N908

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

RAPOLA (NO 2)

Waigani
Hinchliffe J

17 August 1990

CRIMINAL LAW - Sentence - Probation - Breach of conditions - Misappropriation of moneys - Skilled computer operator - Conditions of repayment - Prohibition on consumption of alcohol - Further probation of no value - Term of imprisonment imposed - Probation Act (Ch No 381), s 20.

A female computer operator pleaded guilty to misappropriation of the sum of K17,023.95, the property of lawyers with whom she was employed, and was sentenced to two years and six months imprisonment, but pursuant to s 16 of the Probation Act (Ch No 381), the sentence to be suspended on entering into probation for a period of two years. Conditions of probation including repayment of the moneys misappropriated and non-consumption of alcohol were subsequently breached.

Held:

As the breaches of probation indicated that the accused had not taken advantage of the chance she was given by the court and any further probation would be of no value whatsoever, the probation should be revoked and an order for imprisonment for one year in light labour imposed.

Cases Cited

The following is the only case referred to in the judgment:
The State v Rapola [1988-89] PNGLR 487.

Sentence

On a charge of misappropriation the accused pleaded guilty and entered into probation, but the probation was breached. The following judgment was delivered in relation to the breach of probation.

Counsel:

V Noka, for the State.
B Takin, for the probationer.

17 August 1990

HINCHLIFFE J.: On 1 August 1989, Evelyn Rapola pleaded guilty that between 30 June 1987 and 14 June 1988 she dishonestly applied to her own use, K17,023.95, the property of Gadens, Lawyers.

On 2 August 1989, the sentencing was adjourned until 2 November 1989 and a pre-sentence report was to be prepared by the probation office. The reason for the three month adjournment was to allow Mrs Rapola to repay the money.

Unfortunately the money was not forthcoming and because of certain commitments made to the court, the following order was made on 21 November 1989: see The State v Rapola [1988-89] PNGLR 487 at 489-490:

"Convicted and sentenced to 2 years and 6 months imprisonment pursuant to s 16 of the Probation Act (Ch No 381) and the sentence to be suspended on entering into probation for a period of two years.

The following conditions apply:

1. From 27 November 1989 to 26 November 1990 to work every full working day with the Papua New Guinea Red Cross Society free of charge. To obey all the instructions of the employer and to assist in every way possible.

2. Not to consume any alcohol whatsoever during the two year probation period.

3. To repay to Gades, lawyers, the sum of K17,023.95 on or before 13 December, 1989."

Immediately problems arose in repaying the money. As happens so often in these types of cases many of the people who make promises to help out do not do so. Hence, on 1 February 1990, the matter was brought before me for a variation of the original order. Without going fully into the fresh order, Mrs Rapola was to pay back K640 per month and the money had to be paid in full by 1 May 1990. Again Mrs Rapola had received promises of assistance by various people. As can be seen now the majority of those people let her down and she is back before the Court. This time for breach of conditions of probation pursuant to s 20 of the Act.

Gadens withheld K6,450.23 of her entitlements and K3,310 has been paid since February 1990. Of that K3,310, her husband paid K2,000 back in February as ordered by the Court at the time. March is the only month that the full K640 was paid. K340 was paid in April and K330 in July. No payments were received in May, June or August. K7,262.72 remains owing. I do not think that I would be exaggerating in saying that not only have the promises of repayment not been fulfilled but the actual amount of money paid has been very poor. There is no doubt that a breach of conditions of probation has occurred. Indeed it is not denied.

It seems that Mrs Rapola’s work at the Red Cross has been satisfactory to the extent that she has been offered salaried employment there after her twelve months community service work has expired in November of this year. Needless to say, her husband has not been happy with her working at the Red Cross as he seems to believe that it has disturbed her family life and caused her to neglect her motherly duties. Of course, what Mr Rapola forgets is that if his wife had not participated in the community service work she would have gone to Bomana Corrective Institution for two and a half years which would have given him more reason to complain. It is clear that Mr Rapola has been beating his wife badly whilst she has been on probation and I am quite convinced that he has contributed greatly to the present unsettled situation that the family is now in. In relation to one serious assault by Mr Rapola on his wife, it seems to be well documented and I urge the State to look into the matter immediately with the view to prosecuting him in a court of law. He obviously is one of those people who believe that the way to settle family problems is to use physical violence. A spell at Bomana Corrective Institution might teach him differently. He is a disgrace.

Mrs Rapola has also breached her probation in that she has consumed alcohol. There is no excuse for that and it concerns me considerably. It indicates to me that she has not taken advantage of the "chance" she was given by the court. To a certain extent she has thumbed her nose at it.

Again I am indebted to the very thorough and fair report submitted by the probation officer, Liz Huasase. I have no doubt whatsoever that she has gone well beyond her fixed duties to try and help Mrs Rapola to comply with the probation conditions. It must be very disheartening for probation officers when their probationers fail to respond, when they are continually given stories that are riddled with untruths. Ms Huasase is now convinced that Mrs Rapola is not responding to probation and that is also clear to me after reading the final report on her. This is a case where probation, unfortunately, may have caused problems within the family.

I am now of the view that any further probation would be of no value whatsoever. Breaches would continue together with the beatings by Mr Rapola.

Even though Mr Takin has asked me to vary again the conditions and allow her to repay the money when she goes onto a salary in November, I am convinced that that will also fail. Whilst the domestic situation remains as it is and if Mrs Rapola continues to drink and stay out at night then the money earned will soon go. I suspect also that Mr Rapola will want his K2,000 back. Gadens will not be on the priority list at all.

I have decided that the best course is to now send Mrs Rapola to prison. When she is released she will not be required to repay any more money and hopefully she will be able to get her family life back together again. That of course will require an enormous effort also by her husband who at the moment is showing no support.

I take into account that the prisoner has paid back just over 50 per cent of the money and that she has worked with the Red Cross since November last year.

Therefore I am satisfied that under s 20 of the Probation Act (Ch No 381) the probationer has breached the conditions of probation and thereby committed an offence. Pursuant to s 20(2)(d) of the said Act I now order that Evelyn Rapola be imprisoned for part of the original sentence of two and a half years in that she be imprisoned for a period of one year in light labour.

I further order that the probation order be discharged in accordance with s 20(4) of the said Act.

Orders accordingly

_____________

Lawyer for the State: Kina Bona, Public Prosecutor.
Lawyer for the probationer: Ere Kariko, Public Solicitor.