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State v Yakal [1989] PGNC 114; [1988-89] PNGLR 129; N792 (26 April 1989)

N792

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

SABARINA YAKAL

Kundiawa
Brunton AJ
14 April 1989
26 April 1989

CRIMINAL LAW - Sentencing - On plea of guilty - Use of depositions for purpose of sentencing.

Held

Depositions may be used on sentence on a plea of guilty provided the facts are not challenged and are within the bounds of reasonable possibility.

Public Prosecutor v Yapuna Kaso [1977] PNGLR 209 at 212 and Public Prosecutor v Tom Ake [1978] PNGLR 469 at 471, considered.

Cases Cited

Public Prosecutor v Yapuna Kaso [1977] PNGLR 209.
Public Prosecutor v Tom Ake [1978] PNGLR 469.

Judgment on Sentence

Following a plea of guilty to a charge of murder Brunton AJ delivered a judgment on sentence, a portion only of which is reported.

Counsel

L Kalinoe, for the State.
F Terra, for the accused.
Cur adv vult

26 April 1989

INTRODUCTION

BRUNTON AJ: The prisoner is a 25-year-old woman, married, with one child. She is charged with the murder of Kepaken Kia, her husband’s uncle. The indictment was laid under s 300(1)(a) of the Criminal Code (Ch No 262). The prisoner pleaded guilty to the indictment and her counsel Mr Tera furnished me with a certificate stating that the consequences of the plea had been explained to the prisoner.

THE DEPOSITIONS AND OTHER MATERIAL

The facts of this case were contained largely in the depositions which were handed up to me, after the prisoner had pleaded guilty to the indictment. There was also the statement given by the prisoner on her allocutus, the general uncontested remarks of counsel given from the Bar Table on the customary situation, and I had the benefit of a pre-sentence report prepared by the Probation Office in Kundiawa.

I note the remarks of the former Chief Justice Sir Sydney Frost in Public Prosecutor v Yapuna Kaso [1977] PNGLR 209 at 212, that:

"It must be understood that these references to the depositions are made, not to try the case on the facts, but only to determine the propriety of the trial judge’s acceptance of the plea."

This passage occurs in the context of the Supreme Court considering whether or not a plea to a murder charge had been properly accepted. That is another matter. Here I am concerned with ascertaining the sentence, and providing one side or the other does not challenge the facts, and facts are within the bounds of reasonable possibility, then the depositions may be used for the purpose of sentence. Given the paucity of addresses on sentence, not uncommon in this jurisdiction, to do otherwise would leave a judge with little to no material to work with, and may result in an injustice to the community at large, or to the individual prisoner. Clearly the judges may use the depositions on sentence — see Public Prosecutor v Tom Ake [1978] PNGLR 469 at 471, per Prentice CJ, Pritchard J and Greville-Smith J.

[His Honour then considered the factual material in a manner not calling for report and sentenced the accused to four years in light labour to be suspended after one year served conditional on the accused agreeing to go on probation for two years.]

Sentence of four years in light labour

_________________

Solicitors for the State: Public Prosecutor.
Solicitors for the accused: Public Solicitor.