Tom Longman Yaul v The State (2005) SC803

• Jurisdiction: Papua New Guinea
• Judge: Salika J, Mogish J, Cannings J
• Judgment Date: 04 November 2005
• Court: Supreme Court
• Docket Number: SCRA No 64 of 2004
• Judgement Number: SC803

Full Title: SCRA No 64 of 2004; Tom Longman Yaul v The State (2005) SC803

Supreme Court: Salika J, Mogish J, Cannings J

Judgment Delivered: 4 November 2005

SC803

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 64 0F 2004

BETWEEN

TOM LONGMAN YAUL

Appellant

AND

THE STATE

Respondent

KIMBE: SALIKA J, MOGISH J, CANNINGS J

31 OCTOBER, 4 NOVEMBER 2005

APPEAL

Criminal law – sentences – suspension of sentence – conditions of suspension – Criminal Code, Section 19 – offender sentenced to four-year sentence, with one year to serve and three years suspended, subject to payment of restitution and compensation – payment not made – prisoner committed for remainder of term – whether Judge was satisfied that conditions of suspension were not met – whether offender was given the opportunity to be heard.

Natural justice – right of offender to address the court on issues pertaining to proposed order for commitment to custody – whether having a legal representative present was sufficient – whether legal counsel fully represented interests of offender – duty of National Court to ensure that prisoners are given full opportunity to explain matters pertaining to commitment to custody.

The appellant was given a four-year sentence after being convicted of arson. He was ordered to serve the first year of the sentence in prison, with the balance of three years open to suspension if he paid restitution of K3,200.00 plus compensation of K1,000.00 to the victim of his crime. The appellant served the first year of his sentence and was released. However he did not pay the amounts of restitution or compensation. Someone complained. The police, acting in the certificate of conviction issued by the National Court, arrested the appellant and detained him for three days before bringing him before the National Court, this time before a different judge. The State’s lawyer made an oral application for the appellant to be recommitted to custody and told the judge from the bar table that the appellant had failed to comply with the conditions subject to which his sentence had been suspended. No oral or affidavit evidence was adduced. The appellant’s lawyer failed to object to the application. The judge did not ask the appellant whether or why he had not complied with the conditions or why he should not be re-committed to custody. The judge ordered that the appellant be re-committed to custody to serve the rest of his sentence. This was an appeal against that order.

Held:

(1) An application to dissolve a suspended sentence and for an order that an offender be re-committed to custody should be made either by originating summons or by dispensing with that requirement in accordance with Order 1, Rules 11 and 12 of the Criminal Practice Rules.

(2) In either case there should be affidavit or oral evidence of the alleged breach of the conditions of the suspended sentence.

(3) An offender whose suspended sentence is proposed to be dissolved on the ground that he has breached the conditions of his suspended sentence has a right to be heard on whether he has, in fact, breached the conditions and why he ought not to be re-committed to custody.

(4) If an offender’s lawyer fails to properly represent the interests of his client, the judge should intervene to ensure that the offender’s constitutional rights are enforced and that the offender is given the full protection of the law.

(5) In the circumstances, the orders re-committing the offender to custody were infected by procedural errors and were accordingly quashed and the matter remitted to the National Court for further hearing.

Cases cited

The following cases are cited in the judgment:

Acting Public Prosecutor v Clement Maki and Tom Kasen (1981) SC205

Agiru Aieni and Others v Paul T Tahain [1978] PNGLR 37

Lindsay Kivia and Others v The State [1988] PNGLR 107

Michael Gende v The State (1999) SC626

Moses Aikaba v Tami [1971-72] PNGLR 155

Norris v The State [1979] PNGLR 605

Sela Gipe v The State (2001) SC661

Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329

APPEAL

This was an appeal from an order of the National Court re-committing an offender to custody on the basis that he breached conditions subject to which his sentence had been suspended.

Counsel

T L Yaul, the appellant, in person

J Kesan for the respondent

BY THE COURT:

This is an appeal against an order of Sakora J in the National Court, in which his Honour ordered that the appellant be re-committed to custody on the basis that he had not complied with conditions subject to which his prison sentence had been suspended.

BACKGROUND

The appeal is against an order of Sakora J of 20 July 2004. However, to appreciate what that order was about, we must set out the background of the matter and show how the appellant was first convicted and sentenced by another judge, Batari J, in March 2003. The proceedings before both judges were held in the National Court at Kimbe.

Proceedings before Batari J – conviction and sentence: March 2003

On 14 March 2003 the appellant, Tom Longman Yaul, pleaded guilty to burning down Samuel Gasap’s tradestore at Section 27, Kimbe, on 18 August 2002, Batari J convicted him of an offence under Section 436(a) of the Criminal Code. Senior State Prosecutor, Mr Popeu, appeared for the State. Mr Siminji, of the Office of the Public Solicitor, represented the appellant.

Batari J requested and obtained a means assessment report under the Criminal Compensation Act 1991. Then on 28 March 2003 his Honour issued a certificate of conviction showing that the appellant was sentenced as follows:

1 Prisoner is sentenced to 4 years imprisonment, with hard labour.

2 Prisoner is to serve 12 months imprisonment and have the balance of 3 years suspended; prisoner placed on good behaviour bond for 3 years upon prisoner making restitution in the sum of K3,200.00 and also pay K1,000.00 compensation to the victim within the 12 months of imprisonment.

3 Order that the prisoner’s bail money of K200.00 be refunded and paid towards the restitution and compensation orders.

Events between date of sentence and second appearance before National Court

The appellant served the first year of the sentence at Lakiemata correctional institution, near Kimbe. Then he was released from custody.

On 16 July 2004 he was arrested pursuant to the certificate of conviction and detained in the Kimbe police lock-up. This action was taken apparently on the complaint of someone who said that the appellant had not paid the money he was required to pay under Batari J’s order.

Proceedings before Sakora J: July 2004

On 19 July 2004 the appellant was brought before Sakora J. Senior State Prosecutor, Mr Popeu, again appeared for the State and made an oral application for the court to issue a fresh warrant of commitment, in order to reinstitute the three years suspended sentence. Mr Popeu informed the court that the appellant had failed to comply with Batari J’s order. Mr Oiveka, of the Office of the Public Solicitor, represented the appellant. The only document filed in support of the application appears to have been the appellant’s certificate of conviction issued by Batari J on 28 March 2003. His Honour indicated that he was satisfied that there had been no compliance with the order of Batari J but said that he needed details of the pre-sentence period in custody that the appellant had spent. He adjourned the matter to the next day to enable those details to be obtained. He asked Mr Oiveka if he was going to make submissions objecting to the State’s application. Mr Oiveka said that he would get instructions from his client. The appellant was then remanded in custody.

On 20 July 2004 the matter returned before Sakora J. Mr Popeu informed the court that the appellant had spent one month and 17 days in custody prior to the date of sentence, 28 March 2003. Mr Popeu again informed the court that the appellant had served 12 months in custody but did not comply with the court’s orders regarding restitution and compensation. During the course of the hearing his Honour expressed the view that the appellant had been made subject to orders that he could not comply with:

With respect, it does not make sense and in the end maybe considered to have caused injustice. Monetary orders must be capable of being complied with. All right, gentlemen, for your purpose, for my purpose and for this person’s purpose the balance of that sentence must be resurrected because those orders cannot be and could not be complied with.

All right, upon the information before me in relation to the sentencing of Tom Longman Yaul and the monetary orders that were made as conditions for the suspension of the balance of three years, I am satisfied that those orders have not been complied with. And for the record I express my concern with respect that those orders were made contrary to the recommendations of the means assessment report suggesting that the prisoner could not afford to pay those monetary orders and therefore the term of imprisonment would have to be resurrected.

His Honour addressed the appellant directly and explained that Batari J had sentenced him to four years...