Unreported National Court Decisions
N247
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V.
YOMBA GENDE
Goroka
Kapi J
10-11 June 1980
CRIMINAL LAW - sentence - two accused commit crime together, one charged with a lesser offence and the other charged with a more serious offence - a relevant consideration in sentence considered.
S.16 of the Criminal Code considered.
Cases referred to:
Paulus Mandatititip and Anor. v. The State (1978) P.N.G.L.R. 128
Tapopwa Thomas v. The State (Unreported) judgment dated 4th May 1979 No. SC150
R. v. Gordon, ex parte Attorney-General (1975) Qd. R. 301
Gaiari-Ganereba v. Giddings (1967-68) P. & N.G.L.R. 346
R. v. Hull (No. 2) 1902 St. R. Qd. 53
SENTENCE AND REASONS FOR SENTENCE
KAPI J:  The accused is charged that on the night of 20th November he broke and entered a dwelling house and therein stole goods valued at K316.00. It is alleged that he committed this offence at night.
He has pleaded guilty to the charge.
The maximum penalty under s.407 of the Criminal Code is life imprisonment for this offence. This is a very serious offence and one in which the courts in this country have given tough sentences.
The accused is young, aged 19 years, and he comes from the Chimbu Province. He has lived most of his life in the village until 1978 when he moved to Goroka town with his relatives. He has no formal education.
It appears from the evidence in the depositions that the accused broke into the house with the assistance of one other person, Peter Sufo. The police charged Peter Sufo at the District Court on two counts, first, stealing, and second, being on premises without lawful excuse. The charges brought against Peter Sufo arose out of the same set of facts upon which the present accused is charged. No satisfactory explanation has been given as to why the police chose to charge Peter Sufo with the two counts in the District Court, and not on break, enter and stealing. Peter Sufo pleaded guilty to both charges and he was convicted and sentenced to six months’ imprisonment for stealing, and two months’ imprisonment for being on premises without lawful excuse. Both sentences were made cumulative, a total of eight months’ imprisonment.
Mr Roddenby for the accused in this case submits that, in considering sentence for the accused, I must bear in mind the sentences imposed on Peter Sufo by the District Court. He submits that since both Peter Sufo and the accused were involved in the same act, they should have been dealt with on the same charges. He submits that it is unfair to the accused that he has been charged with the more serious charge.
It seems to me that this is a valid submission and must be considered. However, in my opinion, this submission can only succeed if the Public Prosecutor declines to indict Peter Sufo on a similar charge of break, enter and stealing or, alternatively, if Peter Sufo is charged with break, enter and stealing, he cannot be found guilty of that charge under s.16 of the Criminal Code on the basis that he has already been punished for the same act or acts by the District Court.
Counsel for the prosecution has indicated that his present attitude is to recommend to the Public Prosecutor that Peter Sufo be indicted on a similar charge of break, enter and stealing. He submits that his attitude is influenced by the prevalence of this offence in this country and that this offence has been considered by the courts as serious, calling for severe punishment. See Paulus Mandatititip and Anor. v. The State[ccxlvii]1.
I am now left to consider whether, if the Public Prosecutor decides to indict Peter Sufo on break, enter and stealing, Peter Sufo would have a successful defence under s.16 of the Criminal Code.
Counsel for the accused argues that under s.16 of the Code the acts that were punished in the two previous convictions at the District Court, namely, stealing and being on premises without lawful excuse, involves the same acts as in the break, enter and stealing charge, therefore he cannot be punished twice for those acts. Counsel for the State submits that the two previous punishments do not involve the same acts as the break, enter and stealing charge.
WHAT IS THE “ACT” REFERRED TO IN S.16 OF THE CODE?
This section was considered in the Supreme Court case of Tapopwa Thomas v. The State[ccxlviii]2. However, in that case there was no dispute as to what the “act” was. The arguments in that case were mainly centred around whether if, by applying s.16 of the Code, sentence is quashed, the conviction should stand alone.
The “acts” which this section refers to are “acts” which constitute the essential element of the offence. Before an “act” can be punished it must constitute the elements of the offence which result in conviction. If there is no conviction there is no punishment. Hanger, C.J. in the case of R. v. Gordon, ex parte Attorney-General[ccxlix]3 described the section in these terms:
“Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies though the act or omission would constitute two different offences. It is to these cases that the section is directed.”  (Underlining mine.)
Mr Justice Minogue (as he then was) in the case of Gaiari-Ganereba v. Giddings[ccl]4 said:
“It seems to me, however that the intention of s.16 is to direct consideration of the substance of an offence, that is, of the ingredients that go to make up the act or omission which renders the doer of the act or the maker of the omission liable to punishment.”  (Underlining mine.)
Mr Justice Williams in R. v. Gordon, ex parte Attorney-General (supra)[ccli]5 at p. 323 put the test in the following terms:
“In the final result it seems to me that the proper test is whether the same wrongful act or omission which previously resulted in conviction and punishment, is the central theme, the focal point or for want of a more apt choice of words and perhaps more appropriately, the basic act or omission in the later offence charged.”  (Underlining mine.)
The “act” in s.16 refers to acts which form the elements of the offence and does not refer to the evidence that proved these acts. The warning to keep this distinction clear was given as far back as 1902 by Chief Justice Griffiths in R. v. Hull (No. 2)[cclii]6:
“The confusion has apparently arisen from not distinguishing between the acts which were the elements of the offence, and the particular evidence which was adduced to prove the acts.”
The “act” in s.16 also does not refer to the surrounding circumstances of a particular case, or factors which have been put before the tribunal for purposes of imposing the appropriate punishment for the particular offence. In R. v. Gordon, ex parte Attorney-General (supra)[ccliii]7 the accused was first charged with being in charge of a motor vehicle whilst under the influence of liquor or a drug. He pleaded guilty to this charge and was fined $350.00. In sentence, the manner of driving and the injuries that were caused were taken into account. Subsequently, he was charged with dangerous driving causing grievous bodily harm. S.16 was raised on the basis that the evidence of dangerous driving and the injuries caused were put before the magistrate as factors constituting the circumstances surrounding the offence and were taken into account in sentence. Mr. Justice Williams, in applying the proper principles to the facts, said this at p.313:
“It seems to me that the “act” for which the accused was punished under the traffic offence (assuming a “driving” rather than a “being in charge”) was the fact of driving the vehicle at a time when he was under the influence of liquor and at a particular place, namely the Cunningham Highway. His manner of driving the vehicle was not a necessary element in establishing the offence, although it could have provided some evidence of unusual behaviour due to alcohol. The fact that he drove in a dangerous manner and that that evidence was adduced before the magistrate were merely for the purpose of allowing the magistrate to form an opinion as to the appropriate penalty bearing in mind all the surrounding circumstances. Had the man been driving carefully and had there been no accident it may well be that the magistrate would and should have imposed a lesser fine. The act however that constituted the offence was the act of being in charge (driving) whilst under the influence of liquor.
On the dangerous driving causing grievous bodily harm charge it is relevant not only that he was driving the vehicle but also that there existed all or some of the surrounding circumstances as set out above in the definition of dangerous driving none of which includes being under the influence of liquor. In the one it is the act of driving in a particular condition; in the other it is the act of driving in a particular manner in particular circumstances causing a certain result which is the gravamen of the offence. To my mind the same “act or omission” is not involved.”
The “act” to which s.16 refers implies that the act must take place at the same time and place constituting the two different offences. R. v. Hull (No. 2) (supra)[ccliv]8.
BEING ON PREMISES WITHOUT LAWFUL EXCUSE.
The information at the District Court was laid pursuant to s.20 (1) of the Summary Offences Act. The information alleged the particulars of the premises, namely, being inside the building. The accused pleaded guilty and on the statement of facts he admitted that louvres were removed and he entered the house and stole goods. To my mind the punishable act is that he was on the premises without lawful excuse. The fact that he broke and entered the house was not necessary to constitute the offence of being on premises without lawful excuse. The fact that he broke and entered the house was only adduced before the magistrate for the purpose of allowing the magistrate to form an appropriate penalty, having in mind the whole of the surrounding circumstances.
Furthermore, the act of being on premises is a subsequent act to the act of breaking and entering the building. The act of being on premises, i.e. inside the house, is a separate act from the actual breaking and entry to the house.
STEALING.
The punishable act in the offence is the act of taking away goods without the owner’s permission. On a break, enter and stealing charge it would be necessary to prove the taking of goods with the intention of depriving the owner of the goods in order to establish stealing. This involves the same act as in the charge of stealing at the District Court. It is clear that the same set of facts would be relied upon for the purposes of proving the element of stealing in the latter charge. To my mind, it is clearly the same act involved in each offence. Therefore a charge of break, enter and stealing against the accused on the same facts would not be punishable under s.16 of the Criminal Code.
I have therefore come to the conclusion that the police in exercising their discretion in the manner they did, i.e. in charging Peter Sufo with lesser charges, have brought about an unfair application of the law in the case of this accused. All citizens are equal under s.55 of the Constitution and are entitled to the equal treatment and protection of the law. The law should not be used so that people get different treatment by the law on the same facts as in this case. I believe that it is in the spirit of our Constitution that two people in the circumstances of this case should receive equal treatment or protection under the law. This is a factor which I take into consideration in sentence. Any punishment imposed by this court in this case should reflect the punishment that had been imposed on Peter Sufo in the circumstances of this case.
I would have imposed a much higher sentence if it was not for the foregoing reasons. I sentence the accused to eight months in hard labour to take effect as from the expiration of the present sentence.
Solicitor for the State: C. Maino-Aoae, A/Public Prosecutor
Counsel: J.E. Byrne, with him G.G.P. Salika
Solicitor for the Accused: D.J. McDermott, A/Public Solicitor
Counsel: K.R. Roddenby.

[ccxlvii](1978) P.N.G.L.R. 128
[ccxlviii](Unreported) judgment dated 4th May 1979 No. SC150.
[ccxlix](1975) Qd. R. 301 at p.306
[ccl](1967-68) P. & N.G.L.R. 346 at p. 352
[ccli](1975) Qd. R. 301 at p.306
[cclii]1902 St. R. Qd. 53 at pp.57-58
[ccliii](1975) Qd. R. 301 at p.306
[ccliv]1902 St. R. Qd. 53