Secretary for Law v Kwauga [1974] PGSC 32; [1974] PNGLR 135 (26 September 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 135 - Secretary for Law v Kwauga

[1974] PNGLR 135

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE SECRETARY FOR LAW

V

KWAUGA

Port Moresby

Frost ACJ Clarkson Prentice JJ

24 September 1974

26 September 1974

CRIMINAL LAW AND PROCEDURE - Appeal - Appeal against sentence - Application to increase sentence - Unlawful carnal knowledge - Term of four years’ imprisonment, substituted for term of two years and restriction of movement order - Extent of Court’s discretion - Supreme Court (Full Court) Act 1968, s. 28 (4)[clxxx]1, s. 29 (1)[clxxxi]2 - Criminal Law (Restriction of Movement) Act 1962, s. 4 (1).[clxxxii]3

The respondent was convicted on a charge under s. 212 of the Criminal Code (Queensland adopted) of unlawful carnal knowledge of a girl under the age of twelve years and sentenced to two years’ imprisonment with hard labour. The trial judge also made an order under s. 4 (1) (b) of the Criminal Law (Restriction of Movement) Act 1962.

On appeal against the inadequacy of the sentence by the Secretary for Law;

Held

N1>(1)      In the circumstances of the case a sentence of two years’ imprisonment (even coupled with a restriction of movement order) was manifestly inadequate.

N1>(2)      The trial judge had proceeded on a wrong principle in not having sufficient regard to the consideration of deterring both the respondent and others, and insufficient weight had been given to the need to protect the public and in particular young girls, from this type of offence, and accordingly the appeal should be allowed.

N1>(3)      The order for deportation to and confinement in a particular part of Papua New Guinea pursuant to s. 4 (1) (b) of the Criminal Law (Restriction of Movement) Act 1962 should be quashed as the particular area nominated in the order had not been specified pursuant to the section.

N1>(4)      Accordingly the sentence should be varied by imposing in lieu of the sentence of two years’ imprisonment a sentence of four years’ imprisonment.

Per curiam. The construction which this Court has adopted of s. 29 (1) of the Supreme Court (Full Court) Act 1968, is that it confers an unfettered discretion upon the Court but that the Court should not interfere with the sentence appealed against unless it is clearly satisfied that the sentence should be altered (Reg. v. Pia-Afu [1971-72] P. & N.G.L.R. 393 and Reg. v. Harley [1971-72] P. & N.G.L.R. 399), and the Court would wish to follow its own decisions unless they are shown to be wrong or there were weighty considerations to the contrary.

Appeal

This was an appeal, brought by the Secretary of Law pursuant to s. 29 (1) of the Supreme Court (Full Court) Act 1968, against a sentence of the Supreme Court on a conviction under s. 212 of the Criminal Code (Queensland adopted) on the ground that the sentence was in the circumstances inadequate and insufficient.

Counsel

L. W. Roberts Smith and P. C. White, for the appellant (Crown).

M. F. Adams and M. Kapi, for the respondent (accused).

Cur. adv. vult.

26 September 1974

FROST ACJ CLARKSON PRENTICE JJ: This is an appeal brought by the Secretary for Law pursuant to the Supreme Court (Full Court) Act 1968, s. 29 (1) against a sentence of the Court imposed at Alotau on a charge under s. 212 of the Criminal Code of unlawful carnal knowledge of a girl under the age of 12 years. The offence is punishable by imprisonment for life. The trial judge imposed a sentence of 2 years’ imprisonment with hard labour (the prisoner having then been in custody for some 7« months), and also made an order under the Criminal Law (Restriction of Movement) Act 1962 s. 4 (1). We shall return later to the terms of this order, the validity of which was challenged by the appellant. The ground of appeal is that the sentence was in the circumstances inadequate and insufficient.

The construction which this Court has adopted of s. 29 (1) is that it confers an unfettered discretion upon the Court but that the Court should not interfere with the sentence appealed against unless it is clearly satisfied that the sentence should be altered. Reg. v. Pia-Afu[clxxxiii]⁴ and Reg. v. Harley[clxxxiv]⁵.

Evidence established that the child victim, who appears to have been led away deliberately by the respondent for the purpose of intercourse, was between eight and nine years old. The child suffered some internal lacerations. Blood was found upon her thigh and legs and she had some difficulty in walking. Although it was a bad case, fortunately no great injury seems to have been suffered by her. The accused’s age was stated in the antecedent report as 25 years, but from his appearance it is clear that he is over 30 years of age.

Apart from the circumstances of the crime, the main fact in the case is that in 1964 the respondent was convicted by Cameron-Smith A.J. at Bolubolu upon Goodenough Island for rape, the girl being between twelve and sixteen years of age, and was sentenced to nine years’ imprisonment with hard labour. Of this sentence, the court was informed, the respondent served seven years. In the present case the trial judge had before him the report of an examining psychiatrist who found in the respondent no mental disorder either at the time of the commission of the offence or later at the time of his examination. However, because of his observation of the respondent, the trial judge formed the view that the respondent was “abnormal to a marked degree”. In his report to this court the trial judge said that in arriving at his decision he was influenced by his knowledge of the area and the reaction of the people to sexual offences. He considered that on these grounds there was no necessity to impose a higher sentence than he did particularly having regard to the restriction of movement order. The state of the defendant weighed heavily upon him, and “in considering what was best to do with him I took into account that he had already served a long term of imprisonment, which did not improve his condition, and, indeed (in view of his age and family background), may have contributed to it. For this reason I thought that the possibility of reformation by a long term of imprisonment was remote. On the other hand, it did seem that there was a possibility that by confining him to his own tribal area for a long period of time he might, by pressure of his own group, conform to normal social behaviour.”

From that report it does not appear that his Honour appreciated that the earlier sexual offence took place in, and the respondent was convicted therefor in his own subdistrict on Goodenough Island. It does not appear also that the trial judge adverted to the well established purposes of punishment other than that of reformation of the individual.

We sympathize with the view that the trial judge took, for the substantial sentence imposed and served does not appear to have effected the reformation of this individual. But taking into consideration all the circumstances we are of the opinion that the sentence of two years’ imprisonment, even coupled with a restriction of movement order, was manifestly inadequate. Further we consider that the trial judge proceeded on a wrong principle in not having sufficient regard to the consideration of deterring both the respondent and others, and that insufficient weight was given to the need to protect the public and in particular, young girls, from this type of offence. We thus consider that the appeal should be allowed.

We now turn to the question of the validity of the restriction of movement order upon the respondent. The terms were that “on being returned to the Esa’ala Subdistrict on termination of his sentence, he not come or be within any part of the country other than the Esa’ala Subdistrict of Papua New Guinea for a period of five years from the date of termination of his sentence”. In the judge’s notes the order to be made was stated in these terms that the respondent was “to remain five years within Goodenough Island”. It is true that, as the formal order was drawn up, the terms of s. 4 (1) (a) were used but it seems to us, as appears from the intent thereof, that it is in effect an order for deportation to and confinement within a particular part of Papua New Guinea such as may be made under s. 4 (1) (b) but only if that part be specified by the High Commissioner in Council.

As the order cannot in the absence of any such specification be supported, this Court considers that it should be quashed. In lieu of the sentence of two years’ imprisonment the sentence which we consider proper to be imposed is a term of imprisonment of four years’ imprisonment, and we would vary the sentence accordingly.

We now wish to turn to the submission by the counsel for the respondent that the same construction should be placed upon the Supreme Court (Full Court) Act, s. 29 (1) as was placed upon s. 669a of the Queensland Criminal Code (which is in similar terms), by the Court of Criminal Appeal in Queensland in Reg. v. Liekefett; Ex parte Attorney-General[clxxxv]⁶. In that case the Court decided that the Court does not have an unfettered discretion: the appeal is against the exercise of judicial discretion and should be determined by established principle. This matter was raised in a recent case before the Full Court but the Court declined to consider it in the absence of full argument. The Secretary for Law v. Kerema Kepoi & Anor[clxxxvi]⁷.

Having regard to the view which we have taken in this case any decision upon this submission would be obiter, but in deference to the able submissions by both counsel, this Court considers that it should express its opinion. It is to be noted that this Court is in a different position from that in which the Queensland Court of Criminal Appeal considered itself in Liekefett’s case. In the two decisions to which we have referred, Reg. v. Pia-Afu[clxxxvii]⁸ and Reg.. v. Harley[clxxxviii]⁹, this Court after full argument upon the relevant cases at that date, decided that it should follow what appeared to be the expressions of opinion of the majority of the High Court in Whittaker v. The King[clxxxix]¹⁰, the Court of Criminal Appeal in New South Wales, and, upon the view which this Court took of those cases, the Queensland cases then decided. This Court would wish to follow its own decisions unless they are shown to be wrong or there were weighty considerations to the contrary. It suffices to say that this Court is not persuaded that its earlier decisions were wrong in principle, and that no consideration has been advanced that would cause it now to change its own construction of s. 29 (1).

Sentence varied by quashing the restriction of movement order, and imposing in lieu of the sentence of two years’ imprisonment a sentence of four years’ imprisonment with hard labour.

Solicitor for the appellant: P. J. Clay, Crown Solicitor.

Solicitor for the respondent: N. H. Pratt.

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[clxxxi]Supreme Court (Full Court) Act, s. 29 (1):

The Secretary for Law may appeal to the Full Court against any decision of a Judge, whether on appeal or sitting as a court of first instance, as to sentence, and the Court may in its discretion vary the sentence and impose such sentence as it thinks proper.

[clxxxii]Criminal Law (Restriction of Movement) Act 1962, s. 4 (1):

Where a person is convicted on indictment of an offence against a law in force in the Territory or a part of the Territory, the court which convicts him may, in addition to or in lieu of any other punishment which may be imposed, order that—

(a) that person shall not come or be within such part of the Territory as is specified in the order; or

(b) that person shall be deported to and remain in such part of the Territory as is specified by the Administrator in Council,

during such period as is specified in the order.

[clxxxiii][1971-72] P. & N.G.L.R. 393.

[clxxxiv][1971-72] P. & N.G.L.R. 399.

[clxxxv][1973] Qd.R. 355.

[clxxxvi](Unreported) (Full Court) No. 65 of 30th August, 1974.

[clxxxvii][1971-72] P. & N.G.L.R. 393.

[clxxxviii][1971-72] P. & N.G.L.R. 399.

[clxxxix](1928-29) 41 C.L.R. 230.

[cxc][1909] UKLawRpAC 57; [1910] A.C. 20.