Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020)

SC2023

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 08 OF 2019

BETWEEN
KAUR AQUILA
Appellant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Kokopo: Yagi, Makail & Kassman, JJ
2020: 29^th October

SUPREME COURT – Appeal against sentence – Sentence of 15 years imposed - 3 years suspended –Suspended sentence with conditions – Payment of compensation – Sum of K9,000.00 ordered – Statutory limit of amount for compensation –K5,000.00 as maximum statutory limit – Identifiable error made – Sum ordered quashed and replaced with K5,000.00 –Period of suspended sentence of 3 years quashed and substituted with 1 year – Supreme Court Act – Section 23(4)– Criminal Code – Sections 19 &300

Cases Cited:

The State v. Kianu Kikimbe (2016) N6180

Counsel:

Mr. L. Mamu, for Appellant
Mr. P. Kaluwin, for Respondent

JUDGMENT

29^th October, 2020

1. BY THE COURT: This appeal is to be decided on a specific point of law under Section 5 of the Criminal Law (Compensation) Act 1991. Section 5 states:

“5. Compensation orders.

(1) Upon receipt of the means assessment report or the Chief Probation Officer's advice under Section 4(2), the court may, after taking into account the factors specified in Section 3—

(a) order the offender to pay, within such period and in such manner as the court determines, compensation to a person or group of persons specified in the order; and

(b) direct the Chief Probation Officer to supervise compliance with the compensation order.

(2) Subject to Subsection (3), compensation may be ordered in the form of cash, goods, services or any other kind or method of compensation which the court considers appropriate.

(3) No compensation ordered under this Act—

(a) shall include the use or payment of alcohol; and

(b) whether in the form of cash, goods, services or any other kind or method of compensation shall exceed in value K5,000.00,

and the value of any form of compensation other than cash shall be as determined by the court.” (Underlining is ours).

2. The appellant was sentenced by the National Court at Kokopo on 10^th April 2019 to a term of imprisonment of 15 years for the offence of murder under Sections 19 & 300 of the Criminal Code.The trial judge suspended three years on condition that he pay a sum of K9,000.00 to three children of the deceased for what he described as reasonable compensation “to keep them going”.

3. The trial judge when ordering payment of compensation of K9,000.00 had regard to the National Court decision in The State v. Kianu Kikimbe (2016) N6180 where the offender was ordered to pay a sum of K179,098.00 in the form of restitution for the value of damage to the complainant’s truck.

4. The Public Solicitor contended that the trial judge erred in law when he fixed a sum of K9,000.00 for compensation. This sum is over and above the statutory limit of K5,000.00 fixed for compensation under Section 5 (supra). He distinguished the Kianu Kikimbe case (supra) on the basis that it was not strictly an order for compensation under Section 5 (supra) but an order for restitution. He submitted that the order for payment of K9,000.00 should be quashed and replaced with an order for K5,000.00 with the remaining conditions to be unchanged. The Public Prosecutor does not contest this ground.

5. Having considered the trial judge’s decision, Section 5 (supra), the submissions of the Public Solicitor and the concession by the Public Prosecutor, we accept the Public Solicitor’s contention that the statutory limit for compensation is up to K5,000.00 under Section 5 (supra). The trial judge was bound to give effect to Section 5 (supra) and fell into error when he ordered the appellant to pay compensation over and above this sum.

6. We add that the provision for payment of compensation under the Criminal Law (Compensation) Act 1991 is a form of penalty rather than a form of restitution and this is where we doubt if the order for restitution ordered by the National Court in Kianu Kikimbe case (supra) was in order.

7. All we can do in this case is to uphold the appeal on this ground, quash the order for payment of compensation of K9,000.00 and replace it with an order for payment of K5,000.00. Having corrected this error, the appellant will now be required to pay a lesser sum than previously ordered. In fairness to the deceased and family members, we will in our discretion under Section 23(4) of the Supreme Court Act, quash the period of suspended sentence of 3 years and replace it with one year.

8. The orders of the Court are:

1. The appeal against sentence is upheld.

2. The sentence of 15 years imprisonment less time spent in pre-trial custody is confirmed.
   
3. The suspended sentence of 3 years out of 15 years on condition that the appellant pay a sum of K9,000.00 as compensation is quashed.
   
4. One year of the sentence of 15 years is suspended on condition that the appellant pay a sum of K5,000.00 as compensation.
   

________________________________________________________________
Leslie Mamu, Public Solicitor: Lawyers for the Appellant
Pondros Kaluwin, Public Prosecutor: Lawyers for the State