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Tolulu v Tobing [1964] PGSC 30; [1964] PNGLR 248 (20 July 1962)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 248 - Tolulu v Henry Tobing

[1964] PNGLR 248

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TOLULU

V

HENRY TOBING

Port Moresby

Smithers J

20 July 1962

STATUTE - Native Administration Ordinance 1921-1951 - Liability for Local Government Council tax - Sentence - Whether manifestly excessive.

It is not valid to punish an accused, who has not been shown to have had mala fides, in order to discourage mala fides on the part of others. Nor should the absence of bona fides on the part of an accused necessarily result in imprisonment. Each case must be considered in relation to its own circumstances.

The appellant was convicted of failure to pay a Local Government Council tax (of �4) without reasonable cause within a period of 15 days of its becoming due. Liability for the tax depended upon the appellant having been resident in the Council area for a particular period. The appellant contended that he has not been so resident despite the fact that he spent a major portion of the relevant period within the area. This contention having been rejected by the Magistrate a sentence of four months� imprisonment was imposed.

Held:

N1>(1)����� In order to justify interference by this Court with the sentence of the magistrate in a case of this nature, it must appear either that the magistrate acted upon a wrong principle, or allowed extraneous matters to affect him.

N1>(2)����� Where it does not otherwise appear it may be inferred that the magistrate so acted if, upon the facts, the sentence is unreasonable or plainly unjust.

N1>(3)����� That, in this case, the weight given by the magistrate to the consideration of the effect of his decision on the possible actions of other persons was so out of proportion to the offence proved that it constituted the adoption of a wrong principle and caused the magistrate to misconceive his function.

N1>(4)����� That the sentence was also, on the facts, unreasonable and plainly unjust.

Per Curiam:

It is not in accordance with justice according to law, that persons should be deterred by fear of punishment from raising for consideration by the Court matters, and even doubtful matters, which may go to the issue of their liability. The penalty in this case tends in that direction.

Counsel:

Barnett, for the appellant.

Reitano, for the respondent.

SMITHERS J:� This is an appeal brought before this Court pursuant to Rules made under the Native Administration Ordinance 1921-1951 section 3.

On the 30th day of April, 1962, the accused became liable to pay to the Vunadadir Local Government Council the sum of �4 as Council tax. His liability arose because he had resided within the Council area during the requisite period of the year in respect of which the tax was payable.

Some fifteen days after the tax became due by him the accused found himself charged with a criminal offence under Clause 81 (1) of the Native Local Government Councils Regulations 1950 as amended in that being liable to pay the tax he had failed to pay it without reasonable cause, the proof of such reasonable cause being upon him. For this offence the maximum penalty which might be imposed upon him was a fine of �50 or imprisonment for six months.

He might have been sued for the tax by way of civil action but the informant had chosen to proceed by way of prosecution.

At the hearing the accused contended that he was not liable for the tax. He said that he did not reside in the Council area but at Viveran.

He relied upon the fact that Viveran was his original home and he contended that he still lived there. He had an interest in some coconuts there and he had lived there for a week at a time on a number of occasions during the year. He said, �My true business or work, that is coconuts, is at Viveran.� He conceded that he was to be found at Tavaka for the greater part of the year by far, but his contention was that while living there he was away from �home�, because his attendance at Tavaka was merely for temporary purposes and incidental to certain work which he carried out to assist an old man named Topalina, but in which he had no ultimate beneficial interest.

On the evidence the magistrate was entitled to find beyond reasonable doubt that the defendant resided at Tavaka during the relevant period and he so found and no doubt correctly so.

The magistrate convicted the appellant and sentenced him to be imprisoned for four months. The appellant does not appeal against the conviction but does appeal against the sentence on the ground that it is excessive. In my opinion it is out of all proportion to the offence and must be set aside. A modest fine was the most which should have been inflicted for this offence.

The appellant has served sixty-seven days in gaol and he should be released immediately.

The explanation for the sentence is to be found of course in the desire of the magistrate to facilitate the collection by the Council of tax due to it. He desired to discourage people whose true residence was in the Council area from purporting to reside outside the Council area by living for part of their time out of the area.

Thus before sentencing the appellant he said to him. �If your attitude was copied by other people the Council would find it hard to work�. In amplification of this sentence the magistrate has stated that he considered the sentence appropriate punishment �having regard to the accused�s action in moving in and out of the Council area and claiming outside residence, a practice which if allowed to continue could be exploited by a great many Council members who have land and relatives in non-Council areas.

It is quite clear that in fixing the penalty the magistrate gave weight to that aspect of punishment which is directed to deter other persons from committing similar crimes. Everything must, however, be kept in proportion. Usually the deterrent purpose of punishment is adequately served if proper regard is had to the nature of the offence and the circumstances in which it was committed.

The nature of this offence is the failure to pay a debt of �4 without reasonable cause within a period of fifteen days of its becoming due. Non-payment of debts is not normally a criminal offence at all.

In considering the nature and circumstances of this offence it is necessary to take into account the reason for non-payment of the debt. It is one thing for a man stubbornly to refuse to pay a debt that he acknowledges to be one but it is particularly distasteful to the law that a man should be punished criminally, and more so that he be punished severely, for non-payment of a debt which he bona fide contends he does not owe.

In this case the defendant did content that he did not owe the money. He did not do this by artifice or by tampering with evidence. He gave evidence and called a witness to substantiate his own evidence which was substantially in accord with that called against him. His contention may have been wrong but it was not such that it is to be characterised as frivolous or fraudulent. To the mind of the appellant, untrained in the law, and without legal assistance it was probably far from frivolous.

The idea that a man may have residence in two places during a particular period may not be acceptable to every mind. The magistrate does not suggest that in making his contention the defendant was not serious or lacking in bona fides. It is not shown nor reasonably to be inferred that non-payment was part of some active civil disobedience conspiracy. In the absence of a real suggestion that the defendant was engaged in a conspiracy designed to cheat the Council the �crime� is a very mild one.

The most that appears is that the magistrate thought that the conduct of the defendant in spending part of his time outside the Council area and part within it might be copied by other persons with a view to avoidance of payment of tax. But even in this respect it must be recognised that it is not unlawful for a citizen so to order his affairs that tax is not incurred by him. If therefore, persons should cease to be residents by moving in and out of the Council area, that would be a matter for the legislature.

It must also be remembered that although it may cause inconvenience to the Council it is quite lawful for the people to move in and out of the area as and when they desire for work, pleasure or whim.

The statement of reasons by the magistrate may be consistent with a recognition of this because he appears to have been influenced materially by the fact that the appellant, being a person who moved in and out of the area, actually claimed immunity from tax on that ground. But this is a line of approach which should be taken most warily if at all. If facts exist upon which a person desires to rely as a ground of immunity from liability, the only place where the issue can be resolved is in a Court. An important function of the Court is to act as a clearing house in respect of points which people so desire to raise and have settled.

It is not in accordance with justice according to law, that persons should be deterred by fear of punishment from raising for consideration by the Court matters, and even doubtful matters, which may go to the issue of their liability.

This penalty tends in that direction.

No doubt the magistrate had in mind persons who might act without good faith with a view to cheating the Council. However, as this case was not shown to be a case mala fides it was not valid to punish this appellant to discourage mala fides on the part of others.

In this connection I do not wish it to be understood that it is my view that in a case where a tax-payer has acted without bona fides in moving in and out of the area and denying his liability, the case would be one for imprisonment. Each case must be considered in relation to its own circumstances.

Errors in the quantum of punishment are always possible when the case of the single offender is chosen as an occasion for the instruction, in terrorem, as it were, of the many; clarity of judgment may be impaired when the Court lifts its eyes from the offender before it and gazes too intently at the multitude of possible offenders at large.

Punishment should be measured primarily by the wickedness of the individual before the Court. This appellant was a person whose conduct was isolated and not mala fide. It did not appear to be part of any active civil conspiracy. He really did live at Viveran for part of his time and with that place he had an old and genuine and continuing residential relationship and commercial connection. He had a point of law to make out of that. It was also relevant that the defendant had no prior convictions and that he appeared to be a person of good character and a good worker. In addition, his debt was very little overdue and punishment did not relieve him from liability for the tax.

In order to justify interference by this Court with the sentence of the Court below in a case of this kind, it must appear either that the magistrate acted upon a wrong principle, or allowed extraneous matters to affect him.

Where it does not otherwise appear it may be inferred that the magistrate so acted if, upon the facts, the sentence is unreasonable or plainly unjust.

In my opinion the weight given by the magistrate to the consideration of the effect of his decision on the possible actions of other persons was so out of proportion to the offence proved that it constituted the adoption of a wrong principle and caused the magistrate to misconceive his function.

I am also of opinion that upon the facts the sentence was unreasonable and plainly unjust.

It is regrettable that an apparently decent family man has been incarcerated for sixty-seven days when he should not have been sent to gaol at all.

This unfortunate event is the result of ignorance on the part of the accused, lack of legal assistance, and of the delay which almost inevitably attended the discovery by executive officers of the existence of grounds for appeal.

It was only by the generous co-operation of the Crown authorities with the Public Solicitor since the appeal was mooted, that it has been possible to relieve this man of the balance of his sentence.

The practical difficulties attending efforts to avoid these delays are easy to appreciate. The possibility of devising relieving measures is, no doubt, constantly in the minds of the relevant authorities. It would obviously help, however, if persons charged with offences where they are in peril of substantial periods of imprisonment had legal assistance.

For the reasons set out above I allow the appeal; set aside the sentence and order the immediate release of the appellant.

Appeal upheld.

Sentence set aside.

Solicitor for the appellant: J. G. Smith, Acting Public Solicitor.

Solicitor for the respondent: S. H. Johnson, Crown Solicitor.