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State v Gorea [1997] PGNC 14; N1504 (19 February 1997)

Unreported National Court Decisions

N1504

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP 25 OF 1997
BETWEEN
THE STATE - APPLICANT
AND
HENRY GOREA - RESPONDENT

Waigani

Sevua J
21 January 1997
3 February 1997
5 February 1997

Counsel

Ms L Marru for Applicant

Mr D Steven for Respondent

5 February 1997

SEVUA J: This application by the Sthe State to have the respondent arrested and imprisoned for 18 months pursuant to a suspended sentence ordby the National Court at Waigani on 30th April, 1996, following a conviction on a charge ofge of misappropriation.

The respondent, as I understood from his counsel, has made a cross-application to vary the order referred to above.

The brief facts are as follows. The responwas indicted witd with one count of misappropriating the sum of K20,000.00 belonging to Kolta & Associates whilst he was engaged as a management consultant. He was convicted and sentenced to 18 months imprisonment with hard labour, however the Court suspended the whole sentence on conditions.

One of the conditions was that he must pay to & Associates, the sum of K17,000.00 within 8 months frhs from 30th April, 1996. The time llapsed on 30th D0th December, 1996 and that condition was not complied with, hence these proceedings.

On 27th January, 1997, I ordered the immediate arre the respondent. His appearancerd February uary was iwas in pursuance of that order. In essenc is asking for anor an extension of the 8 months that have already lapsed so that he could raise sufficient funds to satisfy the Court order.

Due to timetraints on the respondent, I gave him leave to give oral teal testimony since he was not in a position to file an affidavit explaining his failure to comply with the second condition of suspension of his prison term. The apnt had no objection tion to this course and I consider it the appropriate course of action, in so far as the interest of the respondent was concerned.

Itot intended to discuss the evidence in detail, suffice it t it to say that, the respondent has available the sum of K10,000.00 to pay to Kolta & Associates. I make one important observation here. The respondent had 8 m fros from 30th April till 30th December, 1996 to comply with the restitution order. He did vertle to make full full restitution until he was arreste>

g listened to himo him in his oral testimony, I could not hnot help but wonder how, an educated person like the respondent, could be ive about the law that he w he was unable to seek an extension of the 8 months from the Court which convicted him, let alone seek legal advice. After hearing hd observingrving his demeanour, I am not convinced of the reasons for his failure to comply with the Court order of 30th April, 1996.

The respondent is an accountant by profession. I oed him to be a very inty intelligent man with a very good command of the English language. I dobelieve that he was soas so naive of the law as he asserted0; Rather, he was a very impressive witness, whom I considensider, gave evidence of a convoluted picture of the whole scenario of hispacity to satisfy the restirestitution order.

His own evidence did not convince me that he was honest about his attempts to settle this matter. The leascould have done, ine, in my view, was to seek legal advice when he knew he was incapable of restitution by end of December, 1996. A person of his standing would have sought legal advice as to his position if he did not make full restitution. In my view, espondent̵’s failure was not as a result of his ignorance, but rather a deliberatregard for the authority ofty of this Court calculated to flout the constitutional existence of this Court. Plainly, the respondent,y n my view was, recalcitrant rather than ignorant. He sat backdid nothing, thg, thinking, I suppose, that the justice sysould allow this matter to die a natural death. That is tantamount topicalpical couldnouldn’t care less attitude.

Tmorandum of costs for the sthe sum of K48,640.00 which forms part of the respondent’s evidence, is for work done and services red...“for the duratioration of period to 31st January, 1985.” How is it that there writ written demand for the settlement of the debt for two years until last week? Certainly, i not a coincidincidence that the letter from Kove Holdings td to Nam Yang Timber (PNG) Pty Ltd was dated 30th January,uary, 1997. As I alluded to, I was impressed with the respondent, bue so with his intelligence,ence, rather than his reasons. For he diding soon after hter he was convicted and sentenced, until h arrested last week.

Initially, I felt that the resp respondent should be imprisoned forthwith, however, in view of his evidenat he has the sum of K10,0010,000.00 available and his bill of costs totalling K48,640.00 should be settled shortly, together with another bill for K5,000.00, I consider it appropriate to defer enforcing the 18 months imprisonment for a short time.

I will therefore make the following orders:

1. ټ&##160; T60; The rese respondent pays to Kolta & Associates forthwith, the sum of K10,000.00.

2. ټ The respondent file files a notice of payment and nowlent of payment witt within 2hin 24 hours of payment.

3. ټ The respondent is a is allowed bail in hn recance e sum of K2,f K2,000.0000.00 (no0 (not cash).

4. & T60; The respondent pays to Kolta & Associates alancK7,00within 14 da14 days frys from toom today, and files a notice of payment and a acknowledgement of payment on the fourteenth day.

5. ;ټ&##160; This matteratteratter is a is adjourned to 9.30 am on Wednesday, 19th February, 1997.

Lawyer for Applicant: Public Prosecutor

Lawyer for Respondent: Maladina Lawyers