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Vuga v Ribi [1978] PGNC 4; N141 (16 May 1978)

Unreported National Court Decisions

N141

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 4 OF 1978
BERNARD VUGA
V
THONI RIBI

Rabaul

Wilson J
10 May 1978
16 May 1978

APPEAL - Local Court - statutory offence - practice and procedure - whether statement of facts disclosed an offence - plea of guilty by unrepresented defendant correctly entered - words spoken by defendant inequivocal.

CRIMINAL LAW - unlawfully on premises - s.20 of Summary Offences Act 1977 - what constitutes offence.

CRIMINAL LAW - appeal against sentence - sentencing principles considered - maximum sentence reserved for worst or most serious types of cases - first offender generally entitled to some leniency.

WILSON J: The appellant was convicted in the Kokopo Local Court, East New Britain Province, on 12th December 1977 of an offence known as "unlawfully on premises" - contrary to s.20 of the Summary Offences Act 1977. He was sentenced to 3 months imprisonment with hard labour. ffence was allegedly commicommitted in an enclosed yard of Kabanga Station on 16th November 1977. The appellant serve monthis three months' sentence before being released ased on bail pending the hearing of this ahis appeal.

This appeal is against ction and against sentence. It rgued on behalf of the the appellant that the plea ofea of guilty had been wrongly entered by the Local Court in question, and, as an alternative ground of appeal, it was argued that the sentence imposed was manifestly excessive.

I would allow this appeal and order that this conviction be quashed if I were satisfied that the accused's statement to the Court made following the statement of facts being read to him was equivocal and not an admission of guilt.

From the Court record made available to me it appears that the defendant pleaded "guilty" which plea the Magistrate provisionally accepted. It also appears that thtemtatement of Facts was then read to the appellant. That statewas as follows:

"That on the 16th November, 1977 at Kabanga plantation Kokopo, the defendant Bernard Vuga who is now in court with other defendants into the Cocoa Plantation of the mentioned plantation withowithout the permission of the Manager. When they went into the plantation and the other defendant they stole some Cocoa and the defendant Bernard Vuga he left them and he went home. Later thter wported to polo police by the Manager of the said plantation, and police investigated ited into the matter, later the defendant wrested conveyed to station, where he was interviewed regarding the matter and he did admittdmitted the offence, cautioned charged and placed in the cells."

It is to be noted that according to that statement of facts it was never alleged that the appellant stole anything. That stat of facts makes ikes it clear that it was the contention of the prosecution that all were unlawfully on the premises, but that only the others (i.e. all of them except the appellant) were involved in the theft of some cocoa.

After the statement of facts had been read out, the appellant was given an opportunity to comment thereon. His reply wp>

"Yes true true but I didn't steal any cocoa"

The Magistrate thereupon accepted the plea of "guilty" and entered a ction.

It was argued on behalf of the appellant that that statement was a statement ient indicating his innocence and that the plea of "guilty" was wrongly entered. I took this submissi amountmount to the contention that the appellant's words did not unequivocally point to an adoption by him of each of the elements of the charge. It is true that statement,ment, if madeelation to a charge of stea stealing, would have been equivocal and it certainly was not an adoption by the appellant of each of the nts of the crime of stealing. Hr, it must be reme remembemembered that this charge against the appellant was not stealing but being unlawfully on premises. Thellant's statement in thin the context of the actual charge against him was, in my opinion, unequivocal and it pointed to an adoption by the appellant of the elements of the charge of unlawfully on premises, i.e. that (1) he was there on the premises and (2) he was there without lawful excuse. I refer to Agiru Aienp;& 12 Ors v. Paul T. Tahain ⁽N141.html#_edn85" title="">[lxxxv]1) for a statement of the principle I haplied and for a reference to the authorities.

Accordccordingly, I am satisfied that the plea of guilty was properly entered. The appeal against conviction is dismissed and the conviction is affirmed.

The alternative ground of appeal was that the sentence of three months' imprisonment with hard labour was manifestly excessive. The penarescribed in s.20 s.20 is, in the case of a first offence (as this was), a fine not exceeding K100 or imprisonment for a term not exceeding three months. us isrent that the magistrgistrate saw fit to impose the mahe maximum penalty. I do not question thestratstrate's decision to i a prison sentence for this offence, bearing in mind its prevalence and the need to recognicognise the notion of deterrence. I lso aiate the force of M of Mr Sharp's argument that it wast was desirable for the magistrate to strive to achieve, if possible, somety between all of the offenders who were unlawfully on the premises in question on the day day in question. However, in my coned opiniopinion, other sentencing principles were of greater importance in a case of this kind and should have weighed sufficieneavily with the magistrate to lead him to impose a sentence of imprisonment less than the mthe maximum. Those other sentencing iplnciples to which I am referring are the principles that the maximum penalty should be reserved for the worst, or most seriouses of cases (this case could hardly be considered to be of such a type) and that a first ofst offender (as the appellant was) should generally be entitled to some leniency on account of the fact that he has not been in trouble before. For these reasons, I allowallow this appeal against sentence and I will reduce the amount of the appellant's sentence.

In all the circumstanc think the sentence should be reduced to the period already served, i.e. a period of one mone month. I can see little point in requiring the appellant to surrender himself and return to prison for perhaps only a few more weeks. To do so would achievtle and, in the scope of things, it might be counter-productive. I tMr Sharp, whp, who appe appeared for the respondent in thisal and who has adopted a most realistic and fair approach to this appeal and the other appe appeals that were heard during these sitt recognised this fact.&#160 Therests of justice will bill be served (and the public interest will not be jeopardised) if I treat the period of imprisonment already served as a sufficient punishment for this offence.

I should not be understood to be asserting that a first offender convicted of being unlawfully on premises in the absence (as in this case) of circumstances of aggravation should never be sentenced to a term of imprisonment of more than one month. I can ege circumstances ines in which a sentence as great as two months imprisonment with hard labour might be appropriate. However, is case, and for for the re already given, a sentence of imprisonment equivalent to thto that already served will suffice.

The sentence will be varied bycing it from three months imprisonment with hard labour to r to one month imprisonment with hard labour.

Solicitor for the Appellant: B.B. Passingan

Counsel: B.B. Passingan

Solicitor for the Respondent: K.B. Egan, Public Prosecutor

Counsel: B.T.J. Sharp

N141.html#_ednref85" title="">[lxxxv]^{(1) Unreported National Court Judgment N123 dated 24th February 1978.}