State v Wangar [1989] PGNC 32; N975 (26 December 1989)

Unreported National Court Decisions

N975

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
WAGUR WANGAR

Lae

Doherty J
April 1991

CRIMINAL LAW - Setencing Defendant in remand for one year and two months - S.3(2) Criminal Justice (Sentences) Act 1986 allows for deduction of period spent in remand from sentence imposed - deduction of such period is discretionary, no discretion to increase or decrease period already served - sentence takes effect from date imposed - period prior to sentencing only is deducted.

Defendant was in remand for one year and two months for arson. This was due to his initial denial of the offence, plus cancellation of circuits outside the defendant’s control.

Held:

1. ҈& D60;ctiduction of n of period spent in custody from sentence imposed is discretionary but there is no discretion in the courts to increase or decrease thiiod.

el:

Mr Peter for the State

Mr T>Mr Tera for the Defendant

JUDGEMENT ON SENTENCE

DOHERTY J: The defendant has pleaded guilty and been convicted of one count of arson. It is found that he burnt a house and its contents belonging to Uring Urang at Ragingam Village in the Kaiapit District of the Markham Valley on tth or 26th December 1989.

The defendant had been charged late in January 1990 by the Police in Kainantu, the matter was eventually transferred to Lae and he was committed to stand trial in the National Court. At previous Call Overs he had sat in the dock and, in person and through his Counsel stated he was not the person who burnt the house and its contents. Accordingly the matter had been listed for trial. The circuit on which the defendant was listed was cancelled and it had to be re-listed.

At the request of the court the matter has been brought on early as the defendant has never been able to raise the bail originally set by the District Court of K200.00 or the lower amount set by this Court of K50.00.

Counsel for the defence explains the inability to raise bail as due to the poverty and lack of cash income in that area. The village depends on the sale of peanuts and betelnuts. He has urged the court that non payment of bail of K50.00 by the relatives of the defendant and the fact that they have not visited him in jail in no way reflects their attitude towards him or the offence. By the same token there is no suggestion from the papers before me that the neighbour, whose house the defendant burnt, was any different from the defendant in his financial position and the loss of his house, clothing, gardening tools, food, money, suitcases and kitchen utensils was a serious blow to him.

The defendant in allocutus said he burnt his house when he thought his wife was in it. His wife had left the matrimonial home during the night of 25/26 December 1989 following an argument between her and the defendant and went to the house of her relative, Roger Zaba. Roger Zaba then misled the defendant into believing that the wife had run off to her home village some distance away and this caused the defendant to go to his father-in-law’s only to find the wife was not there and he had to return. In fact the wife had been on the verandah of the house of Uring Urang. Uring Urang and his family were not there, they had gone to another part of the Markham Valley and the house was unoccupied.

When the defendant returned he was, as he said in his allocutus, “really angry and I burnt that house.”

From what has been said by the defendant and the witness statements before me it seems the defendant may have thought the wife was in the house when he burnt it. This concerns me as this makes the arson particularly serious. Counsel for the defence has urged me that this was not the case but I find it unconvincing. The alternative situation, if he genuinely believed the house was empty, was that he took revenge on a completely innocent person, who was not there, who has nothing to do with the argument between him, his wife and Zaba and who was unfortunate to have been away at that time. This is less reprehensible than putting a human life at risk but it is still a reprehensible act.

Counsel says that defendant is remorseful. I find him rather an unconvincing person, I accept that he was angry and that the action was not from a prior preplanned and premediated decision. However, I find the actions of the wife running away leaving four children in the middle of the night and of Zaba in acting to send the defendant elsewhere to be sufficiently unusual to make me think that the defendant was not the ill-done-to and innocent dupe that he makes out. In the record of interview between him and the police he admits the action and then retracts that admission, he told similar stories to the Village Court Magistrate and other prosecution witnesses, he has changed the story in this Court.

He has asked for probation and in the light of the fact that he has had no visits from his family in the period he has been in remand, the fact his in-laws and others have not clubbed together to pay his K50.00 bail which indicate to me that he may have problems in readjusting and returning to his village when he is released, I will concur with his request to have him put on probation to assist his readjustment but I consider, as Counsel for prosecution has said, that this is a serious case and it warrants a custodial sentence also.

Taking the period from when the defendant was first arrested in Kainantu to today’s date he has been in custody a total of one year and two months. If he had given the story he has given today his matter would have been dealt with very quickly. Cancellation of the circuit when his matter should have been dealt with was not inside his control but his plea was. If he had been convicted and a custodial sentence imposed earlier he would have had the benefit of remission for good behaviour under the Provisions Section 142A of the Corrective Institutions Regulations Chapter 63. In effect this would have reduced his sentence by one chird if he was of good behaviour. I have therefore considered again the provision of the Criminal Justice (Sentences) Act 1986 which enables a court to deduct periods spent in remand from the sentence it imposes upon a defendant.

There is no provision in that Act, as there is in a similar legislation in other jurisdictions, to add a notional amount to the period in remand that would reflect the remission he would have received e.g. If he had received a custodial sentence of 21 months he would now have, with remission, served that sentence completely but if he is sentence to 21 months imprisonment he will still have seven months less remission to serve.

The mandatory provisions of the Criminal Justice (Sentence) Act in Section 3(1) provides that a sentence takes effect from the day it was imposed and is an amendment of earlier law which, allowed for sentences taking effect from the first day of the court circuit.

The provision of deducting the length of any term of imprisonment in remand is a discretionary one. It permits a court (at S.3(2)) only to deduct -

“Any period before the sentence was imposed during which the offender was in custody in connection with the offence...”.

There is no discretion in the court to increase or decrease that period to reflect the period in remand.

As I have already indicated part of the problem was of the defendant’s own making because of the earlier indications he gave by himself and through his Counsel, but the cancellation of the circuit was outside his control. The wording of the law is, in my view clear, and it must be taken to have been the intention of the Parliament that only the period actually spent in custody is deducted. This can do injustice to some remandees who intend to plea guilty but there is no court available to deal with their cases or, like the defendant, cannot raise a bail allowed to them.

Perhaps the Public Solicitor can bring the apparent injustice of this to the attention of Parliament who may consider an amendment.

The defendant was sentenced to two years in hard labour and a period in probation.

Lawyer for State: Public Prosecutor

Lawyer for Defence: Public Solicitor