Garry Kulau v Kevin Alile (1990) N869

• Jurisdiction: Papua New Guinea
• Judge: Doherty AJ
• Judgment Date: 22 May 1990
• Citation: (1990) N869
• Court: National Court
• Year: 1990
• Judgement Number: N869

Full Title: Garry Kulau v Kevin Alile (1990) N869

National Court: Doherty AJ

Judgment Delivered: 22 May 1990

N869

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP NO 48A OF 1990

GARRY KULAU

V

KEVIN ALILE

Lae

Doherty AJ

22 May 1990

A DEFAULT PENALTY OF IMPRISONMENT FOR NON PAYMENT OF A FINE NEED NOT NECESSARILY BE IN THE SAME PROPORTION THAT THE FINE BEARS TO THE MAXIMUM FINE APPEAL AGAINST DEFAULT SENTENCE, SIMILAR PROVISION IN CRIMINAL CODE CONSIDERED — s 201 of District Court Act considered.

Held

In deciding a default penalty the facts and mitigating circumstances if any should be considered as if the defendant was facing imprisonment. Default penalty should not be calculated in the same proportion to the maximum term of imprisonment as the fine is to the maximum fine provided by law.

Counsel

Mr Inkisopo, for the Appellant

Mr Peter, for the Respondent

DOHERTY AJ: The appellant appeals against a decision of the District Court at Lae against sentence following his plea of guilty and conviction on a charge of unlawful use of a motor vehicle contrary to s 25 (1) of the Motor Traffic Act.

The first ground of appeal was that the fine of K400.00 and default penalty of 12 months was in excess of the prescribed maximum punishment under the act. Counsel for the appellant has abandoned this ground in the light of the provisions of the amendment to the Motor Traffic Act (Amendment No. 16 of 1987) increasing the penalty to K2000.00 fine or imprisonment not exceeding five years. He proceeds on the argument that a default penalty of 12 months in hard labour for a fine of K400.00 is excessive.

The appellant pleaded guilty in the District Court and the facts were then read to him. He said "it is true I drove the vehicle. I didn't get the owner's permission to drive the vehicle. Other boys got the car key and they gave it to me so I drove the vehicle".

The statement of facts show that the vehicle was taken from the driver of it (it is not clear if he was the owner) in circumstances that amounted to a robbery, viz a knife was put to the driver's chest with the demand for the car keys. There is no suggestion that the...