Paulus Mandatititip and Another v The State [1978] PNGLR 128

• Jurisdiction: Papua New Guinea
• Judge: Wilson J:
• Judgment Date: 03 May 1978
• Citation: [1978] PNGLR 128
• Court: Supreme Court
• Year: 1978
• Judgement Number: SC129

Full Title: Paulus Mandatititip and Another v The State [1978] PNGLR 128

Supreme Court: Prentice CJ, Pritchard J, Wilson J

Judgment Delivered: 3 May 1978

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PAULUS MANDATITITIP AND ANOR.

V

THE STATE

Waigani

Prentice CJ Pritchard J Wilson J

2-3 May 1978

CRIMINAL LAW — Appeal against sentence — Appeal by convicted person — Principles applicable — Need to show sentence manifestly excessive.

CRIMINAL LAW — Appeal against sentence — Youthful first offenders — Relevant considerations — Breaking, entering and stealing — Deterrent necessary generally — Severity necessary despite youthfulness — No exceptional circumstances.

On appeal against severity of sentences of 16 months' imprisonment (effective 19 months) and 20 months' imprisonment (effective 23 months) imposed on two young men aged about 19 and 22 years with no previous convictions, on convictions for breaking, entering and stealing from a trade store in circumstances where it appeared there was pre-planning, co-operation of a number of people, an almost complete stripping of the stock of the store, and that the offence occurred in a district which had been notoriously lawless over a considerable period beforehand;

Held

(1) An appeal against sentence by a convicted person should not be allowed unless it can be shown that the sentence imposed by the trial judge is manifestly excessive.

Reg. v. Pia-Afu [1971-72] P. & N.G.L.R. 393; Wanosa and Ors. v. The Queen [1971-72] P. & N.G.L.R. 90 and Reg. v. McGrath [1971-72] P. & N.G.L.R. 247 affirmed.

(2) The prevalence of the offence of breaking and entering in Papua New Guinea is such that deterrent sentences are required, and youthful offenders should not receive special treatment unless there are exceptional circumstances which call for leniency.

Reg. v. Cuthbert (1967) 86 W.N. (Pt. 1) (N.S.W.) 272 at p. 277 referred to.

(3) (Per Wilson J) In the absence of circumstances of substantial gravity surrounding a crime committed by a young first offender who stands to be punished and in the absence also of a sufficient reason for sentencing him to a term of imprisonment, a retributive or primarily deterrent sentence is not desirable.

(4) In view of the prevalence of the particular offence, the particular circumstances and the absence of any exceptional circumstances relative to the appellants, the appeals should be dismissed and the sentences confirmed.

Appeals

These were appeals against severity of sentences imposed on two young offenders on convictions on charges of breaking, entering and stealing.

Counsel

W. Kaputin, for the appellants.

K. B. Egan, for the respondents.

Cur. adv. vult.

3 May 1978

PRENTICE CJ PRITCHARD J: Leave is sought to appeal against sentence on behalf of the two appellants. We would be prepared to grant such leave.

The two appellants are young men. Paulus who was sentenced to 16 months' imprisonment (effective 19 months), looked to the trial judge to be 16 or 17. The police estimated his age at 19.

Poro, who was sentenced to 20 months' imprisonment (effective 23 months), his Honour as well as the police, took to be 22 years old. Their crime was that of breaking, entering and stealing from a trade store in September 1977 in the Wapenamanda area, for which the maximum statutory penalty is 14 years' imprisonment with hard labour.

His Honour's adjudication is attacked as being excessive having regard to the appellants' ages and lack of prior convictions, the comparatively small value of the goods stolen, the surrounding circumstances, sentences in other cases, and the lack of evidence of prevalence of this offence in the particular area — the Enga Province.

It should be unnecessary to do so, but apparently one must again draw attention to the stream of cases in the pre-Independence Supreme Court (Reg. v. Pia-Afu [1971-72] P. & N.G.L.R. 393.1, Wanosa and Ors. v. The Queen [1971-72] P. & N.G.L.R. 90.2 and Reg. v. McGrath [1971-72] P. & N.G.L.R. 247.3 being among the earlier ones), whereby an interpretation of the then appeal statute was then worked out. Thereunder it was laid down that whereas on appeal on sentence by...