Public Prosecutor v Thomas Vola [1981] PNGLR 412

• Jurisdiction: Papua New Guinea
• Judge: Kapi J, Pratt J, Miles J
• Judgment Date: 19 October 1981
• Citation: [1981] PNGLR 412
• Court: Supreme Court
• Year: 1981
• Judgement Number: SC210

Full Title: Public Prosecutor v Thomas Vola [1981] PNGLR 412

Supreme Court: Kapi J, Pratt J, Miles J

Judgment Delivered: 19 October 1981

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PUBLIC PROSECUTOR

V

THOMAS VOLA

Waigani

Kapi J Pratt J Miles J

26 August 1981

19 October 1981

CRIMINAL LAW — Sentence — Suspending portion of term of imprisonment — Proper basis and procedure for — Criminal Code s. 19 (f) The proviso to s. 19 (f) provides:

Provided that whenever the court shall sentence any person so convicted to a term of imprisonment, it may further order that the offender be imprisoned for such portion of that term as it shall think fit and that the execution of the sentence for the remaining portion thereof be suspended upon his entering into a recognizance, with sureties if so directed, as aforesaid but further conditioned that, if called upon, he shall appear and receive judgment in respect of his service of the portion of his sentence so suspended and any judge of the court may, upon being satisfied that the offender has committed a breach of any of the conditions of the recognizance, forfeit the recognizance and commit him to prison to undergo the portion of his sentence so suspended or any part thereof.1.

The power of a sentencing judge to suspend portion of a term of imprisonment pursuant to the proviso to s. 19 (f) of the Criminal Code is discretionary and must be exercised upon some proper basis; it is not permissible to take into account the same factors which have been taken into account in arriving at the sentence imposed.

Where a sentencing judge proposes to suspend portion of a sentence under the proviso to s. 19 (f), as the suspension is effective only upon the offender entering into the recognizance proposed, the offender should be given the opportunity of entering into the recognizance before commencing to serve the portion of the term ordered to be served.

Appeal.

This was an appeal against sentence, on the ground of inadequacy.

Counsel:

C. Bourke, for the appellant.

N. Kirriwom and C. Bruce, for the respondent.

Cur. adv. vult.

19 October 1981

KAPI J PRATT J MILES J: The decision of the court in this matter was handed down on 26th August 1981. We now publish our reasons.

This was an appeal by the Public Prosecutor against sentence. The respondent pleaded guilty in the National Court to a charge of rape. He was sentenced to a term of two and a half years imprisonment with hard labour. Pursuant to the proviso to s. 19 (f) of the Criminal Code the learned National Court judge ordered that the respondent be imprisoned for nine months portion of that term and that execution of the sentence for the remaining portion of the term be suspended upon the respondent's entering into a recognizance in the sum of K200.00 to keep the peace and be of good behaviour for a period of two years. The Public...