The State v Elizabeth Teka (No 2) (2009) N3604

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 23 March 2009
• Citation: (2009) N3604
• Docket Number: CR NO 1116 OF 2007
• Court: National Court
• Year: 2009
• Judgement Number: N3604

Full Title: CR NO 1116 OF 2007; The State v Elizabeth Teka (No 2) (2009) N3604

National Court: Makail, J

Judgment Delivered: 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...