Rapi, Avera and Aitowa, The State v [1985] PNGLR 23 (11 February 1985)

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[1985] PNGLR 23 - The State v Sebastian Akuta Rapi, Gabriel Rori Avera and Caspar Mara Aitowa

CRIMINAL LAW - Sentence - National Court - Offender between sixteen and twenty-one years - Offence attracting minimum penalties legislation - Sentencing powers of Children’s Court available at discretion of National Court - Considerations relevant to exercise of discretion - Child Welfare Act (Ch No 276), s 32(2), (5), (6).

INFANTS AND CHILDREN - Crimes and offences by children - Sentence - Offender between sixteen and twenty-one years - Offence attracting minimum penalties legislation - Sentencing powers of Children’s Court available at discretion of National Court - Considerations relevant to exercise of discretion - Child Welfare Act (Ch No 276), s 32(2), (5), (6).

“Where a Court other than a Children’s Court deals with an offence (other than homicide ...) committed by a person over the age of 16 years but under the age of 21 years, the Court may, where it thinks it for any reason desirable:

(b) exercise in relation to him, the powers of a Children’s Court under Subsection (2);

and an order made in the exercise of those powers has effect as if it were an order of the Children’s Court.”

Section 32(2) provides that a Children’s Court has all the powers and authorities possessed by a District Court.

Section 32(6) provides that a Children’s Court is not bound by the minimum penalties legislation.

(1) The effect of the Child Welfare Act, s 32(5) is that in respect of persons between the ages of sixteen and twenty-one a court other than a Children’s Court may in respect of those persons, exercise the same powers of sentencing as a Children’s Court might exercise under the Child Welfare Act.

(2) The powers of sentencing exercisable by a Children’s Court under the Child Welfare Act include the powers derived from s 32(2) and s 32(6).

(3) In determining whether the National Court should exercise its discretion to deal with such persons under the sentencing provisions of the Child Welfare Act the following considerations may be taken into account:

(b) the period of the maximum penalty imposable outside the ambit of the Child Welfare Act;

(e) any disparity between the maximum penalty under the Child Welfare Act, s 32(2), and the minimum penalty under the Criminal Code (Ch No 262); and

Igiri Makandu v Edawa Gabale (Unreported judgment, 11 July 1984, No 214 of 1984).

R v Stipendiary Magistrate of the District Court at Port Moresby; Ex parte Secretary for Law [1974] PNGLR 201.

This was a judgment delivered in the course of sentencing three co-accused whose ages ranged from seventeen to twenty-one years on charges of breaking entering and stealing.

PRATT J: I have before me on a charge of break, enter and steal from a store, goods to the value of K128, three young men whose ages I have found to be prima facie, Sebastian twenty to twenty-two years, Gabriel eighteen to nineteen years and Caspar seventeen to eighteen years. Apart from forming my own view on their appearance, based on my experience, I have also accepted certain material on age from both ends of the bar table, and from the magistrate’s estimate contained in the notice of committal. I have mixed up the lot to help me form an opinion under the Evidence Act (Ch No 48), s 92.

All three have pleaded guilty to the offence, which was committed within the area of the larger village of Warapu from which they come. The premises were used by a resident businessman as a trade store and access was obtained by Sebastian cutting the tie ropes in the sago roof and after entry, by opening a window for Gabriel and Caspar. They then removed a number of trade goods such as shirts, shorts, soap, knives, oil and so forth. No food was taken.

A reading of the depositions has satisfied me that it is proper to accept the plea. Mr Aeava for the three accused has indicated that he has no application to make for the matter to go to trial. The evidence is quite overwhelming. Apart from police records of interview, we have the statements made by the accused to the Village Court Chairman, who, with other villagers, had originally put two and two together and discovered the main suspects (or most of them). If you are a village teenager without a cash income, you don’t suddenly sport a sparkling new hunting knife or bright colourful laplap without arousing suspicions in the absence of some convincing explanations. If you are fortunate enough to have a fairy godmother everyone will know about that anyhow.

The penalty for this offence is now a minimum of five years imprisonment with hard labour. Not surprisingly, counsel has asked me to deal with the prisoners as if I were sitting as a Children’s Court under the Child Welfare Act (Ch No 276). Section 32(5) of that Act reads as follows:

“Where a Court other than a Children’s Court deals with an offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a person over the age of 16 years but under the age of 21 years, the court may, where it thinks it for any reason desirable:

(b) exercise in relation to him, the powers of a Children’s Court under Subsection (2);

and an order made in the exercise of those powers has effect as if it were an order of the Children’s Court.”

Pausing here for a moment, it is as well to remind myself, that the subsection requires three distinct decisions, before I am allowed to utilise its provisions in favour of the three accused presently before me:

(2) A decision that the law allows the present accused to be dealt with under this section since the introduction in 1983 of minimum penalties. It is this decision which forms the basis of the reasoning in the present judgment.

(3) A decision as to whether my discretion should be exercised in favour of the three accused, assuming that in law I may be able to do so under point (2).

When the minimum penalty legislation was first brought down, one of the many oversights occasioned by the haste surrounding the political exercise, was a failure to appreciate that the minimum penalty legislation would apply even to children dealt with for such offences in the Children’s Courts. Five years was the minimum for this kind of offence whether over or under sixteen. At the end of the year, Parliament introduced an amendment to s 32 of the Child Welfare Act, as follows:

“(6) A Children’s Court is not bound by a minimum penalty prescribed for an offence dealt with by it and may disregard the minimum penalty prescribed in imposing a penalty.”

From where then, does a duly constituted Children’s Court obtain its powers to sentence. The answer can only be s 32(2). Being such a court it has “all the powers and authorities possessed by a District Court”, (s 32(1)(a)), and may, where a child is charged with any indictable offence not punishable with death or life imprisonment, hear the matter summarily in the manner set down under the Child Welfare Act (Ch No 276). Where guilt is determined the court may impose a penalty under s 32(2), namely, a fine not exceeding the sum of K100 or imprisonment to the maximum of six months. It also has other powers, including a discretion to avoid recording a conviction, but these areas do not concern me in the instant case.

One might have thought that when considering the introduction of the new subs 6 (to avoid the minimum penalty legislation) some increase in the maximum penalties under subs 2 would have been introduced, at least to the extent of doubling the fine and the maximum imprisonment and perhaps making them cumulative rather than in the alternate. Apparently, Parliament did not intend this to be done, despite the fact that the Children’s Court could deal with any offence on the statute books (leaving out the exotic) barring murder and rape. Nor did Parliament reduce the age from twenty-one. We are obliged by long tradition and practice under the rules of legal interpretation to assume that Parliament is thoroughly conversant with the legislation already on the statute books. I believe this deliberate omission in the legislation carries consequences relevant to the subsequent interpretation which I now place upon subs 6.

At first blush one would perhaps be forgiven for thinking that where the legislation talks about the powers of a Children’s Court and the powers of a court other than a Children’s Court exercising such powers under subs 2 one was talking about the same thing so far as the young defendant before the court is concerned. Obviously the National Court has greater powers and jurisdiction than an ordinary Children’s Court, but if it takes it upon itself to act like a Children’s Court, that is to become such a court to all intents and purposes in the case before it, then the National Court will be bound by all the limitations placed upon a Children’s Court as well as the advantages. However, both Miss Maunsell for the prosecution, and Mr Aeava have made helpful submissions on a decision of Bredmeyer J in John Worofang v Patrick Wallace [1984] PNGLR 144. In that case his Honour found that although the magistrate had power, that is jurisdiction, to hear the charge it would have been improper for him to have proceeded under the Child Welfare Act. At 146 of the judgment his Honour says:

“The offence under s 395(1) is a minimum penalty offence and I consider that s 35(6) of the Child Welfare Act means that when the District Court deals with a minimum penalty offence and the defendant is aged sixteen to twenty-one, it has no alternative but to impose the minimum penalty. That is so because of the application of the expressio unius personae vel rei, est exclusio alterius rule (the express mention of one person or thing is the exclusion of another). The express mention in subs (6) of a Children’s Court and the failure to mention other courts referred to in subs (5) means that these other courts are bound to apply the minimum penalties to youths aged sixteen to twenty-one. I consider that when the District Court (or National Court) is dealing with an offender aged sixteen to twenty-one and the offence is a minimum penalty one, it is required to impose the minimum penalty subject to s 138 of the District Courts Act.”

His Honour was not considering a case on the powers of the National Court, as the matter before him was one on appeal from the Magistrate’s Court. The reference to the National Court in the passage just quoted above has nothing to do with the ratio decidendi of the decision and what I have to say now has nothing to do with the powers of magistrates be they grade V or otherwise.

After dealing with counsel’s submission on R v Stipendiary Magistrate of the District Court at Port Moresby; Ex parte Secretary for Law [1974] PNGLR 201, Bredmeyer J, goes on to say (at 146) that “subs (5) does not give jurisdiction to a court but rather it gives special powers to punish youths aged between sixteen and twenty-one to a court which already has jurisdiction”. It seems to be more accurate to describe the position as one where the subsection brings these persons between the age of sixteen and twenty-one within the jurisdiction of a court which otherwise could not have dealt with them under the sentencing provisions of the Child Welfare Act.

Miss Maunsell lays great stress on the fact that the legislation has distinguished between a Children’s Court on the one hand and courts other than the Children’s Court on the other. But if the court other than the Children’s Court is exercising all the powers of the Children’s Court under subs (2), and when the Children’s Court in exercising that power under subs (2) is told in subs (6) that it is not bound by the minimum penalties legislation, it seems reasonable to me that such “power”, coming via subs (2) (for there is no other part of the Act giving power to sentence) must be taken in conjunction with the power under subs (6) to disregard the minimum penalty.

As the Supreme Court said (at 206) in R v Stipendiary Magistrate of the District Court at Port Moresby, “Subsection (4) in its plain terms authorises only the exercise of the penalty provisions of subs (2) and does not import the jurisdiction conferred on a Children’s Court under subs (1).” The same observation clearly applies to subs (5). It is obviously necessary for the draftsman in subs (4) to state that any order has the same effect as one issued by the Children’s Court. Likewise in subs (5) where he intends to deal with “a court other than a Children’s Court”, it is obviously necessary for him to specify the area he wishes to cover for it is to those other courts that the jurisdiction and powers of the Children’s Court are to be given, and it is under these subsections that the powers are transferred. They, of course, are distinct and separate entities in their own right. Where however, the legislative draftsman refers to a Children’s Court in subs (6) there is no need to refer to courts other than the Children’s Court because the draftsman is referring to the court’s power of sentencing, and both the Children’s Court and other courts have the same powers under subs (2). Consequently, if the additional power in subs (6) flows through to the Children’s Court exercising its powers under subs (2), that being the only source of its original powers, then ergo it follows that such a similar power may be exercised by any court other than a Children’s Court which is exercising the power of a Children’s Court under subs (2). In short, whereas the very content of subss (4) and (5) dictates the necessity to distinguish between Children’s Courts and other courts such necessity does not arise in subs (6). It would be tautologous.

His Honour relies entirely on the application of the maxim of legal interpretation expressio unius. I have always followed the advice that such rule though a valuable servant can be a dangerous master.[i]¹ I have found much greater assistance in Lord Wensleydale’s golden rule that the ordinary words should be given their ordinary meaning.

I believe I am fortified in my interpretation of subs (6) by examining a neighbouring subsection which was not brought to the attention of Bredmeyer J. Section 33(3) reads as follows:

“Where no Children’s Court has been established to exercise jurisdiction under this Act over a particular area, a District Court may exercise in that area the jurisdiction of the Children’s Court under this Act as if it were a Children’s Court.”

There are of course a number of areas in the country where Children’s Courts have not yet been created but in which a magistrate with District Court powers is the working substitute. They deal with children from ages eight to sixteen, some of whom are certainly found guilty of offences which would carry minimum penalties if they were dealt with under the Criminal Code and in the ordinary courts. It seems totally incomprehensible to me that the legislative draftsman would have intended when drawing up subs (6) to exclude such courts and such children. Indeed I would imagine such legislation may well run into trouble with the Constitution. Putting this all another way then, if what Bredmeyer J says is indeed the case, then it follows that in certain parts of the country, that simply because the Children’s Court has not been established some children are going to be dealt with quite savagely and differently from other children. I cannot imagine this is what the draftsman intended. This fortifies my belief therefore that where mention is made of “Children’s Courts” in subs (6) it means those courts which are exercising the powers of a Children’s Court in relation to the matter of sentence.

I understand that Kidu CJ, has ruled on an appeal from a District Court which failed to exercise its jurisdiction under ss 33(3) and 32(5) that it should do so in relation to certain minimum penalty offences: Igiri Makandu v Edawa Gabale (Unreported judgment, 11 July 1984, No 214 of 1984). The offence in that case was unlawfully on premises under the Summary Offences Act 1977, s 22, and the minimum penalty is twelve months. Unfortunately, we do not have the benefit of a written judgment. Further the case was different to mine, in that his Honour was dealing with a person under sixteen years. Also, as Miss Maunsell has emphasised strongly, his Honour was acting in the capacity of a court of appeal which by virtue of the District Courts Act 1963, s 236(1)(e), he may “exercise a power which the court which made the conviction order or adjudication might have exercised” and therefore was not like a National Court acting as a Children’s Court but became a Children’s Court itself for the purpose of making the order. However, I do not accept this comparison completely, for in the ultimate the Chief Justice was still the National Court acting with all the powers of the court below. The Chief Justice did not suddenly become a Children’s Court magistrate. He merely exercised the powers of such a gentleman. I further understand that the decision of Bredmeyer J in Worofang v Wallace, was not brought to the Chief Justice’s attention as it had not then been published.

More in line with my present problem is a case before Kaputin J in Daru last November where the judgment of Worofang v Wallace was referred to and argued. Although I did not have the advantage of reading any reasons for judgment by his Honour, I understand that he refused to follow Bredmeyer J whilst sitting as a National Court.

I have commented on several occasions about the undesirability of judges coming to different decisions on the law in respect of a similar set of facts. If I believed that such a situation had arisen here I would publish my reasons up to this point and would refer the matter of sentence to the Supreme Court under the Supreme Court Act (Ch No 37). However, I do not think a direct conflict has arisen, for Bredmeyer J was not dealing with the application of s 32 of the Child Welfare Act to a matter at trial before him, nor was his Honour referred to the vital s 33 of the Child Welfare Act which I have just mentioned.

For these reasons therefore I not only uphold the second leg of the second submission made by counsel for the defence but rule that I should proceed with the trial. I shall now decide whether or not I should exercise my discretion in favour of the defendants and thus deal with them under the Child Welfare Act.

Bredmeyer J also had something to say about this area in the closing paragraph of his judgment. With respect, I do not think it is helpful to make a blanket statement that “it is unrealistic to argue now that six months sentence would be appropriate”, and thereby completely disregard the individual circumstances of the particular case before the court. If this is “unrealistic” then why has Parliament left the section in. It seems that to treat the matter thus is to put the cart before the horse. The point is, Parliament has deliberately left the penalty section of the Child Welfare Act unamended despite the fact that it has introduced a brand new subsection in the same section a little later on. Rather than being unrealistic I believe the legislature has returned a small amount of judicial discretion to the judiciary albeit it be limited to the young only. Concerning his Honour’s comments about what was in the minds of Parliament or the public when the legislation went through I would not be prepared to hazard any observation. There was certainly a considerable amount of political grandstanding at the time.

Nevertheless, I agree with his Honour that the nature of the offence and the period of the maximum penalty imposable outside the ambit of the Child Welfare Act are important factors in deciding whether to deal with the prisoner under the more lenient provisions. Further, I think that the closer the defendant is to the age of twenty-one the less chance that person has of being dealt with under the Child Welfare Act, especially if he has been acted by himself, or he has been shown to be very much the leader of younger accomplices. On this latter aspect however, one must also bear in mind the feeling of injustice created both in the mind of the defendant and that of any other fair thinking person where greatly disparate sentences are handed down. In the present case the disparate sentences would be that two of the prisoners obtained six months plus the four months they had already spent in prison, namely, ten months, whilst the eldest of the three would be receiving the minimum five years, if I refuse to deal with him under the Child Welfare Act purely because of his age.

I think it is also necessary to rethink the rule that the imposition of a maximum penalty is reserved for the worst type of offence, in circumstances such as the present where you have under s 32(2): (a) a penalty which covers a very wide range of offences indeed; (b) the type of offence actually being dealt with by the court is quite a serious one; and (c) there is a large gap between the maximum penalty under s 32 and the minimum penalty under the Criminal Code. I do not think it is permissible to dismiss the use of s 32(2) merely because of the general principle on maximum penalties.

In the present case there is one single factor which has had a great deal of effect indeed on my decision as to what course to follow and that is the fact that this whole incident took place within a village community and that when the young men finish their sentence they will be going straight back into that village community with all its subtle and unsubtle pressures, its constant supervision and observation by its members, the boys might again be tempted to overstep the mark. The fact that I cannot impose any good behaviour bond in circumstances such as this where the persons come from a village environment does not cause me any concern because in my view the elders in the village, not to mention relatives, will be a greater surety that strayers will toe the line than any bond handed down by this Court. Certainly, I accept that such elders would not have any legal powers to enforce their views, but there are other ways in which the village people can bring pressure and influence to bear on those of their members who need keeping in check. What is missing from the lives of the drop-outs in large towns where a lot of our break and enters occur, is very much present within the village community. There is a great deal more influence and pressure which can be brought to bear on people within the true village community than you will find can be applied in the urban and citified atmosphere. There may be some reservations to such a proposition if applied to certain areas of the Highlands these days, but I am not concerned with that problem here.

The other major factor which has influenced me is one which keys into the first — the ownership of the property. In this case the owner was more or less an integral member of the community from which the theft took place. When the three prisoners return home they are going to be the subject of careful scrutiny for some time, and at least until they have proved themselves as reliable and honest citizens again. When property is from outside the group, eg from the the town of Moresby and brought into a nearby village, then people usually do not feel personally involved. It is this aspect of personal involvement of the whole village which will help ensure a following of the straight and narrow.

Another factor which has influenced me in deciding to proceed under the Child Welfare Act is the fact that the amount is not great, although no doubt to Mr Hans Pallo, it was certainly of very significant value. What I mean, is that we are not dealing with the amount of a thousand kina or ten thousand kina. There was also some recovery which took place.

A further factor influencing me is that the accused after a little bit of prevarication and stalling did come clean before the village court chairman and the Kiap and made admissions there which they then carried through before the police and again repeated before this Court.

I must say in conclusion it is very sad to see that one reason why this crime was carried out was, in part, because the person owning the property was a refugee. Unfortunately, such attitude is not one confined to Warapu Village or to these three young men or to this country. For some reason, no doubt well known to the psychologists, the successful refugee in any country has always been, to a certain extent, the butt for envy and ill-will. I know it is hard for the people in this area, for they are so close to the border, but it is even harder for the refugee torn away from the land of his ancestors.

In my view the six months which I impose plus the four months they have already served would be an adequate punishment for this type of offence, and would no doubt satisfy everyone involved in the case. I certainly cannot imagine that the village community would think it a good thing that these three young men in the circumstances surrounding their particular crime should be taken away from village life for a period of five years. Nor do I believe anyone in the village will benefit from the loss of productivity by the three for five years.

[i] Per Lopes LJ in Colquhoun v Brooks (1888) 21 QB 52 at 65. In Dean v Wiesengrund [1955] 2 QB 120 at 137 the Court of Appeal acknowledged the danger and in fact rejected the doctrine in the case before them.

Papua New Guinea Law Reports

Rapi, Avera and Aitowa, The State v [1985] PNGLR 23 (11 February 1985)

Papua New Guinea Law Reports - 1985