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Nabare v Herepe [2008] PGDC 63; DC726 (17 April 2008)

DC726

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 47 of 2007

BETWEEN

TOBBY NABARE
Informant

AND

GEORGE HEREPE
Defendant

Goroka: M Gauli, PM
2008: April 16, 17

CRIMINAL – Bail application – Bail after conviction but before sentence – Conviction while on bail – Breached bail pending sentence – Appeared for sentence on warrant of bail – Earlier application for refused by District Court Magistrate – Further bail application before Grade Five Court Magistrate.

CRIMINAL – Sentence – obtaining money by false promise – Restitution – Repairs done to the vehicle except problem with its 4 wheel – suspended sentence with conditions.

Cases Cited:
1. Bola Renagi, Belden Namah, Linus Osob –v- The State SC649
2. The State –v- John Kil [2000] PNGLR 253

References:
Nil

Counsel:
For the Prosecution – Senior Sergeant Mark Yamuje
For the Defendant – Mr. Yambon of Paraka Lawyers

17 April 2008

DECISION OF THE COURT

M Gauli, PM: The defendant George Herepe appeared before me on 07 December 2007 on a charge of obtaining goods or credit by false promise with intention to defraud pursuant to Section 404 (1) of the Criminal Code Act of Papua New Guinea. He was found guilty of the charge and the sentence was deferred to 07 March 2008. The court further ordered that the defendant to do up the appropriate repairs to a motor vehicle and to reimburse K1, 000.00 to Ben Jomino being the money deposited and received by the defendant for the repairs to be done on Ben Jomino’s motor vehicle, a Toyota Hilix double cabin registration number AFR 188 in November 2001. The Court further ordered the defendant to bring the said vehicle to Goroka Police Station for the court to view it on 07 March 2008 before considering sentence.

2. The Court did not convene on 07 March as I was attending the Senior Provincial Magistrates meeting in Lae, Morobe Province at the time. The case was stood over to 12 March 2008. On 12 March, the defendant appeared and he said that the vehicle encountered leakage in its fuel tank so he had it taken back to his workshop to patch up the fuel tank. I then adjourned the case to 14 March for sentencing at 1:30 pm and ordered that the vehicle be left at the police station in Goroka for viewing by the Court. The defendant failed to appear in Court and he failed to bring the vehicle to Goroka Police Station. The adjournment to 14 March was at the defendant’s request. The Court then issued a bench warrant and his bail forefeited to the State and the case adjourned to 27 of March for sentencing. On the 27 of March the warrant of arrest had yet to be executed and the court extended the bench warrant to 21 April 2008.

3. Bail Application

The defendant was arrested and brought before the District Court on 4 April 2008. At that time I was away in Kundiawa on two week court circuit. He applied for bail before Magistrate Mr. F. Manue but the court refused bail. When the matter came before me on 16 April 2008 for sentencing, the defendant through his counsel applied for bail under Section 10 of the Bail Act. This provisions states and I quote:

“10 Bail after conviction and before sentence

Where a court convicts a person but adjourns the proceeding before passing sentence, it may, in its discretion, grant the person bail.”

4. This provision applies to the situation where the person convicted is appearing from custody and the court adjourns the proceedings to a later date for sentencing, then Section 10 of the Bail Act would be appropriately considered and applied. This provision however is silent where a person is on bail when convicted and the proceedings are adjourned for sentence and where bail is being extended and the prisoner breached the bail as in the present case. The Bail Act is silent on such a situation as in the present case.

5. The courts have a wider discretionary powers to grant bail to a person after conviction and before sentencing. However to grant or refuse bail will depend on exceptional circumstances been shown. In the case of Bola Renagi, Belden Namah & Linus Osob –v- The State SC 649 (SCRA 43 of 2000), Amet CJ, as then he was has this to say: “The Courts are however vested with wide discretion in exercising this power. In the exercise of his discretion power whether or not to grant bail following conviction, ‘Exceptional circumstances’ must be shown, not merely special circumstances.”

6. The defendant has not shown any special circumstances before this Court to grant him bail. His only reason is to be released on bail so that he could fix the vehicle and return it to the owner before sentencing. This court had given him ample time from 07 December 2007 to 7 March 2008 following his convictions and before sentence to make good repairs to the vehicle and present it for the court’s viewing while he was still on extended bail. He failed to do that. I could not be satisfied that his reasons for bail is exceptional in the circumstances.

7. The defendant upon his arrest on 08 April 2008 applied for bail before the Grade Four Magistrate Mr. F. Manue basically on the same grounds. That application was refused. The Section 13 of the Bail Act states that where bail is refused by a Magistrate of the District Court, he could only apply for bail before a Judge of the National Court. There is no provision in the Bail Act that allows the bail application to be made before a Magistrate of the District Court or before a Grade Five Court Magistrate after the earlier application is refused by the Magistrate of the District Court except to the judge of a National Court.

8. One could well argue that since the proceedings were before the Magistrate of the Grade Five Court, the earlier application for bail before the Magistrate of the District Court were improper. I would be content with that line of argument as that would be seen to be an abuse of the process of the Court. Nevertheless the counsel did not argue on that issue. Even if the counsel raised the issue the District Court Magistrate did not have the jurisdiction to hear the bail application where the substantive matter of the proceedings are within the jurisdiction of the Grade Five Court, I had to consider the following issues or question:

i. Could a bail be granted or refused after the person, while on bail awaiting sentence, has breached or jumped the bail.

9. Where a person is convicted while on bail and the proceedings are adjourned for sentencing with the bail being extended and he breached the bail by failing to appear in Court for sentencing and he is at large until arrest on the bench warrant being issued, the court need to consider whether that person could be trusted to appear in court for sentencing if he is granted the bail again. In the present case the defendant appeared in Court for sentencing on 12 March 2008. He was to present the said vehicle for Court’s viewing before imposing the sentence. He told the court that the vehicle had been taken back to the workshop because its fuel tank was leaking. The proceedings were adjourned to 14 March at 1:30 pm. He failed to appear and he failed to bring the vehicle down. Since then he had never reported back to police until he was arrested on or about 04 April 2008 and was brought to court. His reason for failing to appear in Court for sentencing was because he went to Lae to get parts and overhaul the engine of the vehicle. He had three months from his conviction on 07 December 2007 to 07 March 2008 to do all the necessary repairs to the vehicle. On 12 March 2008 when he appeared in Court for sentencing he told the Court that the only problem with the vehicle was the leaking fuel tank. He never mentioned about other parts or to overhaul the engine. When he appeared before this Court on 16 April 2008 for sentencing. I asked if the vehicle had been brought down to the Police Station for viewing by the Court. The response was no. I then adjourned to 1:30 pm for the vehicle to be available for the viewing by the Court. Still the vehicle had not been brought down. Instead the defendant applied for bail.

10. Given the considerations over these circumstances, I am convinced that if the defendant is granted bail he is most unlikely to appear in court for sentencing. I could no longer trust him to be a person who is truthful to his words. Accordingly I refused him bail and be remanded in custody until 1:30 pm on 17 April for submissions on sentence. Both the counsel and the prosecutor made their oral submissions which I have considered them.

11. Sentence

The penalty for the offence of obtaining money by false pretence or by wilful false promise carries a tem of imprisonment for five years. The maximum term is reserved for only very serious nature of cases. The defendant received and obtained a sum of K1, 000.00 from one Ben Jomino in November 2001 as a deposit to do repairs to his vehicle. Defendant is a mechanic and operates a small workshop. The defendant never done or completed the repairs and the vehicle had been in the defendant’s custody up to this day.

12. The vehicle had been brought down to the police station and the court had viewed the vehicle just before proceeding to sentence today. All the repair woks have been down but there is a problem with its four wheel gear. The owner of the vehicle Ben Jomino wanted that the vehicle be put in another workshop to repair the problem with its four wheel gear and the defendant to pay for the cost of it. Defendant had agreed to that proposal. I also consider that the defendant has re-imbursed Mr. B. Jomino of the K1, 000.00 deposit by paying it to the Court on 16 April 2008. The defendant has also replaced all the four bold tyres and the broken front windscreen and other parts out of his own pocket at a cost of over K5, 000.00. The status of the vehicle appeared far better than when the court first viewed the vehicle on 07 December 2007 except for the problem with its four wheel gear.

13. The defendant has two wives with a total of nine (9) children. He operates a small workshop at his village and employed a small number of people. If he is given custodial sentence his small business could be out of operation and also his large family would suffer. The defendant is a first time offender. I take these mitigating factors into account.

14. The counsel referred to the case of The State –v- John Kil [2000] PNGLR 253. In that case the prisoner borrowed K1, 470.00 from Peter Yatefa Wellis in 1997 and promised to repay him as soon as he gets his finish pay of some K21, 000.00. However the prisoner disappeared and never repaid the money. He was charged for obtaining the money by false pretence in early 2000. He pleaded guilty to that charge and he was willing to repay the money to the owner. His Honour Kirriwom J said:

“The prisoner is willing to repay the money to the owner and I think this is the crucial factor. Stealing under circumstances like this is not prevalent. In fact this could have been easily proceeded with under civil summons for debts as monies borrowed and not repaid. I do not think that anyone should ever go to prison at first instance in cases of this nature without first attempting settlement through restitution. Prison should be reserved for the worst cases and as a very last resort after all avenues of non-custodial punishment have been exhausted.”

15. It was held in this case that:

I. In false pretence cases of monies borrowed and not repaid, restitution must be the primary objective of the sentencing authority.

II. Every avenue must be exhausted for a non-custodial punishment option, imprisonment must be the last resort.

III. A suspended sentence conditional upon a compensation order in addition to restitution provided it is affordable and justifiable is appropriate.

16. The above case involved borrowing of money and not been repaid. The present case involved a deposit of money to carry out repairs in a vehicle but the repairs not be done for almost seven years. However I do agree with the decision on the above case that in a situation such as the present case, the sentencing authority must look at restitution as a primary objective. After all the owner of the vehicle want to have his vehicle repaired and returned to him. Having that in mind after entering the conviction on 07 December 2007 I adjourned the proceedings to 07 March 2008 for sentencing so that the defendant could repair the vehicle to an acceptable standard for viewing by the Court before considering on the sentence. The defendant failed to present the vehicle on the date fixed for sentencing and eventually he absconded bail until he was arrested on bench warrant. Had the defendant complied to that order, the court would have been more lenient in sentencing.

17. Having said all that I have stated above I am satisfied that restitution has infact taken place except for the problem with the four wheel gear and that the defendant is willing to pay for the cost of the repairs of the four wheel gear. This should have been disposed of in a civil proceedings as it is more of a civil nature. I consider that this case is similar to the case of The State –v- John Kil above and I consider that a suspended sentence with conditions should be appropriate in the circumstances.

18. And I sentence the defendant to a term of twelve (12) months imprisonment in hard labour. The whole of the sentence is suspended on the conditions that:

a) The prisoner enters into his own recognizance to keep the peace and be of god behaviour for one (1) year.

b) The prisoner pays for the cost of the repairs to the vehicle for its four wheel gear.

For the Prosecution – Senior Sergeant Mark Yamuje, Goroka Police Station
For the Defendant – Mr. Yambo of Paraka Lawyers