State v S [1987] PGLawRp 523; [1987] PNGLR 271 (31 July 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 271 - The State v S

[1987] PNGLR 271

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

S

Waigani

Los J

31 July 1987

INFANTS AND CHILDREN - Crimes and offences by children - Sentence - Offence punishable by life imprisonment - No power to declare ward of Director of Child Welfare - Discretionary considerations - Child Welfare Act (Ch No 276), s 32(4) - Criminal Code (Ch No 262), s 19 - Constitution, s 155(4).

INFANTS AND CHILDREN - Crimes and offences by children - Sentence - Robbery and wounding with intent - Accused aged 14 years - Plea of guilty - Wounding by co-offenders - Concurrent sentences of four and two years - Sentences to be served at Boys Town until age 16 - At 16 sentences suspended on entering into good behaviour bond.

CRIMINAL LAW - Sentence - Infants and children - Offence punishable by life imprisonment - Powers of court - Child Welfare Act (Ch No 276), s 32(4) - Criminal Code (Ch No 262), s 19 - Constitution, s 155(4).

Where a child is to be sentenced by the National Court for an offence punishable by death or imprisonment for life, the National Court has no power to declare the child a ward of the Director of Child Welfare under the Child Welfare Act (Ch No 276); the child must be sentenced in the usual way with resort to the normal discretionary powers under s 19 of the Criminal Code (Ch No 262) and the inherent power of the National Court under s 155(4) of the Constitution to do justice in the circumstances of a particular case.

Accordingly, a 14 year old who pleaded guilty to participating in a house robbery where a man was wounded with a knife by co-offenders, should be sentenced to four years for robbery and two years for wounding with intent to cause grievous bodily harm, with both sentences to be served concurrently, and the sentences to be served at Boys Town, Wewak until age 16, with the then balance of the sentences to be suspended on the accused entering into a good behaviour bond for a period of three years.

Cases Cited

SCR No 1 of 1985; Inakambi Singorom v John Kalaut [1985] PNGLR 238.

State, The v Kendol Gegera (unreported, Wilson J, June 1987).

Sentence

A 14 year old pleaded guilty to charges of robbery and wounding with intent to cause grievous bodily harm and his counsel submitted that the Court should declare him a ward of the Director of Child Welfare.

Counsel

G Towaluta, for the State.

M Gene, for the accused.

31 July 1987

LOS J: On 29 September 1986 the prisoner and a number of his friends went to a house at Hohola and held up a man, Richard Gordon Goddard, and stole various goods including cash. The prisoner stole K17.00. He pleaded guilty to participating in the robbery. Some of his friends wounded the man with a knife. Because he was with them he is also guilty of wounding the victim with intent to cause grievous bodily harm to him.

It is apparent that he did not take part in planning the hold up. But when he was told about the plan he did not refuse. I am assisted by the presentencing report made by the senior Probation Officer, M J Cobern. His trouble has been that he could not resist temptation by his so called friends. He left Hohola Sacred Heart Community School and Don Bosco Vocational School because he preferred to be with the rascal friends. He also did not want to listen to his parents; he preferred to take advice from the rascal friends and enjoyed their friendship. He realises now what this has led him to.

I understand he realises his mistake and he says he deserves to be punished. His sentence will reflect the seriousness of the offences as well as the degree of his participation.

As the prisoner is 14 years of age — a juvenile, defence counsel urged me to declare him a ward of the Director of Child Welfare. To get away from the kind of influence that had been imposed upon the prisoner, counsel urged me to recommend to the Director to place the prisoner at the Boys Town, Wewak. Counsel for the State agreed that this would be a proper case for the Court to declare the prisoner a ward of the Director of Child Welfare on the grounds in s 41(1) of the Child Welfare Act (Ch No 276) namely that the child is “a destitute, neglected, incorrigible ...”. Apparently counsel relies on the report by Mr Cobern as a ground for his submission.

Responsibilities of the Director to a ward are covered in Div 1, Pt X of the Child Welfare Act, s 64 to s 66. These sections are descriptive of the Director’s powers. In my view they do not give jurisdiction to the National Court to declare persons wards. Section 64 for instance says:

N2>“64.    Director as guardian of wards.

(1)      Notwithstanding any other law relating to the guardianship or custody of children, the Director:

(a)      is the guardian of every child who becomes a ward to the exclusion of the parent or other guardian; and

(b)      shall continue to be the guardian until the child ceases to be a ward; and

(c)      is responsible for the care and management of every ward and of the property of every ward.

(2)      Subject to Subsection (3), the Director may terminate his guardianship of a ward at any time after the ward attains the age of 16 years.

(3)      Where guardianship is not terminated under Subsection (2), the Director remains guardian until the person concerned attains the age of 21 years, and the person is subject to the supervision of the Director during that period.”

The prisoner has committed serious offences. These offences carry a maximum of life imprisonment. This type of offence, especially the robbery offence, is prevalent. A need for strong deterrent punishment therefore is apparent. But the prisoner is 14 years of age. I have no intention of sending him to serve his sentence at any Corrective Institution. Both counsel also referred me to a sentence by Wilson J in The State v Kendol Gegera (unreported, June 1987, Waigani). His Honour declared the prisoner a ward of the Director to be placed at Boys Town Wewak until he reached 16. Because of the youthfulness of the prisoner and for parity of sentence (the prisoner before me is an accomplice) I should follow that course.

However, I find I have a jurisdictional problem. Under s 1 of the Child Welfare Act, “ward” means a child:

N2>“(a)    committed to the care of the Director, or sent to an institution, in accordance with an order of a court having jurisdiction to do so under this Act; or

N2>(b)      declared to be a ward under Section 41(2); ...” (italicising is mine for emphasis).

“Court” means:

N2>“(a)    a Children’s Court; or

N2>(b)      a District Court exercising the jurisdiction of a Children’s Court under Section 33;”

The National Court can exercise the powers of the Children’s Court under s 32(4). But the power does not extend to an offence of homicide, rape or any other offence punishable by death or imprisonment for life.

Section 32(4) provides:

“Where a court other than a Children’s Court deals with an offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a child, that court may exercise the powers of a Children’s Court under Subsection (2), and an order made in the exercise of those powers has effect as if it were an order of a Children’s Court.”

Subsection 3(b) allows the Children’s Court to make any order as if the order has been made under s 41.

In my view the National Court can only have power to declare a child a ward if in the first place it “acquires” jurisdiction under subs 4 and the National Court intends to impose punishment prescribed by subs 2. As the offences of robbery in company with other persons and wounding with intent to cause grievous bodily harm carry a maximum penalty of life imprisonment, the National Court does not have jurisdiction.

The argument of the counsel for the State seems to imply that the National Court has power under s 41 irrespective of the limit stated in s 32(4). I do not accept this implication. In my view s 41 does not give the National Court any independent jurisdiction. I am aware of the Supreme Court decision in SCR No 1 of 1985; Inakambi Singorom v John Kalaut [1985] PNGLR 238. The case involved the interpretation of s 32(6) of the Child Welfare Act.

Section 32(6) provided:

“A Children’s Court is not bound by a minimum penalty prescribed for an offence dealt with by it and may disregard the minimum penalty prescribed in imposing a penalty.”

The question was whether the subsection applied only to the Children’s Court per se and no other courts because of the express mention of Children’s Court. The court was unanimous in its answer to this question: reference to “Children’s Court” includes other courts that exercise the Children’s Court’s powers. The basis of this decision varied but the most obvious was the anomaly in sentences the subsection would cause if other courts were excluded.

I think that a question of wardship is completely different especially in relation to an offence carrying penalty of death, rape or any other offence carrying life sentence. I cannot therefore rely on any provision of the Child Welfare Act. I resort therefore to the normal discretionary powers under s 19 of the Criminal Code (Ch No 262). I also resort to the inherent power of the National Court under s 155(4) of the Constitution. For the sake of parity and because of the serious nature of the offences the prisoner has committed I impose a sentence of four years imprisonment for robbery, and two years imprisonment for wounding with intent to cause grievous bodily harm. Although the offences are distinct, they are related in time and place and the wounding was a supportive incident to the robbery. I make them concurrent.

I order that the prisoner serve his sentences at Boys Town, Wewak until he is 16. I suspend the rest of the sentences that go beyond the age of 16, on the condition that the prisoner enters into his own recognisance that he be of good behaviour for three years from the date of discharge from the Boys Town.

Sentence accordingly

Lawyer for the State: Public Prosecutor.

Lawyer for the prisoner: Public Solicitor.