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Timiti v Aubuku [1983] PGNC 6; N412(M) (12 April 1983)

N412(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APP. NO. 5 OF 1983

BETWEEN:

PAUL TIMITI
APPELLANT

AND:

JOHN AUBUKU
RESPONDENT

Mount Hagen: Woods AJ
12 April 1983

DECISION AND REASONS

WOODS AJ: The appellant was convicted on the 1st day of December 1982 by the District Court at Mt. Hagen of a charge of stealing 3 laplaps valued at K5.00 each the property of Steamships Trading Company. The charge was dealt with by the District Court under s.48C (1) of the Summary Offences Act. The appellant was sentenced to imprisonment with hard labour for a period of 6 months.

The appellant appealed firstly that the plea of guilty should not have been entered and secondly that the sentence imposed was and is in the circumstances manifestly excessive.

At the hearing of the Appeal the appellant did not proceed with the first ground of appeal and only pressed the second ground of appeal namely the appeal against sentence.

The Appellant submitted that because of the amount involved 3 laplaps valued at K5.00 each and because he had had no prior convictions and had pleaded guilty the sentence of 6 months was manifestly excessive. Attention was also drawn to the limits of section 48C (1) which provided for the offence of stealing property to a value not exceeding K500.00 to be dealt with by the District Court and provided for a maximum penalty of a fine not exceeding K400.00 or a term of imprisonment not exceeding 12 months. It was submitted that half the maximum term for an offence involving only K15.00 was manifestly excessive.

The State appeared for the Respondent and made no submissions and agreed that the sentence may have been excessive.

The learned Magistrate in his reasons pointed out that in Western Highlands stealing is one of the major offences being committed and imposing short sentences or fines seems to mean nothing to the offenders. People who live in the towns and businesses are suffering a great deal of loss due to the prevalence of stealing.

The power to interfere with a Magistrate's assessment should not be exercised lightly. It is not a question of my saying I may have imposed a lesser sentence, rather it is a matter of saying could the Magistrate have imposed that sentence in the circumstances, did the Magistrate apply wrong principles or take into account irrelevant factors or leave out of account some relevant factor. See the case Government of P.N.G. v McLeary [1976] PNGLR 321 at 322 - 3.

I note the Magistrate's comment that stealing is becoming a major problem and I must endorse the Magistrate's views that people in the town and business firms are suffering a great deal of loss because of the prevalence of this type of offence. When people steal from shops the whole community has to pay for the loss because businesses have to put up the prices to cover the loss.

The learned Magistrate is closer to the feelings of the people and the community and I must respect his assessment. It was quite within his powers under section 48C (1) to impose a sentence of 6 months and I know of no principle whereby the sentence is necessarily graduated according to the amount involved in the offence. I find that the sentence imposed was not manifestly excessive and there has been no substantial miscarriage of justice. I dismiss the appeal.

Lawyer for the Appellant: Public Solicitor
Counsel: Mr. Peter Kopunye
Lawyer for the Respondent: Public Prosecutor
Counsel: Mr. Gibuma Salika