Isara v Klei [1983] PGNC 29; [1983] PNGLR 217; N445 (14 November 1983)

N445

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF AN APPLICATION PURSUANT TO S. 42(9) OF THE CRIMINAL CODE ACT (CH. NO. 262) AND IN THE MATTER BETWEEN:

SAI ISARA

V

JONATHAN KLEI

Lae
Pratt J

9 November 1983
14 November 1983

CRIMINAL LAW - Sentence - Offences dealt with summarily by grade V magistrate - Maximum penalties prescribed in Sch. 1A - Schedule 1A penalties only applicable - Criminal Code minimum penalties irrelevant.

INFERIOR COURTS - District courts - Jurisdiction - Grade V magistrates - Election to proceed summarily - Sentencing powers of magistrate - Discretion to commit retained - "Seriousness of the offence" - Seriousness of particular circumstances relevant - Criminal Code (Ch. No. 262), ss 420, 421.

INFERIOR COURTS - District courts - Sentencing powers - Grade V magistrates - Election to proceed summarily - Maximum penalties prescribed in Sch. 1A - Schedule 1A penalties only available to magistrate - Criminal Code minimum penalties irrelevant.

INFERIOR COURTS - District courts - Order for committal - Indictable offences dealt with summarily Committal - invalid or improper - Application to set aside - Practice on - Powers on - Criminal Code (Ch. No. 262), s. 421(9).

Under s. 420 of the Criminal Code (Ch. No. 262) a person charged with certain indictable offences specified in Sch. 1A of the Code may be dealt with, at the election of the Public Prosecutor, summarily, by a grade V magistrate.

Schedule 1A describes in brief terms the name of the offence, the section number and the maximum penalty which may be recorded by a grade V magistrate where a conviction is recorded. Amendments to the Criminal Code effective 14 July 1983 prescribe minimum penalties for various offences under the Code, which offences include those listed in Sch. 1A.

Under s. 421(9) of the Criminal Code the National Court has power to quash a committal by a grade V magistrate where the committal is invalid or improper.

On a plea of guilty to a charge of breaking and entering with intent dealt with summarily pursuant to s. 420, the magistrate convicted the accused but refused to impose a penalty because of "the seriousness of the offence" and because the minimum penalty legislation provided for a minimum sentence heavier than the maximum permitted him and committed the accused for sentence before the National Court.

On an application under s. 421(9) of the Criminal Code to quash the committal:

Held

(1) Notwithstanding an election to proceed summarily with the charge of an indictable offence specified in Sch. 1a to the Criminal Code the grade V magistrate hearing the proceedings retains his power to commit to the National Court for sentence.
The State v. The Principal Magistrate, District Court Port Moresby, Ex parte the Public Prosecutor [1983] P.N.G.L.R. 43, considered.

(2) Where notwithstanding an election to proceed summarily a grade V magistrate commits because of the "seriousness of the offence" that determination must reflect his concern with the adequacy or otherwise of the penalty which is available to him in relation to the circumstances of the commission of the particular offence before the court and not the nature of the offence generally.
Toiona v. Bryant [1969-70] P. & N.G.L.R. 201 at 203, considered.

(3) Where offences specified in Sch. 1A are dealt with summarily by a grade V magistrate the minimum sentences prescribed within the Criminal Code are not relevant to the magistrates’ sentencing powers.
Lucas Nip Kororo v. Moses Jaruka [1983] P.N.G.L.R. 392, followed.

(4) Semble: Applications under s. 421(9) of the Criminal Code should be in writing with the grounds therefor clearly specified in the notice of motion or application rather than in the affidavit verifying.
Quaere whether an application under s. 421(9) is to be treated as an appeal.

(5) In the circumstances the committal for sentence should be declared invalid and the matter committed to the magistrate to be dealt with in accordance with Schedule 1A.

Cases Cited

Clark v. Ratnik, Ex parte Ratnik [1956] St. R. Qd 10.
Lucas Nip Kororo v. Moses Jaruka [1983] P.N.G.L.R. 392.
State, The v. The Principal Magistrate, District Court Port Moresby; Ex parte the Public Prosecutor [1983] P.N.G.L.R. 43.
Toiona v. Bryant [1969-70] P. & N.G.L.R. 201.

Notice of motion

This was an application pursuant to s. 421(9) of the Criminal Code (Ch. No. 262) for an order declaring a magistrate’s committal order improper or invalid.

Counsel

P. Kopunye, for the applicant.
C. Righatta, for the respondent.
Cur. adv. vult.

14 November 1983

PRATT J: I have before me a notice of motion and affidavit in support, to one of which is annexed the magistrate’s reasons. The depositions have been tendered. The application is made under s. 421(9) of the Criminal Code (Ch. No. 262) as amended by Act No. 12 of 1982, which permits the quashing of a committal by the magistrate where such committal is "invalid or improper". Although there is no stipulation in this section for the application to be made in writing, it is obviously to everyone’s advantage that such be the case especially as the grounds for such application must be specified with precision (in the notice of motion rather than the affidavit in support). The applicant pleaded guilty on 18 October 1983, to a charge that he, on 20 August 1983, at Lae, broke and entered the dwelling house of one Brian Cove and therein stole one jacket and four pairs of shoes, the property of the said Brian Cove. He was convicted by the learned magistrate by virtue of the Public Prosecutor’s election to have the matter dealt with summarily as a matter under Sch. 1A and s. 420 of the Criminal Code. When the applicant pleaded guilty it was to the offence of break and enter which, because of the above election, was subject to a maximum period of four years’ imprisonment only under Sch. 1A. One of the grounds in the application is that where a magistrate commits under s. 421(4) of the Code for sentence, he does not have the power to convict. It is submitted that the actual conviction must be recorded by the National Court before it goes on to deal with the question of sentence. I do not consider that there is any merit in this ground. Although there is no specific provision in s. 421 or elsewhere stipulating a conviction by the magistrate, such power emerges by necessary implication. To hold otherwise would make nonsense of a number of sections and subsections. I agree with the learned magistrate in this matter that he "can determine the matter of guilt or innocence", and having done so, he must then proceed to the next step namely, penalty. If there are reasons which indicate that the National Court should more properly deal with penalty then the magistrate should commit for sentence. If, on the other hand, he considers that the powers of sentence available to him are adequate then he will proceed to determine the question in accordance with the law. I therefore dismiss this second ground in the application.

The learned magistrate however refused to impose a penalty because of "the seriousness of the offence". One of the factors which his Worship took into account is the fact that the minimum penalties legislation, more properly called the Criminal Code (Minimum Penalties) (Amendment) Act 1983 which came into effect on 14 July 1983, directed the National Court to impose a minimum sentence of five years on the present applicant. The legislation did not affect the maximum four years sentence available to grade V magistrates. Nor did such legislation in any way purport to affect the discretion of the Public Prosecutor under s. 4(1)(ga) of the Public Prosecutor (Office and Functions) Act 1977. It was submitted as ground 3 in this application that the two matters were inconsistent with each other in that if the Public Prosecutor had exercised his discretion to have the matter dealt with summarily, a magistrate’s decision to refer the question of sentence to the National Court would nullify the prosecutor’s discretion, or in effect leave such discretion open to review by the magistrate. The alternate argument however, I think highlights the untenability of this proposition, namely, that the Public Prosecutor’s decision to deal with the matter summarily, could nullify the magistrate’s powers to commit for sentence. It is this argument which forms the basis of the third ground of the application. If this were the case there would be no point in vesting such a power in the magistrate at all, for all the offences coming within Sch. 1A may be dealt with on indictment, and there would be no point in giving the grade V magistrate the additional power to commit if the power were to be taken away by the Public Prosecutor’s discretion to have the charge dealt with summarily. In any case the magistrate only becomes vested with the power after the Public Prosecutor has exercised his discretion to have the charge dealt with summarily.

There is no reason why the magistrate’s powers to commit and the Public Prosecutor’s power to direct summary proceedings cannot exist quite harmoniously together. In the first place, the legislation does not prevent it. Secondly, the separate powers are exercised at two quite different stages in the proceedings. The Public Prosecutor actually initiates the conversion to summary procedure in the magistrate’s court (The State v. The Principal Magistrate, District Court Port Moresby; Ex parte The Public Prosecutor [1983] P.N.G.L.R. 43, whilst the magistrate is not called upon to make a decision until the very end of the case. When the matter has proceeded by way of plea, no doubt the material taken into account by the magistrate will be pretty much the same as that taken into account by the Public Prosecutor, but it may be quite different at the conclusion of a trial. Thirdly, the Public Prosecutor no doubt takes the "seriousness of the offence" into account as one factor in determining whether or not he should proceed summarily. No doubt he also considers the enactment of the minimum penalties legislation. But there are other matters to which he will give consideration (for example the state of the respective court lists, the cost of prosecution, whether or not the defendant is likely to plead guilty, the movement of witnesses within and outside the country, to name just a few). The magistrate however is concerned only with the adequacy or otherwise of the penalty which he has available to him. I dismiss this ground also.

I come now to the third ground of appeal, namely ground 1, which reads:

"That the order for committal for sentence was not justified in that the facts and circumstances of the offence with which the applicant was convicted did not warrant a penalty greater than the maximum penalty for indictable offences triable summarily."

The basis upon which the learned magistrate referred the matter to the National Court for sentence is set out quite succinctly in his Worship’s reasons:

"In my view in creating a minimum penalty Parliament was saying that even the least culpable example of this offence should be met by the imposition of the minimum penalty. It is my decision that if the maximum penalty is to be reserved for the most serious example of a particular offence, then the minimum penalty must apply only to the least serious example of that offence. It is clear to me that Parliament intended this to be the situation having regard to the effects of the commission of the offences to which minimum penalties apply upon the community. For these reasons it is my view that the fact of the imposition by Parliament of a minimum penalty is relevant to deciding this issue. In my view in this matter the seriousness of the offence warrants a greater penalty than I can impose because the minimum penalty which can be imposed is five years."

With respect to his Worship I cannot agree with his line of reasoning despite the fact that it may or may not have been the intention of Parliament. To speculate on such an intention in the light of the present morass created in the criminal law by the recent legislation, I feel, should be left, rather to the soothsayer than to the lawyer or magistrate. In the first case one glaring point stands out if the magistrate’s reasoning is correct. Every matter covered in the minimum penalties legislation must now automatically be referred up to the National Court without any exercise of discretion under s. 421(4) at all. In other words, what his Worship is saying is that there has been an implied repeal of parts of the Criminal Code and the District Courts Act and Public Prosecutors (Powers and Functions) Act. It is obvious that neither Kidu C.J in his decision of 20 October 1983, namely Lucas Nip Kororo v. Moses Jaruka [1983] P.N.G.L.R. 392, nor counsel arguing that case contemplated such a major alteration of the law. That decision incidentally was handed down on the same day as the magistrate’s ruling in the present case before me.

If it were impossible to achieve some working arrangement out of all the amendments the magistrate’s decision would have some support. I do not think however that in this particular area there is any conflict. Our criminal law has many examples of where a matter may be dealt with summarily or on indictment, sometimes at the discretion of the defendant, sometimes the Public Prosecutor, and sometimes the magistrate. On occasion as Mack J said in Clark v. Ratnik; Ex parte Ratnik [1956] St. R. Qd 10 at 17 when dealing with the magistrate’s discretion to deal summarily with certain assaults, the power to refer up is given:

"I think not so much for the benefit of the defendant, but generally to induce the magistrate to stay his hand if for example a more serious offence emerges, trial and punishment for which should be dealt with by a judge of the Supreme Court with his larger powers."

In my view there is an even more compelling reason for overruling the learned magistrate. His Worship says the fact that minimum penalties have now been set down by the legislature is of itself a factor which should be taken into account when determining the "seriousness of the offence". Until now I have never heard it suggested that the phrase under discussion directed the courts to take into account any factor which was not peculiar to the particular offence, and more importantly the particular offence before the court. What the section is directed to are those occasions when the particular surrounding circumstances of the offence before the court are such that the magistrate feels his armoury inadequate to meet the iniquity of the misdeed before him. It is those circumstances peculiar either to the commission of the offence, the victim, or the offender, which should exercise the court’s mind not whether some other legislation also deals with the same type of offence. Indeed if the latter were not the case there could be no referral to the National Court by the magistrate. Such referral can only logically exist where a common area exists between two courts within the hierarchy of the court structure.

Although the circumstances were somewhat different, the words of Frost J (as he then was) in Toiona v. Bryant [1969-70] P. & N.G.L.R. 201 at 203 are still apposite:

"... the three persons identified as being concerned could have been proceeded against on indictment for not, in that being unlawfully assembled they had acted in so tumultuous a manner as to disturb the peace, and also for an offence that, acting in concert with themselves and others, they had unlawfully assaulted Towalaka thereby occasioning him bodily harm. Each of these offences was punishable by three years’ imprisonment."

His Honour then goes on to mention other quite serious charges which are open to the authorities but were not pursued. His Honour then concludes at the bottom of the page:

"In my judgment, there is only one point in this appeal, that is, what was the precise offence with which the appellant was charged, and to which he pleaded guilty, for that is the only offence for which he is liable to punishment."

The authority illustrates quite clearly that the prosecuting authorities have always had a choice, and it is the nature of the offence charged and not the penalty available which is the essential factor. If the prosecutor wants the new legislation to apply then he allows the matter to proceed by committal. If the factors surrounding the commission of the offence indicate to him that the maximum penalty available to the magistrate is sufficient then he elects.

In the present case the defendant had pleaded guilty to a matter which would normally be dealt with summarily and for which there was a maximum sentence of four years. He had a right to expect that the magistrate would dispose of the issues unless something unusual and pernicious emerged relating to his case. Such could hardly be the position. I again adopt the words of Kidu C.J in Lucas Nip Kororo v. Moses Jaruka at 392.

"Looking at the facts of this case, it cannot be said that this was a bad break and enter case. In fact it is what I would call myself an ordinary break and enter case, the sentence of which should be in the lower ranges of the sentences usually imposed by the National Court in such instances."

Indeed I believe the original reason for entering into the house in the present case was a search for food, and it was only afterwards that the defendant decided to help himself to the items of clothing.

I would therefore uphold this ground of the application despite the fact that the wording of the ground may not be quite in keeping with the reasoning of the magistrate. It is nevertheless sufficiently wide to cover the precise grounds stated by his Worship. I have also given some little thought to what course I should now adopt. It does not seem to me that an application under s. 421(9) of the Criminal Code is an appeal within the ambit of Pt XI of the District Courts Act, though as the matter was not argued fully before me, I am not making any hard and fast ruling. If I am correct in this then I would not have the power under s. 236 of that Act to substitute my opinion on the matter of sentence for that of the learned magistrate. More importantly, however, I think I should not exercise my discretion in a matter where the discretion has never been exercised in the first place by the magistrate. It is not therefore a question of wrongful exercise of the discretion by imposition of an excessive penalty but rather no exercise of the discretion at all.

In the final upshot I have decided the proper course is to return the matter to his Worship with the direction that he impose a suitable sentence under the provision of Sch. 1A of the Criminal Code. No doubt the decision in Lucas Nip Kororo v. Moses Jaruka will be a welcome guide to his Worship in the exercise of his discretion.

ORDER

The committal for sentence to the National Court of Sai Isara of Sapa by Kenneth R. Roddenby, Esq. a magistrate grade V at Lae on 20 October 1983 is declared invalid and I direct the matter be returned to the learned magistrate to be dealt with in accordance with the sentence provisions set out in Sch. 1A of the Criminal Code as amended to 20 October 1983.

Order accordingly.

Lawyer for the applicant: N. Kirriwom, Public Solicitor.
Lawyer for the respondent: L. Gavara-Nanu, Public Prosecutor.

[1983] PNGLR 223 - Koko Kopele v MVIT, Commissioner of Police, Royal Papua New Guinea Constabulary and The State

_____________