Public Prosecutor v Penwa [1985] PGSC 1; SC295 (30 May 1985)

Unreported Supreme Court Decisions

SC295

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
S.C. APPEAL NO.6 OF 1984
PUBLIC PROSECUTOR
APPELLANT
V
JOHN PENWA
RESPONDENT

Waigani

Pratt Woods Cory JJ
29-30 May 1985

CRIMINAL LAW - Appeal against sentence - inadequacy of sentence - increase on sentence called for but not imposed in view of 18 months delay on appeal and respondent’s release from custody for over twelve months.

On appeal against the inadequacy of sentence, the respondent, an employee was convicted of dishonestly applying to his own use his employer’s goods valued at between K7 - K8,000 (contrary to s.395 A(2)(b) and there was no offer of restitution. The court had sentenced him to twenty-three months imprisonment, eighteen months of the sentence being suspended upon him entering into a recognizance to be of good behaviour for twelve months. Sentence imposed on 5th December, 1983. Notice of Appeal lodged 14th February, 1984. Transcript of Evidence and Judge’s Notes available in May 1984. Respondent had been released from custody in about May 1984 and at the date of the hearing of the appeal, the term and his recognizance had expired.

Held

(1) that the gravity of the offence was such that the sentence was manifestly inadequate and warranted an increase in sentence;

(2) in view of the long delay on the part of the appellant in bringing the appeal on for hearing, the failure of the appellant to give any satisfactory explanation for the delay, the respondent’s release from custody and the expiration of his recognizance to be of good behaviour, the appeal should be dismissed.

Cases Cited

Public Prosecutor v. Willy Soki (1977) P.N.G.L.R. 165 Approved and applied.

Tenge Kai Ulo v. Acting Public Prosecutor (1981) P.N.G.L.R. 148

Acting Public Prosecutor v. Joe Korea Mailai (1981) P.N.G.L.R. 258

Counsel

G. Salika, for the appellant

S. Lupalrea, for the respondent

Cur. adv. vult.

30 May 1985

PRATT J: The judgment of the court will be delivered by Mr Justice Cory.

CORY J: (For the Court) The Public Prosecutor appealed against sentences imposed by Los, J. on the respondent on the basis that the sentence imposed was inadequate. The respondent was convicted on 5th December, 1983 after trial of applying to his own use his employer’s goods valued at between K7-K8,000. The trial Judge sentenced the respondent to imprisonment for twenty-three months, but suspended eighteen months of the sentence upon the respondent entering into a recognizance to be of good behaviour for twelve months and the respondent had entered into the said recognizance.

On the hearing of the appeal the respondent had completed his five months sentence and had been released from custody about May 1984 and the term of his twelve months recognizance had expired. The appellant had lodged notice of appeal against sentence on 14th February, 1984, the transcript of the evidence and copy of the trial Judge’s notes were available in May 1984 and the appellant could offer no satisfactory explanation for the delay in bringing the appeal on for hearing between May 1984 and the date of the hearing of the appeal, a delay of just over twelve months.

The circumstances of the offence, where the respondent, as Manager of a bulk trade store, in a position of trust, had applied his employer’s goods to his own use, goods valued at between K7-K8,000 and where there was no offer of restitution by the respondent, were such that the sentence imposed by the trial Judge was manifestly inadequate and an increase in sentence would have been clearly warranted.

However, in a number of previous similar cases where there has been delay on the part of the State, the Supreme Court in the exercise of its discretion, has declined to vary the sentence.

In the Public Prosecutor v. Willy Moke Soki (1977) P.N.G.L.R. 165, the delay by the State was a period of five months, the appeal was dismissed, although the Court considered an increase in sentence was clearly warranted.

In Tenge Kai Ulo v. Acting Public Prosecutor (1981) P.N.G.L.R. 148, an application was made to strike out an appeal by the Acting Public Prosecutor against the inadequacy of a sentence, on the grounds of its undue delay in prosecuting the appeal. The delay was six months. The court declined to strike out the appeal as it was the first such application but issued a “warning that this court will not tolerate any similar delays in the future”. (p.150)

In Acting Public Prosecutor v. Joe Korea Mailai (1981) P.N.G.L.R. 258, the Court adopted and applied Willie Moke Soki’s case (supra) referred to above. In that case the defendant had been released on recognizance and there had been a delay of nine months in prosecuting the appeal. The court there held that, although the sentence was manifestly inadequate, the delay was such that the sentence should not be increased.

In this case the delay in bringing the appeal on for hearing is twelve months, a delay which is in fact greater than the delay mentioned in any of the above three cases.

In the circumstances, although the court believes that the sentence imposed was manifestly inadequate, in view of the long delay by the appellant in prosecuting the appeal, it’s failure to give any satisfactory explanation of the delay, the respondent’s release from custody and the expiration of his recognizance to be of good behaviour; the appeal is dismissed.

ORDER:

Appeal dismissed.

Lawyer for the appellant: E. Kariko, Acting Public Prosecutor

Lawyer for the respondent: N. Kirriwom, Public Solicitor