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Waisopo; ex parte Secretary for Law, Regina v [1974] PGSC 40; [1974] PNGLR 41 (12 July 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 41 - Regina v Waisopo; ex parte Secretary for Law

[1974] PNGLR 41

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

R.

V

WAISOPO, EX PARTE SECRETARY FOR LAW

Port Moresby

Williams J

25 June 1974

12 July 1974

CRIMINAL LAW AND PROCEDURE - Appeal - Appeal against sentence - Application to increase sentence - Matter of such public importance as to warrant leave to appeal - Local Courts Act 1963-1970 ss. 43 (1)[l]1, 44[li]2.

Section 44 of the Local Courts Act 1963-1970, pursuant to which the Secretary for Law may appeal on behalf of a party against a decision of a Local Court where in the opinion of the Supreme Court the matter is one of such public importance that leave to appeal should be granted, is intended to widen the right of appeal conferred by s. 43 thereof in special cases where the Supreme Court is of the opinion that the matter is one of such public importance as to warrant a departure from the general right of appeal conferred by s. 43.

Held

An application for leave to appeal by the Secretary of Law, on behalf of the informant, a police officer, who was not a �person aggrieved� by the decision within s. 43 of the Local Courts Act 1963-1970, against a sentence of six weeks� imprisonment with light labour for indecent assault, where the most that could be said was that the sentencing magistrate, when reaching his decision was influenced by some extraneous conclusions and failed to attach sufficient weight to some circumstances of aggravation, and when the full sentence had been served, was not a matter of such public importance as to warrant the granting of leave to appeal.

Application For Leave To Appeal

This was an application pursuant to s. 44 of the Local Courts Act 1963-1970 for leave to appeal against a sentence of six weeks� imprisonment with light labour imposed by the Local Court at Boroko on a conviction of behaving in an indecent manner towards a female person.

Counsel

L. Roberts-Smith for the applicant.

Cur. adv. vult.

12 July 1974

WILLIAMS J: The Secretary for Law moves pursuant to s. 44 of the Local Courts Act for leave to appeal against a sentence imposed by the Local Court at Boroko on 13th May, 1974, on one Poanam Waisopo on his conviction for behaving in an indecent manner towards another person to wit Mrs. Nicole Feria.

The defendant pleaded guilty to the charge. It was alleged against him that he went to Ward 7 of the Taurama General Hospital and asked the complainant to have sexual intercourse with him, which she refused to do. He then closed the door to her room and indecently assaulted her. She was forcibly held by this defendant and was unable to offer strenuous resistance as she was in a weakened state following an operation. It further appears that he remained in the complainant�s room for a period of several hours.

The defendant was sentenced to imprisonment with light labour for six weeks.

It is contended by counsel for the applicant that this sentence was inadequate and insufficient. It is said that the offence was of a very serious kind attended with circumstances of considerable aggravation and that the purpose in seeking leave to appeal is to have the sentence increased.

The informant is a member of the police force. Ordinarily a right of appeal from a decision of a Local Court is conferred only upon a �person aggrieved� by the decision (s. 43 (1) of the Local Courts Act). It was conceded by counsel for the applicant, that the informant in this case is not a �person aggrieved� and has no right of appeal. However, s. 44 provides that the Secretary for Law may appeal on behalf of a party against a decision of a Local Court where in the opinion of the Supreme Court the matter is one of such public importance that leave to appeal should be granted.

The party on whose behalf the Secretary for Law desires to appeal is the police informant who himself has no right of appeal. It may be argued that s. 44 has no application to a case where the party whom the Secretary proposes to represent has no right of appeal. However, I think the better view is, as contended by counsel for the applicant, that s. 44 is intended to widen the right of appeal conferred by s. 43 in special cases where the Supreme Court is of opinion that the matter is one of such public importance as to warrant departure from the general right of appeal conferred by s. 43.

It is surprising that there appears to be a dearth of authority on the phrase �matter of such public importance that leave should be granted� appearing in s. 44. So far as I have been able to ascertain the question has not previously been considered in this Court.

For the applicant it is argued that the offence was, having regard to the surrounding circumstances, of an aggravated nature and which warranted a sentence near to the maximum sentence provided by law, viz. six months� imprisonment. It is said that the matter is of public importance from two aspects, first because the sentencing magistrate applied some wrong principle in arriving at the sentence, attached weight to extraneous matters or failed to give due weight to relevant matters, and that it is important that the magistrate should be corrected for his guidance and that of other magistrates in future cases. Secondly, the circumstances surrounding the offence are relied on. I understand the latter submission to involve the proposition that inadequate punishment for serious offences may tend to bring about lack of public confidence in the due processes of the law.

It appears that the defendant had a prior conviction for drunkenness but no prior record of offences of the kind with which I am now concerned. From the magistrate�s report to this Court it appears that the factors influencing his decision were that there was no evidence of the nature of the operation which the complainant had undergone, and that the defendant was out of work, neither of which matters appear to have any relevance. He thus seems to have been influenced by extraneous matters, and, looking at all the surrounding circumstances, it may be said that the sentence was too light.

However, to so conclude does not, to my mind, determine the matter. I do not think it either necessary or desirable to attempt an exhaustive statement of the considerations which should be regarded as justification for granting leave to appeal under s. 44. I am, however, of the opinion that the circumstances of this case are not such as to warrant the grant of leave.

It seems to me that the applicant�s case can be put no higher than that the magistrate, when reaching his decision, was influenced by some extraneous conclusions and failed to attach sufficient weight to some circumstances of aggravation. I cannot see that any matter of principle is involved whereby this Court, upon the hearing of an appeal in this matter, could lay down principles for the guidance of Local Courts in future cases. The general principles relating to sentencing have been stated on many occasions. In sentencing regard must always be had to the circumstances surrounding every particular case and I think that the most that can be said in this case is that upon the facts of it a higher sentence was warranted. Further, having regard to the permissible maximum sentence in this case, I do not think that the sentence imposed was such as to produce a sense of public outrage.

There is a further consideration that the defendant has served the sentence imposed and was released several days before this application was made. It seems to me that if leave to appeal was granted the Court, on the hearing of the appeal, would, if it reached the conclusion that the sentence was inadequate, be loath indeed to impose a greater sentence the effect of which would be that the defendant, having served the sentence originally awarded, would again be apprehended to serve some further term.

For the foregoing reasons I refuse the application.

Application refused.

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