Kenene v Samon, Gabour and Tapu [1983] PGSC 14; [1983] PNGLR 179 (10 June 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 179 - Ando Kenene v Gabriel Samon, Alois Gabour and George Tapu 

[1983] PNGLR 179

SC251

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ANDO KENENE

V

GABRIEL SAMON,

ALOIS GABOUR

AND GEORGE TAPU

Waigani

Andrew Kaputin McDermott JJ

25 May 1983

10 June 1983

CRIMINAL LAW - Sentences - Series of offences - Cumulative and concurrent sentences in default of payment of fines - When appropriate - Offences under Motor Traffic Act Ch. No. 243 and Summary Offences Act 1977.

STATUTES - Operation and effect of Revision of Laws Act 1973.

Held

N1>(1)      The Revised Laws of Papua New Guinea which came into effect on 1 January 1982, did not repeal statutes existing prior to that date; they are a revision only of the existing laws.

N1>(2)      Where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts or where there are a number of offences of a similar character in a particular short period:

N2>(a)      sentences should generally speaking be made concurrent:

Tremellan v. The Queen [1973] P.N.G.L.R. 116; Wari Mugining v. The Queen [1975] P.N.G.L.R. 352; Passingan v. Beaton [1971-72] P.N.G.L.R. 206; and John Sil Kawage v. Gagorine Yube and Stephen Tifai [1976] P.N.G.L.R. 604, followed.

N2>(b)      when consecutive or cumulative sentences are appropriate regard must be had to the principle of totality in assessing what sentences are appropriate for each of the offences in the light of the ultimate aggregate and the totality of the criminal activity:

R. v. Southampton Justices [1981] 1 All E.R. 722; and R. v. Bradley [1979] NZCA 33; [1979] 2 N.Z.L.R. 262, adopted and applied.

N2>(c)      it is wrong in principle to impose a series of fines and cumulative default sentences when in reality there is no prospect of the offender being able to pay the fines; if a fine is the appropriate sentence it should be made alternative to imprisonment:

Winkler v. Cameron [1980] 33 A.L.R. 663; R. v. Churchill [1966] 2 All E.R. 215; and R. v. Hewitt (1971) 55 Cr. App. R. 433.

Cases Cited

John Sil Kawage v. Gagorine Yube and Stephen Tifai [1976] P.N.G.L.R. 604.

Naime Vade v. A. W. Stuckey (Unreported judgment No. 635).

Passingan v. Beaton [1971-72] P.N.G.L.R. 206.

R. v. Bradley [1979] NZCA 33; [1979] 2 N.Z.L.R. 262.

R. v. Churchill [1966] 2 All E.R. 215.

R. v. Hewitt (1971) 55 Cr. App. R. 433.

R. v. Southampton Justices [1981] 1 All E.R. 722 at 725.

R. v. Visconti [1982] 2 N.S.W.L.R. 104.

Tremellan v. The Queen [1973] P.N.G.L.R. 116.

Wari Mugining v. The Queen [1975] P.N.G.L.R. 352.

Winkler v. Cameron (1980) 33 A.L.R. 663.

Appeal

This was an appeal against convictions and sentences relating to seven charges laid under the Motor Traffic Act (Ch. No. 243) and the Summary Offences Act 1977.

Counsel

N. Kiriwom and M. Sevua, for the appellant.

L. Gavara-Nanu, for the respondent.

Cur. adv. vult.

10 June 1983

ANDREW KAPUTIN MCDERMOTT JJ: The appellant was convicted by the District Court at Chuave in the Simbu Province on 21 and 26 January 1982, upon seven charges under both the Motor Traffic Act and the Summary Offences Act. He received a fine upon each charge and sentences in default of payment in each case. The total amount of the fines was K820 and the total sentence in default was 22 months.

The charge arose from an incident where the appellant was driving a stolen vehicle whilst under suspension and under the influence of liquor. When he was stopped by the police, he disobeyed their instructions and sped off with the police in pursuit. When arrested, he punched a police constable in the face.

The seven offences (to which the appellant pleaded guilty) and the sentence in each case by the District Court were as follows:

N2>“1.      That he on 20 January 1982, drove a motor vehicle whilst under the influence of liquor contrary to s. 9(1)(a) of the Motor Traffic Act. Fined K100 in default three months imprisonment in hard labour.

N2>2.       That he on 20 January 1982, failed to produce a drivers’ licence when requested to do so by a member of the Police Force contrary to s. 8(1) of the Motor Traffic Act.

Fined K20 in default 20 days with hard labour concurrent with (1).

N2>3.       That he on 20 January 1982, failed to obey a police direction contrary to s. 30 of the Motor Traffic Act.

Fined K50 in default five months with hard labour cumulative upon the first count.

N2>4.       That he on 20 January 1982, gave false information to the police thereby contravening s. 8(2) of the Motor Traffic Act.

Fined K150, default five months with hard labour cumulative upon the sentences imposed on 21 January 1982.

N2>5.       That he on 20 January 1982, wilfully spread false reports thereby contravening s. 11(a) of the Summary Offences Act.

Fined K150 in default two months with hard labour cumulative upon that imposed on 21 January 1982, and 25 January 1982.

N2>6.       That he on 20 January 1982, assaulted a member of the Police Force contrary to s. 60(1) of the Summary Offences Act.

Fined K150 in default two months with hard labour cumulative upon that imposed on 21 January 1982 and 25 January 1982.

N2>7.       That he on 20 January 1982, drove a motor vehicle without the consent of the owner contrary to s. 14(1) of the Motor Traffic Act.

Fined K250 in default seven months with hard labour cumulative upon those imposed on 21, 25 and 26 of January 1982.”

From these proceedings, an appeal was brought in the National Court against conviction and sentence. The ground of appeal in relation to conviction was that the magistrate had proceeded under various sections of the Motor Traffic Act which has been repealed. This ground did not succeed but the appeals against sentence in the case of the fourth, fifth and seventh offences were allowed. The appeal judge said as follows:

“Mr Marlow correctly argued that one of the fines imposed exceeded the maximum and that others were excessive. I consider that several of the offences were very serious and would normally result in a gaol term. The appellant was driving a stolen vehicle (‘illegal use’), whilst under suspension and under the influence of liquor, when he was stopped by the police, he disobeyed their instruction and sped off with the police in pursuit. However, as the magistrate chose to impose fines only I have chosen to do the same. I have studied the appeal papers carefully and consider the following orders appropriate.

Appeal 216

Giving a false name and address to the police s. 8(2) of the Motor Traffic Act. Maximum fine K500 (s. 20).

Decision

Appeal allowed, substitute a fine of K40 in default four weeks in hard labour cumulative to all other sentences.

I consider that the fine was excessive for this offence and out of line with the kind of fine normally imposed for the offence ...

Appeal 217

Spreading false reports, s. 11 of Summary Offences Act. Maximum punishment K100. Five or three months in hard labour.

Appeal against sentence allowed. Substitute fine of K50 in default five weeks in hard labour cumulative on all other sentences.

Appeal 219

Driving a motor vehicle without the consent of the owner. Section 14(1) of Motor Traffic Act. Maximum punishment K200, five or six months in hard labour.

Allow appeal against sentence. Substitute a fine of K200 in default twenty weeks in hard labour cumulative on all other sentence”.

The total fines as upheld were K560 and the total default period upheld was eleven months and three weeks. The appellant was in custody for eleven months and twelve days until released on bail pending the hearing of this appeal.

Ground 1 of the appeal alleges that the informations laid under the previous Motor Traffic Act were substantially defective in that the respective sections under which the charges were brought had been repealed and replaced by the Motor Traffic Act of the Revised Laws of Papua New Guinea, (Ch. No. 243) and as such the learned magistrate acted without power or authority.

But the Revised Laws did not repeal the previous Motor Traffic Act. They are a revision and came into force on 1 January 1982, and were thus in force when the appellant committed the series of traffic offences on 20 January 1982. In effect, the Revision is the “sole authentic text of the laws of Papua New Guinea” (s. 13 of Revision of Laws Act 1973). It is true, as the learned appeal judge found, that s. 16 of the Revision of Laws Act is headed “construction of reference to repealed or amended laws” but the section does not use the word “repealed” and it provides that where there is a reference to any provision, the reference shall, where necessary and practicable, be construed as a reference to the corresponding provision in the Revised Laws. We agree with the appeal judge that whilst the information (and the magistrate) should have referred to the sections as contained in the revised Motor Traffic Act, the sections are materially the same, thus there is no substantial miscarriage of justice.

We would dismiss the appeal against conviction.

In our opinion the procedure which was adopted on sentence, that is, the imposition of a series of fines and cumulative sentences in default of payment is cumbersome and offends several principles of sentencing. No doubt the difficulties were exacerbated by the fact that although the charges arose from the related incidents of 20 January 1982, the police chose to bring separate charges on three different days.

The appellant committed seven offences which required separate consideration. In our view, the most serious offences were driving under the influence, assaulting a police officer and driving a motor vehicle without the consent of the owner. It appears to us that the errors in sentencing flow from the initial mistake of the sentencer in (1) not clearly perceiving the nature of and seriousness of the offences individually and then; (2) by not deciding what to do in each case bearing in mind that all the offences were part of one prolonged incident.

It does not appear that a balanced exercise of the sentencing discretion could then be made. A sentencer has first to make up his mind what he is going to do. For instance, fines are governed to a significant extent by principles analogous to those applicable to fixed-term sentences of imprisonment. They are generally used in cases where a deterrent or punitive sentence is necessary, but either the inherent gravity of the offence is insufficient to justify a sentence of imprisonment, or the presence of mitigating factors justifies the sentencer in avoiding a sentence of imprisonment: See Principles of Sentencing, (2nd ed. (1979) by D. A. Thomas.

We consider the three main offences may have warranted a sentence of imprisonment, but it is wrong in principle to impose a series of fines and cumulative default sentences when in reality there is no prospect of the offender being able to pay the fines. The fines should have been an alternative to imprisonment if the sentencing magistrate had properly concluded that a fine rather than imprisonment was appropriate: See Winkler v. Cameron (1980) 33 A.L.R. 663; R v. Churchill [1966] 2 All E.R. 215 and R v. Hewitt, (1971) 55 Cr. App. R. 433.

A further difficulty arises from the imposition of cumulative default sentences. In John Sil Kawage v. Gagorine Yube and Stephen Tifai [1976] P.N.G.L.R. 604 at 605, Prentice Dep. C.J (as he then was) expressed the view, obiter, that such a procedure makes for uncertainty. As his Honour said:

“... Suppose K5 of the fine had been paid, the appellant would be entitled to a credit, as I understand it, under s. 19(6) of the Local Courts Act, which would reduce the extent of the imprisonment in default of payment. The calculation of the accumulation can thus be seen to involve uncertainty; and should I think be considered bad.”

We can see nothing which says that there cannot be cumulative default sentences and it seems to us that the payment of one of the fines or part of a fine would in this case be covered by s. 208 of the District Courts Act which provides for a proportionate reduction of imprisonment on part payment of the sum adjudged to be paid.

We think a correct statement of the law is found in R v. Southampton Justices [1981] 1 All E.R. 722 at 725 that:

“The fixing of consecutive sentences of imprisonment for non-payment of fines is still the imposition of consecutive sentences and as such is subject to certain well-known principles. These include that, usually, consecutive sentences are inappropriate where several offences arise out of the same incident, and that, even when they are appropriate, the court should consider whether the totality of the sentence is not excessive having regard to the totality of the criminal activity.”

It has been stated on many occasions that although it is neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent, sentences should, generally speaking, be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts or where there were a number of offences of a similar character in a particular short period: See Tremellan v. The Queen [1973] P.N.G.L.R. 116; Wari Mugining v. The Queen [1975] P.N.G.L.R. 352; Passingan v. Beaton [1971-72] P. & N.G.L.R. 206; Naime Vade v. Stuckey (Unreported judgment No. 638); Elavara Mafoa v. Blackwell (Unreported judgment No. 635) and John Sil Kawage v. Gagorine Yube and Stephen Tifai (supra).

In our view, the three main offences were both sufficiently separate and serious that we are unable to say the magistrate was not justified in imposing cumulative sentences. But it seems to us that he had in reality decided to imprison the appellant by means of default sentences which is wrong in principle. In our view, the correct approach in imposing cumulative sentences is to have the necessary regard for what has been called the principle of totality in assessing what sentences are appropriate for each of the offences in the light of the ultimate aggregate which will result. Cooke J, giving his judgment of the Court of Appeal in R v. Bradley [1979] NZCA 33; [1979] 2 N.Z.L.R. 262, referred (at 263) to the:

“... general rule that consecutive sentences should not be such as to result in an aggregate term wholly out of proportion to the gravity of the offences, viewed as a whole”.

The court in that case expressed the view (at 263):

“... that undoubtedly it is crucial in arriving at a sentence for several offences after considering them individually, to stand back and look in a broad way at the totality of the criminal behaviour”: See per Street C.J in R v. Visconti [1982] 2 N.S.W.L.R. 104.

In the present case we consider the aggregate sentence is still excessive even though reduced by the National Court and because in particular, the offences of giving a false name and address to the police and of spreading false reports were offences which arose out of the one course of criminal conduct which the appellant indulged in and were so truly connected that they should have been concurrent. Indeed, it is difficult to see how he could have been convicted of spreading false reports under s. 11 of the Summary Offences Act for that section requires that the false report must tend to cause trouble or ill feeling. There was no evidence of this. Unfortunately, no appeal was brought against this conviction and thus a further reason exists for making this sentence concurrent.

We would dismiss the appeal against conviction but allow the appeal against sentence by ordering the sentence in relation to counts 6 and 7 be served concurrently with the sentences already being served.

The appellant, having already served those terms of imprisonment, is discharged.

Appeal against conviction dismissed.

Appeal against sentence allowed.

Lawyer for the appellant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.