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State v Gorea [1997] PGNC 14; N1504 (19 February 1997)

Unreported National Court Decisions

N1504

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP 25 OF 1997
BETWEEN
THE STATE - APPLICANT
AND
HENRY GOREA - RESPONDENT

Waigani

Sevua J
21 January 1997
3 February 1997
5 February 1997

Counsel

Ms L Marru for Applicant

Mr D Steven for Respondent

5 February 1997

SEVUA J: This is an application by the State to have the respondent arrested and imprisoned for 18 months pursuant to a suspended sentence ordered by the National Court at Waigani on 30th April, 1996, following a conviction on a charge of misappropriation.

The respondent, as I understood from his counsel, has made a cross-application to vary the order referred to above.

The brief facts are as follows. The respondent was indicted with one count of misappropriating the sum of K20,000.00 belonging to Kolta & Associates whilst he was engaged as a management consultant. He was convicted and sentenced to 18 months imprisonment with hard labour, however the Court suspended the whole sentence on conditions.

One of the conditions was that he must pay to Kolta & Associates, the sum of K17,000.00 within 8 months from 30th April, 1996. The time limit lapsed on 30th December, 1996 and that condition was not complied with, hence these proceedings.

On 27th January, 1997, I ordered the immediate arrest of the respondent. His appearance on 3rd February was in pursuance of that order. In essence, he is asking for an extension of the 8 months that have already lapsed so that he could raise sufficient funds to satisfy the Court order.

Due to time constraints on the respondent, I gave him leave to give oral testimony since he was not in a position to file an affidavit explaining his failure to comply with the second condition of suspension of his prison term. The applicant had no objection to this course and I consider it the appropriate course of action, in so far as the interest of the respondent was concerned.

It is not intended to discuss the evidence in detail, suffice it to say that, the respondent has available the sum of K10,000.00 to pay to Kolta & Associates. I make one important observation here. The respondent had 8 months from 30th April till 30th December, 1996 to comply with the restitution order. He did very little to make full restitution until he was arrested.

Having listened to him in his oral testimony, I could not help but wonder how, an educated person like the respondent, could be so naive about the law that he was unable to seek an extension of the 8 months from the Court which convicted him, let alone seek legal advice. After hearing him and observing his demeanour, I am not convinced of the reasons for his failure to comply with the Court order of 30th April, 1996.

The respondent is an accountant by profession. I observed him to be a very intelligent man with a very good command of the English language. I do not believe that he was so naive of the law as he asserted. Rather, he was a very impressive witness, whom I consider, gave evidence of a convoluted picture of the whole scenario of his incapacity to satisfy the restitution order.

His own evidence did not convince me that he was honest about his attempts to settle this matter. The least he could have done, in my view, was to seek legal advice when he knew he was incapable of restitution by end of December, 1996. A person of his standing would have sought legal advice as to his position if he did not make full restitution. In my view, the respondent’s failure was not as a result of his ignorance, but rather a deliberate disregard for the authority of this Court calculated to flout the constitutional existence of this Court. Plainly, the respondent, in my view was, recalcitrant rather than ignorant. He sat back and did nothing, thinking, I suppose, that the justice system would allow this matter to die a natural death. That is tantamount to a typical couldn’t care less attitude.

The memorandum of costs for the sum of K48,640.00 which forms part of the respondent’s evidence, is for work done and services rendered...“for the duration of period to 31st January, 1985.” How is it that there is no written demand for the settlement of the debt for two years until last week? Certainly, it was not a coincidence that the letter from Kove Holdings Pty Ltd to Nam Yang Timber (PNG) Pty Ltd was dated 30th January, 1997. As I alluded to, I was impressed with the respondent, but more so with his intelligence, rather than his reasons. For he did nothing soon after he was convicted and sentenced, until he was arrested last week.

Initially, I felt that the respondent should be imprisoned forthwith, however, in view of his evidence that he has the sum of K10,000.00 available and his bill of costs totalling K48,640.00 should be settled shortly, together with another bill for K5,000.00, I consider it appropriate to defer enforcing the 18 months imprisonment for a short time.

I will therefore make the following orders:

1. The respondent pays to Kolta & Associates forthwith, the sum of K10,000.00.

2. The respondent files a notice of payment and a acknowledgement of payment within 24 hours of payment.

3. The respondent is allowed bail in his own recognizance in the sum of K2,000.00 (not cash).

4. The respondent pays to Kolta & Associates the balance of K7,000.00 within 14 days from today, and files a notice of payment and a acknowledgement of payment on the fourteenth day.

5. This matter is adjourned to 9.30 am on Wednesday, 19th February, 1997.

Lawyer for Applicant: Public Prosecutor

Lawyer for Respondent: Maladina Lawyers