As a result of these incidents the Administration treated the Iwam area as closed. It appears, however, that in the following June a Lutheran missionary obtained a permit to enter. He visited, amongst other places, two where the applicant had out-stations, Tiginan and Kekaru. After a day or two he departed, leaving two or three Lutheran boys at each of these places. It was, of course, contrary to the conditions for him to leave coast boys in an uncontrolled area. Grass and bamboo huts were built by or for them close to the native village, closer, indeed, than the conditions allow. There they dwelt for some months. But in November 1935 he was informed, he says, that the Lutheran boys at Kekaru were causing disaffection among the natives. He told one of them that they must leave the area, that his master must be mad to leave them there, and that they would be put in gaol if they remained. He says that he saw that native weapons, which after his arrival had been laid aside, were again being carried and that the natives brought their arms to his station. According to his narrative, on Friday, 13th December, he heard that the Lutheran boys, two in number, had plotted with a particular native, whom he considered dangerous, to make an attack when his natives were at church. He obtained some confirmation of this report and on the following Sunday, although no attack was made, he took measures to get rid of the two Lutheran boys at Kekaru.

He did not interfere with the two boys at Tiginan, where, he says, no trouble had arisen.

He sent six of his coast boys to Kekaru with instructions to turn out the two Lutherans and burn their huts which had been constructed there. They took two rifles and two shot-guns and he instructed them to use them against the natives if they were attacked by them, but not against the Lutheran boys. No occasion arose for the use of the firearms. They partly burnt the huts and brought the two boys to the applicant, after first hitting them.

The applicant is stated to have commended his boys' acts and to have ordered the Lutherans to leave. They did so, and, as a result of their report, the applicant was called upon for an explanation, which he gave in a composition of very imperfect English. The effect of what he wrote is that he acted in self-protection; that the Lutheran missionary had unwarrantably come into the field of his work and there left his boys without supervision; that with the feeling between natives of different missions this course would be the source of danger and in fact, according to his information, he was to be attacked; that to expel them it was necessary to burn their huts, otherwise they would return.

He was then prosecuted for wilful and unlawful destruction of native dwellings. He was committed for trial on that charge. At the sessions of the Supreme Court of the territory at Rabaul, beginning on 1st May 1936, he was indicted on a more serious charge, namely, arson. He was advised by his solicitor to plead guilty and he did so. But it is now suggested that he was unaware of the exact charge to which he so pleaded.

The Chief Judge, who presided, took a most adverse view of the applicant's conduct and sentenced him to five years' imprisonment with hard labour. He now seeks leave to appeal to this court.

Sec. 24 of the Judiciary Ordinance 1921-1927 expressly mentions convictions and sentences among the judicial orders from which an appeal by leave shall lie to this court. It is evident that these words refer to convictions on indictment and sentences of imprisonment or other punishment. This court is thus specifically given a jurisdiction to hear appeals from sentences of the Supreme Court of the territory. But, although this consideration may distinguish the power it is called upon to exercise from the general appellate power invoked in House v. The King[4], it remains true that the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority. Moreover, this court has always recognized that, in appeals from courts of the territories, there may be many matters upon which the court appealed from is in a better position to judge than we can be. It is familiar with the special conditions which obtain in the territory and thus should be better able to estimate the importance of considerations arising out of them, or the significance of facts associated with them. In accordance with these principles this court recently refused leave to appeal in a case in which the same learned judge inflicted a severe sentence upon a missionary who made a punitive raid upon natives in his district, took one of them captive and kept him bound, and behaved towards the natives in a harsh and provocative manner. To estimate the gravity and consequences of such an offence appeared to be peculiarly within the province of the Supreme Court of the Territory of New Guinea and this court refused to interfere, not because it approved of the sentence, but because it was unable to say that the sentence so exceeded the occasion as to be unreasonable, or to find any circumstances vitiating the exercise of the learned judge's discretion.

In the present case it appears manifest that a sentence of five years' imprisonment is out of all proportion to any view of the seriousness of the offence which could reasonably be taken. Moreover, we are not without knowledge of the views which actuated the learned judge in inflicting so great a punishment. His Honour stated at length his opinion of the facts, of the applicant's behaviour and of the consequences to which it might tend. No purpose is served by traversing this statement. But it contains many observations which support and confirm the conclusion that his Honour took altogether too extreme a view of the matter. It may be granted that in no circumstances could the applicant be justified in causing the Lutheran boys' three huts to be burnt, that he ought not to have sent out his boys with arms upon any such enterprise, that such actions endanger the relations with the natives, and that in the motives which actuated him he was not free of resentment at the intrusion of the Lutherans in what he regarded as his field of missionary work. Allowing all this and allowing too that others must be deterred from following such an example, yet a term of five years' imprisonment appears a crushing punishment bearing no proportion either to the impropriety of the applicant's conduct or the kind of penalty which would suffice as a deterrent. After all, the offence consisted in burning three flimsy structures readily replaced. It is impossible completely to disregard the circumstantial account given by the applicant of the conditions of actual and apprehended danger in which he stood, and it is not denied that the Lutheran boys ought not to have been left in the area alone without white supervision, and that their continued presence there was unwarranted.

In these circumstances the sentence must be quashed and some other substituted.

The facts proved do not require or enable the court to set aside the applicant's plea of guilty. He must be taken to have given an intelligent assent to the advice he received so to plead. But the difficult duty now devolves upon this court of imposing upon the applicant such sentence as appears to be just in lieu of that which has been set aside. In discharging the duty of fixing a sentence the court should pay attention to the substance of the views expressed by his Honour the Chief Judge as to the tendency and significance of such actions in relation to the natives in uncontrolled areas.

Giving full effect to the considerations which depend upon the conditions prevailing in the Territory of New Guinea, it is difficult to believe that a greater sentence than six months' imprisonment is consistent with justice.

A sentence of six months from 1st May 1936 should be substituted.

Order that leave be granted to the applicant to appeal against the sentence of five years' imprisonment with hard labour imposed by the Supreme Court of the Territory of New Guinea. Further order that such appeal be treated as instituted and be dealt with forthwith. Allow appeal and reduce sentence to six months' imprisonment from 1st May 1936 with hard labour.

Solicitors for the applicant, Frank Brennan & Co., Melbourne.

Solicitor for the respondent, W. H. Sharwood, Commonwealth Crown Solicitor.