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CHAPTER 13 � SENTENCING

13.1 PURPOSE

The primary purpose of the criminal justice system is said to be fourfold:

13.1.1 Retribution

Punishment is, in part, a form of retaliation against the offender. People in society expect that certain conduct will be punished. If it is not punished, their sense of justice will be outraged. Action by the state will discourage victims and friends from taking private revenge of a violent nature, which would be unacceptable in today�s society. It has been said that retribution as a proper purpose of punishment is not foreign to the cultures of the people of this country. This is what is normally referred to as �payback�: Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510.

13.1.2 Deterrence

Penalties for certain conduct will deter people from engaging in it. The offender will be deterred from repeating it, and other potential offenders will be deterred by knowledge of the penalty. From time to time, however, statistics show that punishment for many types of crimes is not an effective deterrent, particularly where the causes of crime lie in the social and economic spheres.

The court must take general deterrence into account, despite limits on its effectiveness: The State v Keputong Nagong (1980) N225; Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510. Deterrence may mark the disapproval by the law of the conduct in question, and there is the hope that other people will be deterred from like behaviour. In some cases deterrence must take priority, even in the case of young first offenders: Luneme Meuso v Maiak Nagy (1978) N139. However, deterrence is a proper consideration so long as it does not result in a convicted person being made the scapegoat of other people who have committed similar crimes but have not been caught and convicted. To make a person a scapegoat constitutes an unsound exercise of discretion: Wilkeson, Stephens and Michalov v Grant [1967-1968] PNGLR 112. There is also the question of whether a sentence that the court has in mind is likely to have a deterrent effect on the offender.

13.1.3 Restraint

Through its capacity to imprison and otherwise detain offenders, the criminal justice system can protect society from dangerous individuals.

13.1.4 Rehabilitation

If imprisoned in appropriate circumstances and able to undergo a suitable rehabilitative program, an offender may be assisted in such a way that he or she is unlikely to commit crimes in the future. On the one hand, while rehabilitation is one of the purposes for punishment, it should not be allowed to obscure the consideration of deterrence and protection of the public from the commission of crimes: John Elipa Kalabus v The State [1988] PNGLR 193. On the other hand, the prospects of the rehabilitation of young offenders must always be a matter of concern for the courts: see 13.5.7 and 13.5.11.

13.2 THE SENTENCING HEARING

13.2.1 Invitation to defendant and the right to be heard: allocutus

Where a defendant has pleaded guilty or has been found guilty after trial, the criminal process moves to the sentencing stage. Before this begins, or at the beginning of the sentencing hearing, the question of previous convictions is dealt with. The prosecution should put the details of these to the defendant. The nature and significance of previous convictions are discussed in 12.6.1. The sentence hearing proceeds with the court giving the defendant a clear invitation to address the court (�allocutus�) before sentence is passed. Section 593 of the Criminal Code uses the traditional wording � �the proper officer shall ask [the defendant ] if he has anything to say why sentence should not be passed on him�. The Latin word �allocutus� and the wording of the Code do not explain adequately what is involved at the sentencing stage: The State v Bafe Quati [1990] PNGLR 57.

Frequently, the Magistrate will adjourn to allow time for preparation of plea material. The defendant may be remanded in custody or released on bail.

The courts of Papua New Guinea have accepted that the defendant must always be invited to address the court, either directly or through a lawyer, and, if he or she wishes, to call evidence on the question of penalty. Failure to give this invitation, and to provide the necessary opportunities to the defendant, is a denial of natural justice and may render any sentence pronounced a nullity: Moses Aikaba v Tami [1971-1972] PNGLR 155. This is an appropriate stage for the defendant to raise any allegation of breach of constitutional rights, such as police conduct affecting rights under ss 36 or 37(17) of the Constitution. These matters may be raised by the defendant as relevant to sentence, but they may have to be proved and the prosecution should be given a right to reply: The State v Bafe Quati [1990] PNGLR 57.

Natural justice in the sentencing process may also require the Magistrate to permit the offender to re-open his or her sentencing plea after it has concluded (but before sentence), if additional critical material needs to be put to the court. It is a denial of natural justice for the Magistrate to fail to obtain sufficient facts upon which to found the sentence. Such failures may render the sentencing process a nullity and give grounds for appeal.

Questions of enforcement of, and compensation for, breaches of constitutional rights would have to be referred to the National Court, if contested.

13.2.2 Role of defence counsel

Representations by defence counsel at the sentencing stage have an important impact on the sentencing outcome. Counsel�s task is to confirm or, if necessary, challenge the factual basis upon which sentence is to be imposed (which is more likely to be appropriate in the case of a guilty plea) and to highlight to the court mitigating factors present in the circumstances of the offence and the offender�s background. Counsel�s duty to the client is to aim to obtain the least punitive sanction available for the offence which has been committed. Counsel is expected to assist the court with such options as compensation, restriction of movement and probation, which the Magistrate is required to give some thought to in many cases. The Magistrate should not hesitate to make demands on counsel in order to obtain the information that the Magistrate feels is necessary for the proper disposition of the case. In matters involving custom, counsel has a statutory duty to assist the court with evidence and information: Underlying Law Act, ss 15 and 16; see also 2.3.8.4 and 3.4.2.

Defence counsel has no duty to disclose anything to the Magistrate regarding the offender�s prior convictions, or other information adverse to the offender�s interests. Nevertheless, if counsel knows that the offender has prior convictions which appear to be unknown to, or overlooked by, the prosecution, counsel cannot make an assertion as to his or her client�s absence of prior convictions. To do this would be to mislead the court.

13.2.3 Role of the prosecution

The courts acknowledge that it is the duty of the prosecutor to assist the court in the sentencing process by an adequate presentation of facts surrounding the commission of the offence, particularly where, as on a plea of guilty, the full circumstances of the offence have not been revealed by evidence before the court.

In Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510, the court took the opportunity to note that, by 1980, the practice had developed in Papua New Guinea where the prosecution rarely made submissions on sentence, leaving the matter up to defence counsel and the court. It was pointed out that, as the Public Prosecutor has a statutory right of appeal, it also has a duty to avoid appealable error in the trial court. Furthermore, the Public Prosecutor has a duty to the court to assist in the task of passing sentence. For example, there are sentencing matters which the Magistrate usually must consider and which require input from the prosecutor � such as payment of compensation, restriction of movement and probation. The Magistrate should, therefore, urge the prosecution to address the court on sentencing matters. These may include matters of custom: Underlying Law Act, ss 15 and 16.

The onus of alleging and proving prior convictions, or other background information adverse to the offender, is on the prosecution, unless admitted by the defendant. If the offender�s co-defendants have been convicted and sentenced earlier in other courts, the prosecutor is responsible for advising the court how they have been dealt with. The prosecutor should draw the Magistrate�s attention to any principles of sentencing relevant to the present case, and the prosecutor is entitled to test the defence claims that mitigating circumstances exist.

When requested by the Magistrate, the prosecutor should assist the court by a submission on any social danger represented by the offender�s conduct, or the range of sentences which might be reasonably open to the court in relation to offences of a like nature.

13.2.4 Delivery and record of decision

As indicated in 4.6 and 4.8, and discussed in Chapter 25, the Magistrate should conclude the sentencing process by delivering his or her decision in open court. The defendant must be asked to stand, and the Magistrate should address his or her remarks directly to the defendant. If necessary, they should be interpreted into the language used by the defendant. It is essential that the importance of the court�s sentence upon the defendant be made clear to the defendant in this direct manner. The significance of this occasion as a judicial act within the administration of justice cannot be left to the defendant�s counsel to pass on to his or her client.

Reasons for the sentence should be given to the defendant and recorded in the appropriate court records. Although the statutes do not require Magistrates to give their reasons for sentence unless an appeal is lodged, Magistrates should record their reasons while the circumstances are fresh in their minds. Of course, the record must agree with the spoken words, because the reasons announced publicly constitute the decision. In matters involving custom, the court�s responsibilities regarding decisions are discussed in 2.3.8, 2.4 and 25.6.4.

13.3 SENTENCING FACTS

13.3.1 Circumstances of aggravation

Although a Magistrate must consider the circumstances of the offence, and whether any aggravating factors are present, the offender cannot be sentenced for any crime with which he or she has not been charged, or in relation to which he or she has not been found guilty. Circumstances of aggravation (such as the use of firearms in committing the offence, the seriousness of injury caused, or the quantities of drugs found) which are referred to in the statutory provision creating an offence may be either an element in the definition of the offence itself, or a factor relevant only to sentence. This is a matter of statutory interpretation.

13.3.1.1 Element of the offence

If the aggravating circumstances are an actual element in the offence, they should be alleged in the charge or indictment and proved by the prosecutor as part of the substantive offence charged.

13.3.1.2 Not an element of the offence

If the aggravating factors are relevant only to sentence, they need not be charged and it is for the Magistrate to decide whether they exist: see 13.5.12. It is important to note that circumstances of aggravation which could have been made the subject of a separate charge, or which may have warranted a conviction for a more serious offence, but were not so used, should not be relied upon as aggravating factors in fixing sentence: see Toiona v Bryant [1969-1970] PNGLR 201.

13.3.2 Facts on plea of guilty

13.3.2.1 From the bar table

A guilty plea itself, although admitting the essential ingredients of the offence and negativing all possible defences, does not admit any of the circumstances of aggravation which are not elements of the offence and which might be alleged or implied by the prosecution: R v Gabai Vagi [1973] PNGLR 30. Nor does a guilty plea negative any circumstances of mitigation. On a plea of guilty in the District Court, facts relevant to the circumstances of the offence are normally supplied by the prosecutor reading a summary of the charge and of the circumstances as agreed to by the defence. The Magistrate can also be informed from material in witness statements in the possession of the prosecution.

The Magistrate can accept supplementary and additional material raised by the defence without requiring that it be supported by evidence on oath. When a plea of guilty avoids the necessity for a trial, it is no doubt convenient for the facts relevant to sentence to be stated from the bar table to the extent to which those facts are agreed on or, not being reasonably open to challenge, remain unchallenged.

13.3.2.2 Disputed facts and custom

On the other hand, if the alleged act or circumstance is not common ground between prosecution and defence, that act or circumstance should be proved by the calling of evidence by the party on whom the evidentiary onus rests: Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510. Where the defence relies on a custom in mitigation of sentence, it is not sufficient for the custom merely to be explained from the bar table. A custom must be proved, particularly just what the custom is and whether the defendant has complied with it. According to s 16 of the Underlying Law Act, custom is a question of law and not fact. A Magistrate may ascertain custom by reference to cases, books and official statements, as well as evidence adduced by the parties or on the Magistrate�s own initiative. Section 15 of the Act places a duty on counsel to assist the court: see 2.3.8.4 and 3.4.2.

If, on a sentencing plea, one side or the other disputes an assertion of fact relevant to sentence, or if the Magistrate has indicated an unwillingness to act on the version of the facts tendered by the parties, admissible evidence may be adduced to establish the facts. This will normally be sworn evidence called by both parties. More frequently, where the defendant asserts facts in mitigation, the Magistrate will accept that version unless there is good reason to require sworn evidence.

13.3.3 Standard of proof

The standard of proof applicable to sentencing matters which go beyond the basic factual elements of the offence that have been established by the finding or plea of guilt, varies, according to the consequences of the facts in question. If the prosecution alleges facts detrimental to the defendant, or if the Magistrate proposes to take into account additional facts relating to the circumstances of the offence or the offender in a way that is adverse to the interests of the offender, the defendant may object. Proof of those facts is required beyond reasonable doubt: William Norris v The State [1979] PNGLR 605. However, where the facts proposed to be taken into account are in the offender�s favour and would mitigate the penalty, the Magistrate need only be satisfied of them on the balance of probabilities. Of course, in the majority of cases, prosecution and defence do not dispute the facts relating to sentence.

13.4 SENTENCING PRINCIPLES

The only purposes for which sentences may be imposed are those stated in 13.1 above. The broad principles discussed in this section have been accepted as generally applicable to sentencing: see the cases annotated at s 596 of the Criminal Code (CC) in Criminal Law Practice and Procedure. Specific matters which must be considered are dealt with in 13.5.

13.4.1 Proportionality

The principle of proportionality in sentencing means that the extent and type of punishment should be in proportion to the gravity of the harm and the degree of responsibility of the offender. This principle does not permit an increase in sentence beyond that which is commensurate with the seriousness of the crime, even for the purpose of a longer prison sentence in order to protect society. The principle of proportionality is breached if the sanction is either too severe or too lenient.

In relation to persons who may be regarded as serious repeat offenders, the courts often go beyond what the offender�s latest crime warrants by way of proportion of sentence in order to protect the community from future danger if these persons re-offend: CC, s 596.

13.4.2 Concurrent or cumulative sentences and the totality principle

Unless the court otherwise orders, a sentence of imprisonment on conviction on indictment takes effect from the first day of the sittings of the court at which the offender is convicted and, on summary conviction, takes effect from the commencement of the offender�s custody under that sentence. This means that two or more sentences of imprisonment will be concurrent unless the court orders that they be cumulative so as to take effect one after the other: see CC, s 20. In Mase v The State [1991] PNGLR 88, the court observed:

<Case Quotation>

�It is clearly laid down by this Court in the cases referred to that there are three stages to go through in coming to a total sentence. [1] The first step is to consider the appropriate sentence for each offence charged, and then [2] consideration should be given as to whether they should be concurrent sentences or cumulative sentences. [3] Where the decision is made to make two or more sentences cumulative, the court is required to look at the total sentence and see if it is just and appropriate. If it is not, the court must vary one or more of the sentences to get a just total. This principle must be observed because a straightforward addition of sentences usually leads to a total sentence that is excessive in the whole circumstances.�

<End Case Quotation>

It is clearly difficult for a Magistrate to arrive at a total sentence which is just and proportionate to the totality of the criminal behaviour involved in all the offences concerned. There is no hard and fast rule to be followed, and, of course, the maximum penalties provided by law for each offence should be taken into account. As was pointed out in Mase v The State [1991] PNGLR 88, although maximum sentences may be justified in the �worst type� of cases, there are many situations where cases of the �more serious type� would, if handled by way of aggregate sentences, seem to be altogether too crushing, especially on young people: CC, ss 20 and 596.

13.4.3 Plea of guilty

While a plea of guilty may be taken into account in the offender�s favour in mitigating the penalty, the converse is not true. An offender must not receive a more severe sentence for having exercised the right to plead not guilty and contest the case.

An early guilty plea carries greater mitigatory weight than a later one. Where a guilty plea is accompanied by co-operation with the police in apprehending and convicting a principal offender, a sentence reduction may be justified: see Kali Mari v The State (1980) SC175 and Elipa Kalabus v The State [1988] PNGLR 193. A plea of guilty in order to show remorse, or a desire to save a victim the trauma or unpleasantness of appearing as a witness at the trial, may carry some weight.

13.4.4 Co-operating with authorities

A sentence discount may be offered to defendants who act as informers against fellow criminals. Disclosing other as yet uncharged offences may mitigate the penalty.

13.5 MATTERS WHICH MUST BE CONSIDERED

13.5.1 �Yes, I have considered them all�

Throughout, the Magistrate must have in mind the four primary purposes of the criminal justice system: see 13.1. There are certain matters to which Magistrates must have regard in imposing sentence. These matters are all relevant to sentence, which means that the Magistrate must be able to say � �Yes, I have considered them all�. In case of the aggravating or mitigating factors, the Magistrate may in fact attach relatively little significance to some and greater weight to others: see Chalmers, Injia, Weisbrot and Andrew, Criminal Law and Practice of Papua New Guinea, Ch 3, s 596.

13.5.2 Statutory maximum penalty

The maximum punishment prescribed by law should be reserved for only the worse cases: see CC, s 19. It is a general principle of sentencing that the maximum penalty applies only to the most serious instances of an offence, the worst possible case normally encountered in practice. This is an application of the �principle of proportionality� referred to in 13.4.1.

On the other hand, the fact that a case falls into the worst type category does not mean that the maximum sentence automatically applies. For example, if the accused is 14 years of age, the maximum sentence of life imprisonment for murder would not be appropriate: John Elipa Kalabus v The State [1988] PNGLR 193.

A Magistrate must take all the circumstances into account. In Pius Endari v Senior Constable Wangiwa (1973) No 751, where a Magistrate imposed the maximum punishment in four cases of stealing, he was entitled to do so on the ground that they involved deliberately stealing from unsophisticated victims after warnings of the illegality, and no compensation was paid to the victims.

13.5.3 Statutory minimum penalty

The court should not use any minimum prescribed by law as a base figure. If the court decides that a custodial sentence is appropriate, it should consider what sentence it would impose if there was no minimum provided. If this is the same or less than the minimum, then it should impose the minimum sentence. If it is higher than the minimum, then it is appropriate to impose the higher sentence: Boas Kuna v Police (1994) No 1296. For a fuller discussion of minimum penalties see Supreme Court Reference No 1 of 1984: Re Minimum Penalties Legislation [1984] PNGLR 314.

13.5.4 Statutory considerations

13.5.4.1 Payment of compensation

See 6.8.2.

13.5.4.2 Restriction of movement

See 6.8.3.

13.5.5 Current sentencing practices

13.5.5.1 Scale of penalties

General policies as to sentences may be set, but not by way of fixing a rigid scale of penalties. Only the Parliament may do that by way of legislation. If Magistrates were to attempt to do that, in advance, they would be abdicating their statutory duty to exercise their discretion in each case in accordance with the facts disclosed: Guje Beng v Billey Kombel [1975] PNGLR 49. If a rigid scale of penalties is applied, and the Magistrate does not take into account circumstances special to the offender that ought to have been weighed in his or her favour, a substantial miscarriage of justice has occurred.

13.5.5.2 Parity

As a general rule, members of the judiciary try to achieve some parity in sentencing � to ensure that, across the country, there is no gross inconsistency between sentences handed down for similar offences in similar circumstances.

13.5.5.3 Discretion in each case

It is perfectly proper for a meeting of Magistrates to agree upon a pattern of punishments from time to time, provided the pattern is not adopted rigidly and provided discretion is exercised: Johnson Takovong v Tino Tarerea (1975) No 837. A Magistrate cannot put aside the duty to exercise discretion in each particular case simply by relying on a general scale of penalties drawn up by himself or herself or the bench generally. An appeal from the District Court was allowed in a case where the Magistrate stated that, as a matter policy, all persons convicted on stealing charges would get a three months sentence rather than a fine, and that all repeat offenders would receive the maximum sentence. �Each case, if justice is to be done, must be considered on its own background. Every convicted person is a separate individual�: Vagi Gau v Ken Kone Eava [1976] PNGLR 485. Because each case must be considered on its own facts, it is sometimes helpful for a Magistrate to think in terms of the balancing of the various interests. In The State v Uname Aumane [1980] PNGLR 510, the court considered that it had three interests to balance.

<Case Quotation>

�1.        The first is the interest of the State. Collective living within a nation state demands that individuals and villagers, tribes and communities have to give up a little of their territorial and personal sovereignty.

2.         But the nation and its arms of the law must also recognise the interests of the community to which the offenders belong. This second consideration � the impact of the penalty on the community to which the offender belongs � must be a foremost consideration.

3.         The third consideration is the question of the prisoners themselves.�: CC, s 596.

<End Case Quotation>

13.5.6 Nature and gravity of the offence

The main indication of the seriousness of an offence is seen in the maximum (and any minimum) sentence set by Parliament: see 13.5.2 and 13.5.3.

13.5.6.1 Prevalence

The court may also wish to take into account evidence as to the prevalence of a particular offence in a particular area.

13.5.6.2 Community perception

It is not wrong in principle to have regard to the prevailing community perception of the relative seriousness of offences. This perception may be reflected in the level of sentences: Mase v The State [1991] PNGLR 88; CC, s 596.

13.5.7 Culpability � how blameworthy is the offender?

13.5.7.1 Participation

The degree of participation of one offender, among others who were also involved, would not normally prevail as a mitigating factor where the criminal act depended on each offender actively playing his or her part: Gimble v The State [1988-1989] PNGLR 272. However, in a case where two members of a larger group are the only ones arrested, there may be justification for less than the maximum penalty on the ground of lesser participation: The State v Peter Plesman; The State v Paul Moaina (1997) N1657.

13.5.7.2 Course of criminal conduct

It may be relevant whether the offence was part of a course or series of criminal acts.

13.5.7.3 Ignorance of the law

While this is not a defence, it may be relevant to blameworthiness: Ulao Amentasi v Secretary for Law [1975] PNGLR 134.

13.5.7.4 Conduct of victim

Where the victim has offered some aggravation or provocation that does not amount to an offence, this may be taken into account in appropriate circumstances: Ure Hane v The State [1984] PNGLR 105.

13.5.7.5 Moral guilt

In some circumstances, the degree of moral guilt of an offender may be relevant: The State v Panikuiaka Nope (1979) N195, and in the Supreme Court at [1979] PNGLR 536.

13.5.7.6 Obedience to custom

Under s 4(e) of the Customs Recognition Act, custom is to be taken into account in determining the penalty (if any) to be imposed on a guilty party. With regard to establishing what the appropriate custom is, if any, s 16 of the Underlying Law Act stipulates that custom is a question of law and not fact. A Magistrate may ascertain custom by reference to cases, books and official statements, as well as evidence adduced by the parties or on the Magistrate�s own initiative: see 2.3.8, 2.4, 5.13 and 25.6.4. This means that a particular custom may be taken into account to explain the offender�s behaviour. For example, the offender may have committed the offence under customary pressure. Custom becomes a mitigating factor providing a cultural justification of the offender�s behaviour that reduces his or her culpability or blameworthiness. In some instances, the custom may increase the seriousness of behaviour. In incest cases, the offence may be regarded in custom as particularly immoral, and custom may call for more severe punishment.

Similarly, the Customs Recognition Act means that the court may take into account customary punishment which the court is aware will be inflicted upon the accused regardless of any sentence the court imposes: R v Jim Kaupa (1973) No 765.

Genuine belief in the power of sorcery is a mitigating factor in sentence. This is related to the discussion of custom above at 7.15.3, and see s 596 of the Criminal Code.

It should be noted that, although the court may increase or decrease the sentence depending on custom, the court is still bound to impose an appropriate sentence as contemplated by Parliament: see 13.5.2 and Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510 and CC, s 596.

13.5.7.7 Position of trust

Breach of a position of trust may warrant a heavier sentence: Meaoa v The State (1996) SC504; The State v Paulus Takesi (1996) N1468.

13.5.7.8 Youthfulness

Although the offender may be over the age of 16 (see 6.7 above), youthfulness may be an important mitigating factor: Passingan v Beaton [1971-1972] PNGLR 206. However, where breaking and entering has become prevalent and is normally committed by young persons, they may not receive special treatment unless there are exceptional circumstances: Paulus Mandatititip v The State [1978] PNGLR 128 and Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258. There is concern that young first offenders should not be sent to jail, and Magistrates should give consideration to probation orders where possible. Punishment for young offenders should be rehabilitative. To the extent that prisons do not make separate provision for young persons, the age of a person is a circumstance which the court should consider: Acting Public Prosecutor v Clement Maki and Tom Kasan (1981) SC205.

A number of cases have discussed the problems of dealing with young offenders, such as (in addition to those referred to above) Paia Lifi v Phillip Dege (1981) N291; Kuri Willie v The State [1987] PNGLR 298; The State v Nyama [1991] PNGLR 127; and The State v Willie Paul Songul (1997) CR No 771 (National Court).

13.5.7.9 Lack of sophistication

It is relevant for the court to have regard to the offender�s degree of sophistication and the traditional ways of the community from which he or she comes as important in arriving at an appropriate sentence. On the other hand, the courts are careful not to over-emphasise such considerations. More recent statements are to the effect that, subject to exceptional circumstances, lack of sophistication can no longer be an excuse for reduction of sentence: Public Prosecutor v Keru and Moroi [1985] PNGLR 78; followed in The State v Miriam Kakun (1997) N1673: CC, s 596.

13.5.7.10 Diminished responsibility

Although diminished responsibility that does not amount to insanity is no defence, justice requires that an offender�s diminished responsibility should be taken into account in mitigation of sentence: The State v Eric Gordon Berry [1977] PNGLR 128.

13.5.7.11 Alcohol

The courts have generally not permitted the alcohol factor to have significant bearing on sentences. A person who voluntarily gets drunk must know that the capacity to control himself or herself will be impaired. Alcohol may have some relevance in certain circumstances, such as provocation or a severe case of diminished responsibility: see 7.11 and Kesino Apo v The State [1988] PNGLR 182; Mase v The State [1991] PNGLR 88; and The State v Patrick (1995) N1355.

13.5.8 Personal circumstances of the victim, and nature and extent of injury, loss or damage caused

It is always appropriate, and in some cases necessary, for the prosecution to inform the court of these matters.

13.5.9 Restitution made; compensation paid; traditional settlement

13.5.9.1 Restitution

In cases concerning misappropriation and stealing, guilty pleas coupled with full restitution may be significant factors in mitigation. Together, they go a long way to redressing the harm done: The State v William Welford (1986) N572. Full restitution may be indicative of genuine remorse and unqualified recognition of wrongdoing.

13.5.9.2 Customary compensation

The payment and acceptance of customary compensation is a mitigating factor, but mitigation will depend on the facts of each case and the relevant custom must be properly proved in court: Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299. Section 16 of the Underlying Law Act stipulates that custom is a question of law, and a Magistrate may ascertain custom by reference to a range of materials: see 2.3.8, 2.4, 5.13 and 25.6.4. The Criminal Law (Compensation) Act makes the award of compensation a punishment, and recognises that the payment of customary compensation is an honourable exercise in exchange in order to restore peace and harmony between the relatives of the parties involved: see 6.8.2; The State v Peter Kose Weena [1993] PNGLR 168; and The State v Philip Susuve Raipa [1994] N1268. Compensation is not to be considered as a way of buying one�s liberty. If it is paid in accordance with custom, it amounts to an acceptance of legal and moral responsibility. Appropriately managed, it is an effective deterrent. It creates continuing obligations on the part of the offender, who has to live with the people wronged: The State v Tendi Kalio Ulo [1980] PNGLR 350.

13.5.9.3 Traditional settlement

Where a traditional settlement has occurred, it may be appropriate in certain cases for the court to release the offender on a good behaviour bond: The State v Paul Pokolou (1983) N404. It must be remembered that, while considerable weight may attach to a traditional settlement, the sentence must still be within the range determined by Parliament. In The State v Emp Mek [1993] PNGLR 330, the National Court was prepared to impose imprisonment of only two years for manslaughter in a situation where relatives of the victim were satisfied with a family settlement.

13.5.10 Contrition and remorse

Clear evidence of contrition and remorse will count in favour of the offender. In most cases, this would require a plea of guilty. The earlier the plea and the earlier the expression of remorse after the commission of the offence, the more favourable it will be for the offender. Such sentiments expressed at the trial for the first time may carry very little weight: John Elipa Kalabus v The State [1988] PNGLR 193. The offender may also gain some credit for pleading guilty in order to save embarrassment to prosecution witnesses or inconvenience to the state: Public Prosecutor v Tom Ake [1978] PNGLR 469 and R v McGrath [1971] PNGLR 247.

Voluntary restitution and compensation can also be regarded as evidence of contrition.

13.5.11 Offender�s personal circumstances and previous character

In addition to the matters affecting the question of culpability (see 13.5.7), the Magistrate must take into account such factors as:

�           previous convictions, if any;

�           other offences that have been committed and that should be taken into account; and

�           other personal circumstances and matters of character that seem relevant.

13.5.12 Aggravating or mitigating factors

13.5.12.1 Assistance to police

This may be a mitigating factor: R v McGrath [1971] PNGLR 247. There may be circumstances in which the offender has cooperated, or undertaken to cooperate, with the police in the investigation of the offence or other offences, or in relation to other proceedings such as those for the forfeiture and confiscation of the proceeds of crime.

13.5.12.2 Public shame

If it can be shown that the offender has suffered, or will suffer, shame in the aftermath of the offence, this may be taken into account in assessing the appropriate penalty. Shame may be less public but still involve disclosure to family, relatives and friends: The State v Minabkali Asu (1980) N236 and The State v Keputong Nagong (1980) N225.

13.5.12.3 Imposition of fines

It is sometimes said that the imposition of a fine is ineffective when it is paid by relatives rather than by the offender himself or herself. However, a burden of that sort, when imposed on relatives, is itself of deterrent effect to the extent that they will take steps to ensure that the offender does not break the law again: The State v Keputong Nagong (1980) N225. Accordingly, a Magistrate may be disposed to order the payment of a fine rather than imprisonment where it appears that the collective weight of family and relatives will be brought to bear on the future behaviour of the offender.

13.5.12.4 Effect of jail on the offender�s family

While this is clearly relevant, the probable effect that a sentence under consideration by the Magistrate would have on an offender�s family should not always be given much weight. Where offenders have planned to commit serious crimes that they knew would result in them being in jail for some time if they were caught, they cannot automatically expect a non-custodial sentence because their families need them: The State v Waiyake Komane [1992] PNGLR 524.

13.5.12.5 Effect of jail on offender�s future prospects

Where a jail term will prejudice the offender�s job, education or income to an extent that is out of proportion to the seriousness of the offence, this is a mitigating factor: Agiru Aieni v Tahain [1978] PNGLR 37.

13.6 SENTENCING OPTIONS

13.6.1 Types of sentences and orders

The types of sentences and orders which are open to the Magistrate have been reviewed in 6.8, particularly orders relating to:

�           payment of compensation (6.8.2);

�           restriction of movement (6.8.3);

�           probation (6.8.4);

�           recognisances for good behaviour (6.8.5);

�           community work (6.8.6);

�           conditional discharge (6.8.7); and

�           costs (6.8.8).

All that remains is to point to the statutory provisions that regulate the imposition of imprisonment and fines.

13.6.2 Imprisonment

13.6.2.1 Jurisdiction

As outlined in 6.3, the District Court�s jurisdiction is limited to the maximum sentence of imprisonment provided by the Criminal Code, the Summary Offences Act and other statutes which create offences.

13.6.2.2 Calculation of term

The Criminal Justice (Sentences) Act provides that a sentence of imprisonment takes effect from the beginning of the day on which it is imposed: s 3(1). The court may deduct any period which the defendant has spent in custody before sentence was imposed: s 3(2); and see The State v Paul Jimmy Moiana (1997) N1657. In imposing sentence, the Magistrate must do the arithmetic � that is to say, the Magistrate should specify the length of the sentence imposed, the period spent in custody before sentence and the length of the balance of the sentence to be served: s 4. It has been held that a person who chooses not to ask for bail prior to sentence, but chooses to stay in custody, may be given credit for the period of the loss of liberty: Public Prosecutor v Posopon Salaian [1994] PNGLR 53.

13.6.3 Fines

The Summary Offences Act frequently specifies a maximum fine instead of, or as an alternative to, imprisonment. In dealing with offences to which the Criminal Code applies (where penalties are expressed only in terms of imprisonment), s 19 of the Code allows the court to impose a fine not exceeding K2,000 instead of, or in addition to, imprisonment.

Once the Magistrate has fixed the fine having regard to the sentencing principles and considerations referred to above, the Magistrate has discretion as to the time for payment and payment by instalments: District Courts Act, s 165.

13.6.4 Imprisonment in default of payment

When Magistrates impose fines they must also specify a term of imprisonment in default: District Courts Act, s 168. If the statute appoints a term of imprisonment, that term should be specified to be served in default of payment of the fine. If the statute does not appoint a term, the court may impose such term as it thinks fit, but not exceeding the term specified in the statute with reference to the amount to be recovered.

Where the fine and any costs do not exceed K50, the maximum term of imprisonment is 14 days. Between K50 and K200, the maximum term is 28 days, and above K200 it is 60 days: District Courts Act, s 201. If a warrant for arrest of the offender has been issued and part of the fine is paid, the term of imprisonment is reduced by the number of days bearing, as nearly as possible, the same proportion to the total number of days in the term as the sum paid bears to the sum adjudged to be paid: District Courts Act, s 202.

13.7 PREVENTIVE ORDERS

The court�s powers to take action to reduce the likelihood of further offending include those mentioned in Chapter 6, such as restriction of movement (6.8.3), probation (6.8.4) and recognisances (6.8.5). The detailed statutory provisions should be looked at closely to enable the court to make best use of the preventive orders available and to ensure that the specific wording of the statute is complied with: see also Chapter 19C.