Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Raka v Yakapu [1991] PGNC 9; N974 (14 March 1991)

Unreported National Court Decisions

N974

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL 45/90
KILA RAKA
APPELLANT
V
DAVID YAKAPU
RESPONDENT

Waigani

Salika J
14 March 1991

APPEAL - Criminal Law - Plea of Guilty - Convicted and sentenced - Ordered to pay restitution as well - Failure to pay restitution, a further 6 months I.H.L - Sentence of 9 months I.H.L not excessive in the Circumstances.

SALIKA J: This is an appeal agains dthe decision of the Port Moresby District Court. The brief facts of the matter that the appellant pleaded guilty to four (4) counts of stealing K1,252.72. He harged under s 372 of the Criminal Code Act.

As he p he pleaded guilty, he was accordingly convicted and sentenced to nine (9) months imprisonment with hard labour on each of the counts to be served concurrently. Ontop of that the Magistrate ordered him to make a full restitution by 15th of February, 1991. In default to serve a term of six (6) months imprisonment with hard labour.

He went to jail and served 1 month and was released on bail pending appeal. He now appeals against the decision of the District Court. The grounds of the appeal are that:

1. The Magistrate err l inin w in imposing a default penalty for non payment of the restitution;

2. ҈& T60;sene sentence ence is matly eive.

Theic Prtor&#s Office fice appeaappeared ored on behn behalf oalf of resf respondent and did not oppose the first ground of appeal. However they o the d grof the athe appealppeal sayi saying that the sentence of nine (9) months of stealing an offence under s 372 of Criminal Code Act is not manifestly excessive.

I have now satisfied myself that the Magistrate in imposing a default penalty for failing to pay full restitution amounts to double punishment. It is not allowed by law. A normal sentence would be to impose the head sentence and to suspend some upon restitution. I do not think the magistrate did this. It is punishment not allowed by law.

I therefore allow that part of the appeal and accordingly quash the default penalty imposed.

In relation to the nine (9) months imposed by the court, I do not consider that sentence as a sentence manifestly excessive under s 372 of the Criminal Code Act for stealing K1,252.72.

I am of the view that the Magistrate was within the range of sentences being imposed by the courts including the National Court. The Supreme Court in the matter of Wellington Belawe v The State SC375 has come up with guideline on the proper levels of sentences to be impose for offences of this nature. In this case the range of sentence would be up to a period of 2 years. I therefore would affirm the nine (9) months imposed on him. From the time of conviction to now - over one (1) year has passed and he has not made any restitution and expects the court to give him more time to pay the restitution.

The fact of the matter is that he is unable to pay at this point in time. I am not going to make him give the burden to relatives or friends. He benefited from what he stole so he must take full responsibility. I will send him back to jail to complete his jail term of nine (9) months.

All of the sentence will be suspended upon payment of K1,252.72 to the persons that he stole from within 3 months. Your wife and relatives will organise the repayment while you are serving your time. I therefore disallow your appeal in that regard.

I will now send you back to jail to serve the remainder of the term of nine (9) months.

Mr Sakumai for the appellant

Mr Mirou for the respondent