Kuru v Kombra [1981] PGNC 27; N292(L) (19 March 1981)

N292(L)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL 295 OF 1980

BETWEEN:

HEN KURU & 9 OTHERS
APPELLANTS

AND:

WASS KOMBRA
RESPONDENT

Mount Hagen: Pratt J
16 March 1981; 19 March 1981

PREPARING TO FIGHT - Inter-Group Fighting Act, section 10(2) - magistrate imposes eighteen months - maximum two years - reduced to fourteen months - principles of sentencing discussed.

Cases Cited
John Tolna and 14 Ors v. Paul Ari: (Unreported) National Court Judgment N218 dated 20th March 1980
Paia Lifi v. Phillip Dege: (Unreported) National Court Judgment N291(L) dated 21st February 1981

SENTENCING

PRATT J: The charge laid in this matter was under s.10(2) of the Inter-Group Fighting Act which makes it an offence for any person who is part of an unlawful assembly to be preparing for a fight. The section of course only applies to those areas which are declared fighting zones under the Act. The maximum sentence provided is two years imprisonment with hard labour. The Court has been assisted by submissions of counsel and detailed reasons for judgment from the magistrate at Minj. The appeal against conviction in each case was dismissed by me on the 16th March last and I reserved the appeal against the severity of the sentence for further consideration.

In his reasons for sentence the learned magistrate says inter alia and I quote:

"It is well known knowledge that the fight had started and continued and has not stopped. The police were in the area all this time camping there trying to stop the fight but the appellants failed to co-operate and continued to fight."

No doubt the learned magistrate had in mind that not only did the appellants fail to co-operate but a large number of other people as well. I think that is a fair inference from the general tenor of his reasons. Continuing with the magistrate’s reasons I quote:

"There was a fight here last year and quite a number of the same clansmen were imprisoned. The fight had started again this year and a lot of innocent people were the victim of it. Houses, coffee and food gardens belonging to innocent people were destroyed. Where is the justification in this sort of action?

I would interpolate at this point that although some of the clansmen of the present appellants may have been involved in and convicted for tribal fighting during 1980, there is no suggestion that the present appellants or any one of them had prior convictions for this offence or indeed any other offence known to the law in Papua New Guinea. Continuing with the final quote from the learned magistrate:

"I think the intention of the legislature is to impose greater punishment for this sort of action as the laws which were in existence as quoted earlier, were not harsh enough."

The laws which the learned magistrate had been referring to were certain sections in the Summary Offences Act and ss. 63 & 249 of the Criminal Code which deal with riotous behaviour and unlawful assaults. With the final sentence stated by His Worship, I agree. The government and the people face an increasing problem from tribal fighting in the country. The legislature has introduced special measures in an attempt to deal with the problem. A magistrate is in a special position to appreciate the particular problems of his area. That is generally recognised and it is especially pertinent in relation to offences committed under the Inter-Group Fighting Act. There is clearly a need by the courts to increase the deterrent aspect of sentence in this area. It is a well known principle that where crime is on the increase, then the courts must also increase the penalty in an attempt to deter others from following. This increase in sentence, where the crime itself is becoming more prevalent, must be done in accordance with stated principles of law. If it is felt that the maximum provided by statute does not provide enough leeway for the magistrate, then the legislature, taking into account the principles upon which the court must operate, should consider whether an increase of penalty is desirable or necessary. It must not and indeed would not expect the courts to deviate from the principles upon which they must act in assessing sentence.

Despite the glib tongues of some members of the community, I do not believe that the inmates of our gaols regard imprisonment as a holiday or a joke. My own observations are to the contrary. Putting a man in gaol is a serious business. It can cause him loss of work. In the present cases, leaving aside the appellant Woi Kasbal, nearly all are married and no doubt have gardens to tend and clearly families to support. Some may or may not have cash crop gardens or small businesses to run. Some may or may not have relatives who can assist in all or some of these areas while the appellants are in gaol. Clearly the legislature, by imposing a period of imprisonment without stipulating the alternative of a monetary penalty, considers the offence serious, and has thus indicated that the courts are entitled to give consideration to imposing imprisonment at the outset. But of course that does not automatically imply other forms of punishment may not be utilized. One only has to look at the Criminal Code to realise that the courts still have the full ambit of penalties available to them, such as they are in this country, and it is not essential that a period of imprisonment be imposed. Nevertheless, as I say, the absence of a monetary penalty indicates that the legislature regards the matter as serious. To the critics of lighter penalties the term "eighteen months" is quick to say, almost as quick indeed as "eight months" and may seem short. Unfortunately there are, no doubt, some would-be offenders under the Act who likewise dismiss the matter lightly. But to the person entering gaol for the first time in his life, and each of the appellants before me is a first offender, a year and a half is a long way to look ahead. The sentence is three-quarters of the maximum period allowed by law. It is therefore not only a severe penalty but in my view manifestly excessive, though perhaps not by very much. In view of the maximum penalty provided and the principles of sentencing laid down by the courts, the period of eighteen months transgresses the accepted norms. The court cannot lay down a tariff, that is a set proportion of sentence to be imposed against the maximum allowed under statute. Every case must be individually considered but of course fairness must prevail and a sentence imposed on one individual must bear a just relationship to that imposed on co-defendants. However difficult it undoubtedly will be and whatever additional pressures are put upon the courts, the danger of treating a group of defendants as one undistinguishable whole must be guarded against. The temptation faces every sentencing authority in such circumstances to adopt an inherent weakness of the mass production system, namely a failure to recognise the individual. Men are not like so many nuts and bolts being disgorged from some factory machine. Sentencing authorities should guard against the tendency to become "a supervisor on the factory floor". It may well be that in the final analysis all co-defendants receive the same sentence. There is nothing wrong with that provided each case has been individually considered.

The principle of not imposing the maximum sentence or near the maximum sentence in the case of first offenders and/or in cases other than the most serious or worst of cases, has been repeated time and again in this jurisdiction. One of the most recent decisions on this aspect was handed down by His Honour Mr Justice Wilson in John Tolna and 14 Ors v. Paul Ari^[1]. There His Honour cites an unpublished judgment of Mr Justice Andrew to the same effect. Other references appear on top of p.272 of Andrews, Chalmers & Weisbrot "Criminal Law and Procedure of Papua New Guinea". (See also my own recent judgment in Paia Lifi v. Phillip Dege^[2]). But there have been numerous occasions apart from the cases here referred to, where the courts have emphasised the same principle both in this jurisdiction and elsewhere.

Excluding for the time being the appellant Woi Kasbal, I apply the above principle and consider that a sentence of fourteen months imprisonment with hard labour to be adequate, fair and reasonable. That sentence is perhaps a trifle higher than I would myself have imposed but I am influenced by the fact that the magistrate obviously had good reasons for viewing the cases seriously and a running battle was already in progress at the time the appellants were arrested. Their preparation therefore was not merely in anticipation of a hoped for battle but apparently to re-engage in a continuing one.

The case of Woi Kasbal requires special attention however. It illustrates the dangers always present when dealing with defendants as a group. On the information this person is shown as sixteen years of age - single and a student. From material presented to me at this hearing together with other material which came before me in December last on a bail application in respect of this appellant, I have no doubt that he is very much younger than sixteen years. Indeed the indications are rather that he is at the lower end of the eleven to thirteen bracket. Although I accept that he was a member of the unlawful group and must have been one of those either suffering arrow wounds or daubed with war insignia, I am sure that his contribution must have been minimal in the extreme. No doubt he was learning but in such circumstances it is the teacher rather than the student who should be punished. To have put this young boy in gaol is bad enough but to have handed down a sentence of eighteen months in inexcusable. I can only think that the police prosecutor failed to draw the youth of the defendant to the notice of the court and in the pressure of dealing with a number of defendants probably each day for quite a period of time, the magistrate did not pick up the obvious.

Woi has already served a sentence of two months. In my view any sentence of imprisonment against one so young cannot be supported. If the police are going to continue to arrest young children in these tribal fighting raids, then I suggest they make sure that they bring with them information which can pinpoint the person or persons responsible for the child’s presence in the first place so that the courts can deal more severely with such offender. In the circumstances I have reduced the period of eighteen months imprisonment imposed by the magistrate to such period as has already been served by this appellant.

Solicitor for the Appellants: A. Amet, Public Solicitor
Counsel: M. Tamutai
Solicitor for the Respondent: K. Roddenby, Acting Public Prosecutor
Counsel: M. Darius

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^[1] (Unreported) National Court judgment N218 dated 20th March 1980
^[2] (Unreported) National Court judgment N291(M) dated 21st February 1980