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Wena, The State v [1993] PNGLR 168 (19 November 1993)

PNG Law Reports 1993

[1993] PNGLR 168 - State v Peter Kose Wena 

[1993] PNGLR 168

N1184

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

PETER KOSE WENA

Waigani

Kapi DCJ

16-17 November 1993

19 November 1993

CRIMINAL LAW - Criminal Law (Compensation) Act 1991 - Relevance of - Necessity for means assessment report.

CRIMINAL LAW - Sentence - Compensation order as punishment - Relevance of customary compensation.

Facts

The accused pleaded guilty to two counts: robbery contrary to s 386 of the Criminal Code and unlawful use of a motor vehicle contrary to s 383 of the code. The Court addressed the relevance of the Criminal Law (Compensation) Act 1991 to sentencing.

Held

1.       The terms of Criminal Law (Compensation) Act 1991 must be considered in every sentence by the National Court and the District Court.

2.       The court must consider the terms of the Criminal Law (Compensation) Act 1991 in two stages, namely, whether a compensation order should be made in the circumstances of the case and, if so, the actual order in terms of the amount, form, method, period in which to pay, the persons to whom compensation is to be paid, and a sentence in the event of default in the payment, in accordance with Schedule 1 of the act.

3.       It is necessary, unless it is not practicable, to receive a means assessment report before the court considers its primary decision on whether to make a compensation order.

Cases Cited

Acting Public Prosecutor v Aumane [1980] PNGLR 510.

Acting Public Prosecutor v Taganis [1982] PNGLR 299.

Counsel

K Umpake, for the State.

B Takin, for the accused.

19 November 1993

KAPI DCJ: The accused pleaded guilty to one count of robbery contrary to s 386 of the Criminal Code and one count of unlawful use of a motor vehicle contrary to s 383 of the Code.

After I administered the allocutus, I brought to the attention of counsel the existence of the Criminal Law (Compensation) Act 1991 (as amended) and its relevance to the question of sentence. I adjourned the case to enable both counsel to study the legislation. Counsel have studied the legislation and made submissions.

The Criminal Law (Compensation) Act 1991 (hereafter the Act) was passed by the National Parliament in 1991 (Act 26 of 1991). It came into force on 17 September 1992.

APPLICATION OF THE ACT

This Act applies to all criminal offences that come before the National Court and the District Court (see definition of "court" in ss 1 and 2 of the Act). In every case where the court is considering sentence, it must have regard to the terms of this Act, in addition to any other punishment that may be imposed under any other law (s 2(1)).

The primary decision the court needs to make is "whether in the circumstances of the case, compensation should be ordered" (s 2(2)). In considering this matter, s 3(1) of the Act requires that the court shall take into account the following factors:

"(a)     the nature and the seriousness of the offence;

(b)      the degree and nature of any personal injury or damage to property suffered by any person as a result of the commission of the offence;

(c)      any factors regarding the commission of the offence or the offender's attitude which may be considered in mitigation or aggravation of the punishment;

(d)      any relevant custom regarding compensation, including but not limited to:

(i)       any custom regarding the nature, the amount, the method of payment and the appropriate person or persons to be paid the compensation; and

(ii)      any custom which relates the amount of compensation to the age or life expectancy of the person suffering injury or loss;

(e)      the information provided in the means assessment report, including any recommendations made by the Chief Probation Officer in the means assessment report;

(f)      any other relevant matter."

In considering these matters, the court is not bound by technical rules of evidence (s 3(2)).

CUSTOM REGARDING COMPENSATION

Prior to this Act, customary compensation was considered to be a relevant factor in sentence (s 4(e) of the Customs Recognition Act Ch 19). The practical result of this is that the court may increase or decrease sentence on account of custom within the range of sentence prescribed by law (see Acting Public Prosecutor v Aumane [1980] PNGLR 510; Acting Public Prosecutor v Taganis [1982] PNGLR 299). This allowed the courts to take into account customary compensation wherever it was paid or promised to be paid. However, the law did not authorise the courts to order customary compensation as a form of punishment (see Acting Public Prosecutor v Aumane (supra)). When discussing the state of the law in Aumane, I said at p 543:

"The view I have taken is the present state of the law. However, I do appreciate the weight of the learned trial judge's view on the place of customary punishment to be imposed as a punishment. This is dealing with what the law should be. These are matters, not for the this Court, but for legislative amendment. Such proposals for amendment of the Code have been put forward by the Law Reform Commission but so far the Parliament has not enacted them."

The Parliament has responded (after ten years) in the form of this Act to actually authorise the courts to make a compensation order as a form of penalty against the offender. The consideration of customary compensation is one of the factors upon which a court may make the compensation order (see s 3(1)(d)). Compensation may be ordered in the form of cash, goods, services or any other kind or method of compensation which the court considers appropriate (see s 5).

The secondary decision which the court has to make is the actual compensation order in terms of the amount, the period in which to pay, the form, manner of payment, and the person or persons to be paid (ss 5, 6), and a default penalty sentence, in accordance with Schedule 1 of the Act (s 6). The court shall request a means assessment report (s 4(1)) to enable it to make the appropriate compensation order (s 5(1).

MEANS ASSESSMENT REPORT

The information contained in the means assessment report (s 3(1)(e)) is a factor to be taken into account when the court is considering the primary decision, namely whether, in the circumstances of a case, compensation should be ordered. It would appear from this that a means assessment report should be provided before this primary decision is made.

On the other hand, s 4, which concerns the provision of a means assessment report, begins with the words:

"(1)     Where a court considers that an order for compensation should be made, it shall:

(a)      request the Chief Probation Officer to furnish to the court a means assessment report in respect of the offender;"

It would appear from this provision that a means assessment report is not relevant until the court has made the primary decision of whether a compensation order should be made. This would appear to be inconsistent with s 3(1)(e) in so far as the timing of the means assessment report is concerned.

In resolving this apparent conflict, it may be helpful to examine the purpose or contents of the means assessment report. The report is requested to determine the offender's:

1.       means and financial circumstances (s 4(1)(b), 4(2)(a));

2.       ability to pay (amount), the nature and method of payment (s 4(3)).

It is clear from this examination that a means assessment report contains relevant information applicable to what I have called the primary decision (whether or not a compensation order should be made) and the secondary decision (the actual order as to the amount, form, nature, method of payment, the period of payment, etc). The means assessment report is relevant to both stages (s 3(1)). A single report would cover both stages of the decision.

The terms of s 3 are couched in mandatory terms, that is, the court shall have regard to the information in the means assessment report. I have concluded from this that the court should request a means assessment report from the Chief Probation Officer for purposes of making the primary decision. That conclusion immediately raises practical difficulties. The court would adjourn further proceedings on sentence until the report is received. Can the Chief Probation Officer meet the demands of all National Court and District Courts throughout Papua New Guinea? There are many centres with no probation service. Even where there is a probation service, it may not be practicable to provide the report. The legislature was mindful of this. Under s 4(4) of the Act, where a report is not practicable, the court may proceed without it. Where this is the case, the court can inquire into the means and financial and other relevant circumstances of the offender by itself, where the accused is not represented, or through counsel for the accused.

As the Chief Probation Officer is located in the National Capital District, in this case I will enquire as to whether or not it is practicable for him to provide a means assessment report under s 4 of the Act.

I enquired from Mr Emmanel Oa, a probation officer who was in court, whether it was practicable to furnish a means assessment report in this case. He indicated that, as this was the first request for a report under the Act, it was not practicable to furnish a report. I proceeded with sentence without a report (s 4(4)).

(His honour proceeded and sentenced the accused to 3 years in hard labour for the count of robbery and 12 months for unlawful use of a motor vehicle, to be served concurrently - with two months to be deducted for that period spent in custody).

In addition to this sentence I have to consider whether a compensation order should be made under the Act.

I have considered the following matters under the Act:

The car that was taken during the robbery was immediately recovered with no damage done to it. No person was injured. The only items not recovered were K30 in cash, a wallet, and a wrist watch which belonged to the victim, Petu Langisan.

Counsel for the accused obtained instructions and informed the court that according to the custom of the people of Usava Village, Kainantu, Eastern Highlands Province, a person who steals an item such as a pig is required to repay the victim with a similar pig or the value of the pig. I conclude from this that the custom of Usava people would require payment of the value of goods stolen.

The value of the goods and the cash stolen is estimated by counsel as K100. Counsel for the accused has indicated he is capable of paying this amount.

Even though the amount in this case is not high, in principle the victim should be compensated for the items. Taking into account all the matters in s 3(1) of the Act, I make a compensation order in addition to the penalty I have already imposed.

I make the following orders:

1.       The offender will pay K100 in cash to Petu Langisan. This amount to be paid into court initially.

2.       Payment is to be made within one month of today.

3.       In default - one month imprisonment.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Public Solicitor.