Amo v Raphael [2002] PGNC 44; N2300 (13 September 2002)

N2300

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APP. NO: 1121 OF 2000

BETWEEN:

ELECTION AMO
Appellant

AND:

MONIE LUKE RAPHAEL
Respondent

KOKOPO: Lenalia, J.
2002: 28 August, 13 Sept.

APPEAL – Appeal from decision of District Court – Imposition of maximum penalty on first offender – No consideration given to being first offender. No consideration taken for pleading guilty – Not guilty plea should have been entered on behalf of Appellant – Miscarriage of justice.

APPEAL – Principle of sentencing – First offender – Reservation of maximum penalty for worst type offenders – Appeal up-held.

CASES CITED:
The following cases are cited:
Taiba Maima -v- Sma [1971-1972] PNGLR 49
Hen Kuru -v- Was Kombra (1981) N292 (L)
John Elipas Kalabus -v- The State [1988] PNGLR 193

Counsel:
E. Andrew for the Appellant
L. Rangan, for the Respondent

13 September 2002

LENALIA, J. The Appellant pleaded guilty to a charge of unlawful assault under s. 6 (3) of the Summary Offences Act (Ch. No. 264) on the 5th of April in year 2000. He was sentenced to the maximum penalty of two years imprisonment in hard labour. He was also ordered to pay an amount of K500.00 compensation to the complainant victim whom he assaulted.

The facts upon which the appellant was convicted and sentenced were these. Between 5 and 5:30 pm on 5th of April 2000 at Barovon Village in the Raluana Local Level Government area, the Appellant and a group of young men proceeded to the residence of the victim Tamtu Magalut an elderly person and inquired why was it that the victim had reported and engaged police to arrest and lock up an in-law of his (Appellant) in the police custody. No response was forthcoming and the Appellant assaulted the victim as put by the State. The victim was taken to the Vunapope Hospital for treatment. It appears, he was only admitted for observation without being admitted.

When the Appellant appeared on the first instance on 5th of April, 2000 he was asked to plea, and he entered a guilty plea. The Appellant in his plea said something to this effect "I was cross because they put my uncle in the cells". The presiding magistrate went ahead to record a guilty plea. One of the main grounds of this appeal argued on submission was that unless the plea was unambiguous or that it was quite obviously an unequivocal plea, the presiding magistrate could not have gone ahead to enter a guilty plea as he did. The appeal was unopposed and the lawyer for the Respondent agreed that most points raised in submission were quite legitimate.

There are eight grounds to this appeal. Because the appeal relates to jurisdiction of the former Local Court regime which, is now repealed and has been abolished, I produce the grounds advanced in favour of the appellant hereunder:

(i) That the presiding magistrate erred in law in that he did not explain to the appellant that he was entitled to have the matter dealt with by a District Court and in not asking the appellant to make an election, necessarily rendering the conviction and sentence a nullity.
(ii) That the presiding magistrate erred in law in accepting the Appellant’s plea of guilty, and in entering a guilty plea, when it was clear form the Appellant’s plea that he was raising the legal defence of provocation, necessarily rendering the conviction and sentence a nullity.
(iii) That the sentencing magistrate erred in law in that he exceeded the criminal jurisdiction of the Local Court by imposing two (2) years custodial sentence and in ordering the appellant to pay K500.00 compensation, necessarily rendering the sentence a nullity.
(iv) That the sentencing magistrate erred in law in failing to sufficiently and properly administer the allocutus before sentence, necessarily rendering the sentence a nullity.
(v) That the sentencing magistrate, by imposing the maximum sentence and compensation provided for by Section 6 of Summary Offences Act, erred in law in that he did not take into account the plea of guilty of the appellant and the fact that the appellant had no prior convictions, necessarily rendering the sentence a nullity.
(vi) That the sentencing magistrate erred in law in admitting into evidence the written medical report of Medical Officer, Kertsin Rikart, tendered to him by the Police Prosecutor, without calling for the Medical Officer’s oral evidence-in-chief, and in relying on, or allowing himself to be so influenced by, the said medical report ion considering and passing sentence.
(vii) That the sentencing magistrate erred in law in not discounting the custodial sentence by the compensation of K500.00, necessarily rendering the sentence a nullity.
(viii) That the sentence is manifestly excessive in the circumstances.

The first ground of appeal relied on is an alleged error on the part of the presiding magistrate in the procedure he took and which the appellant says that he was not given an election whether to be dealt with in the Local or District Court. It is submitted on behalf of the Appellant that under s. 38 of the Local Courts Act, 1963 as amended to date, the Appellant was not given the right to elect which Court he wanted to proceed in.

Under s. 38 (c) of the then Local Court Act, the Local Court Magistrate was required by it’s rules of procedure at the commencement of the proceeding to explain to the defendant in a language understood by the accused now the Appellant that he was entitled to have his case dealt with and heard in either the Local or District Court. If he elected to be dealt with in the District Court, his case would have to be transferred to the District Court. It must be noted here that, that election only related to offences of concurrent jurisdictions with the District Court. Such of those offences were such as offences of stealing and others stipulated in s. 15 of the Local Court Act and where the Act specifically provided, the Local Court did not have any jurisdiction to deal with certain criminal and civil matters, they were transferred to the District Court.

The first ground cannot be further argued now because the Local Court Act has now been repealed with the result that there is no longer any Local Court. The Local Courts were abolished by an Act of the Parliament the Local Courts (Repeal) Act of 2000. Under such amendments, the Local Courts Act Ch. No. 41, the Local Courts (Amendment) Act of 1986 (No. 13 of 1986), and the Local Courts (Restriction of Movement) Act of 1986 (No. 25 of 1986) amended the Local Court regime in Papua New Guinea. As from 1st of January 2000, there are no more Local Courts.

A further result of such amendment was that any proceedings commenced in the Local Court before the 1st of January 2000, the date on which the amendments were made effective were deemed to have been transferred to the District Court and as such the procedures relative to the proceedings taken in the Local Court were deemed to be the equivalent procedure of the District Court. As well, any orders made by the Local Court prior to the coming into operation of the amendment were required to be fully implemented and any further procedure in respect of such orders were deemed appropriate to be the procedures under the District Courts Act (CR. No. 40).

The Local Courts (Repeal) Act 2000 also provides that any penalties imposed by the Local Court under the Local Court Act, prior to the coming into effect of the Repealed Act were to be enforced and implemented as though they were orders of the District Court. In relation to the rights of appeal of an appellant in the former Local Court, s. 4 of the Local Courts (Repeal) Act 2000 provides as follows:

"4. Preservation of rights o appeal

Any right of appeal from a decision of a Local Court by Section 1 subsisting immediately before the coming into operation of this Act, shall, after that coming into operation, be treated as a right of appeal from a decision of a District Court under the District Court Act (Chapter 40)."

On arguing this appeal, Mr. Andrew of counsel for the Appellant submitted that it was clear from the records that the presiding magistrate was presiding as a Local Court Magistrate. Let me say that, I cannot detect with precession from the records if the learned magistrate was sitting exercising his Local Court powers. What appears clear from the appeal book is that according to the intitulation on the top of the reasons for his decision, the wording appears as "IN THE DISTRICT COURT". This in my view corresponds with the terms of s.4 of the Local Courts (Repeal) Act of 2000.

The last point to be mentioned on the first ground to this appeal is that the appellant came to Court on the 5th of April, in the year 2000 and he was convicted and sentenced. By that time the Local Courts (Repeal) Act of 2000 had been in operation. It came into force on 1st of January 2000 and I must concluded that, the first ground of appeal has no merit and I am required legally by the terms of s.4 of the repealed Act to treat this appeal as an appeal from the District Court and I now do.

The second ground deals with wrongly accepting the plea of guilty. The reason for raising this ground is that when the Appellant was asked to plea, he replied by saying that "I was cross because they put my uncle in the cells". I am of the view that this was a clear indication by the Appellant that had a not guilty plea been entered, the Appellant would have to put up some kind of defences or excuses. Apparently, the statement made by the Appellant was ambiguous and quite equivocal in terms and which would have raised in the mind of any reasonable tribunal that the plea entered by the Appellant was not any admission of guilt. It is trite law that, the Court in its discretion, ought to consider whether or not it is safe to accept such a plea of guilty.

Obviously, the Appellant was unrepresented and the dangers of accepting a plea of such a nature as was made on this appeal is great. Even in a case where an accused is represented by counsel, the Court must satisfy itself with the aid of the counsel whether to accept a plea to the offence or offences charged. On the other hand, the Court must also be careful that, it must not surrender it’s duty by only relying on the words of a defence counsel: The State -v- Yaulipa Bulaim and 4 Ors (1980) N234. It was stated in Gabriel Laku -v- The State [1981] PNGLR 350 that a trial judge or in this case, the presiding magistrate who chooses to seek an answer from an accused as to the truth of the allegation put against him by the prosecution, must be careful to ensure that such Court is not in effect depriving the accused of his right to insist on the Constitutional presumption of innocence until an accused is proven guilty. See s. 37 (3)(4)(a) –(f) of the Constitution.

A guilty plea must be unequivocal and unambiguous and it must be clear to the mind of the judge that, the answer given by an accused as to the truth of the allegation put by the prosecution is truly an unreservedly admission of his guilt. If an accused is asked to plea and he says that, he committed the offence because he was provoked or because something else had cause him to commit the act he committed, it would be advisable to adjourn and hear him after the prosecution has called their case. Thus a guilty plea should only be accepted where such plea has been made clearly and plainly, and where such a plea has been made in unambiguous and unmistakeable terms: The State –v- Monga Kinjip [1976] PNGLR 86.

In his worship’s reasons for his decision, he seemed to have acknowledged the fact that the Appellant was raising a defence of provocation but somehow, he decided not to accept such defence because, if it was true that the Appellant’s uncle was being placed in the cells, it was not appropriate for the Appellant to raise such defence because being placed in the cells amounted to an offence against the State. Apparently, there was no evidence to support that proposition adopted by his worship. The learned magistrate explains the law in pages 3 to 4 of his reasons for his judgment could have been the subject of a trial to determine the Appellant’s excuse and defence of provocation. This did not happen.

The third ground argues that the presiding magistrate erred in fact and in law, in that he exceeded his jurisdiction provided for under ss.13, 14, 15 and more particularly s. 19 of the Local Court Act which is now being repealed. That proviso set out the maximum amounts of fines to be imposed as well as the maximum periods of imprisonments. Under that provision the maximum fine that could be imposed was K90.00 and an imprisonment term of six (6) months. The presiding magistrate in the Court below imposed the maximum term of two (2) years imprisonment and ordered a compensation payment of K500.00. The third ground is tied together with ground one of this appeal and having ruled that the learned presiding magistrate properly exercised his powers in relation to not giving any election to the Appellant by operation of the Local Courts (Repeal) Act of 2000 which came into operation on 1st of January 2000, there is also no merits in the third ground to the appeal.

The fourth ground of appeal alleges insufficient administration of allocutus before sentence. I do not take any issues with this ground as I find from the record and appeal book that he was given a fair say in stating what he said before sentence. When asked to say anything before sentence, the Appellant replied that he wanted to pay a fine. What else could the learned magistrate say when all that required of him by law had been complied with and exhausted. It was totally up to the Appellant to give as much mitigation as possible to His Worship as he could as he knew that that was his last say before he was sentenced.

That facts upon which the Appellant was convicted shows that, the Appellant was a first offender. The fifth ground in his appeal alleges that since the Appellant had pleaded guilty, it should have been taken into his favour on sentence. However the maximum penalty was instead imposed apart from the very high amount of compensation being ordered to be paid by the Appellant. The principle in relation to first time offenders where there is a guilty plea is very clear. The principle is that only in the worst cases can the maximum penalty be imposed: Taiba Maima -v- Sma [1971-1972] PNGLR 49. The worst type of cases may be where the accused had consistently in breach of the law and consistently coming back to Court, on a particular type of offences or where an offence charged has severe aggravating circumstances: Paia Lifi -v- Phillip Dege (1981) N291 (M), see also Hen Kuru -v- Wass Kombra (1981) N292 (L).

Offences with very serious nature would usually attract the most severe sentences. But each case must be considered on it’s own facts. These principles may not necessarily apply in murder or wilful murder cases: Avia Aihi -v- The State (No. 3) [1982] PNGLR 92. but the fact that a case false into the worst type category does not mean that the maximum sentence will automatically apply: John Elipas Kalabus –v- The State [1988] PNGLR 193. Imposition of the maximum penalty in the current appeal was against the facts presented to His Worship and obviously no consideration was given to the Appellant’s guilty plea.

It appears to this Court that His Worship placed to much emphasis on the deterrent aspect of sentencing due to the prevalence of the offence of assault but as I have alluded to, each case depends on it’s own facts. It may well be that the offence of assault is very prevalent, however it lies very much on the weighing discretion given to each judicial officer on the bench and secondly that if a case warrants imposition of the maximum penalty it must be one of those serious categories and it should fall within definition of cases such as Taiba Maima -v- Sma and Paia Lifi -v- Dege, (supra). These principles may be abused where there is no proper weighing up of the facts or evidence and where too much emphasis is being placed on any particular aspect of sentencing. In my view, this is where His Worship fell into error when imposing the maximum penalty as he did.

The argument in submission that there was no basis upon which the learned presiding magistrate could have accepted the medical report is baseless. As the practice and procedural rules require, where a person pleas guilty in any court of law be it the District or National Court an accused may admit to any facts being put against him. If a defendant pleads guilty, his admission is sufficient proof of all the facts presented by the State without further evidence. The above is the first school of thought and the second one was expressed in the case of The State -v- Jeoff Ipata [1988] PNGLR 34 and at 35 His Honour Kapi, DCJ said;

"Where a person pleads guilty, the law is now clear that this does not result in automatic conviction. A plea is only entered provisionally subject to supporting evidence in the depositions. Consistent with this is s. 563 of the Code where counsel may enter a plea of not guilty on behalf of his client. This is also consistent with the presumption of innocence until proven guilty: s. 37 (4) of the Constitution".

If however the Appellant wanted to challenge the medical report, it was open to him to call evidence to disprove what the nature of injuries he caused to the victim. It was also open to him to call upon the author of the medical report to explain the contents of such report. As usual, where there is an unequivocal plea, the Court accepts the prosecution file including all contents. His worship was quite entitled to accept the medical report as he did.

Ground seven alleges that the sentencing magistrate did not take into account the high penalty imposed but went ahead to order a very high amount of compensation of K500.00. This issue once more ties in with ground five and all that is needed to be said is that having imposed the maximum of two (2) years, any reasonable tribunal would have thought that that was sufficient punishment. However, a very excessive sum of compensation was ordered and it escapes my thought where was the balance on imposing the maximum of 2 years and ordering K500.00 compensation?

The final ground of this appeal deals with excessiveness. On observation of all the facts put before His Worship on the date on which the appellant was convicted, in my view the assault was not that serious. There were obvious consideration which could have been taken in favour of the Appellant. Such factors as the appellant’s guilty plea and his previous good character. It has been said that a plea of guilty is a genuine credit to the prisoner: The State –v- Manja [1987] PNGLR 387. In The State –v- Frank Kagai [1987] PNGLR 477 it was said where the offence is serious but the prisoner is of good character, custodial sentence may not be appropriate.

Having considered and discussed all the grounds to this appeal, I would uphold the appeal on the basis of arguments raised in favour of grounds 2, 5, 7 and 8. The Appellant has served some five (5) months and six (6) days imprisonment in my view is sufficient punishment for the offence he committed. I order that the remaining sentence imposed upon the Appellant, be quashed and order that the compensation order be set aside.

Orders accordingly.
____________________________________________________________________
Lawyer for the Appellant : Namaliu Lawyers
Lawyer for the Respondent : The Public Prosecutor