Kawage v Yube [1976] PNGLR 604 (5 December 1975)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 604 - John Sil Kawage v Gagorine Yube and Stephen Tifai 

[1976] PNGLR 604

N18

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOHN SIL KAWAGE

V

GAGORINE YUBE

AND STEPHEN TIFAI

Kundiawa

Prentice DCJ

4-5 December 1975

CRIMINAL LAW - Appeal against sentence - Cumulative sentences - Stealing - Multiple small offences - Whether error in principle - More than two cumulative sentences improper - Calculations involving uncertainty - Overall accumulation grossly excessive - Appeals allowed.

The appellant, a man of no previous convictions, was charged with and convicted of five offences of stealing, and sentenced as follows:

(1)      for stealing goods worth K7.40, 3 months’ imprisonment;

(2)      for stealing pullover and two chickens worth K6, one month’s imprisonment cumulative upon (1);

(3)      for stealing K31.70, fined K25 or fifty days in default, made cumulative upon (2);

(4)      for stealing chicken worth K2, six month’s imprisonment cumulative upon (3); and

(5)      for stealing chicken worth K5, one month’s imprisonment cumulative upon (4).

On appeal therefrom,

Held

(1)      Normally it is not proper to impose more than two sentences cumulative upon a first, especially where there are a number of offences of a similar character in a short period.

Wari Mugining v. The Queen, [1975] P.N.G.L.R. 352; Passingan v. Beaton, (1971-72) P. & N.G.L.R. 206. Raine J. and Naime Vade v. A. W. Stuckey, unreported judgment 638 of Prentice Deputy C.J.; and Elavera Mafoa v. Blackwell, unreported judgment 635 of Prentice Deputy C.J.; referred to.

(2)      Further, the calculation of the accumulation of sentences (4) and (5), upon (3) insofar as sentence (3) was a fine involved uncertainty.

(3)      The variations in sentence were inconsistent, and the overall accumulation of twelve and two thirds months was grossly excessive for such a collection of offences.

(4)      A total of no more than four months’ imprisonment would be sufficient punishment.

(5)      Accordingly the appeals in relation to sentences (3), (4) and (5) should be allowed, and the following sentences should be substituted; for stealing K31.70, five weeks’ imprisonment, concurrent with sentences (1) and (2); and for stealing chicken worth K5, one month’s imprisonment concurrent with (1) and (2).

Appeals

These were appeals against severity of sentences imposed in respect of five offences of stealing.

Counsel

I McWalters for the appellant

BTJ Sharp for the respondents

Cur. adv. vult.

5 December 1976

PRENTICE DCJ: The appellant was dealt with in the Local Court at Kup on 4th March, 1975 in respect of five offences of stealing. He was then a man with no prior convictions. The learned magistrate imposed the following sentences:

(1)      Stealing goods K7.40 on 25th January, 1975 — three months’ i.h.l.

(2)      Stealing pullover and two chickens (K6) on 25th February, 1975 — one month’s i.h.l. cumulative upon the three months (No. (1)).

(3)      Stealing K31.70 on 29th January — fine K25 or fifty days in default — made cumulative upon No. (2).

(4)      Stealing chicken K2 on 26th February — six months’ cumulative upon No. (3).

(5)      Stealing chicken K5 on 25th February — one month’s cumulative upon No. (4).

The learned magistrate appears to have formed the impression that the appellant is a thorough pest in the district — an impression which would be furthered no doubt by the fact (of which I am now informed by his counsel) that since being bailed pending appeal, the appellant has again been convicted of multiple small offences and again been sentenced to an accumulation of sentences in regard thereto.

The law has been laid down on many occasions (notably in Raine J.’s decision of Passingan v. Beaton[dclxvii]¹ and followed by myself in Naime Vade v. A. W. Stuckey[dclxviii]² and Elavera Mafoa v. Blackwell[dclxix]³ and the Supreme Court case of Wari Mugining v. The Queen[dclxx]⁴ that normally it is incorrect to impose more than two sentences cumulative upon a first. This is so especially where there were a number of offences of a similar character in a particular short period. The appeals in relation to sentences (4) and (5) being made cumulative should in my opinion be granted.

Another aspect in which the accumulation of sentences here is unsatisfactory is that Nos. (4) and (5) were made cumulative upon No. (3). Insofar as No. (3) was a sentence of a fine of K25 — this makes for uncertainty. Suppose K5 of the fine had been paid, the appellant would be entitled to a credit, as I understand it, under s. 19 (6) of the Local Courts Act, which would reduce the extent of the imprisonment in default of payment. The calculation of the accumulation can thus be seen to involve uncertainty; and should I think be considered bad.

Further eccentricity of sentence seems revealed by the fact that in respect of a chicken worth K2 the appellant has been sentenced to six months’ imprisonment with hard labour; whereas for one worth K5, he received one month. The over-all accumulations amount to twelve and two-thirds months; this figure has only to be totted up to be seen to be grossly excessive for such a collection of offences.

I am satisfied that a total of no more than four months would be sufficient punishment for these offences, which, other than that involving K31.70 are comparatively minor in nature.

I confirm the convictions. I confirm the sentence of three months (No. (1)) and that of one month (No. (2)) made cumulative thereon.

I allow the appeal in relation to sentences Nos. (3), (4) and (5).

For the offence of stealing K31.70 I sentence the accused to five weeks’ imprisonment with hard labour concurrent with sentences (1) and (2).

For the offence of stealing K5 chicken I sentence to one month’s imprisonment with hard labour to be served concurrently with (1) and (2).

The appellant should thus serve in all four months one week. As he has served this amount of imprisonment, he may go at large on these offences.

He is returned to his present custody pending consideration of lodgment of appeals in relation to the current crop of offences. As the appellant has shown himself unreformed, there is no guarantee that another appellate Court will take a similar approach to the one I have taken, in regard to the further series of offences.

Orders accordingly.

Solicitor for the appellant: N. H. Pratt, Acting Public Solicitor.

Solicitor for the respondents: L. W. Roberts-Smith, Public Prosecutor.

[dclxvii] (1971-1972) P. & N.G.L.R. 206.

[dclxviii] Unreported 638.

[dclxix] Unreported 635.

[dclxx] [1975] P.N.G.L.R. 352.