N413(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 83 OF 1983

BETWEEN:

MARKAM KAMANE
APPELLANT

AND:

JOE MAIKEPA
RESPONDENT

Mount Hagen: Woods AJ
12 April 1983

DECISION AND REASONS

WOODS AJ: The Appellant was convicted on the 10th day of August 1982 by the District Court at Chuave on a charge of stealing 121 umbrellas valued at K2.60 each and 2 pairs of shoes valued at K18 each the property of Hagen Hauliers. The charge was dealt with by the District Court under Section 48 C (1) of the Summary Offences Act. The appellant was sentenced to imprisonment with hard labour for a period of 12 months.

The grounds of appeal is that the sentence was and is manifestly excessive in the circumstances.

The appellant submitted that as the penalty under Section 48 C (1) is to a maximum of 12 months imprisonment, such maximum penalty should only be reserved for the most serious type of cases and this particular charge as it only involves a sum of K350 is not near the maximum jurisdiction in Section 48 C (1) of K500.

The State appeared for the respondent and presented no submission and agreed that the sentence may have been excessive.

The power to interfere with a magistrates assessment should not be exercised lightly, it is not a question of my saying I may have imposed a lesser sentence, rather it is a matter of saying could the magistrate have imposed that sentence in the circumstances, did the magistrate apply wrong principles or take into account irrelevant factors or leave out of account some relevant factor.

This case was one of theft from a Highway Transport along the Highlands Highway. I must emphasise that when people steal from shops and businesses the whole community has to pay for the loss because businesses have to put up the prices to cover the loss. This type of offence is too prevalent and people do not appear to be deterred by light sentences and fines.

Whilst I appreciate that normally the maximum penalty is reserved only for the most serious offences I feel that in the case of Section 48 C (1) this principle would not apply as this provision is aimed at transferring jurisdiction to the District Court and merely limiting the punishment that can be given consistent with current sentencing for stealings. So whilst the total value of the goods stolen was less than the maximum of K500 referred to in Section 48 C (1) I feel that this type of offence is so prevalent and serious that it was quite open to the Magistrate to impose a penalty of 12 months imprisonment. The Magistrate is closer to the feelings of the people and the community and I must respect his assessment.

I find that the sentence imposed was not manifestly excessive and there has been no substantial miscarriage of justice. I dismiss the Appeal.

Lawyer for Appellant: Public Solicitor
Counsel: Peter Kopuyne
Lawyer for Respondent: Public Prosecutor
Counsel: Gibbuma Salika