Sunu, Walter, Gagoro and Haro; Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PGLawRp 520; [1983] PNGLR 396 (2 November 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 396 - The State v Danny Sunu, Namabai Walter, Iku Gagoro and Philip Haro; Reservation of Points of Law under S21 Supreme Court Act (Ch37) 

[1983] PNGLR 396

SC264

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE STATE

V

DANNY SUNU,

NAMARAI WALTER,

IKU GAGORO

AND PHILIP HARO

N1 align=center style='text-align:center;line-height:150%'>IN THE MATTER OF RESERVATION OF POINTS OF LAW UNDER S. 21 OF THE SUPREME COURT ACT (CH. NO. 37)

Waigani

Kapi DCJ Bredmeyer Kaputin McDermott Amet JJ

29 September 1983

2 November 1983

CRIMINAL LAW - Sentence - Minimum penalty provisions - Effect of - Effect of discretionary powers under s. 19 of Code on - Discretionary powers not affected except to extent that term of imprisonment must be minimum prescribed - Criminal Code (Ch. No. 262), ss 19, 398.

STATUTES - Interpretation - “Except where otherwise expressly provided” - Criminal Code (Ch. No. 262), s. 19.

STATUTES - Interpretation - Imprisonment for a term “not less than five years and not exceeding fourteen years” - Criminal Code (Ch. No. 262), s. 398.

The Criminal Code (Ch. No. 262), s. 398, provides for the offence of breaking and entering and committing a crime, the penalty for which is “Imprisonment for a term not less than five years and not exceeding fourteen years”.

The Criminal Code, s. 19, which is headed “Construction of provisions of Code as to punishments” provides:

N2>“(1)    In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided:

(a)      a person liable to imprisonment for life or for any other period may be sentenced to imprisonment for any shorter term; and ....”

The section then provides inter alia for the imposition of fines in addition to or instead of imprisonment, of good behaviour bonds and for the power of suspension of part of a term of imprisonment.

Held

N1>(1)      (Bredmeyer and Kaputin JJ dissenting). Although s. 398 of the Criminal Code (Ch. No. 262) provides a minimum penalty for an offence contrary thereto the discretionary powers of the court under s. 19 are not affected except to the extent that under s. 19(1)(a) a court cannot impose less than the minimum penalty where it considers a term of imprisonment appropriate but may suspend the sentence or a portion thereof under s. 19(6).

Discussion by Kapi DCJ, McDermott and Amet JJ of the meaning to be attributed to the words “... except when it is otherwise expressly provided ...” in s. 19 of the Criminal Code.

Cases Cited

Acting Public Prosecutor v. Clement Maki and Tom Kasen (Unreported Supreme Court judgment No. SC 205 dated 7 August 1981).

Acting Public Prosecutor v. Uname Aumane, Aluma Boku, Luku Wapulae and Piope Kone [1980] P.N.G.L.R. 510.

Black-Clawson Ltd v. Papierwerke Waldhof-Aschaffenburg A.G. [1975] UKHL 2; [1975] A.C. 591; [1975] 2 W.L.R. 513; [1975] 1 All E.R. 810.

Chorlton v. Lings [1868] UKLawRpCP 71; (1868) L.R. 4 C.P. 374.

Cobiac v. Liddy [1969] HCA 26; (1969) 119 C.L.R. 257; (1969) 43 A.L.JR. 257; [1969] A.L.R. 637.

Daymond v. Plymouth City Council [1976] A.C. 609; [1975] 3 W.L.R. 865; [1976] 1 All E.R. 39.

Flannagan v. Shaw [1920] 3 K.B. 96.

Gourlay v. Casey [1927] HCA 6; (1927) 38 C.L.R. 586; 1 A.L.J 28; 33 A.L.R. 98; [1927] V.L.R. 177.

Hack v. Minister for Lands (N.S.W.) [1905] HCA 37; (1905) 3 C.L.R. 10; 13 A.L.R. 60.

Healey v. Festini [1958] VicRp 36; [1958] V.R. 225.

Hill v. Hall [1876] UKLawRpExch 54; (1876) L.R. 1 Ex. D. 411.

Jennings v. Kelly [1940] A.C. 206; [1939] 4 All E.R. 464.

Kutner v. Phillips [1891] UKLawRpKQB 66; [1891] 2 Q.B. 267.

Lands, Minister for v. Frame [1980] P.N.G.L.R. 433.

Lubrano v. Gollin & Co. Ltd [1919] HCA 61; (1919) 27 C.L.R. 113; (1919) 26 A.L.R. 76; (1919) 36 W.N. 139; (1919) 20 S.R. (N.S.W.) 429.

McLean v. Kowald (1974) 9 S.A.S.R. 384.

Metropolitan Railway Co. v. Sharpe (1880) 5 App. Cas. 425.

Murray v. Wigzell (1971) S.A.S.R. 251.

O’Keefe v. Calwell (1949) 77 C.L.R. 261.

R. v. Commissioner for Local Administration for the North and East Area of England; Ex parte Bradford Metropolitan City Council [1979] Q.B. 287.

Rose v. Hvric (1963) 108 C.L.R. 353; 37 A.L.JR. 1; [1963] A.L.R. 560.

Scott v. Cawsey [1907] HCA 80; (1907) 5 C.L.R. 132; 13 A.L.R. 568.

Sillery v. The Queen [1981] HCA 34; (1981) 55 A.L.JR. 509; (1981) 35 A.L.R. 227.

Silvester v. Scibilio [1960] VicRp 97; [1960] V.R. 624.

The India [1864] EngR 105; (1864) Br. & L. 220; 167 E.R. 345.

Tuck and Sons v. Priester [1887] UKLawRpKQB 162; (1887) 19 Q.B.D. 629.

Question of law

This was the hearing of a question of law reserved by Kidu CJ pursuant to s. 21 of the Supreme Court Act (Ch. No. 37), the question being:

“Does a judge have a discretion under s. 19 of the Criminal Code to impose some other form of punishment despite the fact that s. 398 of the Code provides that the minimum penalty for breaking and entering a warehouse, etc., and committing a crime therein is imprisonment for not less than five years?”

Editorial Note

The effect of this decision was reversed by the Criminal Code (Amendment) Act 1983, No. 29 of 1983, effective from 9 November 1983.

Counsel

N. R. P. Kirriwom, to argue the affirmative case.

L. Gavara-Nanu and P. A. Boyce, to argue the negative case.

Cur. adv. vult.

2 November 1983

KAPI DCJ: Four persons pleaded guilty before Kidu CJ on charges of breaking, entering and stealing.

On sentence, his Honour held the view, under s. 398 of the Criminal Code (Ch. No. 262), that he had no discretion but had to impose the minimum sentence provided for by the section, which is five years hard labour.

The Chief Justice referred the following question for consideration by the Supreme Court pursuant to s. 21 of the Supreme Court Act (Ch. No. 37):

“Does a judge have a discretion under s. 19 of the Criminal Code to impose some other form of punishment despite the fact that s. 398 of the Code provides that the minimum penalty for breaking and entering a warehouse, etc., and committing a crime therein is imprisonment for not less than five years?”

I set out the relevant provisions for consideration. The Criminal Code (Ch. No. 262), s. 19:

N2>“19.    Construction of provisions of Code as to punishments

(1)      In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided:

(a)      a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(b)      a person liable to imprisonment may be sentenced to pay a fine not exceeding K2000 in addition to, or instead of, imprisonment; and

(c)      a person sentenced on conviction on indictment to pay a fine may be sentenced:

N5>(i)       to be imprisoned until the fine is paid, in addition to any other punishment to which he is sentenced; and

N5>(ii)      instead of being sentenced to be imprisoned until the fine is paid — to be imprisoned for a term (not exceeding the term provided for in subparagraph (i)) if the fine is not paid within a specified period (which period may be extended as the court thinks fit); and

(d)      a person convicted on indictment of an offence not punishable with death may:

N5>(i)       instead of, or in addition to, any punishment to which he is liable — be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

N5>(ii)      be ordered to be imprisoned until the recognizance, with sureties if so directed, is entered into; and

(e)      a person convicted of any offence on summary conviction may, instead of being sentenced to any punishment to which he is liable, be discharged on his entering into his own recognizances, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a term not exceeding one year; and

(f)      when a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that:

N5>(i)       he shall appear and receive judgment at some future sittings of the court or when called on within a period specified by the court; and

N5>(ii)      if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposes.

(2)      Imprisonment in accordance with subsection (1)(c)(i), for non-payment of the fine:

(a)      shall not extend for a term longer than two years; and

(b)      shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

(3)      In a case to which subsection (1)(c) applies, the court may give such directions as it thinks proper as to the enforcement of the sentence of imprisonment, including a direction that the person sentenced appear at some future sittings of the court or when called on, by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period or any extension of that period.

(4)      If under subsection (3) a person directed to appear, or called on by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period, or any extension of that period, does not appear at the required time and place, a judge may issue a warrant to arrest him and to bring him before a judge.

(5)      Imprisonment under subsection (1)(d) for not entering into a recognizance:

(a)      shall not extend for a term longer than one year; and

(b)      shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

(6)      When a court sentences any person convicted under Subsection (1)(d) to a term of imprisonment, it may further order that:

(a)      the offender be imprisoned for such portion of that term as it thinks proper; and

(b)      the execution of the sentence for the remaining portion of the sentence be suspended on his entering into a recognizance, with sureties if so directed, in accordance with Subsection (1)(d) but further conditioned that, if called on, he shall appear and receive judgment in respect of his service of the portion of the sentence.

(7)      A judge may, on being satisfied that the offender has committed a breach of any of the conditions of a recognizance under Subsection (6), forfeit the recognizance and commit him to prison to undergo the suspended portion of his sentence or any part of it.”

The Criminal Code (Ch. No. 262), s. 398:

N2>“398.   Breaking into buildings and committing crime. A person who:

(a)      breaks and enters:

(i)       a schoolhouse, shop, warehouse, counting-house, office, store, vehicle, garage, hangar, pavilion, factory, workshop, tent, caravan, petrol-station, ship, aircraft, vessel or club; or

(ii)      a building that is adjacent to a dwelling-house and occupied with it, but is not part of it, and commits a crime in it; or

(b)      having committed a crime in:

(i)       a schoolhouse, shop, warehouse, counting-house, office, store, vehicle, garage, hangar, pavilion, factory, workshop, tent, caravan, petrol-station, ship, aircraft, vessel or club; or

(ii)      a building that is adjacent to a dwelling-house and occupied with it, but is not part of it, and breaks out of it, is guilty of a crime.

Penalty: Imprisonment for a term not less than five years and not exceeding fourteen years.”

No person may be found guilty of an offence (except contempt of court) and punished for the offence without a written law: (s. 37(2) of the Constitution). The provisions of the Criminal Code define offences and prescribe penalties for those offences. A court can only impose a penalty within the range allowed by the written law. See Acting Public Prosecutor v. Uname Aumane, Aluma Boku, Luku Wapulae and Piope Kone [1980] P.N.G.L.R. 510.

The Chief Justice was concerned with the offence which is defined, and the penalty for which is prescribed, by s. 398 of the Code.

PENALTIES UNDER THE CODE

Section 18 of the Criminal Code provides for the kinds of punishment that may be inflicted under the Code. These are:

N2>(a)      death,

N2>(b)      imprisonment with hard labour,

N2>(c)      imprisonment without hard labour,

N2>(d)      detention in an industrial or reformatory school,

N2>(e)      fine,

N2>(f)      find security to keep the peace and be of good behaviour.

Various provisions prescribe the kind of punishment for each offence. The penalties prescribed are the maximum which may be imposed. Prior to the revision of laws, the Criminal Code prescribed the penalties differently. For instance, in the case of break and enter (s. 410 of the Code, prior to revision) the penalty was expressed: “is liable to imprisonment with hard labour for fourteen years”. This, read together with s. 14 of the Interpretation Act (Ch. No. 2), meant any shorter term could be imposed. I find, therefore, that s. 398 of the Criminal Code (Ch. No. 262) was correctly expressed in the terms “imprisonment for a term not exceeding fourteen years” (prior to the minimum penalties provisions). On the construction of this provision alone (that is, excluding s. 19) a court could not impose any sentence other than a term of imprisonment. The court may only impose other kinds of punishment as is prescribed by the application of s. 19. Section 19 cannot be applied on its own as a penalty provision, but must be read as part and parcel of the penalty provisions. It is a construction provision. The application of s. 19 of the Criminal Code to s. 398 (prior to the minimum penalties amendment) was not in doubt. Has the application of s. 19 been excluded by the minimum penalties amendment? This raises the question of the proper interpretation of the two provisions.

SECTION 19 “... EXCEPT WHEN IT IS OTHERWISE EXPRESSLY PROVIDED ...”

One starts with the premise that s. 19 applies to all offences defined under the Criminal Code. There are exceptions to this. These exceptions are introduced by the words referred to above. What is the meaning to be given to these words?

In my view these words have in mind a provision in the Criminal Code which may expressly prescribe a penalty which may preclude, limit or restrict any of the powers given under s. 19. Where such a provision is enacted in the Criminal Code, the court cannot exercise the powers given under s. 19.

This result may be achieved in a number of ways. All the powers under s. 19 may be precluded by an express preclusion of s. 19, for example as in the Queensland Criminal Code:

N2>“S305.            Punishment of murder. Any person who commits the crime of murder is liable to imprisonment with hard labour for life, which cannot be mitigated or varied under section nineteen of this Code.” (Emphasis added.)

The same result could be achieved without express reference to s. 19. It has been held that a provision can be said to “contain a negative implication precluding the application of” s. 19. See Rose v. Hvric (1963) 37 A.L.JR. 1 at 3 where in developing this test, the High Court stated:

“‘Questions of this nature are usually questions of implied repeal. Even before Dr Foster’s Case [1572] EngR 111; (1614) 11 Co. Rep. 56b; 77 E.R. 1222, it was settled law that a later affirmative enactment does not repeal an earlier affirmative enactment unless the words of the later enactment are such as by their necessity to import a contradiction’: see per Lord Blackburn in Garnett v. Bradley (1878) 3 App. Cas. 944, at 966. There must be in the later provision an actual negation of the earlier. Ex hypothesi there is no negation in words, but there must be a negation as a matter of meaning. Lord Chief Baron Comyns expressed the point by saying that affirmative words do not take away a former statute but where they ‘in sense contain a negative’: Com. Dig. tit. Parliament, R.25. Only where that occurs is the general test satisfied which has often been laid down in respect of repeal by implication, that the contrariety between the earlier and later enactments must be such that ‘effect cannot be given to both at the same time’.”

Such a provision can be found, for example as in the Tasmanian Criminal Code Act 124:

“S.158 Any person who commits murder is guilty of a crime, and shall be sentenced to imprisonment for the term of his natural life.” (Emphasis added.)

Or as appeared in the previous s. 309 of our Criminal Code (see Act No. 2 of 1976):

N2>“(1)    Any person who commits the crime of wilful murder shall be liable to imprisonment with hard labour for life.” (Emphasis added.)

These two examples deal with mandatory penalties and, by necessary implication, the powers under s. 19 are precluded. This is a blanket preclusion of s. 19.

However, the legislature may choose to limit only certain powers under s. 19 without precluding the other powers. For example, a provision may only limit the operation of s. 19(1)(a) by prescribing the minimum period of imprisonment; or only limit the application of s. 19(1)(b) by providing a minimum fine to be imposed under that section; or only limit the power of suspension to a minimum period of imprisonment under s. 19(b); or only limit the powers of the court to imprison an offender where he is sentenced to a fine under s. 19(1)(c). What the Parliament may do in this regard is limitless.

WHAT IS THE EFFECT OF S. 398?

First, it does not contain an expressed exclusion of s. 19.

Secondly, I do not consider that the provision is expressed in mandatory terms, that is to say, an offender shall be imprisoned for a term of not less than five years, and not exceeding fourteen years. The provision is expressed in exactly the same terms as other penalty provisions — “Penalty: Imprisonment for a term of not less than five years and not exceeding fourteen years” (Emphasis added). I refer to the emphasized words to make the point that the provision is not a mandatory provision, and therefore is not exhaustive on the question of penalty. If I came to the contrary view then I would have to conclude that all the other penalty provisions expressed in the same terms mean a mandatory prison term. Clearly this is not what the Parliament intended.

Furthermore, certain parts of s. 19 can be read together with s. 398 without contradiction. For example, a court may impose a minimum of five years under s. 398 and, in addition to that, impose a fine under s. 19(1)(b); or a court may impose six years’ imprisonment and suspend one year under s. 196(b). In each case the penalty is no less than five years’ imprisonment.

On the above reasoning, I conclude that there is nothing in s. 398 of the Criminal Code which has a blanket preclusion of s. 19. That, however, is not the end of the matter. Regard must be given to each of the powers to consider whether the terms of s. 398 contradict any of them. This is necessary because they deal with different subject matter.

SECTION 19(1)(A)

It is clear from the terms of s. 398 that where imprisonment is imposed, the term cannot be any less than five years. To the extent that s. 19(1)(a) authorizes a court to impose a term of imprisonment of less than five years, it is contrary to s. 398. They cannot operate together to that extent. Section 398 would override s. 19(1)(a) to this extent.

FINES S. 19(1)(B), (C), (2), (3), (4) AND (5)

There is nothing in s. 398 which prohibits the imposition of a fine in addition to a term of imprisonment of not less than five years and not exceeding fourteen years.

A court may also impose a fine instead of an imprisonment term. There is nothing in s. 398 which prohibits this. A discretion to impose a fine is just as open here as in any other provision which prescribes a term of imprisonment.

GOOD BEHAVIOUR BOND S. 19(1)(D), (E) AND (F)

Similar reasoning applies here. Section 398 does not deal with bonds; it restricts only the term of imprisonment.

SUSPENSION S. 19(6), (7)

This power requires closer consideration. It deals with a sentence of a term of imprisonment. However, it authorizes a court to order that an offender may be imprisoned only for part of that sentence, and the rest suspended on terms.

In considering the relationship of this provision to s. 398, the meaning of the words: “imprisonment for a term not less than five years ...” must be determined. What is the meaning to be given to the words “not less than five years”? It is possible to infer from these words that the Parliament had in mind a punishment less, in effect, than five years’ actual imprisonment. See Bray CJ in McLean v. Kowald (1974) 9 S.A.S.R. 384 at 389. That is to say a part suspension of five years’ imprisonment is less, in effect, than a five year imprisonment term which takes effect immediately. Bray CJ was compelled to come to this view in the above case because of the wording of the provision he was considering.

It is true that this interpretation is open on the words under consideration. However, it is a mere inference, and not an implication expressed in the enactment. Therefore the words “not less than” really mean not less than the period of five years. To suspend part of a five year sentence does not mean that such a punishment is less than the period of five years. In this regard I agree with the conclusion reached by Amet J The power of suspension under s. 19(6) is therefore not affected by the words referred to. The only effect now on s. 19(6) is that the head sentence which is imposed must not be less than five years.

In coming to these conclusions, I considered the argument that s. 398 fully exhausted the question of penalty and that the range of five years to fourteen years constitutes the whole law for the offence in question. There may be support for this view when having regard to the policy of the minimum penalties provisions. However, I have had full regard to the caution given by the High Court in relation to this question in Rose v. Hvric (1963) 37 A.L.JR. 1 at 3:

“Care must be taken in answering it not to forget the distinction between the meaning of a provision and the underlying policy to which it may be supposed to point.” (Emphasis added.)

It is obvious from my reasoning that the meaning of s. 398 falls far short of the view that Parliament intended to deal exhaustively with the question of punishment. If this is what the Parliament purported to do (as may be evident in the debates) then further appropriate legislative enactment is necessary.

My answer would be:

The discretion of the court under s. 19 is not affected except to the extent that:

“under s. 19(1)(a) a court cannot impose less than five years’ imprisonment where it exercises its discretion to impose a term of imprisonment but may suspend a portion thereof under s. 19(6). The powers of suspension remain unaffected.”

BREDMEYER J: I have the misfortune of dissenting from the majority of this Court. This is the highest court in the land; my reasoning cannot therefore influence anyone so I will omit what I was going to say on the relevant canons of construction.

The question under reference covers the relationship of s. 19 and s. 398 of the Criminal Code (Ch. No. 262). The rules of construction that should be applied are the rules of the English common law. It is commonplace that the meaning of a provision is assisted by considering the statute as a whole (for example Daymond v. Plymouth Council [1976] A.C. 609 at 651) by which I mean the Criminal Code as a whole and the Criminal Code (Minimum Penalties) Amendment Act 1983. To interpret a statute I am entitled to refer to its objectives and I may look at the short and long title to assist in that task. “... it is the plainest of all guides to the general objectives of a statute,” Black-Clawson International Ltd v. Papierwerke Waldhof-Aschaffenburg A.G. [1975] UKHL 2; [1975] A.C. 591 at 647 per Lord Simon. I learn from the long title of the amending Act that its prime aim is to prescribe “minimum penalties for certain offences”. The word “penalty” is a wide term, it is not restricted to terms of imprisonment. The Oxford English Dictionary meaning of “penal” is “of punishment, concerned with inflicting punishment e.g. penal servitude = imprisonment with hard labour.” The meaning of “penalty” is given as “punishment, especially payment of a sum of money, for breach of a law, a rule, or a contract”. The amending Act is thus concerned with prescribing minimum penalties or punishments for certain offences. The long title is not determinative of the meaning of any sections of an Act but it is, as I have said, a good guide to its objectives.

Turning to s. 19 of the Criminal Code, there is English authority that the word “expressly” in the phrase “except when it is otherwise expressly provided” does not mean expressly, as distinct from impliedly. A second statute can by clear implication override a provision of an earlier statute without expressly mentioning it. Some of those English authorities are discussed by McDermott J, and others are usefully collected and discussed in the Australian case Rose v. Hvric (1963) 37 A.L.JR. 1 at 2. I agree with them and believe they apply to s. 19.

The Hansard speeches on the second reading of the Criminal Code (Minimum Penalties) Bill were handed up to us during argument by the Public Prosecutor for us to read. Surprisingly he did not argue why we should read them or by what rule of law we were allowed to read them; and, surprisingly, the Public Solicitor did not object to them being handed up or submit that we should not read them. There is much case law on what materials a construing court may look at to help it in its task and I was disappointed not to be given any of it. I am indebted to my brother Kapi DCJ for having referred us during argument to Minister for Lands v. Frame [1980] P.N.G.L.R. 433 where the Parliamentary Debates were read by consent and Pratt J at 487 discussed the law on this topic. Other cases which probe this question are: Black-Clawson International Ltd v. Papierwerke Waldhof-Aschaffenburg A.G., R. v. Local Commissioner for Administration for the North and East Area of England; Ex parte Bradford Metropolitan City Council [1979] Q.B. 287 at 311 per Lord Denning M.R. I consider the Minister’s second reading speech — where the Bill is a government one — may be read and used where the text of the statute is ambiguous and where the Minister’s speech clearly discloses the legislative intention. I believe that the use of Hansard by Murphy J in Sillery v. The Queen [1981] HCA 34; (1981) 35 A.L.R. 227 at 232-233 was an apt and proper use and one which helped determine the issue in dispute.

I consider it permissible to look at Hansard in this case because the amending Act has created two paradigm ambiguities. Section 67 (rioters demolishing buildings) in the Revised Laws formerly read:

Penalty: Subject to s. 19, imprisonment for life.

Now after the amendment it reads:

Penalty: Imprisonment for a term of not less than five years and up to life.

Section 395(2) (housebreaking at night) formerly read:

“If the offence is committed in the night the offender is liable, subject to s. 19, to imprisonment for life.”

It now reads:

“If the offence is committed at night, the offender shall be imprisoned for a term not less than eight years and up to life.

The omission of the phrase “subject to s. 19” in the new sections could be for one of two reasons:

N2>(1)      Because the draftsman and promoter of the bill wanted to exclude s. 19; they wanted to take away the dispositive options given to a judge by that section or:

N2>(2)      the words were unnecessary in the first place. They were otiose; the sections were always subject to s. 19 because that is a construction section applying to every section. Being unnecessary to refer to s. 19 in the first place the deletion of the phrase altered nothing; s. 19 continued to apply.

In that ambiguous situation I turn to the second reading speech of Mr Thomas Negints the mover of the private member’s Bill. I can only rely on his speech if it clearly discloses the legislative intention. His speech clearly shows that he thinks many gaol terms were too short “one day, or one month or even one hour”. His Bill aims to make them longer. He thinks judges have too many discretionary powers on penalties, too much “room to manoeuvre”. The only example he cites of these undesirable discretionary powers (apart from too-short gaol terms) are fines. It can clearly be learnt from his speech that he regards fines as inadequate punishment for the offences he mentions and he intended to remove that power from judges. He makes no mention of the discretionary power possessed by judges to punish by means of a good behaviour bond or to suspend part of a sentence.

Other countries with Criminal Codes similar to ours have no minimum penalties for indictable offences, except that many of them have a mandatory sentence of life imprisonment for murder. It is instructive to compare the words used to impose a mandatory life sentence with the words used in our minimum penalties statute. Gibbs CJ in Sillery v. The Queen [1981] HCA 34; (1981) 35 A.L.R. 227 at 229 cites three examples:

N2>(1)      “shall ... be sentenced to imprisonment for life” (U.K.).

N2>(2)      “shall be sentenced to imprisonment for the term of his natural life” (Tasmania).

N2>(3)      “shall be imprisoned for life” (South Australia).

He says, “Words in that form make the intention of the legislature clear beyond any doubt”. He then goes on to say if the statute used the words “liable to imprisonment for life”, as do the statutes of Queensland, Western Australia and New South Wales, the meaning “is not free from ambiguity and may suggest that there is a discretion as to whether the punishment should be imposed”. He cites O’Keefe v. Calwell (1949) 77 C.L.R. 261 at 295 on that point. He says that these statutes contain other provisions which assist in resolving any ambiguities created by the use of the word “liable”. I quote two of the provisions and have emphasized the additional words:

Criminal Code (Queensland), s. 305:

“Any person who commits the crime of murder is liable to imprisonment with hard labour for life, which cannot be mitigated or varied under section nineteen of this Code.”

Criminal Code (Western Australia), s. 282:

“A person who commits the crime:

(a)      ...

(b)      of murder is liable to imprisonment with hard labour for life and shall not be sentenced to imprisonment for any shorter term.”

Each Code has a s. 19 similar to our own. I suggest that the additional words are not necessary to take away the court’s discretionary powers given by s. 19 to imprison for a lesser term, to fine, to give a good behaviour bond, or to suspend part of the sentence, but are necessary to overcome the discretion to gaol for less than life allowed by the use of the word “liable”. I suggest that that is the main reason for the insertion of those extra words and that express reference to s. 19 in the Queensland provision was for more abundant caution and was not legally necessary.

Certainly the Queensland provision overcomes two problems: the possible application of s. 19 and the ambiguity of the word “liable”. But clearly the Western Australian provision is only concerned with the problem of the word “liable”. The draftsman there could have avoided the need for additional words by using the clearer phrase “shall be imprisoned for life”. The object was not to overcome s. 19 because the words used only prevent a shorting of the term of imprisonment; they do not exclude the judge giving a fine, a bond, or a suspended sentence. There has been no reported challenges to the Western Australian provision. The section only deals with imprisonment (“for life and shall not be ... for any shorter term”) but it is regarded as effective in that State to exclude fines etc. The analogy is very close to our minimum penalty legislation.

I cite two further examples of a section imposing a mandatory prison sentence being regarded as efficacious to overcome the court’s general discretionary powers of punishment. The first is s. 158 of the Criminal Code Act 1924 of Tasmania which was cited by Gibbs CJ in the reference cited. The section used to provide for the death penalty but in 1968 it was amended to read:

“Any person who commits murder is guilty of a crime, and shall be sentenced to imprisonment for the term of his natural life.”

Section 389 is a much older section which is headed “Sentences” and is the first section in a chapter headed “Punishments”. It is akin to our s. 19. Section 389(3) reads:

“Subject to the provisions of the Code or of any statute, and except where otherwise expressly provided, the punishment for any crime shall be by imprisonment for 21 years, or by fine, or by both such punishments, and shall be such as the judge of the court of trial shall think fit in the circumstances of each particular case.”

There are no reported cases challenging the efficacy of that mandatory life sentence and I suggest the reason is that the section clearly expresses a contrary provision sufficient to oust the operation of s. 389.

I consider the Western Australian and Tasmanian provisions are analogous to our own minimum penalties. The sections imposing life sentences only refer to gaol terms, they do not mention s. 19 or its equivalent, yet they clearly express an intention to impose fixed punishments.

A second example, is that of Papua New Guinea. For a brief five months we had a mandatory life sentence for wilful murder. It was introduced by the Criminal Code Act 1974 in force on 1 November 1975 and repealed by Act No. 2 of 1976 in force on 1 April 1976. The section which introduced it read:

“s309  Punishment for murder

(1)      Any person who commits the crime of wilful murder shall be sentenced to imprisonment for life.

(2)      Any person who commits the crime of murder shall be liable to imprisonment with hard labour for life.”

Note the contrast between subs. (1) the mandatory “shall be imprisoned” and subs. (2) the discretionary “shall be liable”. There was no legal challenge to the meaning of subs. (1), although its short life on the statute book makes the lack of challenge of little significance. But it is very comparable with the Tasmanian and Western Australian provisions and I consider it a valid expression of a contrary provision to s. 19. The section providing for mandatory life imprisonment was added by Parliament in the course of passing a consolidating Act, not by a separate amendment, so there was no long title to the Act to assist construing it. If, however, the section had been passed by way of amendment and the long title was “An Act to amend the Criminal Code to provide for a mandatory sentence of life imprisonment for wilful murder” any possible doubt would have been removed.

The wording used in the Criminal Code (Minimum Penalties) Act is generally in the form “Penalty: Imprisonment for a term not less than five years and not exceeding fourteen years” (for example s. 398) which receives some amplification from s. 15 of the Interpretation Act (Ch. No. 2); and is sometimes in the form “shall be imprisoned for a term not less than two years and not exceeding four years” (for example s. 76(2), s. 395). In my view, those words combined with the long title, and even without the assistance of the mover’s speech in Parliament, show sufficient contrary provision and intent to deprive the court of the punishment options given by s. 19. The new penalties are comparable in legal wording and effect with the minimum penalties (in relation to life imprisonment) in force in Tasmania and Western Australia and formerly in force in Papua New Guinea.

I would answer the question referred to us, No.

KAPUTIN J: Kidu CJhas reserved a question on a recent amendment to the Criminal Code (Ch. No. 262) introducing minimum penalties on a number of offences, for the Supreme Court to decide. The question is whether the court still has a discretion under s. 19 of the Code to impose some other forms of punishment despite the fact that s. 398 of the Code provides that the minimum penalty for the offence is imprisonment for not less than five years and not exceeding fourteen years.

Before I proceed, let me refer to a number of important matters which must be borne in mind in statutory interpretation. First, as a proper starting point — the court must adhere to the literal construction unless the context makes it plain that it cannot be put on the words of the Act in question. Secondly, in Maxwell on the Interpretation of Statutes (7th ed.) at 244, it says:

“Where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to resolve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself.”

A third important thing is that a penal section should be construed strictly: Tuck and Sons v. Priester [1887] UKLawRpKQB 162; (1887) 19 Q.B.D. 629, 638, where Lord Esher M.R. says:

“We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction. If there are two reasonable constructions we must give the more lenient one.”

Fourthly, one should take note of an observation by O’Bryan J in Silvester v. Scibilio [1960] VicRp 97; [1960] V.R. 624, at 627. His Honour said:

“Generally speaking, it is not very helpful to attempt to construe the provisions of one Act of Parliament by a reference to the provisions of another statute.”

I believe some of my brother judges have attempted to solve the present problem by doing exactly that.

The present reference involves a question of statutory construction of s. 19 and s. 398 of the Criminal Code (Ch. No. 262). The respective sections [are set out at 397-399].

CRIMINAL CODE (MINIMUM PENALTIES) AMENDMENT ACT 1983

N2>“15.    Breaking into building and committing crime (amendment of section 398)

Section 398 of the Criminal Code is amended by deleting the penalty provision and substituting the following:

‘Penalty: Imprisonment for a term not less than five years and not exceeding fourteen years.’ “

Section 19 is a construction provision allowing for the court’s discretion as to penalties in relation to every offence under the Criminal Code. This means that all of the sections creating the offences and with their respective penalties are to be read subject to s. 19. However it must be remembered that s. 19 says in subs. (1), which is the substantive clause that in the construction of this Code, it is to be taken that, except when it is otherwise expressly provided in a section concerned, s. 19 is to apply.

Now, the penalty for the offence in s. 398 says — imprisonment for a term not less than five years and not exceeding fourteen years. In my opinion this is an expressed provision, which is referred to by s. 19(1) in the clause “except when it is otherwise expressly provided”. In other words, the penalty to be imposed for this particular offence has already been expressed in s. 398 itself, meaning that the judge has no discretion under s. 19 to impose any other penalty. To me the language is as clear as daylight. It is not even necessary that it should be mentioned in s. 398 that s. 19 should not apply because the wording in s. 19(1) has clearly achieved that position. For instance, before the new revision came, s. 19 was never mentioned in the provisions that are to be read subject to s. 19 or notwithstanding s. 19, and it is precisely because of this clause “except when it is otherwise expressly provided ...” that it was considered sufficiently adequate as far as drafting is concerned to make the point clear and to remove any ambiguity of interpretation. The fact that reference to s. 19 has been mentioned in some provisions now is superfluous, or has been put in there for specific purposes. However it is quite unnecessary in the present case.

There are a number of arguments of statutory interpretation that have been advanced to support the view that s. 19 still applies notwithstanding the penalty imposed in s. 398. The first of these I have already discussed and discarded as not right.

The second argument is that the rest of s. 19 does not apply but that some proviso of it only — to be more precise that s. 19(6) can still apply. I cannot see any logic in this whether it is based on statutory construction or plain understanding. A proviso is an exception or a qualification of some more general statement. It is not a conditional clause. Subsection (6) or any other subsections of s. 19 must be read subject to subs. (1) which contains the general statement. The general enactment and the proviso should be read together:

“The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light, if need be, on the rest” per Lord Wright in Jennings v. Kelly [1940] A.C. 206 at 229.

If you look at s. 19, subs. (1) is the substantive provision and subss 2 to 7 are to be read subject to subs. (1). Subsections 2 to 7 are not independent clauses on their own and therefore each subsection cannot be applied independently of the other. It is quite absurd therefore just to pluck out subs. (6) or any other subsection and apply it on its own without any reference first to subs. (1). The way s. 19 is drafted, that construction is wrong. And in fact, the conclusion in this particular argument that the rest of s. 19 does not apply except subs. (6) is a partial acceptance of the proper view.

The other argument, that s. 19 still apply because the penalty under s. 398 relates to a sentence of imprisonment only, also appears absurd to me. It is argued that a bond, a fine, or any other alternative penalty can still be imposed but it is only if a sentence of imprisonment is considered that the minimum penalty of five years must be the starting point. How can this be?

Section 18 stipulates the various kind of punishments that may be inflicted under the Code:

N2>(a)      death; or

N2>(b)      imprisonment with hard labour; or

N2>(c)      imprisonment without hard labour; or

N2>(d)      detention in an industrial or reformatory school; or

N2>(e)      fine; or

N2>(f)      finding security to keep the peace and be of good behaviour.

When you look at this, the types of punishment range from the most severe one which is death to the lesser one of a good behaviour bond. That is how it is looked at in reality and in law. True in their respective applications it does not mean that one is more severe than the other. What it means is that in each case a particular penalty may be considered severe and therefore appropriate to meet the gravity of that case. When you look at the way the penalty in s. 398 is drafted it states: “Penalty: Imprisonment for a term not less than five years and not exceeding fourteen years.” This means that the maximum penalty is fourteen years’ imprisonment. It also means that it cuts out the lower range of a bond, fine, etc. and starts at a higher range which is at five years’ imprisonment. In any case, this is how minimum penalties are drafted. And if you look at the long title of the Amendment Act, it says: Criminal Code (Minimum Penalties) Amendment Act 1983. Surely there can be no doubt whatsoever that no other alternative penalties were intended other than, in this case, a term of imprisonment of not less than five years and not exceeding fourteen years.

True it could have been clearer as far as drafting is concerned, to the minds of some, but that is beside the point. If it has still been the intention of Parliament that other lesser penalties like a bond could still be imposed the section should have remained as in the old one (s. 410) which penalty is drafted as: “... liable to imprisonment with hard labour for fourteen years.” The way this is drafted means that you start from the lowest range as from a bond to fourteen years. And s. 19 then comes in as a matter of construction to enable the court to achieve that. Now with the recent amendment of s. 398 and the way it is drafted, it means that you must start from the upper range and work up to fourteen years. This is to say that the court has a discretion only to work within the range of five years and fourteen years, and the discretion as to bonds and fines, etc. has been curtailed.

I cannot put it any higher that the language of the provisions under consideration are clear and unambiguous and not requiring further drafting clarification, and that they should be given their literal construction which should enable the court to come to the right conclusion. There is no question of ambiguity in this case, where the benefit of the doubt should be given to the subject and against the legislature. In this case the intention of the legislature can be clearly derived from the literal construction of the Act. As Kidu CJ has rightly pointed out, that was the intention of Parliament — to fix minimum penalties for crimes of this nature. I agree with his decision. In his Honour’s words:

“Reading the Amending Acts as a whole it was my view that Parliament intended to curtail the discretion of the Judges and magistrates and fix minimum custodial sentences for certain types of offences, including burglary and ordinary breaks and enters.”

When the intention of Parliament can be easily ascertained from the words of the Act, then that is the end of the matter, however much or little the purpose of the Act appeals to the predilection of the court. In the words of Isaac J in Scott v. Cawsey [1907] HCA 80; (1907) 5 C.L.R. 132, his Honour said at 155:

“... a Court should be specially careful, in the view of the consequences on both sides, to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed.”

In my humble opinion, the majority view in the present case does not sound right to me. Too much has been read into it which is not correct.

I would answer the question referred to this Court, No.

MCDERMOTT J: The question is simple. What penalty can now be imposed for the offence of breaking into a building and committing a crime: Criminal Code (Ch. No. 262), s. 398? In this case, the crime was stealing twenty-four cartons of beer. The penalty for this offence was formerly expressed thus:

“Penalty: Imprisonment for a term not exceeding 14 years.”

This was applied concurrently with the Criminal Code, s. 19, entitled “Construction of provisions of Code as to punishments” contained in Pt 1 “Introductory, Division 4 — Punishments”.

On 14 July 1983, before the date of the crime, the Criminal Code (Minimum Penalties) Amendment Act 1983 became operative. The penalty for this offence is now:

“Penalty: Imprisonment for a term not less than five years and not exceeding fourteen years.”

Do the provisions of s. 19 still apply whereby alternatives to imprisonment or imprisonment with conditional suspension can be used as punishment for the offence? Section 19(1) prefaces the alternatives available, “except when it is otherwise expressly provided ...”. Examples of the use of exceptions can be seen in similar Codes for example Queensland Criminal Code, s. 305 (Punishment of Murder);

“Any person who commits the crime of murder is liable to imprisonment with hard labour for life, which cannot be mitigated or varied under section nineteen of this Code.”

And in the Western Australia, Criminal Code, s. 282 (Punishment for Wilful Murder and Murder):

“A person who commits the crime:

(a)      of wilful murder is liable to punishment of death;

(b)      of murder is liable to imprisonment with hard labour for life and shall not be sentenced to imprisonment for any shorter term.”

In Gourlay v. Casey [1927] HCA 6; (1927) 38 C.L.R. 586, the expression “unless otherwise expressly provided” as used in the Insolvency Act 1915 (Vic.), was held to mean “unless some inconsistent provision is expressly made”. “Expressly” has been said to merely emphasize the generality of the main provision by making clear no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests; see Metropolitan Railway Co. v. Sharpe (1880) 5 App. Cas. 425 and Chorlton v. Lings [1868] UKLawRpCP 71; (1868) L.R. 4 C.P. 374.

It is patently clear that the language and meaning of the amendment is not unambiguous as the Public Prosecutor so blithely assured the court.

As the learned author in Craies on Statute Law (7th ed., 1971) points out express and unambiguous language appears to be absolutely indispensable in statutes passed for conferring or taking away legal rights, whether public or private or for excepting from the operation of or altering clearly established principles of law or for altering the jurisdiction of the courts.

To establish contrariety between statutes, and by implication repeal, is not easy when statutes are only apparently inconsistent with one another. Speaking of repeal by implication, Dr Lushington in The India [1864] EngR 105; (1864) Br. & L. 220; 167 E.R. 345 at 224; 346 said:

“If, on the one hand, the general presumption must be against such a repeal, on the ground that the intention to repeal, if any had existed, would have been declared in express terms; so on the other hand, it is not necessary that any express reference be made to the statute which is to be repealed. The prior statute would I conceive be repealed by implication, if its provisions were wholly incompatible with a subsequent one, or if the two statutes together would lead to wholly absurd consequences, or if the entire subject-matter were taken away by subsequent statute. Perhaps the most difficult case for consideration is where the subject-matter has been so dealt with in subsequent statutes, that, according to all ordinary reasoning, the particular provision in the prior statute would not have been intended to subsist, and yet if it were left subsisting, no palpable absurdity would be occasioned.”

It seems to me that the referred question is one of these “difficult cases”. As a rule, a general enactment will be impliedly repealed by another which although expressed in affirmative language introduces a condition or restriction, however, the subsequent enactment may only introduce a curtailment and not a repeal of the previous statute: See Craies on Statute Law 373-374. This may be the result here.

Has s. 19 then been repealed either expressly or impliedly? It is clear that there is no express repeal therefore the next step is to see if the new section means more than what it explicitly says and such meaning is to be found by implication or by inference. As said in Lubrano v. Gollin & Co. Pty Ltd [1919] HCA 61; (1919) 27 C.L.R. 113 at 118:

“An implication is included in and part of that which is expressed: an inference is something additional to what is stated.”

The question was considered in Rose v. Hvric (1963) 108 C.L.R. 353. Before the High Court was the interpretation of two acts relating to penalty. Could a Justices Act 1958 (Vic.) general provision relating to penalty, prefaced by the phrase, “Except where otherwise expressly enacted”, be used with the penalty set out in a Licensing Act 1958 (Vic.) which purported to impose a minimum sentence and not a fine for a second offence, that is “... shall be liable for a second or subsequent offence to imprisonment for a term of not less than six nor more than twelve months ...”? The court was of the view that the general provision which follows the prefacing words “... is not to be denied any of its operation save by something actually inconsistent with it in the operation of another enactment”. (359)

The approach was to see if the later enactment exhausted the topic of penalty and this implication would appear if the meaning of the new section was now conclusive on punishment. In matters of implied repeal, it is settled law that a later affirmative enactment does not repeal an earlier affirmative enactment unless the words of the latter import a contradiction of the former words, that the contrariety between the two enactments must be such that “effect cannot be given to both at the same time”. Kutner v. Phillips [1891] UKLawRpKQB 66; (1891) 2 Q.B. 267 at 272; Hack v. Minister for Lands [1905] HCA 37; (1905) 3 C.L.R. 10 at 23, 24; see generally Hill v. Hall [1876] UKLawRpExch 54; (1876) L.R. 1 Ex. D. 411 at 413-414; Flannagan v. Shaw [1920] 3 K.B. 96.

It was held unanimously in Rose v. Hvric at 360-361 that the general provision in s. 74(1) of the Justices Act 1958 (Vic.) was not opposed by anything enacted in s. 154(1) of the Licensing Act 1958 (Vic.) “... but at most by an inference of an intention which has not reached the point of enactment”.

In Cobiac v. Liddy [1969] HCA 26; (1969) 43 A.L.JR. 257, the High Court had to decide if the discretionary powers under the Offenders Probation Act 1913 (S.A.) whereby without convicting, the court could dismiss a charge which under the Road Traffic Act 1961 (S.A.) carried minimum periods of imprisonment and licence disqualification. However, it was held that as the section dealt with penalties to be imposed only after conviction, the powers to dismiss before conviction still existed. Windeyer J, at 269 made a general observation, which is relevant to the question before this Court when he said:

“The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception. Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow upon conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia’s sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice. Therefore, I do not think it should be said that the Parliament ... has done by implication what it certainly has not done explicitly ....”

I am grateful to my brother Bredmeyer for referring me to Sillery v. The Queen [1981] HCA 34; (1981) 55 A.L.JR. 509 where at 511 Gibbs CJ sets out many instances where Acts provide mandatory sentences and where this purpose is clearly spelt out in the various sections. The case involved interpretation of the sentence for hijacking an aircraft. The penalty set out in the Crimes (Hijacking of Aircraft) Act 1972 (Cth) was as follows: “The punishment for an offence against this section is imprisonment for life.” Was this to be a maximum or the mandatory sentence? (Section 14 of the Interpretation Act, (Ch. No. 2) specifies penalties to be the maximum.) The Chief Justice concluded at 511:

“Indeed it is difficult to imagine any good reason for resolving an ambiguity of this kind by construing a statute as providing for a mandatory sentence of life imprisonment. The provision of a maximum punishment would allow the trial judge to exercise a proper discretion as to sentence in the light of all the circumstances, and this is particularly desirable where a number of different acts, some much more blame-worthy than others, fall within the definition of the crime. If it is intended to provide a mandatory penalty, clear words can and should be used.”

The majority held the penalty as expressed was the maximum only.

The definition of hijacking covered many different actions, some less serious than others. The Criminal Code also encompasses many different crimes in s. 398, some more serious than others whether by nature or in degree. As Murphy J said at 512:

“The presumption [against mandatory penalties vis à vis maximum penalties] is even stronger when a heavy penalty is applicable to a range of offences differing in nature and gravity so that although the maximum might be appropriate for some, it would be manifestly oppressive for others. Otherwise, the law would be draconian. The Athenian lawmaker Draco is reputed to have imposed for all offences, even the most trifling, the penalty appropriate for the most severe so that there was only one punishment.”

This statement appears applicable to the present case where it is sought to impose a mandatory minimum for an offence where the circumstances may not call for five years’ imprisonment. But if it were otherwise must a trifling offender be sentenced to five years’ imprisonment without redress? It seems that for any redress an offender would have to rely upon executive discretion based on advice from the Advisory Committee on the Power of Mercy, see Constitution, s. 151 and s. 152. For this power to be available in the instance mentioned goes much further than the traditional exercise of executive clemency.

Mandatory sentencing raises the spectre of general and widespread applications to the executive involving executive hearings parallel to the judicial process of hearing and determining sentence. This could well make the judicial sentence a sham, the real sentence would be by the executive. This is surely not intended.

Of course this aspect was not argued and I will say no more other than that it indicates in another way the serious consideration which must be given to an enactment purporting to impose mandatory sentences in the absence of specific words to change existing law.

There was before us an affidavit sworn by the Parliamentary Counsel to which was annexed what he purports to say is a true and correct copy of the original draft Hansard. I do not know how this affidavit came to be placed in the appeal papers. The Public Prosecutor sought to rely upon it but when I challenged him by asking how was it before the court no argument was offered on the issue in which the law is far from being settled. The contents of the affidavit are therefore not in evidence. The court made no order for its reception.

I now draw these threads together mindful of the persuasive authority of the cases mentioned and the assistance provided in the texts on statutory interpretation, as to which see generally Maxwell on Interpretation of Statutes (12th ed., 1969). I consider the following general principles of construction and aids to construction relevant in answering the questions asked:

N2>(1)      That a literal interpretation be given to the section in order to deduce the intention from the language used.

N2>(2)      That the words, and the section, be read in their context: the Code be read as a whole.

N2>(3)      That if there is a choice of interpretation, a narrower view which could mean failure to achieve the manifest purpose of the legislation (and this is the crux of the question here) should be avoided in favour of a broader view based on the notion that legislation should bring about an effective result.”;

N2>(4)      That a construction so as to avoid collision with other provisions in the Code should be adopted bearing in mind repeal by implication has not been favoured in the cases on this point.

N2>(5)      That a construction most agreeable to justice and reason be adopted so as to avoid artificiality and anomaly.

N2>(6)      That construction of criminal penalties be strictly viewed in favour of the citizen proceeded against by the State so that any ambiguity or doubt is resolved in favour of the citizen who would otherwise bear the penalty.

I conclude, by being unable to infer more, that Parliament intended to change the penalty for certain offences and that the legislation is effective subject to the application of s. 19 as appears in the judgment of Amet J

AMET J: In the National Court in Daru, Western Province, four accused pleaded guilty before Kidu CJ to a charge of breaking, entering and stealing from a warehouse. The offence was committed after 14 July 1983, the date on which the Criminal Code (Minimum Penalties) Amendment Act 1983 came into operation. Section 15 of this Act amended s. 398 of the Criminal Code (Ch. No. 262), the relevant section, by providing for a minimum imprisonment term of not less than five years. The Chief Justice ruled that in view of this new minimum penalty, he had no discretion to adopt any other course and therefore, sentenced each prisoner to imprisonment with hard labour for five years.

Kidu CJ has however, referred for consideration by the Supreme Court, pursuant to s. 21 of the Supreme Court Act, (Ch. No. 37), the following question:

“Does a judge have a discretion under s. 19 of the Criminal Code to impose some other form of punishment despite the fact that s. 398 of the Code provides that the minimum penalty for breaking and entering warehouse, etc., and committing a crime therein is imprisonment for not less than five years?”

It is convenient to set out the relevant provisions of the relevant legislations which bear on the issue.

The Criminal Code Act (Ch. No. 262)

Section 398 — Breaking into buildings and committing crime.

“A person who:

(a)      breaks and enters:

(i)       a school house, shop, warehouse ...; or

(ii)      ...

(b)      ...

is guilty of a crime.

Penalty: Imprisonment for a term not less than five years and not exceeding fourteen years.”

Kapi DCJ has set out the provisions of s. 19, at 397-399 so I do not repeat them.

Section 18 Kinds of punishment

“The punishments that may be inflicted under this Code are:

(a)      death; or

(b)      imprisonment with hard labour; or

(c)      imprisonment without hard labour; or

(d)      detention in an industrial or reformatory school; or

(e)      fine; or

(f)      finding security to keep the peace and be of good behaviour.”

It is also convenient to set out the penalty provision of s. 398 prior to being amended, as I shall be referring to it later. It was as follows:

“Penalty: Imprisonment for a term not exceeding 14 years.”

Interpretation Act (Ch. No. 2)

Section 14 — Penalties prescribed to be maximum penalties.

“Where a statutory provision specifies a penalty for an offence against the provision, the penalty is the maximum penalty that may be imposed for that offence.”

The issues as I see them are firstly, what is the meaning and effect of the penalty provision in s. 398, secondly, the meaning and effect of what can be called the “exceptive expression” in s. 19(1) “except when it is otherwise expressly provided”, and thirdly, how far it has “otherwise expressly provided” to restrict, or exclude the operations of the discretionary provisions of s. 19 to the penalty provision in s. 398.

I would like to start with an analysis of the penalty provision in s. 398 before it was amended by the (Minimum Penalties) Amendment Act. I have set out above how it read. It now reads as follows:

“Penalty: Imprisonment for a term not less than five years and not exceeding fourteen years.” (Emphasis added)

It will be noted that the amendment is by the addition of the words — “not less than five years and”.

It is trite that it is an aid in the construction of statutes to compare the actual language used. “It is, I think, to be decided not by any assumptions of what Parliament’s purpose was, but by its intention as expressed in the language it has used” per Windeyer J, in Cobiac v. Liddy [1969] HCA 26; (1969) 43 A.L.JR. 257 at 261.

In McLean v. Kowald (1974) 9 S.A.S.R. 384, Bray CJ at 388 after citing Windeyer J in Cobiac v. Liddy for the view that the question of the interrelation of later and earlier statutes is not to be answered by maxims such as “generalia specialibus non derogant” and “specialia generalibus derogant” said:

“It must depend upon a comparison of their language, and I would add, with respect, of their purposes, as gathered from their language and the state of the law before their enactment and not from some a priori pre-supposition.”

What then was, the law before the amendment to the s. 398 penalty provision? There was no doubt as to the application of s. 398 in its interrelation with s. 18 and s. 19 of the Criminal Code and s. 14 of the Interpretation Act. It is that the penalty specified is the maximum that may be imposed for that offence by virtue of s. 14 of the Interpretation Act and that by virtue of the enabling discretionary provisions of s. 19, in the construction of s. 398, the whole range of options and discretions available under s. 19 can be called in aid. For example, s. 19(1)(a) enables a sentence of shorter than the maximum fourteen years to be imposed and s. 19(1)(b) enables the imposition of a fine not exceeding K2000 instead of imprisonment, or the combined effect s. 19(1)(a) and (b) enables the imposition of a fine not exceeding K2000 in addition to an imprisonment term shorter than the maximum fourteen years. Furthermore, I consider that the s. 398 penalty provision as it then stood, only specified the maximum imprisonment term, or that it only related to what the term of imprisonment shall be, that it should not exceed fourteen years. Standing of its own, by its very express provision, in my opinion, it spoke only of what the imprisonment term should be or rather what it should not exceed and nothing more.

It obtained the meaning that it only provided the maximum term of punishment by virtue of s. 14 of the Interpretation Act and all other discretionary forms of punishment by virtue of s. 19. It did not purport to prescribe “completely, exhaustively or exclusively” the penalty which may be imposed for that offence.

If the court considered that a penalty of imprisonment was appropriate, then the penalty provision prescribed the maximum and the court was then empowered by s. 19(1)(a) to consider what the appropriate term was shorter than the maximum. If a fine only was considered appropriate, then s. 19(1)(b) enabled the court to impose a fine not exceeding K2000 and so on. The court’s sentencing discretion is generally amplified by the range of alternatives in s. 19.

Now, how then has the minimum penalty amendment to s. 398 changed the meaning and effect of the penalty provision in s. 398, or put in another way, what is now the meaning and effect of the s. 398 penalty provision. As I have noted above, the amendment is by the addition of the words — “not less than five years and”. On the premise that the meaning and effect of the s. 398 penalty provision as it then stood prior to the amendment is as I have given it, then upon the basic rule of construction, the literal rule, in my view the amendment has changed very little the meaning and effect of the penalty provision s. 398. All that it had changed is that the penalty of imprisonment now be not less than five years. In my opinion, consistently with the construction given its predecessor, the s. 398 penalty provision standing on its own only refers to or only provides for the range of imprisonment term if that be considered the appropriate form of punishment. It does not, in my view, on a literal construction of its language, purport to prescribe completely, exhaustively or exclusively the penalty which may be imposed for the offence. It does, however, limit the operation or application of s. 19(1)(a) in that no imprisonment term less than five years can be imposed.

In my opinion therefore, on this construction of the penalty provision s. 398, the whole range of discretions under s. 19, remain in the sentencing court with the exception of s. 19(1)(a) which is limited to the minimum imprisonment term prescribed.

On this construction, it follows in my view that the minimum penalty provision s. 398 has not “otherwise expressly provided” that s. 19 as a whole should not apply, except s. (1)(a) to the extent described. I agree with McDermott J, in reference to the case of Rose v. Hvric (1963) 37 A.L.JR. 1. as an authority for the disposition of this expression. There are additional Australian authorities such as Cobiac v. Liddy and Healey v. Festini [1958] VicRp 36; [1958] V.R. 225 which discuss the meaning of this form of exceptive expression but which also deal with an additional restrictive proviso which it would seem, strengthen the minimum penalty provisions, but the courts’ have held that those words in themselves were not sufficient.

The issue arises whether, on this opinion and in the exercise of the discretionary power under s. 19(1)(d) and s. 19(6), the partial suspension of a minimum sentence of imprisonment might not be to reduce that sentence to “less than” the prescribed minimum under s. 398.

Two South Australian Supreme Court decisions bear directly on this issue, but in the context of their respective legislative provisions under consideration. In the first, Murray v. Wigzell [1971] S.A.S.R. 251, a court of summary jurisdiction, having convicted a defendant for a second offence against s. 47(1) of the Road Traffic Act 1961 (S.A.) which provided that the penalty for a second offence against that section is imprisonment for not less than one month and not more than six months, and disqualification from holding and obtaining a drivers licence for such period as the court thinks fit, but not less than six months, sentenced the defendant to imprisonment for three months, and disqualified him from holding or obtaining a drivers licence for three years, but made an order suspending the sentence upon the defendant entering into a bond to be of good behaviour. Section 47(4) of the Road Traffic Act further provided that: “Notwithstanding any other Act the minimum amount of any fine and the minimum period of imprisonment or disqualification prescribed by this section shall not be reduced or mitigated in any way”. Section 4(2a) of the Offenders Probation Act, 1913 (S.A.), provided that where a person has been convicted of an offence punishable by imprisonment, and the court is of the opinion that, having regard to (a) the character, antecedents, age, health or mental condition of the person convicted; (b) the trifling nature of the offence; or (c) any other extenuating circumstances, it is expedient to exercise the powers conferred by the subsection:

“... it may impose a sentence of imprisonment upon the convicted person but suspend the sentence upon condition that the convicted person enters into and observes the terms and conditions of a recognizance to be of good behaviour for a term not exceeding three years fixed by the court”.

The court, Hogarth J, at 254, held that the provisions of s. 4 of the Offenders Probation Act and s. 47 of the Road Traffic Act — are to be read together and that the problem is one of interpretation.

“On that view of the law, while we have a general provision empowering a court to suspend a sentence, we have the special provision of s. 47(4) which applies ‘notwithstanding any other Act’, and which provides that a minimum period of imprisonment ‘shall not be reduced or mitigated in any way’. I have come to the conclusion that the suspension of a sentence must be regarded as a mitigation of the sentence. It follows, in my opinion, that it is not open to a court to suspend the term of imprisonment required by s. 47 of the Road Traffic Act”.

In the second case McLean v. Kowald (1974) 9 S.A.S.R. 384 the Supreme Court had to consider the same question reserved for them: “Does the Offenders Probation Act give a power to suspend the sentence of imprisonment imposed upon the appellant under s. 47 of the Road Traffic Act?”.

Bray CJ at 389 in dealing with the second argument that was addressed to the court by the appellant: “That to suspend a sentence is not to mitigate it within the meaning of s. 47(4),” after setting out one of the definitions of the verb “mitigate” from the New English Dictionary as “to reduce the severity of a punishment” said:

“In ordinary parlance no one would doubt that the severity of a sentence of imprisonment had been abated or reduced if, instead of coming into effect automatically, it was to come into effect only on the happening of an uncertain future event ... But that is not what the present s. 47(4) says: it says that the minimum amount of any fine and the minimum period of imprisonment shall not be reduced or mitigated. How does one mitigate a period of imprisonment? No doubt a shortening of the period would be a mitigation as well as a reduction. But to suspend a sentence of imprisonment does not, it seems to me, as a matter of the English language, mitigate, abate or reduce the period of the imprisonment but only the effect of the sentence of imprisonment.... In ordinary speech I would have thought that the only way in which the period of a sentence of imprisonment as opposed to the effect of a sentence of imprisonment could be mitigated would be by reducing its length.

I would apply this construction to subs. (4) if it were not for the existence in subs. (4) of the word ‘reduced’. The prohibition is against reducing or mitigating. If in the context ‘mitigated’ can only mean ‘reduced’ it would follow that the two words were synonymous and one of them superfluous. I do not think that that could have been the intention of Parliament. I am driven to seek some wider meaning for the word ‘mitigated’. I think it must refer to some abatement or lessening of a punishment other than a reduction of the amount of a fine or of a period of imprisonment. To suspend a sentence so that it does not come into operation unless and until a condition of the recognizance has been broken does seem to me to be such an abatement or lessening, hence I am driven to the conclusion that it is forbidden by the sub-section.” (Emphasis added)

The distinguishing feature of these two cases however, is firstly that each had to construe a further prohibitive proviso that was in addition to the minimum penalty provision, namely s. 47(4) of the Road Traffic Act (S.A.) and in particular the construction and meaning of the term, “mitigate” as used therein. In the second of the two cases, McLean v. Kowald it seems quite apparent that Bray CJ felt compelled to find a wider meaning for the word “mitigated” because of its use together with “reduce”. The basis for the decisions in these two cases therefore, was on the construction and meaning given to the term “mitigate” as opposed to “reduce”. Indeed, the learned Chief Justice stated at 389 that, if it were not for the existence in s. 47(4) of the word “reduced”, he thought the only way in which the period of sentence of imprisonment as opposed to the effect of a sentence of imprisonment could be mitigated would be by reducing its length, and that he would have applied that construction.

I consider that because these two cases were concerned primarily with the construction of the word “mitigate” in a further prohibitive proviso to the minimum penalty provision and not with the construction of the minimum penalty provision itself nor in particular of the words “less than” therein, that they cannot necessarily be authorities for the view that to partially suspend a minimum sentence of imprisonment of five years is to impose a sentence less than five years. Further, in the absence of a similar provision to s. 47(4), it is less persuasive to import to the words “less than” the meaning given to the word “mitigate” in a different context.

I consider that in Acting Public Prosecutor v. Clement Maki and Tom Kasen (Unreported Supreme Court judgment No. S.C. 205 dated 7 August 1981) the Supreme Court by majority considered that it is the whole sentence which is the “effective” sentence including the portion suspended and not merely the unsuspended portion. The sentence of imprisonment is the whole of that which is imposed and not the unsuspended portion only, if that sentence were partially suspended.

It cannot be said therefore that, by suspending a portion of a minimum imprisonment sentence, a sentence less than the minimum is being imposed. As Miles J said at 24:

“... The recognizance may never be entered into, ... in which case it could not be said that the twelve months’ term ... was anything but ‘effective’“.

I would answer the question this way:

“Yes a judge still retains the full range of discretions under s. 19 except subs. (1)(a) under which if a sentence of imprisonment be considered appropriate, the judge cannot impose a term of less than the minimum prescribed, which is five years in the instant case, but the judge can still suspend the sentence or portion thereof under subss (1)(d), (e), (f), and (6).”

I should like to add that it should be clearly understood that the interpretation given to the language used does not mean that the courts will arbitrarily and discriminately impose fines or good behaviour bonds for serious break and enters and tribal fights. These discretions are available now on more serious offences such as rape, armed robbery and wilful murder, and it is virtually unheard of that a fine or a good behaviour bond is imposed for these offences. The courts will still continue to apply the proper principles in the exercise of these discretionary powers. In a good majority of all serious cases, these discretions will very rarely be an option.

(By majority).

Question answered: Yes but the court still retains the discretions under s. 19 with the exception of that under s. 19(1)(a) under which a court cannot impose less than five years’ imprisonment if it exercises its discretion to impose a term of imprisonment but may suspend a term of imprisonment under s. 19(6).

Lawyer for the affirmative case: N. R. P. Kirriwom, Public Solicitor.

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