Sarufa v Siyoula [1983] PGNC 7; N441 (20 October 1983)

Unreported National Court Decisions

N441

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP. NO. 161 OF 1983
BETWEEN: EVOA SARUFA
APPELLANT
AND: STEVEN SIYOULA
RESPONDENT

Waigani

Kidu CJ
20 October 1983

Appeal against sentence. Section 40 Public Health (Sanitation & General) Regulation (Ch. No. 226) and sections 19(4) and 30 Local Courts Act discussed.

Legislations

Public Health (Sanitation and General) Regulation

Local Courts Act

Order of the Court

Appeal allowed and the part of the District Court Order which reads “...and in default of payment shall pay K10 each days not paid fine” quashed.

REASONS FOR DECISION

KIDU CJ: I entertaihis appeal this this morning and allowed it and quashed the part of the Local Court Order appealed against I indicated that I woive reasons for the decision and this I do now.

Counsel for the respondent did not anot appear but indicated to counsel for the appellant that he was not contesting the appeal.

The appellant appeared in the Port Moresby Local Court on 24th February, 1983. He was charged with an offence under s.40 of the Public Health (Sanitation and General) Regulation (Ch. No. 226 - Revised Laws of Papua New Guinea). He was convicted and ordered to pay a fine of K50.00 to be paid within thirty days. The court also ordered that in default of payment of the fine he was to “pay K10.00 for each day the fine remained unpaid.”

He appealed against the penalty of K10.00 per day the fine remained unpaid. He submitted that the Local Court erred in law when it made this order.

The Regulation reads:

“40. Pron of eefuss

(1) ҈& The owne owner or r or occupier of premises must provide a sufficient or a specified number of water-tight for tcepti the e arifrom or existing onng on the the premipremises.

(2) ټ  Refuse:(a) < & sh0;l be constructed of i of impervious or non-absorbent material and fitted with two handles for carrying and lg and a clitting flyf cov lid;/p>

(b

(b)&#16) ـ&#1hall nall not not not have have a hola holding ding capacity of more than 1.1m³, or such greater amount, not being more than the holding capacity of a 200 litre drum, as is approved by an inspector in any particular case.

Penalty: A fine not exceeding K100.00 and in addition, in the case of a continuing offence, a fine not exceeding K10.00 for every day during which the offence continues.”

It is at once clear that the penalty of K10.00 per day relates to each day the offence continues and not each day the fine remains unpaid - i.e. in this case thirty days after 24th February, 1983 each day the appellant failed to provide sufficient “water-tight refuse bins for the reception of the refuse arising from or existing on the premises.”

In the Reasons for Decision, the learned Magistrate stated that in making his in default order, he relied on ss.19(4) and 30 of the Local Courts Act. He said in his reasons:

“However, when imposing K10 fine each days fine of K50. is not paid after 30 days I took into account section 30 of the Local Court Act which states that and I quote:

'Subject to this Act, in respect of any matter not provided for by this Act a Local Court may make such order as seems to it convenient and as does substantial justice.'

Relying solely on the above provision I then applied judicial discretion in imposing K10 fine for each days K50 fine is not paid within 30 days. There is no provision (other than section 19(4) in the Local Court Act whereby the penalty such as that of section 40(1) Public Health (Sanitation and General) Regulation and I quote '...and in addition, in the case of a continuing offence a fine not exceeding K10 for every day during which the offence continues' could be enforced.”

The above is a little confusing. I think what the learned Magistrate was getting at was that s.40(1) of the Public Health (Sanitation and General) Regulation must be enforced by some other statutory provision. This is, of course, not so. Section 40(1) defines an offence and prescribes its penalty. There is no need to involve s.30 of the Local Courts Act because the matter is provided for specifically by the section itself (i.e. s.40(1)).

The learned Magistrate then misapplied s.19(4) of the Local Courts Act. This provision sets out the maximum custodial sentences for non-payment of fines imposed. It does not allow Magistrates to order daily in default fines for non-payment of fines.

In the present case, the fine imposed was K50.00. Section 19(4) says that a Magistrate may, in cases where the fine imposed is between K50 - K70, impose a custodial sentence of up to four months in default of payment of the imposed fine. It does not permit what he in fact did.

The learned Magistrate erred in law. The appeal is allowed and the part of the order of the Magistrate appealed against quashed.

Lawyer for the Appellant: Public Solicitor, N. Kirriwom

Counsel: E. Batari

Lawyer for the Respondent: No appearance

Counsel: No appearance