DC540

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

DCCr 47 of 1998

BETWEEN

JOE PIRI YAREPEA
Informant/ Respondent

AND

KOMANE WASAGE
Defendant/Applicant

Goroka: M Gauli
2007: January 05

CRIMINAL - Application for variation of the sentence. The Defendant/ Applicant was convicted and sentenced to six months imprisonment by the District Court on the 9 June 1998 for been in possession of ammunition without being the licence holder pursuant to s 65A of the Firearms Act.

He appealed to the National Court but the appeal was dismissed on 16 December 2004. On 04 December 2006 he was apprehended to serve his term of the sentenced. He now apply to vary that sentence.

Cases Cited
State –v- Aruwe Waiba SCR No. 1 of 1994 (Unreported)
State –v- Kaupa Ungi [1980] PNGLR 199 

References
1. District Courts Act, s 22 

Counsel
Lawyer for the Applicant – From Public Solicitors Office, Goroka 
Lawyer for the Respondent – Prosecutor from Goroka Police Station

05 January 2007

DECISION OF THE COURT

M Gauli, PM: This is an application by way of a notice of motion by the defendant seeking orders to vary the sentence of six months imposed on him by the District Court Magistrate on 09 June 1998. He was convicted and sentenced for being in possession of ammunitions without being licenced, pursuant to Section 65 A of the Fire Arms Act.

2. This provision carries a minimum of six months and maximum of twelve months imprisonment. This provision states and I quote: “65 A Unauthorized possession of ammunition

A person who is in possession of ammunition and who is not 

(a) the holder of an ammunition licence; or (b) the holder of a gun-dealer licence; or (c) the holder of –

(i) a firearm licence; or (ii) a high-powered firearm licence; or (iii) a pistol licence; for a firearm, high-powered firearm or pistol, as the case may be capable of discharging ammunition of the specific calibre or gauge of that which is in his possession, is guilty of an offence.

Penalty: Imprisonment for a term not less than six months and not exceeding twelve months”.

3. Soon after his sentence he lodged an appeal to the National Court on 10th of June 1998 by his lawyer from the Acanufa & Associates Lawyers based in Goroka. The applicant was then released on bail pending his appeal. For some unknown reasons the Acanufa and Associate Lawyers withdrew their representation on 09 September 1998, while unknown to the applicant.

4. The appeal was dismissed by the National Court on 16 December 2004 for want of prosecution. That order was entered on 17 October 2006 by the Assistant Registrar of the National Court in Goroka. Then on 24 October 2006 the District Court Magistrate issued a Warrant of Commitment, and the defendant/ applicant was apprehended on 04 December 2006 and taken to Bihute jail to serve his sentences. The prisoner now applies to the District Court again to vary the sentence.

5. Issue:

The only issue for this Court to determine is:

“Whether or not the District Court has the jurisdiction to vary the sentence the Court had already imposed”.

6. The council Mr. M. Apie’e for the prisoner/ applicant submitted that the applicant relies on the affidavit of the council Mr. M. Apie’e. The council submitted that there are no laws strictly applicable to this particular application. However he relied on the Section 22 of the District Courts Act and the decision of the Supreme Court in the STATE –V- ARUWE WAIBA, SCR No. 1 of 1994 (Unreported).

7. The Prosecutor Sergeant Bonke on behalf of the Respondent basically submitted that the District Court may have no jurisdiction to vary the sentence after the sentence has been imposed.

8. I have no case laws and or any legislations which directly deals with the variations of the sentences after the sentence has been imposed by the Court in a criminal proceeding. The case law referred to by the applicant’s council above relates to the situation where the Court need to consider sentencing options such as the Section 19 of the Criminal Code Act, before imposing sentence. In that case the Supreme Court held that where an offence carries a minimum and maximum terms of imprisonment the sentencing option sunder s 19 of the C.C.A are still available. The Supreme Court’s decisions in that case did not given the Court powers to vary the sentence been imposed.

9. The only case where the National Court judge has the power to vary its own sentence is in the case of STATE –V- KAUPA UNGI [1980] PNGLR 199. The then Acting Judge, His Honour Justice Narakobi while on Court circuit sentenced the accused to 12 months for breaking entering and stealing as a first offender. Before his circuit ended the State council found that the accused has two prior convictions and the State applied to vacate the sentence and impose fresh sentence. His Honour held and I quote:

“A judge of a National Court having imposed a sentence during circuit sittings and in the exercise of his criminal jurisdiction, has the power to reconsider and alter the sentence at anytime before the circuit is formally closed”.

10. And His Honour did vary the sentence by increasing it. This applied particularly to the court on circuits. The case now before me does not fall within this category. The sentence in the present case was made some eight years ago. The prisoner had appealed to the National Court and claimed that the sentence was manifesively excessive. However he failed to prosecute the appeal which resulted in his appeal been dismissed. I find that these two cases: STATE –V- ARUWA WAIBA and STATE –V- KAUPA UNGI are not applicable to the present case.

11. The Council Mr. M. Apie’e referred the Court to Section 22 of the District Courts Act. He submitted that this provision does give the Court the discretion to vary the sentence. I am of the view that the council has misdirected himself to this provision for the reasons that Section 22 of D.C.A does no empower the District Court the discretion to vary the sentence. There are no provisions in the District Courts Act, the Firearms Act, or in any other legislations or even the Constitution of Papua New Guinea that gives the District Court the discretionary powers to vary the sentence been imposed.

12. Once the sentence is imposed and the prisoner is not satisfied with the sentence, all that he can do is to appeal against the sentence to the higher court. In the present case the prisoner did appeal but the appeal was dismissed for want of prosecution. He may have good reasons for not prosecuting the appeal. In that case all he has to do is to apply to the Supreme Court for a review. He cannot come back to the District Court to vary the sentence which was imposed some eight years ago. That would seem to be an abuse of the due process of the law.

13. For the reasons I have stated above I find that the District Court Magistrate does not have the discretion nor does it have the jurisdiction to vary the sentence he himself imposed or the sentence imposed by a brother magistrate. Accordingly I would dismiss this application to vary the sentence and I make an order that the applicant continue to serve sentence imposed by the District Court. 

Lawyer for the Applicant: Mr. Michael Apie’e of the Public Solicitor’s Office, Goroka 
For the Respondent: Sergeant Bonke, Prosecutor from Goroka Police Station