Saki v The State [1980] PGSC 16; [1980] PNGLR 33 (3 April 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 33 - Saki v The State 

[1980] PNGLR 33

SC173

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SAKI

V

THE STATE

Waigani

Kearney ACJ Greville Smith Pratt JJ

3 April 1980

CRIMINAL LAW - Judgment and punishment - Term of sentence - Duration of - Date of commencement - To be calculated from first day of sittings and not from date of warrant - Criminal Code s. 20[xlvi]¹.

Section 20 of the Criminal Code provides inter alia:

“... a sentence of imprisonment, with or without hard labour, upon a conviction or indictment takes effect from the first day of the sittings of the Court at which the offender is convicted ...”

Held

The term of a sentence of imprisonment imposed by the National Court (other than a sentence directed to be served cumulatively) must be calculated from the first day of the sittings of the court. The provisions of s. 20 of the Criminal Code cannot be varied by terms contained in the warrant of commitment.

Appeal

This was an appeal against two terms of imprisonment, each of nine months, for stealing, and ordered to be served concurrently.

Counsel

K. Wilson and P. Formosa, for the appellant.

C. Maino-Aoae, for the respondent.

Cur. adv. vult.

3 April 1980

KEARNEY ACJ: On 25th July, 1979, Mr. Saki was sentenced by the National Court of Justice at Mount Hagen to two terms of imprisonment, each of nine months, for stealing. The sentences were to be served concurrently.

By letter to the Chief Justice dated 8th August, 1979, Mr. Saki stated that he appealed against those sentences and set out the grounds upon which he contended the sentences were excessive. An appeal file was accordingly opened in the registry of this Court. Mr. Saki was later refused legal aid by the Public Solicitor to prosecute his appeal.

It was considered desirable to have the “appeal” heard and determined, and accordingly the court set it down for hearing this day. The Public Prosecutor intimated that he would contend that the “appeal” was incompetent; the Public Solicitor appeared for Mr. Saki, to argue this preliminary question of competence.

This morning we heard argument on the point. It is clear that important practical and legal issues are involved, concerning the effective exercise by persons in custody of certain constitutional rights. Submissions were directed to the meaning of the words “according to law” in the Constitution of the Independent State of Papua New Guinea s. 37(15) to whether compliance with the Supreme Court Rules 1977 was mandatory; and to whether those Rules adequately catered for the exercise of rights by a person in custody; and to what was necessary to comply with the Rules. The cases of Mathias Evertz v. The State [xlvii]²; Porewa Wani v. The State[xlviii]³ and Vetari v. The State[xlix]⁴ were referred to.

When the argument was well advanced, the Court was informed that Mr. Saki had now changed his mind about appealing; as he was due for discharge in a matter of days he wished to withdraw or abandon his “appeal”.

The position therefore is that the hearing of the appeal proper, or the application for leave to appeal, has not yet been commenced and the appellant wishes to abandon it. The Rules are silent on the question of whether an appellant has the right to do so, without leave, at such a stage. The better view, in my opinion, is that he has such a right; but if leave is required, I consider he should be given leave. I am mindful that an appellant must always bear in mind the risk he faces that his sentence may be increased on appeal, under s. 22(4) of the Supreme Court Act 1975.

Accordingly, there is no need to embark upon a consideration of the questions argued on the preliminary issue; I consider it would be improper now to do so.

A separate matter has however come to the court’s attention. The warrant of commitment is not in the usual form. The standard printed form of warrant provides in its concluding words that the sentence imposed is to be “calculated from the date of commencement of the said Sessions”. That is no doubt inserted to meet the requirements of the second paragraph of s. 20 of the Criminal Code. In the warrant in this case, the trial judge struck out the concluding words, and substituted others, and the sentences imposed are accordingly said to be “calculated from the date of the warrant”. The sittings in question commenced at Mt. Hagen on 10th July, 1979; the warrant is dated 25th July, 1979. If the terms of the warrant are to be followed, Mr. Saki is due for discharge in three weeks’ time; if s. 20 of the Criminal Code is applied, he is due for discharge in six days. When should he be discharged?

It is clear, in my opinion, that the term of a sentence of imprisonment imposed by the National Court (other than a sentence directed to be served cumulatively) must be calculated from the first day of the sittings of the court, notwithstanding what the terms of the warrant may provide. In other words, s. 20 of the Criminal Code must be observed.

In this case, if Mr. Saki were not to be discharged on the date on which the Code required him to be discharged—that is, in six days’ time, on 9th April—he would suffer an injustice. This Court has inherent power to review all judicial acts of the National Court, under s. 155(2)(b) of the Constitution. I consider that it should exercise that power in this case; declare that the term of a sentence upon indictment is to be calculated in accordance with s. 20 of the Criminal Code; and exercising its inherent power under s. 155(4) of the Constitution, order that Mr. Saki be discharged on 9th April, 1980.

GREVILLE SMITH J: I concur.

PRATT J: I also concur, and I have nothing to add.

Order that the appellant be discharged on 9th April, 1980.

Solicitor for the appellant: D. McDermott, Acting Public Solicitor.

Solicitor for the respondent: C. Maino-Aoae, Public Prosecutor.

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[xlvii][1979] P.N.G.L.R. 174.

[xlviii][1979] P.N.G.L.R. 593.

[xlix]Unreported, Judgment S.C. 156 of 10th August, 1979.