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State v Wena [1993] PGNC 38; N1184 (19 November 1993)

N1184

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

(CR 204 of 1993)

THE STATE

V

PETER KOSE WENA

WAIGANI: Kapi DCJ.
16, 17, 19 November 1993

Criminal law - Criminal Law (Compensation) Act 1991 - Relevance of - Necessity for means assessment report.

Criminal law - Sentence - Compensation order as punishment - Relevance of customary compensation.

Held:

(1) The terms of Criminal Law (Compensation) Act 1991 must be considered in every sentence by the National and the District Courts.

(2) The court must consider the terms of the Criminal Law (Compensation) Act 1991 in two stages, namely, whether compensation order should be made in the circumstances of the case, and if so, the actual order in terms of the amount, form, method, period in which to pay, the persons to whom compensation is to be paid and specify a default payment in accordance with Schedule 1 of the Act.

(3) It is necessary to request for a means assessment report before the court considers it's primary decision on whether to make a compensation order unless it is not practicable.

K. Umpake for the State
B. Takin for the accused.

19 November 1993

The accused pleaded guilty to one count of robbery contrary to s. 386 of the Code and one count of unlawful use of a motor vehicle contrary to s 383 of the Code.

After I administered the allocutus, I brought to the attention of counsel the existence of the Criminal Law (Compensation) Act 1991 (as amended) and it's relevance to the question of sentence. I adjourned the case to enable both counsel to study the legislation. Counsel have studied the legislation and have made submissions.

The Criminal Law (Compensation) Act 1991 (hereinafter referred to as the Act) was passed by the National Parliament in 1991. It came into force on the 17th September 1992.

Application of the Act

This Act applies to all criminal offences that come before the National Court and the District Court (see definition of "court" in s. 1 and s. 2 of the Act). In every case where the court is considering sentence, it must have regard to the terms of this Act, in addition to any other punishment that may be imposed under any other law
(s. 2(1)).

The primary decision the court needs to make is "whether in the circumstances of the case, compensation order should be ordered" (s. 2(2)). In considering this matter, s. 3(1) of the Act requires that the court shall take into account the following factors:

(a) the nature and the seriousness of the offence;

(b) the degree and nature of any personal injury or damage to property suffered by any person as a result of the commission of the offence;

(c) any factors regarding the commission of the offence or the offender's attitude which may be considered in mitigation or aggravation of the punishment;

(d) any relevant custom regarding compensation, including but not limited to -

(i) any custom regarding the nature, the amount, the method of payment and the appropriate person or persons to be paid the compensation; and

(ii) any custom which relates the amount of compensation to the age or life expectancy of the person suffering injury or loss;

(e) the information provided in the means assessment report, including any recommendations made by the Chief Probation Officer in the means assessment report;

(f) any other relevant matter.

In considering these matters, the court is not bound by technical rules of evidence (s. 3(2)).

Custom regarding compensation

Prior to this Act, customary compensation was considered to be a relevant factor in sentence (s. 4(e) of the Customs Recorgnitions Act (Chapter 19)). The practical result of this is that the court may increase or decrease sentence on account of custom within the range of sentence prescribed by law (see Acting Public Prosecutor -v- Uname Aumane [1980] PNGLR 510; Acting Public Prosecutor -v- Nitak Mangilonde Taganis [1982] PNGLR 299). This allowed the courts to take into account customary compensation wherever it was paid or promised to be paid. However, the law did not authorise the courts to order customary compensation as a form of punishment (see Acting Public Prosecutor -v- Uname Aumane (supra)). When discussing the state of the law in Uname Aumane I said at page 543:

"The view I have taken is the present state of the law. However, I do appreciate the weight of the learned trial judge's view on the place of customary punishment to be imposed as a punishment. This is dealing with what the law should be. These are matters, not for the this Court, but for legislative amendment. Such proposals for amendment of the Code have been put forward by the Law Reform Commission but so far the Parliament has not enacted them."

The Parliament has responded (after ten years) in the form of this Act to actually authorise the courts to make a compensation order as a form of penalty against the offender. The consideration of customary compensation is one of the factors upon which a court may make the compensation order (see s.3(1)(d)). Compensation may be ordered in the form of cash, goods, services or any other kind or method of compensation which the court considers appropriate (see s. 5).

The secondary decision which the court has to make is the actual compensation order in terms of the period in which to pay, the form, manner of payment and the person or persons to be paid (s. 5, 6) and the amount of compensation and specify a default penalty in accordance with Schedule 1 of the Act (s. 6). The court shall request a means assessment report (s. 4(1) to enable it to make the appropriate compensation Order (s. 5(1).

Means assessment report

The information contained in the means assessment report (s.3(1)(e)) is a factor to be taken into account when the court is considering the primary decision, namely, whether in the circumstances of a case, compensation order should be ordered. It would appear from this that a means assessment report should be provided before this primary decision is made.

On the other hand, s. 4 which provides for the provision of a means assessment report, begins with the words:

"(1) Where a court considers that an order for compensation should be made, it shall -

(a) request the Chief Probation Officer to furnish to the court a means assessment report in respect of the offender;"

It would appear from this provision that a means assessment report is not relevant until the court has made the primary decision of whether, a compensation order should be made. This would appear to be inconsistent with s. 3(1)(e) in so far as the timing of the means assessment report is concerned.

In resolving this apparent conflict, it may be helpful to examine the purpose or contents of the means assessment report. The report is requested to determine the offender's:

(a) Means and financial circumstances (s. 4(1)(b), 4(2(a)).

(b) Ability to pay (amount), the nature and method of payment (s. 4(3)).

It is clear from this examination that a means assessment report contains relevant information applicable to what I have called the primary decision (whether or not a compensation order should be made) and the secondary decision (the actual order as to the amount, form, nature, method of payment, the period of payment, etc). The means assessment report is relevant to both stages (s. 3(1)). A single report would cover both stages of the decision.

The terms of s. 3 are couched in mandatory terms, that is, the court shall have regard to the information in the means assessment report. I have concluded from this that the court should request a means assessment report from the Chief Probation Officer for purposes of making the primary decision. That conclusion immediately raises practical difficulties. The court would adjourn further proceedings on sentence until the report is received. Can the Chief Probation Officer meet the demands of all National and District Courts throughout Papua New Guinea? There are many centres with no probation service. Even where there is a probation service, it may not be practicable to provide the report. The legislature was mindful of this. Under s. 4(4) of the Act, where it is not practicable, the court may proceed without the report. Where this is the case, the court can inquire into the means and financial and other relevant circumstances of the offender by itself where the accused is not represented or through counsel for the accused.

As the Chief Probation Officer is located in the National Capital District, in this case I will enquire as to whether or not it is practicable for him to provide a means assessment report under s. 4 of the Act.

I requested Mr Emmanel Oa a probation officer who was in court whether it was practicable to furnish a means assessment report in this case. He indicated that as this was the first request for a report under the Act, it was not practicable to furnish a report. I proceeded with sentence without a report (s. 4(4).

(His honour proceeded and sentenced the accused to 3 years IHL for count of robbery and 12 months for unlawful use of motor vehicle to be served concurrently - with two months to be deducted for period spent in custody).

In addition to this sentence I have to consider whether a compensation order should be made under the Act.

I have considered the following matters under the Act:

The car that was taken during the robbery was immediately recovered with no damage done to it. No person was injured. The only items not recovered were K30 in cash, wallet and a wrist watch which belonged to the victim, Petu Langisan.

Counsel for the accused obtained instructions and informed the court that according to the custom of the people of Usava Village Kainantu in the Eastern Highlands Province a person who steals an item such as a pig is required to repay the victim with a similar pig or value of the pig. I conclude from this that the custom of Usava people would require payment of the value of goods stolen.

The value of the goods and the cash stolen is estimated by counsel as K100. Counsel for the accused had indicated that the client is capable of paying this amount.

Even though, the amount in this case is not high, in principle the victim should be compensated for the items. Taking into account all the matters in s. 3(1) of the Act, I would make a compensation order in addition to the penalty I have already imposed.

I make the following orders:-

1. The offender will pay K100 in cash to Petu Langisan. This amount to be paid into court initially.
   
2. Payment is to be made within one month of today.
   
3. In default - one month imprisonment.
   

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Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor