Nawara v Karo [1981] PNGLR 125 (9 April 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 125 - Albert Nawara v Robert Karo 

[1981] PNGLR 125

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ALBERT NAWARA

V

ROBERT KARO

Kavieng

Kapi J

9 April 1981

CRIMINAL LAW - Sentence - Suspended sentence - Good behaviour bond - Breach of bond - Forfeiture of recognizance - Discretionary power - No power to vary suspended sentence - Time in which to appeal against sentence - Criminal Code s. 613(1)(b)[clxxxvii]¹, s. 613(7)[clxxxviii]².

CRIMINAL LAW - Appeal against sentence - Time in which to appeal - Breach of bond - Suspended sentence imposed - Time to run from imposition of suspended sentence - Criminal Code s. 613(1)(b)[clxxxix]³, s. 613(7)[cxc]⁴.

Where a sentence of imprisonment is suspended pursuant to s. 613(1)(b) of the Criminal Code on condition that the convicted person enter into his own recognizance to be of good behaviour and there is a breach of that bond the question of forfeiture of that recognizance under s. 613(7) is a discretionary one.

Once a recognizance is forfeited the suspended sentence or so much thereof as remains to be served must be imposed and begins to run. The court forfeiting the recognizance cannot impose a sentence other than the suspended one.

Once a suspended sentence is imposed on forfeiture of recognizance time in which to appeal against that sentence begins to run.

Appeal

This was an appeal against severity of sentence.

Counsel

D. W. Lightfoot, for the appellant.

T. D. Kitchin, for the respondent.

9 April 1981

KAPI J:  The appellant was convicted of stealing a biro on 18th June, 1980 by the District Court at Kavieng. He was sentenced to six weeks in hard labour. However, this sentence was suspended by the court on the condition that the appellant entered into his own recognizance to be of good behaviour for a period of twelve months.

On 12th November, 1980, the appellant was charged again and found guilty of using insulting words pursuant to the provisions of the Summary Offences Act 1977. He was fined the sum of K30. The conviction on this offence was a breach of the bond imposed on 18th June, 1980. Consequently, the District Court forfeited the recognizance entered into by the appellant and committed him to six weeks in hard labour (the suspended sentence).

This appeal is against the severity of six weeks’ imprisonment.

It was agreed by both counsel that the suspension of sentence of six weeks was done under s. 613(1)(b) of the Criminal Code and that the forfeiture of recognizance and committal to prison was done under s. 613(7)(d) of the Code.

When a sentence is imposed and suspended under s. 613(1)(b) of the Code, the sentence imposed does not commence to run until there is a breach of the bond. (See s. 613(7) of the Code.) He cannot complain about the sentence because it is deferred. If no breach of the bond takes place during the period given, the convicted person is discharged from that sentence and the conviction is not to be taken into account as a previous conviction on a subsequent conviction (s. 613(7) last paragraph of the Code).

When a court considers the question of forfeiture of a recognizance under s. 613(7) of the Code, the court is only exercising one discretion and that is whether or not it should forfeit the recognizance and commit the person to prison. In this case, the court in the exercise of its discretion forfeited the recognizance and committed the appellant to six weeks in hard labour (the suspended sentence).

Counsel for the appellant does not complain about the exercise of this discretion.

In my view, where a court forfeits a recognizance and commits a person to prison under s. 613(7) of the Code, it is not exercising a discretion on sentence the second time on the first conviction. Where the court exercises a discretion to forfeit recognizance, it must impose the suspended sentence given under s. 613(1)(b) or so much thereof that remains to be served under s. 613(2) of the Code. The court cannot impose a sentence other than the suspended sentence. This would be similar to s. 19(f) of the Code except that under s. 19(f) the court is given a discretion either to impose the suspended sentence, or part thereof.

The committal on suspended sentence under s. 613(7) is not a sentence on the breach of recognizance but a sentence on the original conviction. See R. v. Blow[cxci]⁵. Once the sentence is imposed under s. 613(7) of the Code, the time in which to appeal begins to run and the appellant may appeal against the sentence.

The appeal was lodged within time.

[His Honour then dealt with the facts of the case and concluded that the sentence of six weeks in hard labour was manifestly excessive and reduced sentence to two weeks, which had been served.]

Appeal allowed.

Solicitor for the appellant: A. K. Amet, Public Solicitor.

Solicitor for the respondent: L. Gavara-Nanu, Acting Public Prosecutor.

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[clxxxvii]Infra p. 126.

[clxxxviii]Infra p. 126.

[clxxxix]Infra p. 126.

[cxc]Infra p. 126.

[cxci] [1963] Q.W.N. 1.