Kondan Kale v The State

• Jurisdiction: Papua New Guinea
• Judge: Kaputin J:
• Judgment Date: 08 June 1983
• Court: Supreme Court
• Citation: (1983) SC250
• Year: 1983
• Judgement Number: SC250

Full Title: Kondan Kale v The State

Supreme Court: Andrew J, Bredmeyer J, Kaputin J

Judgment Delivered: 8 June 1983

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

(S.C.A. NO.29 OF 1982)

BETWEEN: KONDAN KALE

APPELLANT

AND: THE STATE

RESPONDENT

Waigani

Andrew Bredmeyer Kaputin JJ

27 September 1982

8 June 1983

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.

Cases Referred

Paulus Mandatititip and Anor. v. The State — (1976) P.N.G.L.R. 123 at 131

R. v. Woodman — (1909) 2 Cr. App. R. 67

Wade v. Trotter — (1934) S.A.S.R. 62

Storey v. Wick — (1977) W.A.R. 47

R. v. Barber — (1976) 14 S.A.S.R. 388 at 390

R. v. Stehbens — (1976) 14 S.A.S.R. 240

William Norris v. The State — (1979) P.N.G.L.R. 605

Mauwe Antape v. The State — Unreported S.C. Judgment No. S.C.194 dated 26th March 1981.

Pokun Umba v. The State — Unreported S.C. Judgment S.C.92 dated 2nd April 1976

Mandatititip v. The State — (1978) P.N.G.L.R. 128

Bakiri Pena v. The State — Unreported Supreme Court judgment No. S.C. 183 dated 3rd November 1980.

Acting Public Prosecutor v. Joe Kovea Mailai — Unreported Supreme Court judgment No. SC 203 dated 31st July 1981.

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.

To these matters referred to by His Honour may be added the following namely that this was a determined break and enter committed at night, that the offence does not appea to be prompted by need, that the appellant was not unsophisticated as he worked and lived near Wabag where the requirements of the law have been well known for a long time and that the offence took place in a main part of the town.

It hardly needs to be said once again by this Court that breaking and entering offences of all kinds are grave crimes, very prevalent and increasing in incidence and that as in this case they pose a serious threat to the security of citizens and their property. I would cite once again what was said in Paulus Mandatititip and Anor v. The State (1978) P.N.G.L.R. 128 at 1311:

"In Papua New Guinea at this time, when breaking and entering offences are prevalent generally and when there is widespread public concern about such offence, the courts must remind themselves that under both the introduced law and customary law such offences are viewed seriously. Indeed the maximum penalty laid down in Section 410 (a) of the Criminal Code is fourteen (14) years imprisonment with hard labour. In addition, ordinary people are entitled to be protected, as far as it is possible for the law to protect them, from such offences involving the stealing of property from their homes and business premises. Such conduct must, in my view, be met by some firmness on the part of the court. In Bokun Umba v. The State (Unreported Judgment, S.C. 92 of 2nd April 1976) Prentice D.C.J. (as he then was) referred at p.8 to the need for 'sternness in the community's judicial officers.' Of course, the distinction needs to be drawn between crime of breaking and entering which are premeditated and those which are spontaeous or committed out of necessity. The distinction should also be drawn between crimes of breaking and entering committed by gangs of men and those committed by individuals".

In the present case the appellant was convicted under s.395 of the Criminal Code which carries a maximum penalty of imprisonment for life when the offence is committed at night.

Learned counsel for the respondent made some submissions in...