Acting Public Prosecutor v Joe Kovea Mailai

• Jurisdiction: Papua New Guinea
• Citation: [1981] PNGLR 258
• Date: 31 July 1981
• Court: Supreme Court
• Year: 1981

Supreme Court: Andrew J, Pratt J, Bredmeyer J

Judgment Delivered: 31 July 1981

1 Criminal law—State appeal against sentence—insufficient—breaking, entering and stealing—youthful first offenders—deterrent necessary generally—punishment for this offence will increase

2 CRIMINAL LAW—Sentence—Youthful first offenders—Prevalent and serious offence—No special treatment unless exceptional circumstances.

3 CRIMINAL LAW—Appeal against sentence—Youthful first offenders—Break, enter and steal—Prevalent and serious offence—Deterrent necessary generally—No special treatment for youth unless exceptional circumstances.

4 CRIMINAL LAW—Appeal against sentence—Appeal against inadequacy—Delay in bringing appeal relevant consideration.

On appeal against inadequacy of a sentence "to the rising of the court", imposed on a fifteen year old first offender, on a plea of guilty of breaking entering and stealing from a store in circumstances where it appeared the defendant played an active part as a member of a gang who planned and committed the offence:

Held:

(1) Where offences such as breaking, entering and stealing are serious, prevalent and invariably committed by young persons, youthful offenders should not receive special treatment unless there are exceptional circumstances calling for leniency;

Paulus Mandatititip v The State [1978] PNGLR 128 followed and explained;

(2) The gravity of the particular offence was such that it called for a custodial sentence of the order of twelve months imprisonment and above;

(3) Delay in lodging and hearing an appeal against sentence is a relevant factor in determining whether the sentence should be increased;

The Public Prosecutor v Willy Moke Soki [1977] PNGLR 165 at 167 adopted and applied;

(4)

(a) (Per Andrew J and Pratt J). Although the sentence was manifestly inadequate a delay of nine months in prosecuting the appeal against sentence was such that the sentence should not in fact be increased;

(b) (Per Bredmeyer J). Although the sentence was manifestly inadequate, the delay involved should mean only a reduction in the sentence to be otherwise imposed.

Appeal.

This was an appeal pursuant to s23 of the Supreme Court Act, 1975 against sentence on the ground of inadequacy.

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Andrew J Pratt J:

This is an appeal by the Acting Public Prosecutor, on the ground of inadequacy, against the sentence imposed by the National Court on the respondent for an offence of breaking, entering and stealing. The respondent had pleaded guilty to a charge that on or about 30 May 1980, in Papua New Guinea, he broke and entered a store of WR Carpenter (PNG) Ltd and therein stole a quantity of hardware goods and radio cassettes, valued at K1,573.36, the property of the said WR Carpenter (PNG) Ltd. On 27 October 1980, the respondent was sentenced by the National Court, sitting at Waigani, to the rising of the court.

In our view this was a particularly bad case. The facts disclosed that the respondent was a member of a gang known as the "Mafia Gang" and that on the night in question the gang members assembled at the respondent's house where they planned this offence. They stole a vehicle from underneath a house and when challenged by the owner they threatened him with knives and stones. They obtained house breaking implements and they then used the vehicle to drive to the store where they broke in, collected the goods and drove...