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Nawara v Karo [1981] PGNC 100; N294 (9 April 1981)

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

APPEAL NO 330 OF 1980

BETWEEN:

ALBERT NAWARA
Appellant

AND:

ROBERT KARO
Respondent

CORAM: KAPI, J
Thursday
9^th April, 1981

Appeal – good behavior bond – breach of bond – the power of court on sentence when considering breach of bond – committal to prison is not for breach of bond but for conviction – time for appeal begins to run when the suspended sentence is imposed.

Reasons for Decision

The appellant was convicted of stealing a biro on 18^th June, 1980 by the District Court at Kavieng. He was sentenced to six weeks in hard labour. However, this sentence was suspended by the court on the condition that the appellant entered into his own recognizance to be of good behavior for a period of 12 months.

On 12^th November, 1980, the appellant was charged again and found guilty of using insulting words pursuant to the provisions of the Summary Offences Act. He was fined the sum of K30.00. The conviction on this offence was a breach of the bond imposed on 18^th June, 1980. Consequently, the District Court forfeited the recognizance entered into by the appellant and committed him to six weeks in hard labour (the suspended sentence).

This appeal is against the severity of six weeks imprisonment.

It was agreed by both counsel that the suspension of sentence of six weeks was done under s 613(1)(b) of the Code and that the forfeiture of recognizance and committal to prison was done under s 613(7)(d) of the Code.

When a sentence is imposed and suspended under s 613(1)(b) of the Code, the sentence imposed does not commence to run until there is a breach of the bond. (See s 613(7) of the Code.)He cannot complain about the sentence because it is deferred. If no breach of the bond takes place during the period given, the convicted person is discharged from that sentence and the conviction is not to be taken into account as a previous conviction on a subsequent conviction (s 613(7) last paragraph of the Code).

When a court considers the question of forfeiture of a recognizance under s 613 of the Code, the court is only exercising one discretion and that is whether or not it should forfeit the recognizance and commit the person to prison. In this case, the court in the exercise of it discretion forfeited the recognizance and committed the appellant to six weeks in hard labour (the suspended sentence).

Counsel for the appellant does not complain about the exercise of this discretion.

In my view, where a court forfeits a recognizance and commits a person to prison under s. 613(7) of the Code, it is not exercising discretion on sentence the second time on the first conviction. When the court exercises discretion to forfeit recognizance, it must impose the suspended sentence given under s. 613(1)(b) or so much thereof that remains to be served under s. 613(2) of the Code. The court cannot impose a sentence other than the suspended sentence. This would be similar to s. 19(f) of the Code except that under s. 19(f) the court is given discretion either to impose the suspended sentence, or part thereof.

The committal on suspended sentence under s. 613(7) is not a sentence on the breach of recognizance but a sentence on the original conviction. See Reg v Blow^[1]. Once the sentence is imposed under s. 613(7) of the Code, the time in which to appeal begins to run and the appellant may appeal against the sentence.

The appeal was lodged within time.

(His Honour then dealt with the facts of the case and concluded that the sentence of six weeks in hard labour was manifestly excessive and reduced sentence to two weeks, which had been served.)

^[1] (1963) QWN 1