State v Tami [2007] PGNC 258; N5042 (13 July 2007)

N5042

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1590 OF 2005

THE STATE

V

REX HEKAWI TAMI

Kimbe: Cannings J
2007: 23 May, 13 July

CRIMINAL LAW – sentence – expiry of time given to offender to pay compensation to victim – whether more time should be given – whether offender should be committed to custody.

The offender was sentenced to six years imprisonment for arson but execution of the sentence was delayed for a set time to allow him time to pay K5,000.00 compensation to the victim. The court gave him extensions of time to pay. After the end of the last extension, the offender had paid half of the amount of compensation ordered by the court. He applied for a further extension, which was opposed by the State.

Held:

(1) When sentencing an offender and monitoring enforcement of sentences, the court should pay close regard to the attitude of the victim of the crime.

(2) Here the court was satisfied that the victim genuinely did not want the offender sent to jail. However, the offender has been given considerable time to pay compensation and the public interest in timely enforcement of judgments and maintenance of the Rule of Law required that no more time be allowed. Accordingly the offender was committed to custody.

Case cited

The following case is cited in the judgment:

The State v Richard Samban CR No 881/2004, 11.05.07

APPLICATIONS

An offender applied for more time to pay compensation ordered by the court, while the State applied for an order committing him to custody.

Counsel

F Popeu, for the State
O Oiveka, for the offender

13th July, 2007

1. CANNINGS J: Last year I convicted Rex Hekawi Tami of arson and sentenced him to six years imprisonment. I delayed execution of the sentence for three months to allow him time to pay K5,000.00 compensation to the victim, Timson Karo. I ordered that if that was paid, I would suspend the whole sentence. More than a year later, Rex has paid only half of the amount: K2,500.00. I have in the meantime granted him extensions of time. The most recent one has expired. Rex has made an application for a further extension of time. His application is opposed by the State, which has made its own application – that he be committed to custody forthwith. This is a ruling on those two applications. The issue is: should Rex Hekawi Tami get further time to pay or should he go to jail to serve his sentence?

THE VICTIM'S ATTITUDE

2. Rex has supported his application with evidence from the victim of his crime that they have reconciled, the victim does not want him to go to jail and wants him given a further extension so he can pay the balance of the compensation. Timson Karo gave sworn, oral evidence to that effect. Timson is Rex's wantok, they are both from the Southern Highlands. Timson says that they are now friends again, in fact they share the same house. He reckons that if Rex is sent to jail, he won't be able to pay him any more compensation.

3. Mr Popeu, who appeared for the State, did not cross-examine Timson and did not contest his evidence. Nobody has suggested that Timson was put under any pressure to give his evidence. I find that the views he expressed in the witness box are genuine.

INTERESTS OF VICTIM VERSUS PUBLIC INTEREST

4. I consider that when sentencing an offender and monitoring enforcement of sentences, the courts should pay close regard to the attitude of the victim of the crime. Sometimes courts are criticised for forgetting the victims. When a crime is committed victims are the ones directly affected so their attitudes, wishes and views should always be of special interest to the courts. The attitude of the victim in this case is neither unusual nor unreasonable. However, it is not only the interests of the victim that the court must weigh in the balance. There is a countervailing public interest in enforcement of the law. Maintaining the authority of and respect for the courts is pivotal to maintenance of the Rule of Law. If the courts are seen to be going soft on people who commit serious crimes of violence – which this one was as the offender burned down a house and people were inside it – the authority of the courts can be lessened. The courts also have to be conscious of being consistent, and being seen to be consistent, in the way that offenders are treated. The sentence I imposed in this case is similar to the approach I have taken over the last few years in arson and malicious damage cases in West New Britain. As I explained in The State v Richard Samban CR No 881/2004, 11.05.07:

The approach I have been taking in malicious damage and arson cases is to suspend the sentence to allow time for the offender to compensate and reconcile with the victims. This system has worked well so far. It is a form of restorative justice. Often the victims are more interested in getting some compensation than seeing the offenders – in many cases they seem to be friends or relatives of the victims – going to jail. Some people might think that this is going soft on arsonists but I don't think so. I have given a limited amount of time for the offender to sort things out. If it is not done within the time allowed, they go to jail.

5. In some cases the offenders have taken the opportunity given to avoid going to jail. In other cases they have not paid compensation and have been committed to custody. In some cases I have allowed extensions of time for compensation to be paid and reconciliation to take place.

THIS CASE

6. The offender has already had several extensions allowed for him to pay compensation and reconcile with the victim. There reaches a point when to give further extensions will be to lessen the authority of the court. That point has been reached in this case. I will not allow a further extension of time. I will order that the offender be committed to custody forthwith. I will qualify the order by saying that if the balance of the compensation due, K2,500.00, is paid while he is in custody, he can apply to be released from custody.

PRE-SENTENCE PERIOD IN CUSTODY AND ISSUE OF SUSPENSION

7. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one month, one week and three days. I will not suspend any part of the sentence as the offender has already benefited from having the question of his incarceration postponed until now.

ORDER

(1) The offender, Rex Hekawi Tami, shall be committed to custody forthwith, to serve the sentence for arson imposed by the National Court at Kimbe on 23 March 2006, as follows:

Length of sentence imposed	6 years
Pre-sentence period to be deducted	1 month, 1 week, 3 days
Resultant length of sentence to be served	5 years, 10 months, 2 weeks, 4 days
Amount of sentence suspended	Nil
Time to be served in custody	5 years, 10 months, 2 weeks, 4 days

(2) If a further K2,500.00 is paid to the victim, Timson Karo, the offender may apply to the National Court for early release, which will depend on:

(a) proof that the full amount of compensation has been paid; and

(b) a satisfactory institutional behaviour report from the Jail Commander.

Ruling accordingly.
___________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender