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State v Tobata [2021] PGNC 583; N9400 (22 April 2021)

N9400

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 138 & 139 OF 2020

THE STATE

V

FIDELIS GEORGE TOBATA

Kerevat: Suelip AJ
2021: 12^th, 19^th, 21^st & 22^nd April

CRIMINAL LAW – Practice and procedure – vacating sentence – power to vary sentence before circuit closed.

Cases Cited

State v. Kaupa Ungi [1980] PNGLR 199

Counsel

G. Tugah, for the State
S. Pitep, for the Prisoner

APPLICATION TO VARY SENTENCE

22^nd April, 2021

1. SUELIP AJ: This is an application by the State to vary a sentence. Three days ago, on 19 April 2021, the prisoner was sentenced to 20 years imprisonment in hard labour less pre-sentence term of 1 year and 5 months. The prisoner is to serve the balance of 18 years and 7 months in prison at Kerevat Correctional Institution.

2. The basis of the application is essentially that the Court pronounced a blanket sentence for the prisoner to serve 20 years imprisonment in hard labour without having regard to the 2 separate counts of sexual penetration he was convicted of.

3. I do not take the recalling of sentences lightly, but I refer to the case of State v. Kaupa Ungi [1980] PNGLR 199 where I can recall my own sentence before a circuit ended. In that case, the Court held:

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

4. Defence did not contest the application.

5. The prisoner is unable to be brought back into Court at this stage as there is currently a lock down at Kerevat Correctional Institution since Monday, 19 April 2021 because of a suspected case of Covid 19 on a convicted detainee. This lock down is for a month until 19 May 2021. As the application is not contested, I can reconsider and alter the sentence prior to the closing of the circuit this week.

6. After reconsideration of the circumstances discussed in my written decision on sentence, delivered in Court 3 days ago, I am now satisfied that this case warrants the fixing of the prisoner’s sentence at 10 years for the first count of sexual penetration. For the second count, I will also sentence the prisoner to 10 years, a total of 20 years. The pre-sentence term of 1 year and 5 months is deducted from 20 years.

7. Hence, the orders of this Court are:

(i) The sentence of 19 April 2021 is varied.

(ii) On the first count, the prisoner is sentenced to 10 years imprisonment in hard labour.

(iii) On the second count, the prisoner is also sentenced to 10 years imprisonment in hard labour.

(iv) His pre-sentence custody term of 1 year and 5 months is deducted.

(v) The balance of his sentence of 18 years and 7 months will be served at Kerevat Correctional Institution.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner