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Tolna v Ari [1980] PGLawRp 576; [1980] PNGLR 23 (20 March 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 23 - John Tolna v Paul Ari�

[1980] PNGLR 23

N218

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOHN TOLNA AND FOURTEEN OTHERS

V.

PAUL ARI

Mount Hagen

Wilson J

12 March 1980

20 March 1980

CRIMINAL LAW - Sentence - Relevant considerations - Maximum sentence prescribed - Prevalent offence - Close to maximum penalty reserved for bad or serious cases - First offender generally entitled to some leniency - Tariff of experienced magistrates to be guide on appeal.

CRIMINAL LAW - Appeal against sentence - Taking part in unlawful assembly - Prevalent offence - Close to maximum penalty of two years� imprisonment prescribed - Close to maximum penalty to be reserved for bad or serious case - No aggravating circumstances - First offender - Deterrent necessary - Tariff of experienced magistrates to be guide on appeal - Sentence of twelve months substituted for sentence of twenty months - Inter-Group Fighting Act 1977 s. 10.

On appeal by fifteen appellants against the severity of their sentences, each of twenty months� imprisonment with hard labour, on charges of taking part in an unlawful assembly contrary to s. 10(2) of the Inter-Group Fighting Act 1977, (for which the maximum penalty prescribed is two years� imprisonment), it appeared that at a time when tribal fighting was prevalent in the Highlands, the appellants and others whilst armed with bows and arrows took part in an unlawful assembly: there was no evidence that the weapons were actually used in circumstances of aggravation or of the degree of participation of any appellant: each appellant was a relatively mature man and none had any previous relevant convictions.

Held:

N1>(1)����� A penalty close to a maximum penalty should only be imposed if the case is a bad or serious one.

N1>(2)����� When considering an appropriate penalty a first offender is generally entitled to some leniency on account of the fact that he has not been in trouble before.

N1>(3)����� The magistrate had erred in law in failing to give sufficient weight to the principles in (1) and (2) supra, and the sentences ought to be reviewed.

N1>(4)����� Having regard to inter alia, the prevalence of the offence, the need for a deterrent effect and the sentences being imposed by experienced magistrates in the Highlands generally for the offence, each appellant should be sentenced to twelve months� imprisonment.

Appeals.

These were appeals against sentence by fifteen appellants each of whom was convicted of taking part in an unlawful assembly and sentenced to twenty months� imprisonment with hard labour. The maximum penalty prescribed for the offence under s. 10 of the Inter-Group Fighting Act 1977, is two years� imprisonment.

Counsel:

W. Neill and A. Yer, for the appellants.

J Pollack, for the respondents.

Cur. adv. vult.

20 March 1980

WILSON J: In these appeals (which were heard together) each of the several appellants has appealed against a sentence of twenty months� imprisonment with hard labour which each received after being convicted of having on 10th July, 1979, taken part in an unlawful assembly contrary to s. 10(2) of the Inter-Group Fighting Act 1977. The convictions were recorded and the sentences were imposed in August 1979, in the District Court at MinJ The ground of appeal in each case was that the sentence was manifestly excessive.

The penalty prescribed in s. 10 is imprisonment for a term not exceeding two years. It follows that the appellants each received a sentence close to the maximum.

The relevant facts would appear to be that, at a time when tribal fighting was prevalent in the Highlands provinces in general and in the Minj district in particular, the appellants and others took part in an unlawful assembly; They were armed with bows and arrows; there was no evidence that they actually used their weapons or caused any injuries or damage to property; and there were no circumstances of aggravation. There was apparently no inquiry by the magistrate as to the extent to which each appellant participated in the offence; the magistrate apparently did not seek to ascertain whether any, and, if so, which of the appellants was a fight leader.

With reference to the personal circumstances of the appellants, each was a relatively mature man, most of them were married and none had any relevant previous convictions.

Counsel for the appellants did not question the magistrate�s decision to impose a prison sentence for this offence. After all, the offence was prevalent at the time and there was undoubtedly a need to recognize the notion of deterrence.

These appeals have raised for consideration the question of whether a sentence of close to the maximum can ever be justified where the offence is prevalent but where there are no real circumstances of aggravation and the offenders have no relevant prior convictions.

I am led to the conclusion that these sentences of imprisonment require reconsideration. The sentence in each case does not sufficiently conform to the logical extension of the principle of sentencing that the maximum penalty should be reserved for the worst or most serious type of case; the logical extension to which I am referring is that a penalty close to the maximum penalty should only be imposed if the case is a bad or serious one. It does not take much effort to imagine a worse or more serious type of case than the instant one; for instance, if injuries or deaths had been caused and damage done to property or if any appellant had previous convictions for like offences. The sentence in each case does not sufficiently conform to the principle that a first offender is generally entitled to some leniency on account of the fact that he has not been in trouble before.

The magistrate in this case has not given sufficient effect to the two sentencing principles just described and, to that extent, has fallen into error. Accordingly, the appeal against sentence in each case will be allowed and the sentence in each instance will be reduced.

The question now remains for me to decide what sentence should be ordered in substitutiton for the sentence appealed against. In this respect I realize that the term I fix may be seen as the setting of a tariff for offences of this kind. In fixing the term I am guided not by my own views of what might have seemed to me to be an appropriate sentence in the circumstances as they arose but rather by the information which was supplied to me by counsel on both sides as to what experienced magistrates in the Highlands have generally been imposing for this offence. Magistrates may be expected to sentence the vast majority of offenders and they are in a unique position to assess, within the limits of the sentencing process, how best to deal with offenders who contravene the Inter-Group Fighting Act 1977. They are generally in a better position than the National Court or even the Supreme Court �to strike the fine balance between the sometimes competing purposes of punishment� (see Luneme Meuso v. Maiak Nagy[xxxvii]¹). A decision of my brother Andrew on 28th May, 1979, in an unreported case involving eighty-five appeals, is of persuasive authority as to matters of principle, but it is of no assistance as to what is an appropriate term of imprisonment for this offence, because his Honour said: �I do not wish to be seen as laying down any general tariff�. However, in that case his Honour did set some guide-lines for magistrates to follow, when he said:

�... if the maximum penalty is to be reserved for the worst or most serious of cases there must be some enquiry as to how seriously any particular person was involved in the offence; whether, for example, he was a fight leader ... or played a lesser role.... Further, there (needs to be some) enquiry into the individual antecedents of each (prisoner). In my view, considerable care must be taken in dealing with such �mass� cases ...�

Having decided that the sentence of twenty months� imprisonment (five-sixths of the maximum) was manifestly excessive in each case, I propose to reduce the sentence in each case to one of twelve months� imprisonment (half of the maximum). That reduced sentence is a severe or substantial one for a first offender; it is intended to operate as a deterrent; and it is consistent with the intention of the legislature (the purpose of the Act is stated in s. 1 to be, �to discourage fighting between groups of Papua New Guineans� by, inter alia, �the imposition of severe penalties�).

Order of the court in each case:

Appeal allowed, conviction affirmed, sentence reduced to twelve months� imprisonment with hard labour.

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

Solicitor for the respondent: C. Maino-Aoae.

[xxxvii]Unreported, National Court Judgment N.139, 18th May, 1978.