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Kekai v Munagun [1984] PNGLR 5 (19 January 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 5 - Peter Kekai v Munagun�

[1984] PNGLR 5

N453

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PETER KEKAI

V

MUNAGUN

Waigani

Kapi DCJ

10 January 1984

19 January 1984

CRIMINAL LAW - Sentencing - Minimum penalty prescribed - Discretion to impose fine - Fine inadequate - Minimum penalty provision applicable - District Courts Act 1963, s. 206 - Summary Offences Act 1977, s. 6.

INFERIOR COURTS - District Courts - Sentencing powers - Minimum penalty prescribed - Discretion to impose fine - Fine inadequate - Minimum penalty provision applicable - District Courts Act 1963, s. 206 - Summary Offences Act, 1977, s. 6.

Under s. 6 of the Summary Offences Act 1977, the offence of unlawful assault carries a minimum penalty of not less than six months� imprisonment.

On appeal against the imposition of the minimum penalty for an offence of a sexual nature.

Held

(1)����� Where a magistrate considers a fine to be appropriate he may exercise his dispositive discretionary power under s. 206 of the District Courts Act 1963.

Henry Tuk v. First Constable Gori [1983] P.N.G.L.R. 420; Laho Kerekere v. Robin Miria [1983] P.N.G.L.R. 277; and The State v. Danny Sunu and Ors [1983] P.N.G.L.R. 396, applied.

(2)����� Where a magistrate considers that a fine would not be an adequate punishment he is bound to impose at least the minimum penalty under s. 6.

(3)����� In the circumstances the magistrate had not fallen into error in concluding that the monetary fine was not an adequate punishment for the offence and the sentence should be confirmed.

Appeal

This was an appeal against sentence on the ground of severity.

Counsel

D. Koeget, for the appellant.

P. Boyce, for the respondent.

Cur. adv. vult.

19 January 1984

KAPI DCJ: This is an appeal against a decision of the District Court. The appeal is against sentence only on the ground of severity. The appellant was charged with unlawful assault under s. 6 of the Summary Offences Act 1977. This offence was committed after the minimum penalty provisions came into force. The minimum penalty for assault is not less than six months� imprisonment. It has been held by this Court and the Supreme Court that the minimum penalty provisions do not oust the alternative remedies open to a magistrate under s. 206 of the District Courts Act 1963; see Laho Kerekere v. Robin Miria [1983] P.N.G.L.R. 277, Henry Tuk v. Gori [1983] P.N.G.L.R. 420, and see The State v. Danny Sunu [1983] P.N.G.L.R. 396 on the effect of the minimum penalty provisions on s. 19 of the Criminal Code (Ch. No. 262). Under s. 206 of the District Courts Act, it was open to the learned magistrate to impose a fine if he considered it appropriate. There is a latter amendment to this discretion but it is not relevant in this case.

The learned magistrate in this case considered this discretion and came to the view that a fine would not be an adequate punishment. Having come to this conclusion, he was bound to impose the six months� imprisonment term under s. 6 of the Summary Offences Act.

It is a well-established principle of law that the exercise of discretion on sentence cannot be disturbed on appeal, unless there is some error either in law or on the facts. The question in this case is, did the magistrate fall into error when he came to the conclusion that a monetary fine was not an adequate punishment for this offence?

Counsel for the appellant relied heavily on the fact that the magistrate in his finding found that the assault consisted of an assault on the private parts. He conceded that if the reference to private parts meant the vagina, then the sentence would not be excessive. He submitted that the magistrate did not expressly find that this was as assault on the vagina, therefore the magistrate must have meant the breasts. He submitted that this is not as serious as an assault on the vagina. He submitted therefore, that such a case would warrant a fine, rather than the minimum penalty under the Summary Offences Act.

I find that the submission cannot succeed. There was no suggestion that the reference to private parts in the lower court was a reference to the breasts. The words �private parts� are normally used to refer to the sex organs. Reading the whole of the evidence, this was what this case was all about, that is, assault on the vagina.

I find that this was a serious assault. It was of a sexual nature and it was committed in public. I also find that it was a deliberate assault. The appellant, in the lower court, claimed that it was an accident, however the learned magistrate rejected his evidence and I note that the appellant has not appealed against the finding of the magistrate.

The magistrate in this case is an experienced magistrate. He has been in Port Moresby for many years and knows the local circumstances.

There has been an increase in assaults of a sexual nature on females in this city. Females are harassed and they must be protected. I find that when the learned magistrate considered this case, he had these matters in mind. It is true that this was the appellant�s first offence, and I also accept that there was no serious injury caused to the victim, however this does not reduce the seriousness of this type of offence. In the circumstances I find it difficult to disturb the exercise of discretion by the learned magistrate in coming to the conclusion that a fine is not an adequate punishment. I do not find that he erred in principle.

It follows that the six months� imprisonment must stand. I realise that if I had the discretion, as previously existed in the law, I would have imposed a term of much less than six months. This is beside the point. I must apply the law as directed by the Parliament. I cannot allow my disagreement with the policy of the law to affect my discretion on the question of a fine. That is to say, if I do not agree with the minimum penalty, I must impose a fine in order to avoid it. In my view, that would be a wrong exercise of discretion in law. Whether or not a fine is appropriate in the circumstances of this case, the issue still remains the same. It is not affected by the fact that a minimum penalty has been provided for in the Summary Offences Act.

I dismiss the appeal and confirm the sentence.

Appeal dismissed.

Lawyer for the appellant: N. Kirriwom, Public Solicitor.

Lawyer for the respondent: L. Gavara-Nanu, Public Prosecutor.