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Gau v Eava [1976] PGLawRp 656; [1976] PNGLR 485 (19 October 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 485 - Vagi Gau v Ken Kone Eava�

[1976] PNGLR 485

N67

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

VAGI GAU

V

KEN KONE EAVA

Mount Hagen

Prentice DCJ

19 October 1976

INFERIOR COURTS - District Courts - Sentencing - Policy - Each case to be treated individually - Magistrates sentencing policies undesirable - Conviction for stealing - First offender - Sentence of 1 month�s imprisonment substituted for sentence of 3 months� imprisonment.

If justice is to be done in sentencing offenders in the District Courts every case must be considered in the light of its own background, and every convicted person must be treated as a separate individual; it is not permissible for magistrates to lay down other than general rules of guidance and policy as to sentence.

Where a first offender convicted of stealing from a pin ball machine was sentenced to three months� imprisonment, it being the declared policy of the sentencing magistrate �that whoever comes before me on a stealing charge will not be given a fine. On pleas of guilty for the first time in Court convict them on the first instance for three months. If she or he appears again for the same offence (stealing) I usually go for the maximum terms of imprisonment�;

Held

The sentence imposed was in the circumstances too severe and a sentence of one months� imprisonment should be imposed instead.

Appeal

This was an appeal against severity of sentence, by an appellant, who having pleaded guilty to a charge of stealing, was convicted and sentenced to three months� imprisonment.

Counsel

IC McWalters for the appellant

JL Cagney for the respondent

19 October 1976

PRENTICE DCJ: This was a conviction recorded on 22nd April, 1976 for stealing. Three months� imprisonment was imposed as a sentence. The appellant was admitted to bail on 18th June, 1976, so that he had served the best part of two months� imprisonment. This was an appeal against severity of sentence only. The Prosecutor conceded that he ought to consent to the appeal being allowed. I am satisfied that the appeal on the ground of severity should be allowed; the Prosecutor agreeing that this be so. The learned magistrate has in his reasons for judgment stated frankly:

�It is my own policy that whoever comes before me on a stealing charge will not be given a fine. On pleas of guilty for the first time in Court convict them on the first instance for three months. If she or he appears again for the same offence (stealing) I usually go for the maximum terms of imprisonment.�

I appreciate that the Magistracy is greatly concerned about lawlessness and stealing in Mount Hagen, and that its members are very properly concerned to deter it. However, as has been pointed out, it is not permissible for a magistrate or a bench of magistrates to lay down other, than general rules of guidance and policy as to sentence. In the last couple of years there have been a number of reported cases in the National Court in regard to appeals in traffic matters in Port Moresby, in which guidance has been laid down. Each case, if justice is to be done, must be considered on its own background. Every convicted person is a separate individual. The case of the appellant was that of a well educated offender of no prior conviction falling to the temptation of stealing from a pinball machine in a fun parlour. While it is reprehensible enough, it is not of the worst category of stealing. On the other hand, it cannot be palliated by hunger or want existing in the thief. I think the offence should have been met by a stiff fine. However, if the circumstances at Mount Hagen at the time, called in the learned magistrate�s opinion, for a custodial sentence, I consider one month�s detention would have sufficed at the most.

I allow the appeal on the ground of severity. I confirm the conviction, and substitute a sentence of one month�s imprisonment with hard labour. Since that period has already been served the appellant is to be suffered to go at large.

Appeal allowed.

Solicitor for the appellant: N. H. Pratt, Acting Public Solicitor.

Solicitor for the respondent: K. B. Egan, Acting Public Prosecutor.