Kondan Kale v The State

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: (1983) SC250
• Date: 08 June 1983
• Year: 1983

Full Title: Kondan Kale v The State

Supreme Court: Andrew J, Bredmeyer J, Kaputin J

Judgment Delivered: 8 June 1983

1 Criminal law—appeal against sentence—breaking, entering and stealing—prevalence of offence—functions of appeal court to standardise sentences—need for increase by steps and not by leaps—"tariff" principle referred to

2 CRIMINAL LAW—Appeal against sentence—breaking entering and stealing—prevalence of offence—function of Appeal Court to standardize sentences—need for increase by steps and not by leaps—"tariff" principle referred to.

Paulus Mandatititip v The State [1978] PNGLR 128, R v Woodman (1909) 2 Cr App R 67, Wade v Trotter [1934] SASR 62, Storey v Wick [1977] WAR 47, R v Barber [1976] 14 SASR 388 at 390, R v Stehbens (1976) 14 SASR 240, William Norris v The State [1979] PNGLR 605, Mauwe Antape v The State [1981] PNGLR 68, Pokun Umba v The State (1976) SC92, Bakiri Pena v The State (1980) SC183 and Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258 referred to

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Andrew J:

The appellant pleaded guilty at the May 1982 Sittings of the National Court at Wabag to a charge of breaking and entering a dwelling house in the night time and stealing cash and goods to the value of K1,405.50. He received a sentence of three (3) years imprisonment with hard labour and he now makes application for leave to appeal against the sentence on the ground that in all the circumstances it is manifestly excessive.

Prior to his conviction and sentence the appellant had spent four months in custody so that it can be said that the effective period of incarceration will be three years and four months.

The facts in the present case are that the appellant, aged 20 or 21 with some minimal education was with two others when they broke into the house of a doctor at Wabag. The learned trial judge accepted that the two others did the actual breaking into the house and that the appellant stayed outside and acted as a "watch–man". Amongst the things stolen were K195 in cash, the doctor's blood pressure cuff and electronic stethoscope, shoes and cooking utensils. The appellant received some of these goods and some were recovered later in his village. However, the medical equipment had been damaged.

The appellant had a prior conviction for driving without a licence but for purposes of sentence he was treated as a first offender. The trial judge also took into account that the appellant's family had made some reparation to the doctor and he took into consideration the plea of guilty and the appellant's remorse. He considered however that because of the prevalence of the offence and the need for deterence that a sentence of three years was warranted in the circumstances.

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