Otto v Pewa [1981] PGNC 36; N299(M) (12 June 1981)

N299(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 112 OF 1981

BETWEEN:

JAMES OTTO
APPELLANT

AND:

JACK PEWA
RESPONDENT

Goroka: Kearney DCJ
12 June 1981

APPEAL - appeal against sentence - jurisdiction - sentence of imprisonment imposed - maximum penalty K20 fine - sentence a nullity.

APPEAL - procedure - where contention is lack of jurisdiction it is immaterial whether invocation of appellate Court is treated as an appeal or as an application for certiorari.

REASONS FOR DECISION

KEARNEY DCJ: This appeal from the Local Court at Garoka was brought on for hearing urgently today; by leave, the respondent consenting, all necessary conditions precedent to the statutory appeal were waived, to enable the appeal to be heard today.
On 26th May 1981 the appellant was arrested and charged with an offence under Section 20(3) of the Motor Traffic Regulations 1967. Section 20(3), so far as material, is as follows:

"Upon the receipt of a new number plate ... the owner shall, within seven days, affix it on the motor vehicle in place of the one so lost or destroyed."

He was brought before the Local Court at Garoka on 29th May, where he pleaded guilty. He was convicted and sentenced to 2 months imprisonment with hard labour. This is his 18th day in custody, from the time of his arrest.

I am informed by both Counsel that the maximum penalty for the offence under this Regulation remains unaltered, a fine of Twenty Kina (K20.00).

The Local Court had no jurisdiction to impose any term of imprisonment; as a result, there has been a substantial miscarriage of justice, and the appeal against sentence must be allowed: see, for example, Joseph Kembu v. Eko Mason^[1]. I should add on reconsideration of what I said in Kari v. Kogia^[2] that where what is involved is a challenge to the jurisdiction of the Court below, it does not matter whether this Court deals with the issue as an appeal or as an application for certiorari to quash: see Mala v. Kukwa^[3], and cases there cited, especially Crane v. D.P.P.^[4]

The sentence is declared to be a nullity, and is formally quashed and expunged from the record. The appellant has already suffered a deprivation of his liberty for 18 days, and that grim reality is a punishment well in excess of any that could properly have been imposed on him. Accordingly, this is not a case where this Court should impose the fine which the Local Court should have imposed. Appellant is to be released from custody immediately.

Appeal allowed; sentence quashed.

Solicitor for the Appellant: A. Amet Public Solicitor
Counsel: M. Sevua
Solicitor for the Respondent: L. Gavera, Public Prosecutor
Counsel: V. Noka

---

^[1] [1971-72] PNGLR 407
^[2] Unreported National Court Judgment N153 of 13 July 1978 at p. 2.
^[3] Unreported National Court Judgment N778 of 12 February 1974
^[4] (1921) AC 299