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Toiona v Bryant [1969] PGSC 41; [1969-70] PNGLR 201 (8 May 1970)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 201 - Toiona v Bryant

[1969-70] PNGLR 201

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TOIONA

V.

BRYANT

Rabaul

Frost J

7-8 May 1970

CRIMINAL LAW - Plea - Method of taking plea in translation - Admission - Whether facts amounting to other offences admitted - Effect on sentence.

The appellant with other persons stopped T. in the road and beat him. The appellant was charged under s. 30(a) of the Police Offences Ordinance 1925-1965 (New Guinea) with unlawfully striking T. The proceedings were translated into Pidgin. When the charges were read to the appellant he was unable to plead either guilty or not guilty. He said simply that he had hit T. A plea of guilty was entered against the appellant. A statement of facts prepared by the police which stated in substance that the appellant had been acting in concert with others while they, and the appellant, struck T., was then read to the Court. At this point the appellant repeated that he had struck T. The Court took into consideration the matters raised in the statement of fact, particularly to the statement regarding acts done in concert, and imposed the maximum penalty. On appeal against severity of sentence:

Held:

Allowing the appeal:

N1>(1)����� That the only charge unequivocally admitted by the appellant was a charge of unlawful striking while acting alone.

N1>(2)����� The magistrate was wrong in law in taking into account matters of fact which amounted to a charge that the appellant had acted in concert and to which the defendant did not plead.

N1>(3)����� That the penalty imposed was based on the erroneous assumption that all the matter alleged in the police statement of fact was admitted by the defendant.

R. v. Bright, [1916] 2 K.B. 441; Lovegrove v. The Queen[1961] TASStRp 13; , [1961] Tas. S.R. 106 and Lawrence Sumani v. Numua Biniaoiare (unreported, S.Ct., P. & N.G., 14th Aug. 1969), referred to.

Appeal.

Toiona (the appellant) was convicted by the District Court at Rabaul of unlawfully striking Isimel Towalaka contrary to the Police Offences Ordinance 1925-1965 (New Guinea), s. 30(a), and was sentenced to six months� imprisonment, the maximum penalty provided for the offence. The appellant appealed against the sentence imposed.

The relevant facts appear in the judgment.

Counsel:

Broadley, for the appellant.

Pratt, for the respondent.

8 May 1970

FROST J:� This is an appeal on the grounds of severity of sentence brought by the appellant against his conviction by the District Court at Rabaul for unlawfully striking one Isimel Towalaka, for which he was sentenced to imprisonment for six months. The appellant had already served six weeks� imprisonment before his release on bail more than two months ago.

In support of the appeal, Mr. Broadley submitted that the sentence was excessive for the following reasons:

N2>1.������ The penalty imposed was based on the erroneous assumption by the magistrate that all the matter alleged in the police statement of fact was admitted by the defendant.

N2>2.������ The magistrate was wrong at law in taking into account, on penalty, matters of fact which amounted to charges which had not been brought and to which defendant did not plead.

N2>3.������ The learned magistrate neglected to make inquiry and did not consider matters relevant to sentence otherwise than the police statement of fact and the complainant�s injury.

I find it convenient at the outset to refer to the statement of facts which were alleged against the appellant:

�On this day Isimel Towalaka was driving along the road, when a number of trucks full of people, coming in the other direction, stopped Isimel, the people in the trucks alighted, dragged him from the car, and then proceeded to beat him up. He was left unconscious on the side of the road, and the attackers then departed. The defendant before the Court, was one of three men, who had been identified as having struck Isimel.�

These facts, if true, disclose flagrant breaches of law and order for which, as Mr. Broadley submitted, various charges could have been brought. Thus the three persons identified as being concerned could have been proceeded against on indictment for riot, in that being unlawfully assembled they had acted in so tumultuous a manner as to disturb the peace, and also for an offence that, acting in concert with themselves and others, they had unlawfully assaulted Towalaka thereby occasioning him bodily harm. Each of these offences was punishable by three years� imprisonment. It would also have been open for the authorities to proceed against the appellant or the two other men for the less serious individual offence of either assaulting or striking Towalaka, and thus ignore the element of common design. As on the facts it is not suggested that Towalaka was beaten into insensibility by any single blow, an offence that he caused bodily harm could not have been alleged against the appellant as a circumstance of aggravation, if indictable proceedings had been taken for the individual offence.

In the difficult situation which prevailed at Rabaul last year, no doubt to dispose of the matter promptly, the course taken was to charge the appellant with the summary offence under the Police Offences Ordinance 1925-1965 (New Guinea), s. 30(a), for unlawfully striking Isimel, which was punishable by six months� imprisonment.

In my judgment, there is only one point in this appeal, that is, what was the precise offence with which the appellant was charged, and to which he pleaded guilty, for that is the only offence for which he is liable to punishment. R. v. Bright per Darling J.[ccxliv]¹; Lovegrove v. The Queen[ccxlv]²; Lawrence Sumani v. Numua Biniaoiare[ccxlvi]³.

The charge actually brought could have been so framed as expressly to charge the appellant with others in striking, that is as a joint offence, although such a charge in relation to an act of striking under s. 30(a) is not really appropriate on the facts alleged; so it is necessary to turn to the proceedings to determine the nature of the charge.

The proceedings had to be interpreted into Pidgin. There was thus the usual difficulty in the Territory in taking the appellant�s plea, for he was unable to plead in terms either guilty or not guilty. There was the usual need, particularly as the appellant was unrepresented, in determining precisely what elements of the charge the appellant was admitting.

When charged, the appellant said: �Yes, that is correct. I did hit him.� A plea of guilty was then properly entered against the appellant, but all the plea involved was an admission that the appellant had, acting individually, himself struck Isimel. The brief statement of facts which I have already referred to was then put to the Court. In substance, that statement meant that the appellant was acting in concert with others, whilst such persons, including the appellant, had struck Isimel. The appellant said: �Yes, that is correct. I did hit Isimel.� But the answer is equivocal, and in my opinion cannot be taken as a further admission that the appellant was admitting responsibility for the acts of striking by the others, or that he was acting with others when he himself struck Isimel. I would add that, even if the answer could be taken as an admission of joint responsibility on a charge of unlawfully striking, the prosecution may still have been in difficulty on the ground of duplicity, on the ground that more than one act of striking may thus have been alleged against the appellant. However, this point was not argued by counsel and I do not decide it.

Thus the effect of the plea that the individual offence only was admitted was in no way altered, and as no evidence was called, the nature of the offence was thus determined.

I shall now refer to the considerations taken into account by the magistrate in determining sentence:

�In determining sentence it was considered that the assault was of a serious nature, in view of the fact that a citizen was driving along a public road when he was stopped by a number of people, travelling in trucks in the opposite direction. He was immediately set upon by this mob and dragged from his vehicle, and beaten insensible and left lying on the side of the road. Not one of the persons in the mob gave assistance to the victim, and no consideration was given to the extent of his injuries, which could have been serious.

�Citizens using public roads must be able to do so without fear of attacks from gangs of ruffians and it was considered by the Court that the unprovoked assault on a person using a public road was of a most serious nature and one in which a severe penalty should be imposed.�

It is plain that the appellant was being punished for the totality of acts done by the �mob� in concert and the resultant bodily harm to Isimel which was a different and much more serious offence than the individual offence to which he had pleaded guilty. Indeed, the maximum sentence under the section which was then imposed could not otherwise be supported.

These reasons are not mere technicality, they go to the substance of the charge. I thus uphold Mr. Broadley�s first two submissions. The sentence is therefore excessive and cannot stand.

However, on the undisputed facts, the appellant took advantage of Isimel�s plight and intervened to strike him whilst he was beset by many attackers. In my opinion, the magistrate�s firm approach was justified and it was proper to impose a term of imprisonment, but not any longer term than the period he has already served. I accordingly allow the appeal, substitute for the sentence imposed a term of imprisonment being the period already served by the appellant, and order that the appellant be discharged.

Appeal allowed. Sentence reduced.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.

Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[ccxliv] [1916] 2 K.B. 441, at p. 445.

[ccxlv][1961] Tas. S.R. 106.

[ccxlvi]Unreported, S.Ct., P. & N.G., 14th Aug., 1969.