Ungi, The State v [1980] PGNC 77; [1980] PNGLR 199 (14 August 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 199 - The State v Kaupa Ungi 

[1980] PNGLR 199

N252

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

KAUPA UNGI

Lae

Narokobi AJ

14 August 1980

CRIMINAL LAW - Practice and procedure - Vacating sentence - Power to vary sentence before circuit closed.

A judge of the National Court, having imposed a sentence during circuit sittings and in the exercise of his criminal jurisdiction, has power to reconsider and alter the sentence at any time before the circuit has formally closed.

R. v. Nam and Sansbury [1968] S.A.S.R. 107;

R. v. Batchelor (1952) 36 Cr. App. R. 64;

R. v. Price [1805] EngR 138; (1805) 6 East. 323 at p. 328 and

R. v. Casey (1932) 23 Cr. App. R. 193 considered.

Practice to be adopted when sentence so varied, discussed.

Application to Vacate Sentence

This was an application made by the State to vacate a sentence and sentence afresh. The accused had been sentenced as a first offender and after sentence was imposed, the warrant of commitment signed and the prisoner delivered to the gaoler at the corrective institution, prior convictions were discovered.

Counsel

B. J. Cassels, for the State.

I. Glasgow, for the defendant.

14 August 1980

INTRODUCTION

NAROKOBI AJ: On 5th August, I sentenced Kaupa Ungi to twelve months’ imprisonment with hard labour, on his own plea to breaking, entering and stealing. He was sentenced with two other accused. They had broken into the public laundry at Lae and there stole linen and blankets worth K250.00. At that time the State counsel, Mr. B. Cassells, did not know that Kaupa Ungi had two other prior convictions against him. I therefore sentenced Kaupa Ungi as a first offender.

PRIOR CONVICTIONS

On 4th July, 1979, the National Court sentenced Kaupa Ungi to eighteen months’ imprisonment with hard labour on a charge of break, enter and stealing from a trade store, the property of Bill Kasek. In that offence, Kaupa stole two radio cassette players and one radio valued at K280.50. That offence was committed on 19th April, 1979.

On the same day, Kaupa Ungi was sentenced to twelve months for his part in break and enter into and stealing from the same Lae laundry. That offence was committed on 3rd March, 1979.

Kaupa Ungi’s sentence of twelve months was expressed to be cumulative on the eighteen months imposed in respect of the 19th April offence.

Kaupa Ungi was taken into custody to serve his sentence. He remained in prison until 22nd September, 1979 when he escaped. He was apprehended during the commission of the present offence relating to the same Lae laundry.

With respect to his escape, he has been sentenced, to four months. That sentence was not expressed to be cumulative.

The State prosecutor discovered the prior convictions in his office after I had signed the warrant of commitment and after the prisoner had been received by the gaoler at the corrective institution. In fact the prior convictions were discovered a day afterwards.

VACATING OR RECALLING SENTENCE

Mr. Cassells now asks me to vacate my sentence and sentence the prisoner afresh. At the outset, I state that in my view, the error is genuine on the part of the State. Defence counsel, in my view, has no obligation to make known the prior convictions, even if he knew of them.

Mr. Cassells submits that assuming I have the power to vacate my sentence and re-sentence, I should proceed to exercise that power in the interest of justice. In this case, it is the State interest that must be given prominence.

Mr. Cassells argues that enforcement of this principle would not do violence or injustice to the prisoner for three reasons. First, the prisoner was well aware of his prior convictions. This is not a matter of surprise. There could be no sense of grievance if the sentence was to be adjusted.

Secondly, the sentence Kaupa Ungi now stands to be sentenced on, is his third offence of this kind. It was committed whilst he was at large from the previous sentences. It is in the interest of the community as a whole that the court should take into account the prior sentences, despite the State’s error.

Thirdly, no great time has lapsed between the passage of sentence and this application. There is no suggestion that the accused’s imminent release would be dashed, if I were to vacate my sentence and sentence afresh.

DEFENCE

Mr. I. Glasgow, counsel for the prisoner opposes the application. He argues that the State was well aware, and so was the court, that the prisoner was not a clean skin man. At least it was known that he had escaped from lawful custody. Defence counsel was unable to cite any authorities in support of his argument, but argues that in principle, I ought not to exercise my discretion in favour of vacating my sentence.

THE LAW

The Criminal Code is silent on this issue. The parent code of Queensland is also silent on this matter. In Queensland there appears to be no direct authority on the issue, as it seems that it has always been assumed that that power exists in the Supreme Court.

In R. v. Lewis[cccxiii]¹, (and see also R. v. Smith (1913) 7 Q.J.P.R. 24; and R. v. Graham [1933] Q.W.N. 44); Webb J. was of the opinion that “I will alter the sentence from six months to five months. I can do that at any time during the sittings.” That was a case involving s. 20 of the Criminal Code of Queensland, and the sentence was backdated to the time when the prisoner was continuously in custody.

The position in England is represented in various authorities and these authorities have been well stated by the Supreme Court of South Australia in R. v. Nam and Sansbury[cccxiv]². The case shows that in England there are conflicting authorities.

The Supreme Court of South Australia preferred the view expressed in Batchelor’s case[cccxv]³, namely that so long as the court was still in session, it could alter a sentence. In Batchelor’s case (supra), the Court of Criminal Appeal was of the view that, the judge could alter the sentence, by increasing it, or decreasing it, up to the point when he signs the document recording the sentences of the court for gaol delivery of the prisoner.

This case would tend to suggest that up until the signing of the warrant of commitment, the judge may alter his sentence. The problem is that in Papua New Guinea, we do not have documents called “gaol delivery”.

In R. v. Price[cccxvi]⁴, referred to in R. v. Nam and Sansbury[cccxvii]⁵ Lord Ellenborough noted that a sentence might be altered at any time within the same term.

In this country we have circuits, not terms. By analogy, in this country it can be stated that a sentence can be altered at any time before the circuit is formally closed. This means that even after the warrant of commitment is signed and the prisoner is delivered to the gaoler, the court may recall its sentence and either increase or decrease the sentence initially imposed.

The South Australian Supreme Court observed that Casey’s case[cccxviii]⁶ was unsure of the terminal date, but that Batchelor’s case[cccxix]⁷ removed the doubt by settling for the signing of the gaol delivery as the terminal date of quarter sessions. Archbold, (36th ed.), par. 633, says that Batchelor’s case (supra) represents the current law of England.

The Supreme Court of South Australia in R. v. Martin[cccxx]⁸ held that the court could not declare the prisoner an habitual criminal a day after it had sentenced him. The court there, specifically declined to express its view on the question whether it had jurisdiction to alter a sentence, once the sentence had been recorded.

The English law is well known for inventing fictions to overcome legal obstacles to sound common sense and justice. In this field, the English law developed the fiction that the whole assizes or sessions only constitute one day. In the circuit context, we could say that the entire circuit is a single day. The significance of this fiction is that the sentence of the prisoner runs from the day circuit commences.

It may be, that in Papua New Guinea, the rule should be that, even after the close of the circuit, but before the completion of the circuit report, a sentence may be altered. There is no rule of law requiring a judge to prepare a circuit report. A practice seems to have developed however, for judges to prepare a summary of circuit reports and a summary of sentences, after the circuit. I do not think it is necessary for me to decide on this point, as it does not arise directly.

UNDERLYING LAW

I now find myself faced with divergent views about what the rule of law should be concerning alteration of sentences. There is English, Australian and New Zealand[cccxxi]⁹ authority enough for me to rely on to alter the sentence. However, the difficulty arises because of differences in practice and the actual terminal point in relation to each case, once the prisoner is sentenced.

Faced with a similar situation, the Supreme Court of South Australia, in fact had to legislate. That court did that by holding “that the power of the court to reconsider and alter its sentences while sitting as a court of oyer and terminer and gaol delivery in Adelaide is limited to the duration of the particular sittings”.[cccxxii]¹⁰ The court held so not because it thought a sitting was the equivalent of an English assize or sessions, but because it represented the nearest analogy.

In R. v. Nam and Sansbury[cccxxiii]¹¹ the court followed R. v. Batchelor[cccxxiv]¹² as a matter of convenience. It held that its sittings end once the judge sentenced the last prisoner. This would be analogous to our closing of the circuit. When the circuit is closed, the session is closed. Up until that time, I hold that I can alter sentence I impose on a prisoner, before the circuit is closed.

I so hold, not because I am following a South Australian authority. Our Constitution adopts the English common law as at Independence, as the common law of Papua New Guinea. Australian common law, whether of the States, the Federal Court or of the High Court are of persuasive value only. (Sch. 2.12(2) of the Constitution.)

The English authorities, as I have indicated, are conflicting. The Australian practice seems to vary from State to State. There is authority in New Zealand R. v. Davidson[cccxxv]¹³ to support the South Australian authority.

I proceed under Constitutional provisions, establishing the National Court and giving it unlimited jurisdiction. By s. 155(4) the National Court has an inherent power to make, in such circumstances as seem to it proper, such other orders as are necessary to do justice in the particular circumstances of a particular case.

The National Court is established under s. 163(1) of the Constitution. By sub-s. (2), it is declared to be a superior court of record.

Section 155(3)(a) of the Constitution says simply that the National Court has an inherent power to review any exercise of judicial authority. Although this may be read down to limit the National Court’s review of judicial authority of another inferior court or tribunal, I think that would be an unnecessary restriction of the National Court’s power to review its own decisions before the circuit is closed.

Schedule 2.3 of the Constitution states clearly that in any matter before a court where there appears to be no rule of law that is appropriate and applicable, it is the duty of the National Court to formulate an appropriate rule as part of the underlying law.

The court may call to mind the national goals and the directive principles, the basic rights, analogies from statute and custom, relevant court decisions of any country with a legal system similar to our own, and to the circumstances of Papua New Guinea from time to time.

CUSTOM

In traditional Melanesian societies, once the chief or the community imposes a punishment, it was always open to the various parties to bring influence to bear on the tribunal to impose harsher or lesser punishment. The tribunal may convene at any time. There are no formal sessions or circuits that can be opened or closed. The welfare, security and the survival of a community and its citizens requires that whenever a complaint is registered, opportunities are made available to adjust the punishment.

CONCLUSION

In this case, my conclusion is as I have intimated all along. I hold that before the circuit is formally closed, I can recall my own sentence and sentence afresh.

In this case, I adopt the following practice: The prisoner is brought back into the dock following proof of prior convictions. I address him, explaining my reasons and what has been happening to his life. I approach him as if I have just convicted him. The prisoner is invited afresh to address me on the allocutus which I administer afresh. Defence counsel is also invited to put before me any matters he wishes to put. The defence counsel in this case had no fresh matters to put before me.

In all the circumstances of the case, I sentence the prisoner to two years ten months, expressed to be cumulative upon the previous sentences. In practical terms, I impose ten months additional upon the previous sentences.

In fact I have decided to cut the prisoner’s sentence by several months. This brings his sentence in line with the sentence I imposed upon his co-accused in the present break in, enter and steal.

I do so for a variety of reasons. First, both the prosecution and the court were in fact placed on guard when it was learned that the prisoner had escaped from a lawful custody. It did not occur to me to inquire. Secondly, the power to recall sentences and sentence afresh should not be exercised lightly. Normally, it should be exercised to assist a prisoner, rather than to crush him. Thirdly, his sense of grievance, if he should have one, in my previous sentence being several months more than the sentence I imposed on his co-accused would now be met.

Finally, it is a token offer to him, that he need not adopt a life of crime as his way of life. The courts and the society are ready to assist if the prisoner is prepared to help himself.

Sentenced accordingly.

Solicitor for the State: R. K. Woods, Acting State Solicitor.

Solicitor for the defence: D. J. McDermott, Acting Public Solicitor.

[cccxiii] [1931] Q.W.N. 41.

[cccxiv] [1968] S.A.S.R. 107 at pp. 107, 108.

[cccxv] (1952) 36 Cr. App. R. 64.

[cccxvi] [1805] EngR 138; (1805) 6 East. 323 at p. 328.

[cccxvii] [1968] S.A.S.R. 107.

[cccxviii] (1932) 23 Cr. App. R. 193.

[cccxix] (1952) 36 Cr. App. R. 64.

[cccxx] [1937] SAStRp 16; [1937] S.A.S.R. 70.

[cccxxi] R. v. Davidson [1966] N.Z.L.R. 626.

[cccxxii] [1968] S.A.S.R. 107 at p. 116.

[cccxxiii] [1968] S.A.S.R. 107 at p. 117.

[cccxxiv] (1952) 36 Cr. App. R. 64.

[cccxxv] [1966] N.Z.L.R. 626.