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Alar and Biu v The State [1979] PGSC 4; [1979] PNGLR 300 (10 August 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 300 - Koniel Alar and Hosea Biu v The State

[1979] PNGLR 300

SC159

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KONIEL ALAR AND HOSEA BIU

THE STATE

Waigani

Prentice CJ Wilson Andrew JJ

3 August 1979

6-7 August 1979

10 August 1979

CRIMINAL LAW - Appeal against sentence - Raising of unauthorized forces - First use of provision - Ignorance of law - Premier and Deputy Speaker of Provincial Assembly - Need for public deterrent - Custodial sentence appropriate - Sentences of twelve months’ imprisonment upheld - Criminal Code, s. 50A.[cccxl]¹

CRIMINAL LAW - Practice and procedure - Plea of guilty - Version of facts upon which court to act - Dispute of fact - Matter of aggravation disputed - Opportunity to contest on oath desirable - Relevant procedures and principles.

Two appellants, being the Premier and Deputy Speaker of the Provincial Assembly of East New Britain pleaded guilty to charges contrary to s. 50A of the Criminal Code of “having established a force known as the `Security’ being a force similar in nature to a police force, except as provided by law,” and were each sentenced to imprisonment with hard labour for one year. The charges were the first laid under the section which was introduced in 1975.

On the plea of guilty the trial judge had before him a dispute of facts, one being inculpatory and the other exculpatory (as to the degree of deliberation and extent of knowledge of the law of the appellants) and indicated to counsel for the appellants that evidence might be called to resolve the matter. No such evidence was called.

On appeal against sentences on the ground that the sentences imposed were manifestly excessive,

Held

N1>(1) (Andrew J., dissenting) In view of the seriousness of the offence, and the need for a public deterrent in the interests of national unity and security, a custodial sentence was appropriate and the sentences imposed could not be said to be manifestly excessive.

N1>(2) (Per Wilson J.) There are offences where the notions of deterrence and retribution must take priority and where sentences of imprisonment may properly be imposed on men “in high public positions” to mark the disapproval by the law of the conduct in question and in the hope that other people will be deterred from like behaviour. This offence with its implications for national unity public safety, and the authority of the national police force, legitimately falls into this category.

N1>(3) (Per Wilson J.) For the purpose of imposing sentence and in mitigation thereof, after a plea of guilty and where unsworn material only is available it is the duty of the trial judge to act upon the version of the facts which within the bounds of reasonable possibility is most favourable to the accused but the trial judge can reject an explanation if it exceeds the bounds of reasonable possibility provided he gives the accused an opportunity to support his story or have it supported on oath.

N1>(4) (Per Wilson J.) In the circumstances, it could not be said that the trial judge had fallen into error in acting on a version of the disputed facts unfavourable to the accused.

N1>(5) (Andrew J., dissenting) The appeals should be dismissed and the convictions and sentences confirmed.

Appeals

These were two appeals against sentence on the ground that the sentences imposed were manifestly excessive. Both appellants were convicted of charges contrary to s. 50A of the Criminal Code and each sentenced to twelve months’ imprisonment with hard labour, the maximum term being fourteen years.

Counsel

M. Kapi, for the appellants.

K. B. Egan, for the respondent.

Cur. adv. vult.

10 August 1979

PRENTICE CJ: The two appellants were each convicted on 17th July, 1979, following pleas of guilty to a charge under s. 50A of the Criminal Code of having established a force known as the “Security” being a force similar in nature to a police force, except as provided for by law. They were each sentenced to imprisonment with hard labour for one year. They have appealed against these sentences on the stated ground of excessive severity. The charge was the first to arise under this section; though twenty-nine members of the “Security” had then already been dealt with under s. 51(2A) of the Criminal Code for unlawful drilling. The appellants were the Premier and Deputy Speaker respectively of the Provincial Assembly of East New Britain.

A number of matters had been noted in support of the appeal; but it is convenient in order to discover their ambit, that one first deals with the question arising from the tender at the trial of a record of interview (to be referred to as the “first” such) which had not been forthcoming in the committal proceedings.

Mr. Egan who prosecuted in Rabaul at the trial explained in this Court that in the course of preparation for the trial, he became aware that (a) a record of interview with Mr. Alar held on 24th April (the “first”) which he had in possession in Pidgin form, had not been tendered before the magistrate, (b) interpretation of the second record of interview with Mr. Alar of 4th May, appeared to be defective, and (c) that there was no English translation of the record of interview in Pidgin with Mr. Biu.

He informs that he translated each of the three records and sent carbon copies of the original “first” record, and of the three new translations, a week before the trial, to Mr. Kapi whom he knew to intend to appear for the then accused men, and explained the details to Mr. Kapi on the phone. He then asked the individual police officers in Rabaul who were concerned, to authenticate the accuracy of his translations. As I say he spoke to Mr. Kapi before going to Rabaul and specifically asked him if he disagreed with any of the contents. No such disagreement was mentioned either in Port Moresby or in Rabaul.

Upon pleas of guilty being entered, Mr. Egan placed both the first and the second record of interview with Mr. Alar, among the exhibits, both having been taken in the presence of Mr. Alar’s legal adviser. He was naturally concerned to have both before the judge as there were inconsistencies between them, the second being inculpatory, the first exculpatory. He did not draw the trial judge’s attention to the tender as an exhibit, of the first record.

Apparently by some lack of attention, or oversight, Mr. Kapi did not realise the existence or presence of the first record among the exhibits, and he did not address the trial judge on the subject. (Nor was any point taken as to its inclusion in the appeal book.) This oversight may be explicable because Mr. Egan did not address on sentence. But it is evident that the trial judge regarded some material in the first record as important, because it went to the veracity of Mr. Alar. And in this connexion, his Honour found that Mr. Alar, despite what his counsel might have said to the contrary, must have known of the illegality of the establishment of the force concerned. No point was taken before the trial judge by Mr. Kapi when his judgment was read out, though therein the judge specifically referred to the two records of interview having been taken from Alar.

We accept what each counsel says about this happening, unfortunate as it was.

Mr. Kapi asks that this Court exclude from its consideration the contents of the first record, as it did not form part of the depositions on which Mr. Alar pleaded guilty. Though challenged to do so by Mr. Egan, and tentatively invited by the court to consider whether he should think of the desirability of doing so, Mr. Kapi specifically declines to request the court to remit the issue of guilt for a re-trial.

No point seems open as to the admissibility of the first record had it been tendered at the trial. Had it been disputed, it seems the prosecution could have tendered it. And it would appear that it could have been tendered also on sentence under s. 608 of the Criminal Code, so far as it could be thought to negative ignorance of the law and hence to tell against mitigation. As the matter transpired before the trial judge, he was on the face of it entitled to look at the first record. Counsel for the appellants has now addressed on the subject and this Court has had the benefit of his submissions, to a more forceful extent we imagine, than was available to his Honour. I am of the opinion that the matter of adequacy of sentence should be looked at now, with the first record in the frame of the picture; and that thereby no injustice will be done the appellants. It is not I think without significance that Mr. Alar when in the witness box was asked no questions as to his knowledge or ignorance of the offence.

Mr. Kapi submits that the sentences are excessive for a number of reasons. The legislative provision he says is a new one, and a breach of it should not have met with severity. The appellants, he submits in mitigation, should on the record of proceedings have been regarded as in ignorance of the law. The trial judge in coming to sentence should have disregarded the former existence of the Warkurai Nigunum, which he submits no longer exists. Deterrence should not, he urged, have been an important consideration. And regard should have been had he says, to a newspaper story (Post Courier 25th July, 1979), that the National Government on the initiative of Provincial Premiers may be about to authorise the formation of forces by Provincial Governments, similar to that organised by the appellants.

The provision concerned was brought into the Criminal Code of Pre-Independence Papua New Guinea by Act No. 24 of 1975 of the House of Assembly of the then self-governing country. It is a matter of notoriety that it was introduced to deal with an emergency then thought to be developing in the Northern District, which followed in point of time the existence of a rudimentary “police force” (which Mr. Alar admits knowing of), apparently of a strength of four hundred and eleven, and an associated “court” (called the Warkurai Nigunum) organised by the Mataungan Association. That the members of the earlier “police force” had been dealt with by the courts for acts committed illegally, and that a member of the Warkurai Nigunum had pleaded guilty in the then Supreme Court to illegally holding court, must have been matters well known to these appellants, prominent members of the Mataungan Association as they are. I am unable to conclude that his Honour made any error in having these things in his mind. The novelty of prosecutions for this offence (which was emphasised before his Honour), counts little I believe against the apparent seriousness with which the House of Assembly’s Act (adopted at Independence by the Constitution), regarded the offence it was creating, when it provided a maximum penalty for it of fourteen years’ imprisonment.

Apparently a resolution was passed in the East New Britain Government Assembly in 1977 that approval be given to “set up security police to enforce law and order inside the community governments.” Finance for such a project had not been authorised, and it appears from Mr. Speaker Matamatam’s evidence that it was known that the National Government did not then agree, but that after 1977 many people came to him querying the establishment of such a force. There appears to have been some secrecy about it. Apparently the force was described to Mr. Alar by Senior Inspector Tamarua as the “Mataungan Security Police” a term also used by Chief Superintendent Gawi, and apparently acquiesced in by Mr. Biu, when he explained that he approached the idea “as we Mataungans have the majority in the Provincial Government.”

His Honour found in the material before him that it could not be said that the defendants were ignorant of the law. For myself I cannot cavil at his findings in this regard, I would make them myself.

The principles upon which Appeal Courts should approach a criminal appeal, were set out in House v. The King[cccxli]², and have been many times approved in the Pre-Independence Full Supreme Court of this country, and since Independence, by this Supreme Court. They are too well known to require quotation again. I find myself unable to agree that his Honour has made any error in failing to take into account matters that he should have done, or in taking into account matters that he should not have done. It is then not a question for me to say whether I disagree with his actual sentence, but to ask myself was it excessive to such a degree as manifestly to indicate an error by its own magnitude. It has been submitted that the offence did not call for a custodial sentence — and that a fine as provided for by s. 19(c) of the Criminal Code would suffice.

I adopt with respect the learned trial judge’s remarks as in point, when he said “however the defendants are mature and sophisticated men in high public positions who have knowingly committed an offence which the then legislature no more than four years ago, defined and designated as a crime, and to which it attached a maximum penalty of imprisonment for fourteen years. By what they have done they have transgressed a major provision of the Constitution itself.” His Honour was then apparently referring to s. 199 and possibly to s. 200. And again when he said “private and unauthorised police forces are a threat even if only in potential, to the unity of the nation, the safety of the citizens, and the authority of the national police force.” The examples of other countries in this century show only too clearly the dangers that attend upon, and arise from the creation of such unauthorised forces. I do not believe that this Court can have regard to the story run in the Post Courier to the effect that proposals are about to be presented to the National Parliament to authorise in the future certain security bodies which are to become at the disposal of Provincial Governments. Even if one accepts the report as being factually based and accurate, there is no means of telling whether such proposals will eventuate, or be enacted as law. This Court I apprehend, must deal with the offence having regard to the circumstances obtaining at the time of its committal. The only alternative available to a custodial sentence is a maximum fine of K2000. To impose fines of this order for an offence of this kind, in the knowledge that they would almost certainly be paid with ease by the Mataungan Association, or party supporters, on behalf of the appellants (residents of what is probably one of the wealthiest Provinces of Papua New Guinea), would I consider be derisory.

On the view I take of the undoubted seriousness of this offence and the need for a public deterrent in the interests of national unity and security, I would not find myself able to disagree with the sentence of imprisonment imposed by his Honour. I would dismiss the appeals and confirm the sentences.

WILSON J: This is an appeal against the severity of sentences imposed by the National Court sitting at Rabaul in July 1979. The two appellants were imprisoned with hard labour for twelve months for an offence punishable by up to fourteen years’ imprisonment.

The crime of which both appellants were convicted is set out in s. 50.A of the Criminal Code Act 1974. It is to be observed that this crime was incorporated into the statute by amendment in 1975. It is not without significance that the amendment was passed by the House of Assembly just prior to Independence and came into operation on 1st November, 1975, i.e. some six weeks after Independence. The penalty provision incorporated into s. 50A was a severe one, and, even though the operation of s. 19(c) of the Criminal Code was not expressly excluded, it was clearly the intention of the legislature that imprisonment would generally be the appropriate penalty. It might have been thought otherwise if alternative penalties of a fine or imprisonment had been provided for in s. 50A itself, as was the case in s. 50B.

Section 50A makes it a crime for any person to establish a force similar in nature to a police force except as provided for by law. It was alleged by the prosecution and admitted by both appellants that they on a date unknown between 18th November, 1977, and 4th April, 1979, at Rabaul established a force known as the “Security” being a force similar in nature to a police force except as provided for by law.

It was not disputed that the appellants, who were at the time respectively the Premier and Deputy Speaker of the East New Britain Provincial Government, had done as was alleged against them. The undisputed evidence before the learned trial judge was that they acted after a resolution had been passed unanimously in the East New Britain Provincial Government Assembly to the effect “that approval be given to set up Security Police to enforce law and order inside the Community Government” and after it had been recommended “that the Provincial Government finance the establishment of these Security Police in each Community Government in the East New Britain Province.”

As the learned trial judge observed “this Force was intended to be of fifty or sixty men” and, shortly before the appellants were convicted, “twenty-nine of its members were arrested and convicted under the provisions of s. 51(2A) of the Criminal Code for unlawful drilling.”

The learned trial judge had before him, after pleas of “guilty” had been entered, a dispute as to the facts. It was open to him on the depositions and other material before him to conclude that the two appellants committed this crime deliberately and with the knowledge that what they were doing was against the law. It was also open to him to conclude, as the appellants’ counsel urged him to do, that the appellants acted in ignorance of the law. It is not part of my task as a member of an appellate court to speculate as to what I might have concluded if I had been exercising the jurisdiction of the trial court. In resolving that dispute against the two appellants, the learned trial judge relied on inferences to be drawn from the sworn evidence that was before him in the form of depositions and from an additional statement given by Koniel Alar to the police (viz. a record of interview conducted prior to the record of interview which was tendered during the District Court hearing and which formed part of the depositions). The learned trial judge drew inferences from all that material as to the appellants’ state of mind at the time the appellants committed the crime. The record of interview just referred to was described during the hearing of this appeal as “the disputed record of interview.” Although the circumstances in which that record of interview came to be placed before the learned trial judge are to be regretted, no criticism can be made of the learned trial judge for acting upon it; it simply was not drawn to his attention that some material (in the form of “the disputed record of interview”) other than was tendered at the District Court hearing and formed part of the depositions was being placed before him; the judge’s notes at the hearing and, in particular, the notation “read deps” indicates that that was so. As the appellants have made no application for a re-trial on the ground that certain material (in the form of “the disputed record of interview”) had wrongly been placed before the learned trial judge, then, as it seems to me, the appellants are compelled to confine themselves to criticisms of the learned trial judge’s handling of the material that was before him.

I will deal later in this judgment with the question of whether or not the learned trial judge fell into error when he acted upon a version of the disputed facts unfavourable to the appellants.

The learned trial judge regarded the appellants’ conduct as a deliberate breach of the Criminal Code; certainly it was committed with knowledge that it was against the law. His Honour said:

“I do not accept that the offence was committed in ignorance of the law by either of the defendants and I am satisfied that this was not so.”

It was open to his Honour to reject, as he did, Mr. Kerekiu’s sworn evidence called before him to the effect that he (and by inference, the appellants as well) did not know the reason why after 1974 an earlier Mataungan Security Force had been disbanded. It was open to the learned trial judge to draw the inferences he did from the two records of interview, and to arrive at the other conclusions he reached and mentioned in his remarks on sentence at pp. 80 to 83 of the appeal book. His Honour’s final conclusion as to the degree of deliberation in these crimes appears from his Honour’s words:

“However, the defendants are mature and sophisticated men in high public positions who have knowingly committed an offence which the legislature no more than four years ago defined and designated as a crime, and to which it attached a maximum penalty of imprisonment for fourteen years.”

The most important or primary question of law arising for consideration in this appeal is the question of whether or not the learned trial judge fell into error when he, in relation to the degree of deliberation and extent of knowledge of the appellants, acted upon a version of the disputed facts unfavourable to the appellants. This question arises from the ground which may conveniently be stated as follows:

“The sentences were and are in the circumstances manifestly excessive in that the appellants did not deliberately break the law in that they were ignorant of the existence of the offence.”

Mr. Kapi, for the appellants, submitted that it was the duty of the trial judge, when faced with a dispute of fact, to act upon the most lenient version of the facts. He sought to rely on R. v. Vecsey[cccxlii]³. In that case Travers J. said:

“The view I take is that on sentencing one should prima facie act on what is disclosed in the depositions as being the facts. Those facts have already been sworn to. Supplementary and additional matters put by the defence, if not disputed by the Crown, may be accepted and acted upon without being supported on oath, but if those matters are disputed, they can be decided only by the sworn evidence of both parties.”

Mr. Kapi referred to R. v. Gabai Vagi[cccxliii]⁴ and to Weaver v. Samuels[cccxliv]⁵ in which Bray C.J. said:

“The rule is that if the defendant desires to dispute circumstances of aggravation alleged in sworn evidence for the prosecution, he must do so by sworn evidence from himself or someone else; but if the aggravating matter is not sworn to, but is only alleged on the one hand and denied on the other in an unsworn form, then it is the duty of the court `to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused’ (Maitland’s case[cccxlv]⁶). In addition, I held in Law v. Deed[cccxlvi]⁷ that if the defendant alleges circumstances of mitigation peculiarly within his knowledge which the prosecution is not in a position to negative, again his version must be accepted `within the bounds of reasonable possibility’ and if the court is minded to reject it as beyond those bounds, it must at least give him an opportunity to support his story by his oath if he so desires.”

In the present case there was, as I have said, a dispute of fact (viz. as to the degree of deliberation and extent of knowledge of the appellants).

Although we were not referred to R. v. Maitland[cccxlvii]⁸ the Supreme Court of South Australia (in Banco) after approving the passage just quoted from R. v. Vecsey[cccxlviii]⁹ went on to state (the emphasis is mine)[cccxlix]¹⁰:

“Generally, if this practice is not followed before the court which is sentencing an accused person, and [if] the evidence is not submitted on his behalf, the accused should be bound by his conduct... [The court later went on to state:] If an accused person agrees that he is guilty of conduct constituting the crime charged, but does not admit the truth of the evidence given by prosecution witnesses as to matters which do not affect the question of his guilt, but are relevant only on the question of penalty, his proper course is to give and, where appropriate, call evidence at the preliminary hearing, or failing that, after notice to the prosecution, to seek leave of the trial judge to give or call evidence when he comes before the Criminal Court for sentence.”

The court was there alluding, in the case of an accused who is represented by counsel, to the duty of defence counsel. The court went on to state[cccl]¹¹:

“Whether an accused person is to be sentenced on the basis of the depositions... or after the trial judge has heard evidence in so far as the depositions... or evidence leave any matter open, the accused is entitled to have the benefit of any doubt that there may be.”

The court then considered the situation where “the unsworn statements of the Crown witnesses stand on the same footing as those of the accused” and said[cccli]¹²:

“If in such a case any dispute of substance emerges from the statements, it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused.”

Mr. Egan referred this Court to R. v. Haselich[ccclii]¹³ and he relied upon that case to uphold the decision of the learned trial judge. With all due respect to Mr. Egan, I found that decision of little assistance on this appeal, as the dispute of facts that arose in that case was after a jury trial, and the trial judge was considering whether he should form his own view of the facts on the evidence adduced at the trial or feel bound to take the most lenient view of the facts which would support the jury’s verdict.

Mr. Egan also referred this Court to Eastham v. The Queen [cccliii]¹⁴. That case is of assistance here and is authority for the proposition that if, on a plea of guilty, the defence wishes to deny an aggravating factor, then unless it is expressly conceded by the prosecution, it “should do so by calling evidence and in that way satisfy the court” of that fact. The Court of Criminal Appeal in Western Australia thought it an undesirable practice to state “the facts controlling the appropriate penalty” from the bar table or to leave them “to be winkled out of the depositions by the trial judge.”

In Law v. Deed[cccliv]¹⁵ Bray C.J. discussed R. v. Vecsey[ccclv]¹⁶ and R. v. Maitland[ccclvi]¹⁷ in the context of a case in which the question raised (one which he considered was “increasingly troubling appellate courts”) was “what version of the facts should the trial court accept for the purpose of imposing sentence after a plea of guilty?” Bray C.J. said[ccclvii]¹⁸:

“It is clear that the plea admits no more than the essential ingredients of the offence and as I have said mens rea is not an essential ingredient of this offence. The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution; nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the defendant alone. The attention of the Supreme Court has been mainly directed to consideration of the first of these two propositions (R. v. Vecsey[ccclviii]¹⁹; R. v. Maitland[ccclix]²⁰). Broadly speaking, these cases lay it down that, if a defendant disputes circumstances of aggravation alleged in sworn evidence from the prosecution, he must do so by sworn evidence from himself or someone else: if on the other hand the aggravating matter is not sworn to and is only alleged on the one hand, and denied on the other, in an unsworn form, then `it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused’: Maitland’s case[ccclx]²¹... but it is of great importance, despite whatever inconvenience may be caused, that the rights of the defendant should be preserved to have nothing beyond the essential legal ingredients of the crime assumed against him if it is denied by him, unless and until it is proved to the satisfaction of the court by sworn evidence subject to cross-examination.

The right of the defendant must be no less with regard to circumstances of mitigation such as those claimed in the present case. Here, however, there is no possibility normally of comparing sworn statements with sworn statements or unsworn statements with unsworn statements. The facts normally are within the knowledge of the defendant alone. Nevertheless, the court must `within the bounds of reasonable possibility’ accept the defendant’s version.

Normally that version is put forward by the defendant’s counsel if he is represented or, if he is not, by himself without his being sworn. The court can reject the explanation if it passes the bounds of reasonable possibility, but I do not think it ought to take this course without giving the defendant an opportunity to support his story by his oath and that of any other witnesses he desires to call. Some stories which might appear incredible when related in oratio obliqua by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination.”

So it is that Bray C.J. laid down the procedure to be applied before a story, appearing on its face to be incredible, should be rejected.

That procedure was not observed in the trial Court in Law v. Deed. Was that procedure observed in the present case?

In Law v. Deed Bray C.J. thought that the appellant should be given an opportunity to support his story on oath if he so desired. With reference to the omission by the appellant’s counsel in that case to request an opportunity to support his story by his oath and that of any other witnesses he desired to call, his Honour said[ccclxi]²²:

“... but he could not be expected to anticipate the learned Special Magistrate’s rejection of the story and I think that, before the learned Special Magistrate finally rejected it, he should have given the defendant an opportunity to enter the witness box.”

In the present case the learned trial judge in his remarks on sentence said, in relation to the defence submission that the offence had been committed in ignorance of the law:

“I pointed out to Mr. Kapi yesterday that he had adduced no evidence on this important point which obviously he had in mind, though it would have been very easy to ask Mr. Alar about it whilst he was in the witness box, and Mr. Kapi has not sought to remedy this deficiency.”

In view of what the learned trial judge had said to Mr. Kapi, counsel should have anticipated the learned trial judge’s rejection of the defence story. Why else would the learned trial judge have drawn counsel’s attention to such a matter? In contrast to the appellant in Law v. Deed[ccclxii]²³ each of the appellants in this case was given an opportunity to support his story by his oath.

It follows from this discussion of these cases that Law v. Deed[ccclxiii]²⁴ is an authority which favours the appellants, in so far as it deals with the principles to be applied. However, in the final analysis Law v. Deed[ccclxiv]²⁵ is to be distinguished from the present case on account of the initiative taken by the learned trial judge and defence counsel’s decision not to ask Koniel Alar, when he was called to give evidence, any questions as to his alleged ignorance of the law and his decision not to call Hosea Biu to support his story on oath in circumstances in which he had previously intimated an intention to call Hosea Biu.

In my judgment the learned trial judge was entitled to say, as I think he was purporting to say in his remarks on sentence, that the appellant’s story unsupported by evidence on oath exceeded the bounds of reasonable possibility. His Honour only said so after giving the appellants an opportunity to give evidence in support of it.

This case is exceptional and, in the special circumstances that arose, is decided against the principles established by the stream of authorities to which reference has been made in this judgment because (and solely because) the learned trial judge had given defence counsel an opportunity “to remedy” what his Honour saw as a “deficiency”. In that respect alone this case is to be distinguished on its facts from those cases in which the matter was remitted for rehearing upon the appellant’s plea of guilty (see Law v. Deed[ccclxv]²⁶ and Georgeff v. Samuels[ccclxvi]²⁷ and the cases cited therein).

Before completing my conclusion on this topic, I think it is appropriate to make reference to the duty of counsel appearing for an accused person who pleads guilty in the National Court. In doing so I intend no criticism of Mr. Kapi who appeared for the appellants in this case in the National Court. It is easy enough with the benefits of hindsight to say what legal considerations and procedural principles should have been pressed before the learned trial judge in support of the plea in extenuation of the crime committed by each appellant. Out of a desire to assist in the future, I say that it should not be assumed that the whole responsibility for the outcome of proceedings in a trial court will necessarily be shifted on to the shoulders of the trial judge. A counsel “... is an assistant in the administration of justice. Cases must be decided according to the law and those who hold themselves out as helping in the attainment of a just result must do what they can to ensure that the law is applied correctly to the case.” (Re Gruzman; Ex parte The Prothonotary[ccclxvii]²⁸ per curiam.)

Although the duties of counsel are not capable of exact definition which will cover every situation, I would think that where his client’s freedom is at stake, counsel should not only do his best to make himself aware of the procedural rules and relevant authorities which will assist his client’s case, but also be slow to reject a helpful hint or reminder given by the trial judge.

As the learned trial judge did not, in my judgment, fall into error regarding the dispute of facts that arose this appeal should not be allowed on the primary ground.

If, as the learned trial judge concluded, this was a case of a deliberate breach of the law, I do not see how it can seriously be suggested that these sentences were manifestly excessive. For a crime such as we are here dealing with — committed with knowledge of its unlawfulness — a custodial sentence of twelve months is indeed appropriate. If I may say so with respect, the learned trial judge most adequately dealt with the reasons why such a sentence was appropriate for a deliberate breach of the section.

I need only repeat the learned trial judge’s words:

“Private and unauthorised Police Forces are a threat, even if only in potential to the unity of the nation, the safety of the citizens and the authority of the national Police Force.”

It was strongly urged that this Court should interfere with these sentences because there is a proposal to go before the National Parliament to authorise certain security forces organised along much the same lines as the security force established by the appellants and to “decriminalize” conduct of the type the appellants were involved in. However, this Court is bound to administer the law as it is, not as it might be. Justice is justice according to law; justice not administered according to law is not justice at all; it savours of anarchy.

As the learned trial judge acknowledged, neither appellant has any similar prior convictions. There is nothing in the remarks on sentence which leads me to apprehend that the learned judge failed to extend to both appellants the leniency that first offenders could reasonably expect to receive.

One ground relied upon by Mr. Kapi was that the learned trial judge allowed irrelevant considerations to influence his mind and, in particular, his knowledge of an unauthorised “Court of the People”, known as Warkurai Nigunum, active in Rabaul about 1974 and later. It is important here to realise that, after making reference to that “court”, his Honour said:

“Here we see shades of the Forces in the time of the Warkurai Nigunum.”

The words are important. His Honour did not conclude that there was any direct link between the Warkurai Nigunum and the appellants’ Security Force; if he had so concluded, he would have fallen into error, as there was no evidence of any such direct link. His Honour’s use of the word “shades” suggests to me that he was concluding (and not unreasonably) that there were similarities between the crime committed by the appellants and unlawful happenings in the past. If his Honour had said: “Here we see shades of the Forces in the time of the rise of the fascist movement in Europe,” it would, in my view, have been equally unobjectionable. His Honour did not, I think, allow himself to be wrongly influenced.

The other grounds relied upon by the appellants involve the alleged misapplication of the proper sentencing principles. It is true that there was nothing before the learned trial judge to suggest that this crime was prevalent and, on that account, to warrant a deterrent sentence. However, prevalence is not the only justification for a deterrent sentence. A crime may be of such seriousness, and the implications arising from conduct of the type that is labelled “criminal” may be so great that a custodial sentence, with its associated deterrent effect, is called for. The notions of deterrence (both general and individual), retribution, prevention and rehabilitation frequently overlap in the sentencing process. The learned trial judge at no stage suggested that he thought a custodial sentence was appropriate solely on account of the prevalence of the offence. If Mr. Kapi’s argument on this aspect of the appeal is taken to its logical conclusion, no prison sentence could ever be imposed upon the offender who fortuitously is the first person to be guilty of conduct, not previously caught by the criminal law, but now made a crime.

I am not persuaded that the learned trial judge placed too much weight on or over-emphasised the notions of retribution and deterrence by deciding to sentence the appellants to a term of imprisonment instead of deciding to impose a fine. The learned trial judge applied a classical approach to his sentencing task; the courts generally endeavour to make the punishment fit the crime and the circumstances of the offender as nearly as may be; our concern is the protection of the public, but, subject to that, courts should lean towards mercy. In adopting this approach the learned trial judge did not award the maximum which the offence warranted, but rather the minimum which was consistent with a due regard to the public interest.

It must also be repeated that there are offences where the notions of deterrence and retribution must take priority and where sentences of imprisonment may properly be imposed even on men “in high public positions” to mark the disapproval by the law of the conduct in question and in the hope that other people will be deterred from like behaviour. This offence with its implications for national unity, public safety, and the authority of the national police force, legitimately falls into this category.

I conclude my judgment with a reference to the often approved judgment of the High Court of Australia in House v. The King[ccclxviii]²⁹:

“It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred,”

and to the judgment of Kitto J. in Australian Coal and Shale Employees’ Federation v. The Commonwealth[ccclxix]³⁰:

“... there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King[ccclxx]³¹.”

I am not satisfied that the decision of the learned trial judge was clearly wrong; he has not acted upon any wrong principle; he has not given weight to extraneous or irrelevant matters; he has not failed to give weight to relevant considerations; and he has not made a mistake as to the facts. It may not be said of these sentences that the result is so unreasonable or plainly unjust that this Court should infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

Although I would dismiss this appeal I feel constrained to add that I feel some sympathy for the two appellants. Notwithstanding the circumstances that they were undoubtedly misguided, imprudent, and overzealous, that they were possibly premature, and that they were taking the law into their own hands, if they were motivated in part by their concern about “the undoubted and very worrying increase in lawlessness” (as the learned trial judge thought they probably were), then it is a sad reflection upon the law enforcement authorities and ultimately upon the government of Papua New Guinea to note that public money, manpower and resources have here been used to arrest and bring to trial “mature and sophisticated men in high public positions” (to use once more the learned trial judge’s words) instead of to control the lawlessness and to arrest and bring to trial those who are directly responsible for the increase in lawlessness.

I agree that the appeal should be dismissed.

ANDREW J: The appellants were on 17th July, 1979, convicted in the National Court at Rabaul upon a charge that on a date unknown between 18th November, 1977, and 4th April, 1979, at Rabaul in Papua New Guinea, they established a force known as the “Security” being a force similar in nature to a police force except as provided by law.

Both appellants pleaded guilty to the charges and both were sentenced to imprisonment with hard labour for one year.

The appeal is brought against the sentences only on the ground that they were and are in the circumstances manifestly excessive.

The appellants were respectively the Premier and Deputy Speaker of the East New Britain Provincial Government. It was not in dispute that some twenty-nine men had previously been arrested for training and drilling as members of an organised force. It appears from the evidence that the existence of this force was no great secret, as they had trained openly and indeed invitations to a “passing-out” parade had been distributed.

In his judgment on sentence the learned trial judge said, inter alia:

“Here we see shades of the Force in the time of the Warkurai Nigunum.

I am quite satisfied, apart from anything else, that if Hosea Biu, as it is clear he did, knew that the formation of this Security Force was illegal, so did Mr. Koniel Alar, also that even if Alar had different ideas about the purposes for which the Force was to be used from Mr. Biu he would have known of Mr. Biu’s ideas.

The undoubted and very worrying increase in lawlessness may well have been and probably was, a factor in the formation of this Force by the defendants, probably even a strong one, and I take this into full account.

It may also be that the Force was formed in anticipation of possible approval by the Central Government, and I take this into account also.

However, the defendants are mature and sophisticated men in high public positions who have knowingly committed an offence which the legislature no more than four years ago defined and designated as a crime, and to which it attached a maximum penalty of imprisonment for fourteen years. By what they have done they have also transgressed a major provision of the Constitution itself.

In all the circumstances in my view if this Court imposed a non-custodial sentence it would be guilty of a serious dereliction of duty.

Private and unauthorized Police Forces are a threat, even if only in potential, to the unity of the nation, the safety of the citizens, and the authority of the National Police Force.

People must be brought to understand that the law must be obeyed and to appreciate the seriousness of the sort of offence committed by these two men.

Mr. Alar has no prior convictions. Mr. Biu has one, not as shown in the antecedent report, but for urging people not to pay Council Tax. I do not propose to treat this as significant for present purposes and shall not take it into account.

Taking absolutely the most lenient view that I think is open on the material before me I am of opinion that an appropriate sentence in each case would be imprisonment with hard labour for one year.”

The appellants were convicted under s. 50A of the Criminal Code. This section was introduced with the Code by the Criminal Code (Amendment) Act 1975 in the following terms:

N2>“50A Raising of Unauthorized Forces

(1) Any person who:

(a) establishes or organizes; or

(b) assists any person to establish or organize; or

(d) takes part in or associates with, a military force, para-military force, police force, any body of persons purporting to exercise military, para-military or police powers or functions or any force similar in nature to a military, para-military or police force, except as provided for by law is guilty of a crime.

Penalty: Imprisonment for 14 years.”

Counsel for the appellants submitted that the depositions from the committal proceedings raised an issue whether or not the first appellant was aware that his actions were contrary to law. In that case, he submits, the issue should have been resolved by evidence and not from the depositions. Clearly the trial judge made a finding adverse to the appellant in this regard.

In Weaver v. Samuels[ccclxxi]³² Bray C.J. said:

“The rule is that if the defendant desires to dispute circumstances of aggravation alleged in sworn evidence for the prosecution, he must do so by sworn evidence from himself or someone else; but if the aggravating matter is not sworn to, but is only alleged on the one hand and denied on the other in an unsworn form, then it is the duty of the court `to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused’ (Maitland’s case[ccclxxii]³³). In addition I held in Law v. Deed[ccclxxiii]³⁴ that if the defendant alleges circumstances of mitigation peculiarly within his knowledge which the prosecution is not in a position to negative, again his version must be accepted `within the bounds of a reasonable possibility’ and if the court is minded to reject it as beyond those bounds, it must at least give him an opportunity to support his story by his oath if he so desires... The defendant must be given the benefit of any reasonable doubt on matters of penalty, as well as on matters of guilt or innocence, in the absence of any statutory provision to the contrary. The plea of guilty admits no more than the bare legal ingredients of the crime. Any dispute as to anything beyond this must be resolved on ordinary legal principles, including the presumption of innocence.”

I respectfully agree with what Bray C.J. has said. See also R. v. Gabai Vagi[ccclxxiv]³⁵.

In the present case the situation is more complex however, because there was material before the trial judge of which defence counsel was not aware. This material was an additional record of interview. I do not deal with the reasons as to how it came to be before the court, suffice to say that it was through no fault of either counsel or of the trial judge. It seems to me that defence counsel, as a result, was disadvantaged in the conduct of his case. In the normal course I believe it would be correct to order that this matter be sent for re-trial. However, as both appellants pleaded guilty to the charges and as I have decided in any event that the sentences are manifestly excessive, I believe that the matter should be finalised now.

I hesitate to differ from the learned trial judge, but have, after anxious consideration, come to the view that the sentence was excessive. I appreciate the fact that the offence carries a maximum sentence of fourteen years’ imprisonment and that it was introduced four years ago. However, it was common ground on this appeal that it was introduced following disturbances in the Northern Province. Clearly the intention of the legislature in fixing a maximum penalty of fourteen years, or what was being looked at, was the type of conduct where a threat to the Nation’s security and/or violence were contemplated. For that type of conduct, having a maximum sentence of fourteen years is justified.

The distinguishing feature of this case is that nowhere on the material before this court is it shown that the conduct of the appellants was in any way sinister. It was undoubtedly unwise but I cannot see that it was anything but misguided zeal. The purpose was to aid the Police Force and assist in imposing law and order. It was not clandestine.

In my view there was insufficient weight given to two findings of fact, namely:

N2>(a) “The undoubted and very worrying increase in lawlessness may well have been, probably was, a factor in the formation of this force by the defendants, probably even a strong one, and I take this into full account,” and

N2>(b) “It may also be that the force was formed in anticipation of possible approval by the Central Government, and I take this into account also.”

In my opinion, these findings illustrate the lack of criminality involved. Taking that into account with the appellant’s prior good backgrounds and their history of service to their people I believe that sentences of imprisonment were not warranted.

I suppose it may be that their conduct was potentially a threat to the unity of the nation, the safety of the citizens and the authority of the National Police Force, as his Honour found, but in the circumstances where their conduct was misguided I do not believe they should be punished for some possibly potential happening. In my view, too much weight was placed on this finding.

I am thus of the opinion that the sentences were manifestly excessive. I would grant the application for leave to appeal, allow the appeal and substitute a fine in each case of K2,000.

Leave to appeal granted. Appeals dismissed.

Convictions and sentences confirmed.

Solicitors for the appellants: M. Kapi, Public Solicitor.

Solicitors for the respondent: K. B. Egan, Public Prosecutor.

[cccspan>Infra p. 316.

[cccxli](1936) 55 C.L.R. 499.

[cccxlii] [1962] S.A.S.R. 127, at p. 128.

[cccxliii][1973] P.N.G.L.R. 30.

[cccxliv] [1971] S.A.S.R. 116, at p. 119.

[cccxlv] [1963] S.A.S.R. 332, at p. 335.

[cccxlvi][1970] S.A.S.R. 374.

[cccxlvii][1963] S.A.S.R. 332.