The State v Peter Kose Wena

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ
• Judgment Date: 19 November 1993
• Citation: [1993] PNGLR 168
• Court: National Court
• Year: 1993
• Judgement Number: N1184

National Court: Kapi DCJ

Judgment Delivered: 19 November 1993

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

PETER KOSE WENA

Waigani

Kapi DCJ

16-17 November 1993

19 November 1993

CRIMINAL LAW — Criminal Law (Compensation) Act 1991 — Relevance of — Necessity for means assessment report.

CRIMINAL LAW — Sentence — Compensation order as punishment — Relevance of customary compensation.

Facts

The accused pleaded guilty to two counts: robbery contrary to s 386 of the Criminal Code and unlawful use of a motor vehicle contrary to s 383 of the code. The Court addressed the relevance of the Criminal Law (Compensation) Act 1991 to sentencing.

Held

1. The terms of Criminal Law (Compensation) Act 1991 must be considered in every sentence by the National Court and the District Court.

2. The court must consider the terms of the Criminal Law (Compensation) Act 1991 in two stages, namely, whether a compensation order should be made in the circumstances of the case and, if so, the actual order in terms of the amount, form, method, period in which to pay, the persons to whom compensation is to be paid, and a sentence in the event of default in the payment, in accordance with Schedule 1 of the act.

3. It is necessary, unless it is not practicable, to receive a means assessment report before the court considers its primary decision on whether to make a compensation order.

Cases Cited

Acting Public Prosecutor v Aumane [1980] PNGLR 510.

Acting Public Prosecutor v Taganis [1982] PNGLR 299.

Counsel

K Umpake, for the State.

B Takin, for the accused.

19 November 1993

KAPI DCJ: The accused pleaded guilty to one count of robbery contrary to s 386 of the Criminal Code and one count of unlawful use of a motor vehicle contrary to s 383 of the Code.

After I administered the allocutus, I brought to the attention of counsel the existence of the Criminal Law (Compensation) Act 1991 (as amended) and its relevance to the question of sentence. I adjourned the case to enable both counsel to study the legislation. Counsel have studied the legislation and made submissions.

The Criminal Law (Compensation) Act 1991 (hereafter the Act) was passed by the National Parliament in 1991 (Act 26 of 1991). It came into force on 17 September 1992.

APPLICATION OF THE ACT

This Act applies to all criminal offences that come before the National Court and the District Court (see definition of "court" in ss 1 and 2 of the Act). In every case where the court is considering sentence, it must have regard to the terms of this Act, in addition to any other punishment that may be imposed under any other law (s 2 (1) ).

The primary decision the court needs to make is "whether in the circumstances of the case, compensation should be ordered" (s 2 (2) ). In considering this matter, s 3 (1) of the Act requires that the court shall take into account the following factors:

" (a) the nature and the seriousness of the offence;

(b) the degree and nature of any personal injury or damage to property suffered by any person as a result of the commission of the offence;

(c) any factors regarding the commission of the offence or the offender's attitude which may be considered in mitigation or aggravation of the punishment;

(d) any relevant custom regarding compensation, including but not limited to:

(i) any custom regarding the nature, the amount, the method of payment and the appropriate person or persons to be paid the compensation; and

(ii) any custom which relates the amount of compensation to the age or life expectancy of the person suffering injury or loss;

(e) the information provided in the means assessment report, including any recommendations made by the Chief Probation Officer in the means assessment report;

(f) any other relevant matter."

In considering these matters, the court is not bound by technical rules of evidence (s 3 (2) ).

CUSTOM REGARDING COMPENSATION

Prior to this Act, customary compensation was considered to be a relevant factor in sentence (s 4 (e) of the Customs Recognition Act Ch 19). The practical result of this is that the court may increase or decrease sentence on account of custom within the range of sentence prescribed by law (see Acting Public...