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State v Teka (No 2) [2009] PGNC 46; N3604 (23 March 2009)

N3604

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1116 OF 2007

THE STATE

V

ELIZABETH TEKA

(No 2)

Mendi: Makail, J
2009: 9th & 23rd March

CRIMINAL LAW - Practice & Procedure - Application for variation of condition of suspended sentence - Sentence of 5 years wholly suspended on conditions - Full restitution to victim within 4 months - Jurisdiction of National Court discussed - "Locus standi" discussed - Grounds for variation discussed - Grounds not established - Failure to comply with conditions - Effect of - Application made out of time - Application dismissed - Criminal Code - Sections 19, 383A(1)&(2) & 596 - Probation Act 1979 - Sections 10, 16, 19, 20, & 21 - Probation (Forms) Regulation 1991 - Sections 4 & 5.

Cases cited:
The State -v- Henry Gorea (1997) N1504
The State -v- Evelyn Rapola (No 2) [1990] PNGLR 347
The State -v- Elizabeth Teka (2008) N3509

Counsel:
Mr. J Waine, for the State
Mr. P Kumo, for the Offender

RULING

23 March, 2009

1. MAKAIL J: On Tuesday 8th October 2008, the offender pleaded guilty to one count of misappropriation of K37,000.00, the property of one George Kaima contrary to section 383A(1)(a) of the Criminal Code.

2. On 22nd October 2008, I passed sentence upon her after considering Pre Sentence and Means Assessment Reports as well as submissions of both counsel. I sentenced the offender to 5 years imprisonment but wholly suspended it on conditions that:

"1. The prisoner shall repay the full amount of K37,000.00 to the victim within 4 months from today, such time shall expire on 25 February 2009.

2. The prisoner shall remain in the Southern Highlands Province until the K37,000.00 is paid in full to the victim.

3. The payment to the victim shall be witnessed by the Probation Officer who shall prepare and submit a report to the Court thereafter.

4. Thereafter, the prisoner shall immediately enter into her own recognition to keep the peace for the currency of the suspended sentence.

5. Further, the prisoner is at liberty to leave the Southern Highlands Province during the whole of the suspended sentence.

6. The prisoner shall allow for and permit the Probation Officer to visit her home at the end of each 6 months to monitor the compliance of these terms and to make such recommendations, as he considers appropriate either for a variation or an implementation of these terms.

7. The Probation Officer will attend on the prisoner at the end of each 6 months to do a comprehensive review and report to this Court of the prisoner’s compliance of these terms.

8. If for whatever reason the prisoner breaches any of these terms, she shall serve the balance of the term of the suspended sentence of 5 years as at the time of the breach". (Underlining is mine).

3. I did so pursuant to the Court’s powers under sections 19 and 383A(1)&(2) of the Criminal Code. Also see my judgment on sentence in The State -v- Elizabeth Teka (2008) N3509.

4. In the present case, the offender through her counsel, Mr. Kumo seeks to vary condition 1 of the suspended sentence by substituting the condition of monetary repayment of K37,000.00 to one of handing over of a PMV bus Registration No P413Z to the victim. The request for variation is by a Notice of Motion filed on 9th March 2009 by the Public Solicitor on behalf of the offender and supported by the Affidavits of the offender sworn on 25th February 2009 and filed on 9th March 2009 and the victim sworn on 4th February 2009 and filed on 9th March 2009 respectively.

5. I must make it clear at the outset that it is the offender who brings the application and not the probation officer and this raises an issue of "locus standi" which will be one of the issues I have to determine in this application.

APPLICANT’S SUBMISSIONS

6. Mr. Kumo of counsel for the offender submits that the offender was unable to comply with condition 1 of the suspended sentence which requires the offender to repay in full the sum of K37,000.00 to the victim within 4 months from the date of the decision on 22nd October 2008. He submits that this was due to the offender being unable to raise the required funds within the 4 months. The victim has acknowledged the difficulty faced by the offender. As such, they have agreed between them that the offender hand over a PMV bus to the victim and that should settle the matter between them. He submits that if that is done, it would finally put an end to the dispute and restore peace and harmony between the parties back in the village.

7. When I asked him if the Court has power to vary a condition of a suspended sentence, he could not refer me to any provision in the Criminal Code or any other legislations which confer jurisdiction or power on the Court to vary a condition of a suspended sentence, although he submits that the Court may vary a condition of a suspended sentence as a matter of course. He also points to condition 6 of the suspended sentence of 22nd October 2008 which provides inter alia for the Probation Officer to make appropriate recommendations to the Court to either vary or implement the terms of the suspended sentence, and submits that the Court has made provision for variation in its decision and should invoke that provision in this case.

8. Alternatively, he seeks to invoke section 155(4) of the Constitution by submitting that if there is no provision in the Criminal Code or any other legislations granting the Court power to vary a condition of a suspended sentence, the Court may exercise its inherent powers to vary the condition of the suspended sentence to do justice in a given case. He submits that in this case, since the offender is prepared to hand over a PMV bus to the victim as a substitute to the condition of full monetary repayment, the Court should exercise its inherent power to do justice to the offender.

9. By way of response to the State’s submission that the offender’s application for variation is filed out of time, hence defective, he submits that the offender did not have the opportunity to contact his office in time to give appropriate instructions to file the application in good time. Besides, the probation officer lives at Minj in the Western Highlands Province and was not available to supervise and report on the offender’s predicament until the commencement of this circuit to Mendi this month.

STATE’S SUBMISSIONS

10. Mr. Waine of counsel for the State did not seriously oppose the application although he points out that the application maybe defective as it was filed outside the time ordered by the Court for the offender to repay in full K37,000.00 to the victim which had expired on 25th February 2009. He says, the application was filed on 9th March 2009, some 12 days after the time limitation had expired and submits that the application would have been proper if the offender had sought and obtained leave of the Court to file the application for variation out of time. Since she did not, it maybe defective. When I asked him if the Court has power to vary a condition of a suspended sentence, he was unable to assist the Court.

REASONS FOR RULING

11. From the Affidavits, it is clear to me that the offender and the victim have agreed that the offender would hand over a PMV bus to the victim as a substitute to the order for repayment in full of K37,000.00. This is because she is unable to repay the full amount of K37,000.00 to the victim within 4 months as ordered by the Court.

Jurisdiction of National Court

12. That may be well but the first issue I have to determine is whether the Court has jurisdiction or power to vary a condition of a suspended sentence? In this case, does the Court have jurisdiction or power to vary by substituting an order for full repayment of K37,000.00 to the victim within 4 months with that of a PMV bus?

13. As I said above, when I raised this issue with both counsel, neither of them was able to pin point the relevant provision of the legislation conferring jurisdiction or power on the Court to vary a condition of a suspended sentence. Hence, I was left to deliberate this issue on my own.

14. The first matter to note here is that, by virtue of section 596 of the Criminal Code, the National Court is conferred jurisdiction or power to pass sentence on an offender. Section 596 states:

"596. Sentence.

(1) If a motion to arrest the judgment is not made or is dismissed, the court may -

(a) pass sentence on the offender immediately; or

(b) discharge him on his recognizance, as provided for in this Code, conditioned that he shall appear and receive judgement -

(i) at some future sittings of the court; or

(ii) when called on by notice in the prescribed form.

(2) If sentence is not passed immediately, a Judge may at any subsequent sitting of the court at which the offender is present pass sentence on him.

(3) If an offender (including an offender called on by notice in the prescribed form to appear and receive judgement in respect of a portion of his sentence suspended under any provision of this Code) does not appear at the required time and place, a Judge-

(a) may forfeit the offender's recognizance and the recognizance of his sureties (if any); and

(b) may issue a warrant to arrest the offender and to bring him before a Judge,

and such offender may be arrested and brought before the court accordingly.

(4) Before passing sentence, the court may receive such evidence as it thinks proper in order to inform itself as to the proper sentence to be passed".

(Underlining is mine).

15. From my reading of section 596, it is plain to me that there are two instances where a Court may delay passing of sentence on an offender. The first instance is where a motion is made to arrest a judgment before a sentence is passed. If the Court upholds the motion, the sentence is "stayed" so to speak. If it is dismissed, the Court may proceed to hand down the sentence. Secondly, before the passing of sentence, the offender is discharged on his or her own recognizance on condition that, he or she shall appear on a future date or whenever called upon by the Court to receive the sentence. When that happens, the Court may pass sentence at the next sittings of the Court if the offender is present. In both cases, before passing sentence, the Court must receive such evidence to inform itself as to the proper sentence to be passed on an offender.

16. Those two instances are in my view examples where the Court may delay the passing of sentence on an offender. Otherwise, once a Court passes sentence, it is not open for review or debate unless it is appealed to a higher Court like the Supreme Court. In the present case, it is entirely a different scenario. It is a case where a sentence has been passed on the offender on 22nd October 2008. The sentence was a 5 years imprisonment term, wholly suspended on conditions. One of the condition is for the offender to repay in full K37,000.00 to the victim within 4 months as of the date of sentence. There was neither a motion filed before the Court to arrest the judgment before sentence was passed nor was there an order of the Court discharging the offender on her own recognizance before the sentence was passed to a later date.

17. To my mind, there is no impediment here; the sentence took effect when passed on 22nd October 2008. That means that, although the offender was to serve her 5 years sentence outside the walls of the prison so to speak, she was also required to comply with the conditions of the suspended sentence. They are very strict conditions but they are there to ensure that she complies with them to make up for the time she would have spent in prison. See section 16(2)(a) of the Probation Act 1979.

18. In a case where a Court suspends a sentence, like in this case, it means that it has passed judgment on the offender and is ceased of the case. The suspended sentence of an offender then becomes the responsibility of the chief probation officer and his probation officers by virtue of powers conferred upon them under the Probation Act 1979. Section 10 provides for the duties of a probation officer as follows:

"10. Duties of probation officer.

It is the duty of a probation officer-

(a) to supervise, advise, assist and where possible to befriend, a probationer under him for the purposes of social rehabilitation of that probationer; and

(b) to perform such duties as are assigned to him under this Act or any other law; and

(c) to perform such other duties as the Chief Probation Officer directs". (Underlining is mine).

19. Thus, once an offender is sentenced by the Court to serve an imprisonment term but suspends it, the offender is put under the responsibility of the chief probation officer or his probation officers, and it is their responsibility to supervise, advise, assist and where possible befriend the offender for the purpose of rehabilitating the offender. It is a case where the offender is transferred from one institution, being the Court to another institution, being the Probation Services to undergo rehabilitation so to speak.

20. And whilst the Criminal Code makes no provision for variation of conditions of suspended sentence, I think the legislators did mean to omit such a provision in the Criminal Code because as I said above, the offender is put under the responsibility of the chief probation officer and his probation officers once the Court suspends a custodial sentence of an offender. That means that the power of the Court to vary a condition of a suspended sentence is not available under the Criminal Code. That power is found in some other legislation. In my investigation, the power to vary conditions of suspended sentence is found in the Probation Act 1979, which is the governing legislation of offenders put under the supervision of the chief probation officer and his probation officers. This is where section 19 is relevant. It states:

"19. Variation and discharge of probation orders.

(1) Subject to Subsection (6), a relevant court may, on application by a probationer, suspend or vary the conditions of the probation order which relates to that probationer.

(2) A probationer who has served not less than half the period of probation may, subject to Subsection (6), apply to a relevant court for the discharge of the probation order relating to him and the court may discharge the order.

(3) Subject to Subsection (6), a probation officer may, in relation to a probation order, apply to a relevant court for-

(a) suspension or variation of the conditions of the order; or

(b) imposition of additional conditions; or

(c) extension of the period of probation where that period is less than five years; or

(d) the discharge of the order.

(4) On the hearing of an application under Subsection (3), the court, having regard to the information before it in relation to the probationer, may-

(a) do all, or any of the following things:-

(i) suspend or vary any conditions of the probation order;

(ii) impose any additional conditions;

(iii) subject to Subsection (5)-extend the period of probation; or

(b) discharge the order.

(5) A period of probation shall not be extended beyond the period of five years from the date when the probation order in which that period is specified first took effect.

(6) Except with the written consent of the Chief Probation Officer, an application under Subsection (1), (2) or (3) shall not be made to a court unless that court exercises jurisdiction in a declared area". (Underlining is mine).

21. It is clear to me that the National Court is one of the Courts vested with jurisdiction or power to inter alia vary a condition of suspended sentence under sections 19(1),(3)&(4) of the Probation Act 1979. Section 19 uses the phrase "relevant court" and by section 1 of the same Act, "relevant court" is defined as "in relation to an application or other matter, connected with a probation order, means a court exercising the same jurisdiction as the court that made the order". In this case, it was the National Court which suspended the offender’s sentence of 5 years imprisonment and placed the offender in the hands of the Probation services with inter alia a condition to repay in full K37,000.00 to the victim within 4 months.

22. As for Mr. Kumo’s submission in support of the application for variation in so far as the jurisdiction of the Court is concern, I note he relies upon condition 6 of the suspended sentence of 22nd October 2008 which provides inter alia for the probation officer to make appropriate recommendations to the Court to either vary or implement the terms of the suspended sentence. He submits that the Court has made provision for variation in its decision and should invoke that provision in this case.

23. For this submission, I recall intimating to Mr. Kumo during the hearing that, condition 6 was specific in that it permitted the probation officer to apply to the Court to vary any conditions of the suspended sentence of the offender. As there was neither an application nor a report from the probation officer at the time of hearing, I rejected that argument and that position remains unchanged, even though I have belatedly received the report from the probation officer. And there is a good reason for me to reject that report and that is, I recall asking Mr. Kumo as to why he did not present a report by the probation officer at the hearing, and he informed me that the probation officer was not reachable at the relevant time, in order to get him to do a report because he resides at Minj in the Western Highlands Province.

24. That being so, how comes the probation officer was able to prepare one in a matter of days? When and where in particular did he attend to the offender during the 4 months to supervise her, although I note in conditions 6 and 7 of the suspended sentence of 22nd October 2008 that, they do not require him to do a report until the end of 6 months? Nonetheless, that does not mean that the probation officer or the offender should not be communicating or calling upon each other if there are any issues concerning the conditions that may have arisen during the 6 months. Further, when did she tell him that she is unable to repay K37,000.00 to the victim? These matters have not been explained by the probation officer at the hearing. This means that there is no basis to invoke condition 6 of the suspended sentence of 22nd October 2008 to vary condition 1 of the same suspended sentence.

25. Lastly, I am not satisfied with the alternative submission of Mr. Kumo where he seeks on behalf of the offender to invoke section 155(4) of the Constitution by submitting that where there is no specific provision granting power to the Court to vary a condition of a suspended sentence, the Court may exercise its inherent powers to vary the condition of the suspended sentence to do justice in a given case. In this case, he submits that since the offender is prepared to hand over a PMV bus to the victim as a substitute to the condition of full monetary repayment, the Court should exercise its inherent power to do justice to the offender.

26. Mr. Kumo did not refer me to any specific principles of law where this Court may invoke its inherent jurisdiction to do justice to the offender in this case. Nonetheless, as I have said in numerous occasions in the past, this Court is a Court of law dispensing justice to the people of this country. Any exercise of power must be in accordance with the law so that justice is attained. As I have not been referred to any relevant principles of law applicable in this case, I remain unconvinced that the Court’s inherent power should be exercised here.

27. In any case, the Court is vested with power under section 19 of the Probation Act 1979 to vary any conditions of a suspended sentence, thus I find there is no basis to invoke the Court’s inherent power in this case. In the end, I am satisfied that the National Court has jurisdiction or power to vary conditions of suspended sentence and may exercise that jurisdiction or power pursuant to an application made to it.

Locus standi

28. That being the case, I now return to consider the issue I raised at the beginning of the ruling and that is the issue of locus standi. That is, who has locus standi to bring the application to vary a condition of a suspended sentence?

29. For this issue, it is also clear to me that an offender who is also known as a probationer for the purposes of the Probation Act 1979 has locus standi by virtue of section 19(1) of that Act to bring an application to vary a condition of a suspended sentence. Likewise, any probation officer has locus standi by virtue of section 19(3)&(4) of the same Act to bring an application to vary a condition of a suspended sentence. Apart from them, no other persons have standing to bring such an application before the Court. But in either case, they shall seek approval of the chief probation officer prior to bringing the application as required by section 19(6) and I assume for the purposes of this case that Southern Highlands Province is a "declared area" within the meaning of sections 1 and 3 of the Probation Act 1979.

30. And there are good reasons for not permitting any other persons from applying. One reason that I can think of is that, an offender is placed under the control and supervision of the chief probation officer and his probation officers. Thus, it is their responsibility to make the application because their views of the offender’s rehabilitation and compliance with the conditions of the suspended sentence maybe considered neutral and without bias. Of course that does not mean that the offender may not bring the application for variation separately. He may, but as I said, in both instances, section 19(6) of the Probation Act 1979, requires that the chief probation officer must give his approval before an application is made to the Court and the approval must be in writing. In my view, it is a mandatory requirement and if no approval is given, the entire application is void.

31. In this case, I am satisfied that the offender has locus standi to bring the application to vary condition 1 of her suspended sentence. That means that the Office of the Public Solicitors is entitled to file the application on her behalf to seek variation of that condition.

32. But in terms of form used for the application, an application for variation brought by the offender under section 19(1) or (2) of the Probation Act 1979 shall be made in accordance with section 4 and Form 5 of the Probation (Forms) Regulation 1991 and for an application for variation brought by the probation officer under section 19(3) of the Probation Act 1979, it shall be made in accordance with section 5 and Form 5 of the Probation (Forms) Regulation 1991. This means that there is a specific Form for an application for variation of conditions of suspended sentence made by either the offender or probation officer. Thus, an application for variation must be made using Form 5 or must adopt the contents of From 5.

33. Bearing in mind these specific requirements of an application for variation of a condition of a suspended sentence, whilst I note that the application by Notice of Motion filed by the offender is not in accordance with Form 5, in my view it is not fatal to the entire application. There is however, no evidence placed before me to show that the chief probation officer has given his approval to the offender to bring this application. In other words, there is no evidence of a written consent from the chief probation officer to show that she did obtain the consent of the chief probation officer to bring this application. Hence, I conclude that the chief probation officer did not approve this application.

34. Secondly, there is no evidence of an application brought by the probation officer. If there is one, there is also no evidence that it has been approved by the chief probation officer at the time of the hearing, although a copy of a "Report Submission" by the probation officer was belatedly handed over to me to consider after the hearing. To my mind, the "Submission Report" is not an application under Form 5. It is a report intended to be used for the purposes of supporting an application for variation by the probation officer in accordance with condition 6 of the suspended sentence of 22nd October 2008. But as I said, it was not presented at the hearing of the application, thus I will not consider it.

35. In the end, whilst I am satisfied that the offender has standing to bring the application for variation independently from the probation officer, I am not satisfied that the offender had obtained a written consent of the chief probation officer to bring the application in any event. The resultant effect of the non compliance of this mandatory requirement is, the entire application is void ab initio. Hence, it should be dismissed.

Expiration of time limit

36. The other issue is whether the application for variation is made within time. If it is made out of time, should the entire application be dismissed as being defective?

37. This issue is pretty much straight forward. I accept Mr. Waine’s word of caution that the application for variation maybe defective as it was filed outside the expiration of the time limited to make full payment of K37,000.00 to the victim as ordered by the Court. In my view, the time for the offender to file the application to vary the condition expired on 25th February 2009. That was when the 4 months grace period ended. The application should have been made before that date. Instead, it was filed on 09th March 2009, some 12 days after the expiration of the 4 months.

38. I am not satisfied with the reasons offered by Mr. Kumo on behalf of the offender that first she was unable to contact him at Mt Hagen to give the relevant instructions to file the application and secondly, that the probation offender did not attend to her to ascertain if she was able to repay in full the K37,000.00 during the 4 months, hence she did not report to the probation officer until time ran out on her.

39. These reasons are not relevant to the Court. They are in house matters that should have been attended to before the 4 months expired. The condition of the suspended sentence is very clear and that is, the offender shall repay K37,000.00 to the victim within 4 months. I think I should not say any more on these two reasons offered by Mr. Kumo in respect of the offender’s explanation for the belated application. I am satisfied that the application for variation has been filed out of time. For this reason too, I find that the entire application is defective and should be dismissed.

Grounds for variation of condition

40. But even if I were to decide the application on its merits, I would still reach a decision that the application has no merits to warrant the Court to vary the condition of the suspended sentence. The issue is; what are the grounds or considerations the Court may take into account when considering an application for variation?

41. In this respect, I note section 19(1) of the Probation Act 1979 does not provide any grounds or considerations to guide a Court in its deliberation of an application for variation of a condition made by an offender. But in my view, in an application for variation under section 19(1), the Court may take into account whether the offender has complied with the conditions of suspended sentence. If not, the offender must by appropriate evidence show cause as to why the conditions were not complied with and why the Court should vary them.

42. In this case, it is clear to me that the offender did not comply with condition 1 of her suspended sentence. It is therefore relevant and important that the offender show cause as to why she failed to comply with the condition and why the Court should vary it. For example, it is relevant to ascertain whether the offender has made genuine attempts to repay in full K37,000.00 to the victim within 4 months. In other words, what steps did she take to repay K37,000.00 to the victim or did she sufficiently explain her attempts to settle in full K37,000.00?

43. The offender is neither illiterate nor a villager. She is fairly educated, having completed Grade 10 and also has had further training in Secretarial studies. She had worked at the Investment Promotion Authority for several years before taking up a position as Personal Assistant Executive Secretary to the Managing Director of Wamp Nga Group of Companies in Mt Hagen until the commission of the offence. She understands and speaks English as well as Pidgin fairly well. Given her educational and work background, I am pretty sure she understood what the Court required of her when she was sentenced on 22nd October 2008.

44. From my reading of her Affidavit sworn on 25th February 2009 and filed on 09th March 2009, there is nothing in it that tells me that she made genuine attempts to repay K37,000.00 to the victim. For example, she did not say how much she raised; how much she paid so far to the victim; when she made payment; and how much is outstanding. All she says in paragraph 3 of her Affidavit is that, "Since that order was made, I have had great difficulty in raising the K37,000.00. My order for repayment will expire on the 25th February 2009".

45. To my mind, her evidence is lacking and leads me to conclude that she did not make any effort at all to repay in full K37,000.00 to the victim. In fact, I recall, one of the reasons which led the Court to suspend the 5 years sentence, inter alia on condition that she repay K37,000.00 to the victim within 4 months was based on a Pre Sentence Report and a Means Assessment Report prepared by the probation officer. Reverting to the Means Assessment Report, it was presented to the Court on 14th October 2008 and under the sub title "Financial Situation", it states:

"Defendant has a trade store, poultry project and has domestic animals that can be exchanged for cash to repay the said amount, and above assets are being administered by her parents in her village.

The defendant’s husband is unemployed and is currently working as bus driver of a PMV bus between Mt Hagen and Ialibu.

The defendant has other savings (Bank and NasFund) that she can resort to help her repay the amount of money.

Defendant’s uncles and cousins that work and live in Port Moresby and Lae have expressed their support to help the defendant repay the amount.

The defendant has assured the Probation Officer that she will comply with restitution and repay the money because she says she has accessibility of repaying the money".

46. The Means Assessment Report further stated under the sub title "Sources of Information", that the offender and the victim were the ones who supplied the relevant information to the probation officer to put together the report. I note from the report, the probation officer recommended that:

"1. The offender has financial capabilities to repay the said amount and probationary sentence is recommended.

2. ......................

3. The offender has discussed with the complainant and offender herself is given a probationary sentence for restitution of not more than 4 months or less".

47. So what all these means is that, first the offender had unequivocally promised to this Court that she would make full restitution within 4 months given her sound financial position at that time. Secondly, her promise to the Court to repay K37,000.00 to the victim within 4 months was a result of negotiation and agreement between her and the victim although it is clear from the report that initially, the victim was very reluctant to a 4 months grace period for the offender to repay him. Finally and very importantly, whilst the recommendations of the probation officer in the report are merely guidelines to assist the Court to formulate an appropriate sentence for the offender and the Court is not bound by them, in this instance, the Court relied upon them to suspend the sentence.

48. To put it in another way, it was at her suggestions through the probation officer’s Means Assessment Report that the Court, upon deliberation, accepted and made the decision to suspend the sentence of 5 years on strict conditions, one of which was for her to repay K37,000.00 to the victim within 4 months. Now that she wants to vary the condition of repayment of K37,000.00 to the victim by substituting it with that of a PMV bus, to my mind, it is not a matter of the Court simply endorsing her request. Rather, it is a request at the discretion of the Court.

49. It is therefore, reasonable for the Court to enquire and ask, what happened to all the money she had earned from the store, poultry project, domestic animals, her savings in the bank and NasFund and of course, contributions from her uncles and cousins who live and work in Port Moresby and Lae? Or did she raise or make attempts to raise money through these sources of income? If so, how much has she made; how much has she paid to the victim so far; when she made payment to the victim; and how much is outstanding? Or did she simply do nothing? I have no evidence before me to suggest that she resorted to all these sources of income during the 4 months but had been unsuccessful to raise the required amount, except her general statement in paragraph 3 of her Affidavit that, "Since that order was made, I have had great difficulty in raising the K37,000.00. My order for repayment will expire on the 25th February 2009".

50. In other words, given all these information on her financial capacity, I fail to understand why she did not live up to her own promise. In the absence of any evidence showing her attempts to make full restitution to the victim, I conclude that she made no attempts at all. As she had run out of time, she brings this application in a last minute bid to save herself from her own default.

51. From the evidence of the offender in her Affidavit sworn on 25th February 2009 and filed on 9th March 2009 and also that of the victim in his Affidavit sworn on 4th February 2009 and filed on 9th March 2009, it is clear to me she had failed to repay in full K37,000.00 to the victim within 4 months. It is also clear to me that as a result, she has reached another agreement with the victim to hand over a PMV bus to him as a substitute. I just hope that the victim has not being pressured or unduly influenced by the offender to agree to that proposal. In any case, there is no evidence placed before me that she is the owner of the PMV bus, the subject of the agreement. So how can she transfer title of the bus to the victim when she is not the owner? This would be asking for more trouble!

52. I must express the Court’s strongest disapproval and utter disappointment of such conduct. I will not tolerate or condone this kind of conduct in my Court. Offenders like her must be reminded that this Court is not a changing room where they can come in at any time and swap whatever they do not like with what they like. This is a Court of law dispensing justice to the people of Papua New Guinea and is vested with power to pass sentence on offenders and expect offenders like her to serve their sentences faithfully. Offender like her must also be reminded that this is a criminal case and not a civil case. In a civil case, restitution is the primary consideration when a Court is deciding a dispute between parties.

53. In a criminal case like this one, the paramount consideration for the Court is the punishment of offenders under the criminal laws of this country. That means that, it is the people of Papua New Guinea through the institutions of State, like the Police and the Office of the Public Prosecutor, that bring an alleged offender to Court for appropriate punishment. It involves the entire people of this country against the alleged offender. It is not a private matter between the alleged offender and the victim anymore. Once an alleged offender is brought before the Court for the Court to decide his guilt and appropriate punishment if found guilty, it is a matter of public interest. Thus, the Court’s paramount duty in criminal cases, like in this case, is to the people of Papua New Guinea; to ensure that offenders are punished accordingly for the wrongs they commit. Personal interest of the offenders and the victims play a secondary role.

54. That being the primary purpose or role of a Court in the administration of the criminal justice system, whatever the agreement reached between the offender and the victim in this case becomes insignificant as far as the Court is concerned. That means, the primary concern now is whether the suspended sentence imposed by the Court has been complied with by the offender as punishment for the offence of misappropriation. If not, why? As far as I am concerned, the offender has failed and also has not satisfactorily shown cause as to why she has failed and seeks a variation.

55. In the end, even if I were to decide the application for variation on its merits, I would have still found that the offender has not established or shown cause as to why condition 1 should be varied. To my mind, the reasons offered are unsatisfactory and unacceptable. I would have in any case, dismissed the application for these reasons.

Effect of breach of condition

56. Having found that the application is either void ab initio, or defective or without merits, and should be dismissed, the last issue I have to determine is; what is the effect of breach of a condition of a suspended sentence? Further, can the Court revoke the suspended sentence in the same application or proceeding?

57. In my view, as the offender has failed to comply with or has breached a condition of the suspended sentence, the resultant effect is obvious; she must serve the balance of the 5 years sentence in prison. That means that the Court is entitled to revoke the suspended sentence and reactivate the 5 years sentence of imprisonment. I am also of the view that the Court is entitled to revoke the suspended sentence of an offender in the same application or proceeding.

58. I hold these two views because, condition 8 of the suspended sentence of 22nd October 2008 is clear. It states that if there is any breach of the conditions of the suspended sentence, the offender shall serve the balance of the suspended sentence in prison. To my mind, condition 8 is self executing as it forms part of the suspended sentence of 22nd October 2008 to cover situations where there is a breach or failure by the offender to comply with any of the conditions of the suspended sentence. Further, condition 1 is a fundamental condition because except for condition 8, all the other conditions are dependent upon it. If there is a breach, the other conditions are rendered meaningless or nugatory.

59. As there is a breach of a fundamental condition, I repeat what I said earlier here, for the sake of the offender and the public to appreciate and that is, the suspended sentence must be revoked and she must serve the balance of the term of the suspended sentence of 5 years as of the time of the breach in accordance with condition 8 of the suspended sentence of 22nd October 2008. The judicial power of the Court to impose condition 8 as one of the condition of the suspended sentence is found under section 20 of the Probation Act 1979. That being the case, this leads me to the reason for holding the view that the Court can revoke a suspended sentence of an offender in the same application or proceeding and that is, section 20 of the same Act does allow the Court to do so It states:

"20. Breach of conditions of probation.

(1) A probationer who contravenes, or fails to comply with, a condition of a probation order that relates to him commits an offence.

(2) An offence under Subsection (1) may be heard by a relevant court or a court exercising jurisdiction superior to the relevant court and the court may, on conviction of the probationer-

(a) extend the period of probation where that period is less than five years; or

(b) vary any condition of the probation order; or

(c) impose additional conditions; or

(d) where in accordance with Section 16(2)(a) sentence to imprisonment was suspended-commit the probationer to imprisonment for the whole or part of that sentence; or

(e) where in accordance with Section 16(2)(b) sentence was deferred-sentence the probationer to imprisonment for the offence for which he was originally convicted; or

(f) impose the penalty of a fine of not exceeding K200.00 or imprisonment for a term not exceeding four months.

(3) Section 19(5) applies to an extension under Subsection (2)(a).

(4) Where the court has proceeded in accordance with Subsection (2)(d) or (e), the court shall discharge the probation order". (Underlining is mine).

60. In my view, section 20 applies in a case where an offender serving a suspended sentence breaches any conditions of the suspended sentence. In other words, section 20(1) makes it an offence if an offender placed on probation or suspended sentence breaches any of the conditions of the suspended sentence. By sub section 2 of section 20, an offence relating to the alleged breach of one or more conditions of the suspended sentence may be heard by the same Court or a court exercising jurisdiction of that Court.

61. An offender who breaches any of the conditions of a suspended sentence may be brought to Court either by police or by information laid before the Court. In the first instances, this is where police on reasonable grounds believe that the offender on probation or suspended sentence has breached a condition of a suspended sentence and may arrest him with a warrant. In the second instances, information is laid before the Court against the offender and the Court may issue a summons requiring the offender to appear before it or issue a warrant of arrest for the immediate arrest of the offender. I set out section 21 in full below:

"21. Arrest of probationers.

(1) A member of the Police Force who, on reasonable grounds, believes that a probationer has committed a breach of a condition of a probation order relating to that probationer may, subject to the Arrest Act 1977 and the Bail Act 1977, arrest him without a warrant.

(2) If, on information, it appears to a relevant court that a probationer has committed a breach of, or has failed to comply with, a condition of the probation order relating to him, the court may-

(a) issue a summons requiring the probationer to appear before it; or

(b) where the information is on oath-issue a warrant for his arrest".

62. An example of a case where the Court issued a warrant of arrest for the immediate arrest of an offender alleged to have breached a condition of a suspended sentence is The State -v- Henry Gorea (1997) N1504. In that case, the offender’s imprisonment term of 18 months was wholly suspended after he was found guilty of misappropriating K20,000.00, property of Kolta & Associates, of which he worked as a consultant. One of the conditions of suspended sentence was for him to repay K17,000.00 within 8 months. He defaulted and the State applied and obtained a warrant of arrest from the National Court for his arrest. He was arrested and detained.

63. Subsequently, he appeared before the National Court and was asked by the Court to explain why he defaulted. He did and the Court further ordered that he repay K10,000.00 to Kolta & Associates forthwith and a further K7,000.00 within 14 days after he gave evidence that he had available at his immediate disposal K10,000.00 and that Kolta & Associates owed him fees for services rendered to it and if paid by it, would use the money to repay the balance.

64. It seems to me that the offender in the above case was brought to Court pursuant to a warrant of arrest made pursuant to section 21(2)(b) of the Probation Act 1979. But in this case, first it is a case where the offender had realized that she was unable to meet one of the conditions of her suspended sentence and seeks to vary the condition by bringing this application before the Court. In the process, it has become clear that she had defaulted or breached the condition. Secondly, it is a case where the offender has not satisfactory explained her default. Thirdly and finally, it is a case where the offender has not properly come before the Court because she had not obtained the written consent of the chief probation officer to seek a variation of the condition of her suspended sentence and of course for the fact that the application itself is time barred or filed out of time.

65. Be that as it may, I think mere non compliance of either of the processes under section 21 of the Probation Act 1979 does not render void whatever the decision of the Court will be in so far as the offender’s failure to comply with the condition of the suspended sentence is concerned. In other words, I think that what is relevant is that so long as there is sufficient evidence placed before the Court to establish the offender’s breach or default of any condition of the suspended sentence that is sufficient for the Court to invoke its powers under section 20 of the Act. See The State -v- Evelyn Rapola (No 2) [1990] PNGLR 347.

66. Accordingly, by virtue of condition 8 of the suspended sentence of 22nd October 2008, and section 20(2)(d)&(4) of the Probation Act 1979 the suspended sentence is be discharged and the offender be committed to prison forthwith. Proceeding on this premise, taking 25th February 2009 as the date of breach, she would have served 4 months of the 5 years imprisonment term outside prison, thus leaving a balance of 4 years and 8 months to serve in prison. The sentence shall run as of the date of this decision.

ORDERS

Therefore, it is the judgment of the Court that:

1. The application for variation of condition 1 of the suspended sentence of 22nd October 2008 by Notice of Motion filed on 9th March 2009 is dismissed forthwith.

2. The offender is convicted for breaching condition 1 of the suspended sentence of 22nd October 2008.

3. The suspended sentence of 5 years is discharged forthwith.

4. The offender is committed to prison to serve 4 years and 8 months as of the date of this decision.

A warrant of commitment in the above terms shall be issued shortly.

Orders accordingly.

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender