or criminal cause.” So a fine is a sentence.

WHERE MAXIMUM SENTENCE IS A FINE

The question referred for consideration is confined to cases where penalties are either terms of imprisonment or fines. The reference does not include a case where the prescribed maximum penalty is a fine (as was the case in Fleming v. Gwale Dau). If the matter were before this Court my answer would be that the principle could be applicable. I say “could” because if an offence carries a maximum penalty of K1, it would be ridiculous to apply the principle. It takes little to discern from such a low maximum penalty the reason for it. However, if the maximum were say a K10,000 fine, common sense would dictate the application of the principle. We should not lay down a hard and fast rule one way or the other.

WHERE MAXIMUM SENTENCE IS A PRESCRIBED CUSTODIAL TERM OR A FINE

The Public Prosecutor submits that in this type of case a custodial sentence is a harsher penalty than a fine and the principle should not apply if the sentencing court decides to impose a fine rather than a term of imprisonment. This argument runs counter to what Ollerenshaw J. said in Makin v. Kelly [1963] P. & N.G.L.R. 127 at 128:

“I suppose that, generally speaking, many, if not most people would think of a fine as a lesser punishment and the draftsman of the Customs Ordinance may have been in this class, but, that is not enough. It is not at all difficult to imagine that some people, in some circumstances in which they might find themselves, would prefer the hospitality of the government with free board and lodging and modern comforts, where they are available, to the payment of a sorely needed sum of£500, or£100, or even£25.

In other words, I do not consider that the words in Section 244 of the Customs Ordinance, forbidding the reduction of a minimum penalty, forbid the substitution of a fine for imprisonment and the reason is that, to my mind, the substitution of a punishment or penalty by fine for a punishment or penalty by imprisonment is not a reduction of that penalty of imprisonment.”

With the greatest respect to Ollerenshaw J., a fine is a less severe form of punishment than a custodial sentence. I say that not because a fine is listed after capital punishment and custodial sentences in s. 18 of the Criminal Code (Ch. No. 262) but because being locked up in a prison is generally worse than a fine. A custodial sentence involves the curtailment of rights, such as freedom of movement, freedom of information, freedom from forced labour, freedom of assembly and association. A person who pays a fine continues to enjoy these freedoms.

A court has to determine whether to apply a custodial sentence or the alternative of a fine. Now, to do this the court must consider all necessary factors such as the seriousness of the offence and so forth. If after this process the court considers that a fine is appropriate it is clear then that the matter does not fall into the worst case category. Whether the maximum fine is imposed or not depends on factors such as the ability of the offender to pay the fine. The default penalty is not really relevant because a fine imposed should be what a person can afford. The default penalty is merely a threat that if the fine is not paid then the offender is incarcerated until the fine is paid.

I answer the questions, No.

MCDERMOTT J: Simply put, the question asks if the imposition of a maximum fine, accepting that the maximum penalty is applicable to the worst type of case, can also carry with it the maximum sentence provided for as an “in default” provision.

It arises out of such a sentence imposed in the District Court after the hearing of an indictable offence summarily under the amendments to the Criminal Code (Ch. No. 262) brought about by the Criminal Code (Indictable Offences) Act 1980. The offence was the unlawful use of a motor vehicle: Criminal Code, s. 383. Punishment is expressed as “a penalty” (Criminal Code, s. 432) which is set out in Sch. 1a as a maximum period of imprisonment. This penalty is now also subject to a minimum period of imprisonment but that does not concern us here. The penalty is subject to the blanket provisions relating to “Punishments” in the Criminal Code, s. 19. The draftsman equates “penalty” with “punishment”.

To arrive at a suitable penalty the magistrate had first to decide if the seriousness of the offence warranted the imposition of a penalty above the prescribed maximum for him: Criminal Code, s. 433(4). He then had to consider what type of penalty would be imposed: imprisonment, fine, a combination of both, a suspension of a term of imprisonment or to withhold the passing of sentence. These are but examples of the range of options open. A meaningful and relevant choice can only be made on consideration of all the facts before the court. A proper exercise of the sentencing discretion can only be made after consideration of these facts so that the offence and the offender can be categorised, and in so doing decide if the offence is the worst of its type and thus attract the maximum penalty provided.

On its face, deprivation of liberty for the maximum period possible is the maximum penalty. In my view it is impossible to equate a maximum period of imprisonment with a maximum fine. They are entirely different sorts of penalty or punishment and are but part of the range of penalties which could be imposed. Similarly, it is impossible to equate a maximum fine with a maximum “in default” provision — yet that is what the magistrate appears to have done. There is simply no nexus. The “in default” penalty, is exactly that — if you do not pay you go to gaol. It is a threat, an inducement to pay if you like, which can only be determined in a meaningful and sensible manner by a consideration of the facts relating to payment of a fine, that is seriousness of offence, capacity to pay and inducement to pay.

What I am saying is: each penalty is dependent upon the facts giving rise to the offence and the facts peculiar to a particular offender. That being so it is difficult to lay down hard and fast rules relating to fines or imprisonment. As a general rule the maximum penalty applies to the worst type of case and maximum clearly relates to imprisonment.

A penalty has to be appropriate to the circumstances. The maximum “in default” provision should only be reserved for the case where there is real doubt that the fine imposed after due consideration of capacity to pay, will not be paid.

The question does not really come to grips with the issue as I perceive it to be. I too would answer “No” in both instances.

AMET J: I have read in draft the reasons given by the Chief Justice and McDermott J. I too agree that the question as framed has to be answered “No”.

The Court answers the questions, No.

Question answered, “No”.

Lawyer for the affirmative case: Nicholas Kirriwom, The Public Solicitor.

Lawyer for the negative case: Les Gavara-Nanu, The Public Prosecutor.