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Winta v The State [1997] PGNC 127; N1677 (4 October 1997)

Unreported National Court Decisions

N1677

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP. 266 OF 1996
TIMIN WINTA
APPELLANT
-V-
THE STATE
RESPONDENT

Goroka

Sawong J
4 October 1997

Counsel

Mr K. Wogaro, for the Appellant

Ms R. Johnson, for the Respondent

SAWONG J: This was an appeal by the Appellant from the decision of the District Court sitting at Kainantu. The only ground of the appeal was against the sentence that was imposed.

The history of the matter is fairly short. The appellant was charged with having “in his possession articles, namely two (2) blue movie tapes that grossly offend against accepted standards of decency” an offence against Section 25 (A)(1) of the Summary Offences Act. He pleaded guilty and was sentenced to six (6) months imprisonment with light labour at the Erap Boys Town.

Both counsel have filed written submissions. Mr Wogaro for the appellant made the following submissions. He submitted that the sentence was excessive in the circumstances because of the prior good conduct and youthfulness of the offender together with the fact that he has pleaded guilty and has no prior convictions. The second ground of appeal is that the learned magistrate had erred in not exercising his discretionary powers under Section 132 of the District Courts Act. Before I go into his submissions, I consider that the starting point should be the penalty provisions provided for this particular offence under the Summary Offences Act. The penalty prescribed under that Act is a find not exceeding K2,000.00 or imprisonment for a term not exceeding one (1) year or both. So it is quite clear that alternative sentences have been provided for by the Act.

Mr Wogaro has submitted firstly, because the appellant was a youthful offender who had no prior convictions and who had pleaded guilty in all the circumstances a non-custodial sentence would have been appropriate. Secondly, he submits that there was no material evidence before the learned magistrate that other students had viewed the tapes and that there was a greater risk of the appellant committing similar offences in the future. He submitted that youth is a substantial mitigating factor and that the learned magistrate did not consider and gave due weight to the youthfulness and the peculiar circumstances of the offender in imposing the sentence that he did. Mr Wogaro submitted in the end that in the circumstance the period that the appellant had served his term in imprisonment should be sufficient punishment.

Ms Johnson on the other hand has submitted that the learned magistrate did not make or fall into any error when he imposed the sentences. She submitted that the learned magistrate did take into consideration the fact that the offender pleaded guilty, and that he was a youthful first offender on the one hand and on the other hand, there were aggravating factors, namely that this was a prevalent offence involving juveniles. She submitted that in either case the learned magistrate did not fall into an error.

The learned magistrate has provided reasons for his decision. I note from his reasons from the sentence that he does not seem to have given any weight to the fact that the offender is a youthful offender who has no prior convictions and who has pleaded guilty. He however, has in my view over emphasis the need for deterrent sentence because of the prevalence of this kind of offences being committed by juveniles. Whilst I accept that this may be a prevalent offence committed by juvenile offenders, each case must be looked at on its own facts and on its own circumstances. I consider that his learned worship placed too much emphasis on the deterrent aspect of the sentence and gave little or no consideration to a rehabilitative aspect of a sentence. In so doing in my view, he fell into an error in imposing the sentence that he did.

In this circumstances, I will quash the sentence that the learned magistrate had imposed and substitute a sentence of K500.00 fine.

My formal orders are:

1. &##160;; T60; That that the appeal be upheld.

2. &##160;; T60t that the sent sentence imposed by the learned magistrate be quashed, and substitute a fine of K500.00 in default six (6) months imprisonment in labop>

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Lawyerswyers for the Respondent - Ms Rosie Johnson