Compensation runs through Papua New Guinean dispute resolution, and the criminal law has absorbed it. In the District Court a compensation order is not an afterthought to sentence; it is a required part of it.
The Criminal Law (Compensation) Act 1991
The Act makes it compulsory for the court to consider compensation every time sentence is to be passed. The prosecutor must provide sufficient evidence on which compensation can be considered and calculated, and the magistrate should insist that the information is ready or allow a short adjournment to obtain it. The magistrate is required to consider the factors set out in section 3 and is not bound by the technical rules of evidence in doing so. An order of compensation may be regarded as a punishment, in addition to other forms of punishment (section 2). Because consideration is compulsory, the magistrate should always note it in the record of sentence.
The Act is on PacLII as a PDF. Its scheme is that compensation is paid to the person who suffered loss or injury as a result of the offence, that the amount is fixed with regard to the factors in section 3, including the offender’s means and any compensation already paid by custom, and that the order is enforced as a court order.
Other sources of the power
| Provision | What it allows |
|---|---|
| Criminal Code s 421(2)–(3) | On a Schedule 2 offence tried summarily, the Court may order restitution of the property, or payment of its value, in one sum or by instalments; default imprisonment on a scale up to 12 months |
| Summary Offences Act s 47 | Compensation for damage to property in addition to the penalty; the Manual notes several such provisions in that Act |
| District Courts Act s 132(2) | A discharge without conviction still supports orders for restitution or delivery of property and payment in connection with it |
| District Courts Act s 276 | Delivery of stolen property in police custody to its apparent owner once the prosecution ends |
| Family Protection Act 2013 s 21 | In addition to a protection order, compensation in accordance with custom or otherwise for personal injury, property damage or financial loss caused by domestic violence |
| Village Courts Act s 45 | Village Court compensation up to K1,000 (as described in the Manual), enforced through the District Court after endorsement |
How the amount is fixed
The factors in section 3 direct the Court to the nature of the injury or loss, the offender’s means, the relationship between offender and victim, and any compensation already given by custom. Two consequences follow. First, a compensation order is not simply a civil damages award; it is limited by what the offender can pay. Second, a defendant who has already made customary compensation should prove it, because the Court is required to take it into account and it will usually reduce or eliminate any further order. The Manual describes the order as a contribution to finality between offender and victim.
Payment and enforcement
Where, by a conviction or order, a fine or sum of money or costs is ordered to be paid, the Court may allow time for the payment, direct payment by instalments, and direct that security be given.
Section 177 requires the Clerk to apply money received under a conviction first to costs ordered to a party, then in accordance with the terms of the conviction, which is where a compensation order directs payment to the victim. Enforcement depends on the source: compensation under the 1991 Act is enforced as the Act provides; restitution under section 421 carries its own default imprisonment; and an order for payment of money is otherwise enforced under Part IX by warrant of execution against the offender’s goods. Where the offender is imprisoned and pays nothing, the victim’s remaining route is a civil complaint within the money limit. See enforcing an order for money.
Customary compensation and the criminal charge
Paying compensation by custom is a mitigating factor and may lead the police to withdraw a charge under section 61A, but it is not a defence. Section 6(2) of the Family Protection Act 2013 says so expressly for domestic violence, and section 20(2) says the same for breach of a protection order. And a payment to the informant to withdraw, as opposed to compensation to the victim, is an offence under section 59 of the Summary Offences Act. See withdrawing a charge.
The victim’s position
The victim is not a party to the prosecution, and the order is made on the prosecutor’s information. A victim who wants compensation considered should give the police the evidence of injury, loss and cost before the sentencing date, and may attend the hearing. A victim dissatisfied with the amount cannot appeal; only the parties can, though the Attorney-General may under section 219(3) appeal on behalf of a party in a matter of public importance. The victim’s alternative is a civil complaint, subject to the bar in section 152 where the same debt or damages have already been determined.
The District Courts Act is not on PacLII; it is available on vLex. The Village Courts Act provision is cited from the Magistrates’ Manual.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.