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Simi v Bayam [1980] PGNC 72; [1980] PNGLR 300 (18 September 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 300 - Michael Simi v John Bayam�

[1980] PNGLR 300

N257

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MICHAEL SIMI, RAPHAEL JOHN SIMI, CHARLIE TURAMI, JOHN TUVORI AND NICKSON WASIMBOK

V

JOHN BAYAM

Wewak

Kearney DCJ

12 September 1980

18 September 1980

CRIMINAL LAW - Appeal against sentence - Three summary charges - Single course of criminal conduct - Presence on premises without lawful excuse followed by immediate stealing - Punishment to be imposed only for stealing - Punishment in excess of prescribed maximum invalid.

CRIMINAL LAW - Practice and procedure - Information and indictment - Single course of criminal conduct - Summary charges laid - Duty of charging authority - Duty to lay charge for most serious provable offence constituted by facts.

Five persons, all first offenders, who broke into a government store by removing and damaging in the process security wire and stole therefrom goods to the total value of K63.60, were each charged with, convicted of and sentenced for, three separate offences arising out of that conduct, namely: (1) being on premises without lawful excuse contrary to s. 20 of the Summary Offences Act 1977, sentenced to six months� imprisonment (maximum penalty prescribed for first offenders three months); (2) damaging property without lawful excuse contrary to s. 47 of the Summary Offences Act 1977, sentenced to six months� imprisonment concurrent on six months for (1), (maximum penalty prescribed three months); and (3) stealing goods to value of K63.60 which was dealt with summarily under s. 432 of the Criminal Code, sentenced to six months� imprisonment cumulative on previous sentences (1) and (2), (maximum penalty prescribed six months).

On appeal against validity and severity of sentences:

Held

N1>(1)����� Semble. Where facts or circumstances indicate that more than one criminal offence may have been committed it is the duty of the charging authority to lay a charge for the most serious offence constituted by the facts which they believe they can prove;

N1>(2)����� Where a person comes on premises without lawful excuse and immediately steals, it is unjust to punish him for both those offences;

N1>(3)����� The magistrate had no jurisdiction to impose sentences of six months� imprisonment, in respect of the offences contrary to s. 20 and s. 47 of the Summary Offences Act 1977, and those sentences should be set aside;

N1>(4)����� No punishment should be imposed for the offence of being unlawfully on premises;

N1>(5)����� A sentence of three months should be imposed for the offence of damaging property;

N1>(6)����� The sentence of six months imposed on the charge of stealing should be affirmed, and should be cumulative on the sentence of three months.

Appeals

These were appeals against sentences imposed on five persons, in respect of three separate offences arising out of the same incident.

Counsel

C. Bruce, for the appellants.

Cur. adv. vult.

18 September 1980

KEARNEY J: Towards midnight on 18th February, 1980, the five appellants broke into the government store at Maprik. They did so by removing security wire, damaging it in the process. Having broken in, they stole tins of fish, biscuits and other goods to a total value of K63.60.

The police located and arrested them all the next day. Two days later they appeared in the District Court at Maprik, each charged with and pleading guilty to the following three offences arising out of their conduct described above:

N2>(1)����� Being on the premises of the government store without lawful excuse. This is an offence under s. 20 of the Summary Offences Act 1977, and carries a maximum punishment of three months� imprisonment for a first offender. The appellants were each treated as first offenders, convicted, and sentenced to six months� imprisonment with hard labour.

N2>(2)����� Damaging the security wire at the government store without reasonable excuse. This is an offence under s. 47 of the Summary Offences Act 1977, and carries a maximum punishment of three months� imprisonment. The appellants were each convicted and sentenced to six months� imprisonment with hard labour, to be served concurrently with the sentence imposed in respect of offence (1) above.

N2>(3)����� Stealing certain listed goods, valued at K63.60 from the government store. Stealing is an indictable offence under s. 384(1) of the Criminal Code, but the circumstances of this particular crime were such that it could be dealt with summarily, under s. 432 of the Code. The magistrate dealt with the charges summarily, and no objection is taken to his doing so. The offence carries a maximum punishment of six months� imprisonment with hard labour, on summary conviction. The appellants were each convicted and each sentenced to six months� imprisonment with hard labour, to be served cumulatively upon the sentences imposed in respect of the offences in (1) and (2) above.

Thus the total length of time for which they were to be imprisoned, was twelve months.

On 22nd July, 1980, they appealed. They contend that each of the three sentences were manifestly excessive, and that the magistrate had erred in law in imposing sentences of six months� imprisonment, in respect of offences (1) and (2) above.

On the facts of this case as they knew them, the police should not have laid charges of being unlawfully on premises, damaging property and stealing. Each of the appellants should instead have been charged with the single, far more serious, indictable offence of breaking, entering and stealing, under s. 410(a) of the Criminal Code; that offence carries a maximum punishment of fourteen years� imprisonment with hard labour. It is the duty of the police to lay a charge for the most serious offence constituted by the facts they reasonably believe they can prove. When the �statement of facts� was read out to the magistrate, in the course of dealing with the first charge, he should have drawn to the attention of the police prosecutor that the facts being alleged appeared more properly to found a charge for the indictable offence of breaking, entering and stealing under s. 410 of the Code, and that an information charging that offence should be laid, in substitution. On such information the proceedings would have been committal proceedings. Attempting to deal with serious criminal behaviour by artificially splitting up what is really one course of conduct, so as to enable a District Court to deal with it on the spot, is wrong, and leads to the kind of difficulty experienced with this appeal. It is far too late now to deal with this case as it should have been dealt with in February; the appellants have already been punished for what they did, and cannot be punished twice.

It is clear that where a person comes on to premises without lawful excuse, and immediately steals, it is unjust to punish him for both those offences. I apply that principle here, and I consider that, as between these two offences, the appellants should be punished only for the stealing.

It is clear that the magistrate had no jurisdiction to impose sentences of six months� imprisonment, in respect of offences (1) and (2) above, and those sentences must be set aside.

As to the offence of stealing, it is true that the maximum permissible punishment of six months was imposed, but the circumstances of the case were such that it was fully warranted, as being as bad an example of that offence as is commonly met in practice. The appellants were of course fortunate that they were not charged for the more serious offence constituted by the facts they admitted. Similarly a maximum sentence was warranted for the offence of damaging the security wire.

In the result the appeals should be allowed in part, the grounds of appeal (other than that the sentence for stealing was excessive) having been established, and there having been a substantial miscarriage of justice.

The sentence of six months imposed for being unlawfully on the premises is quashed and set aside. No punishment should be imposed for that offence.

The sentence of six months imposed for damaging the security wire, is quashed and set aside, and in lieu thereof, a sentence of three months� imprisonment with hard labour is imposed.

The sentence of six months imposed for stealing is affirmed, and should be served cumulatively upon the sentence imposed for damaging the security wire.

The appellants were sentenced on 21st February, 1980. It appears that they were released on bail, pending the hearing of their appeal, on 18th August, 1980. So they have served almost six months of the terms then imposed upon them. By virtue of these appeals those terms now total nine months commencing on 21st February, 1980. They should now serve out the balance of those terms, a matter of three months and two days; they will be due for discharge on 19th December, 1980.

Orders accordingly.

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