The State v Louise Paraka (2002) N2317

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Kandakasi J
• Judgment Date: 24 January 2002
• Citation: (2002) N2317
• Judgment Number: N2317
• Year: 2002

Full Title: The State v Louise Paraka (2002) N2317

National Court: Kandakasi J

Judgment Delivered: 24 January 2002

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Presentation of indictment—Indictment need not correspond with charge on which an accused was committed to stand trial—Public Prosecutor under no restriction to present an indictment expect as the facts may dictate—Counsel taking issue on variance between charge accused committed upon and indictment eventually presented without any purpose in mind—Such conduct amounts to unprofessional conduct—s525 Criminal Code—s15(3) Professional Conduct Rules 1989.

2 CRIMINAL LAW—PRACTICE AND PROCEDURE—Pre–sentence and means assessment reports—Where restitution and or a non custodial sentence is to be argued for as an appropriate penalty counsel must organize before hand such reports to avoid wastage of Court's time and to avoid a delay in a decision on sentence.

3 CRIMINAL LAW—Particular offences—Forgery and uttering of cheques—Guilty plea to all charges—First time offender—Expression of remorse through pre–sentence report—Circumstances forced or cause prisoner to offend—Pre–sentence report recommending non–custodial sentence—Relatives and clans prepared to assist in restitution and supervise offender in his reformation efforts—Unsafe to send offender to prison—3 years fully suspended sentence imposed on terms—s462(1) and (3) and s463(2) Criminal Code.

4 CAUSES OF ACTION—Class or representative action—A means of unjust gain by persons that may not necessarily be entitled to—Too many instances of this now—Lawyers and Court under duty to ensure person purporting to represent another does in fact have the others clear and unequivocal instructions to do so and that the proceeds will go to the person actually entitled.

5 The State v James Gurave Guba (2000) N2020, The State v Joseph Ping (2001) N2169, The State v Sabarina Yakal [1988–89] PNGLR 129, Dori Inara v The State (2002) SC688, Tom Amaiu v The State [1979] PNGLR 576, Public Prosecutor v Don Hale (1998) SC564, Wellington Belawa v The State [1988–89] PNGLR 496, The State v Paulus Takesi [1997] PNGLR 507, The State v Jimmy Solomon (2001) N2100, Doreen Liprin v The State (2001) SC673, The State v Dobi Ao (No 2) (2002) N2247, The State v Micky John Lausi (2001) N2073, The State v Nyama [1991] PNGLR 127, The State v Morobet Awui Koma and Peter Kevin [1987] PNGLR 262 and R v Barrick (1985) 81 Cr App R 78 referred to

Decision on Sentence

___________________________

N2317

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1505 of 2000

THE STATE

-V-

LOUISE PARAKA

MT. HAGEN: KANDAKASI, J.

2002: 21st, and 24th January

DECISION ON SENTENCE

CRIMINAL LAW – PRACTICE & PROCEDURE – Presentation of indictment – Indictment need not correspond with charge on which an accused was committed to stand trial – Public Prosecutor under no restriction to present an indictment expect as the facts may dictate – Counsel taking issue on variance between charge accused committed upon and indictment eventually presented without any purpose in mind – Such conduct amounts to unprofessional conduct – s. 525 Criminal Code – s. 15 (3) Professional Conduct Rules 1989.

CRIMINAL LAW – PRACTICE & PROCEDURE - Pre-sentence and means assessment reports – Where restitution and or a non custodial sentence is to be argued for as an appropriate penalty counsel must organize before hand such reports to avoid wastage of Court’s time and to avoid a delay in a decision on sentence.

CRIMINAL LAW — Particular offences — Forgery and uttering of cheques — Guilty plea to all charges — First time offender — Expression of remorse through pre-sentence report — Circumstances forced or cause prisoner to offend - Pre-sentence report recommending non-custodial sentence — Relatives and clans prepared to assist in restitution and supervise offender in his reformation efforts — Unsafe to send offender to prison —3 years fully suspended sentence imposed on terms — ss. 462 (1) and (3) and 463 (2) Criminal Code.

CAUSES OF ACTION – Class or representative action – A means of unjust gain by persons that may not necessarily be entitled to - Too many instances of this now – Lawyers and Court under duty to ensure person purporting to represent another does in fact have the others clear and unequivocal instructions to do so and that the proceeds will go to the person actually entitled.

Cases cited:

The State v. James Gurave Guba (19/12/00) N2020.

The State v Joseph Ping (17/12/01) N2169.

The State v. Sabarina Yakal [1988-89] PNGLR 129.

Dori Inaria v. The State (unreported judgement delivered 10/07/02) SC688 .

The State v. James Gurave Guba (unreported judgement delivered 19/12/99) N2020.

Tom Amaiu v. The State Tom Amaiu [1979] PNGLR 576.

Acting Public Prosecutor v. Don Hale (27/08/98) SC564.

Wellington Belawa v. The State [1988-89] PNGLR 496.

The State v. Paulus Takesi (11/06/96) N1468.

The State v Jimmy Solomon (20/07/01) N2100.

Doreen Liprin v. The State (9/11/01) SC675.

The State v Dobi Ao (No 2) (01/05/02) N2247.

The State v. Micky John Lausi (27/03/01) N2073.

The State v. Nyama [1991] PNGLR 127.

The State v. Morobet Awui Koma and Peter Kevin [1987] PNGLR 262.

Overseas Cases cited:

R v. Barrick (1985) 81 Cr App R 78.

Counsels:

Mr. J. Kesan and Mr. J. Be’soer for the State

Mr. P. Kumo for the Prisoner

24th January 2002

KANDAKASI J: On Tuesday the 21st of this month, you pleaded guilty to two counts of forgery and a further two counts of uttering contrary to ss. 462(1) and 463(2) of the Criminal Code respectively committed on the 28th and 29th of April 2000, here in Mt. Hagen. Through these, you gained K6, 000.00.

A further charge of stealing contrary to s. 372 (10) also under the Criminal Code was presented against you. You pleaded not guilty to that charge and the State decided not to present any evidence against you on that. I therefore dismissed that charge.

I then heard submissions on your sentence and adjourned to the next day for a pre-sentence report. Only a means assessment was furnished the next day so your case was adjourned again to enable a pre-sentence report to be furnished. The report in question was furnished midday yesterday. I then had the matter adjourned finally to today for me to consider the report and arrive at a decision on your sentence. What follows hereunder is the decision on your sentence.

Preliminary Issue

Before I get to the Court’s decision on your sentence, it is necessary to cover a preliminary point that was raised by your lawyer. After the Court took your pleas, your lawyer argued that the charges did not confirm with the charge that was initially presented against you and the brief facts supporting that in the committal process.

In my short experience at the bench, I have not come across such an argument or issue. I know only of a right in a defence lawyer to make an application under s. 563 of the Criminal Code to enter a plea of not guilty notwithstanding his client’s guilty plea in appropriate cases. I am also aware of a right in a defence counsel to apply for an adjournment to enable him or her to seek further instructions where an accused enters a plea that is contrary to his instructions. Given this, I could not work out what was the purpose behind your lawyer’s arguments. I therefore asked him, what was the purpose of raising that issue. I also asked, if what he was doing was consistent with the practice of plea bargains. Your lawyer said there was really no purpose in mind when taking the issue and he also accepted that, what he was trying to do was not consist with the practice of plea bargains. He therefore abandoned his arguments.

If your lawyer did not abandon the issue he was taking, I would have dismissed it. The reason for that is very simple. Section 525 (1) of the Criminal Code empowers “the Public Prosecutor or a State Prosecutor” to “consider the evidence in the matter and” decide whether or not to:

“(a) reduce...